(1) CRI. APLN. 5154.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.5154 OF 2010 Irshad Shabbir Shaikh, Age : 25 years, Occu.: Labourer, R/o. Katwan Khandoba Road, Ahmednagar, Tq. and Dist. Ahmendnagar Applicant VERSUS The State of Maharashtra Respondent ..... Mr. Joydeep Chatterji, Advocate for the Applicant. Mr. N.H. Borade, A.P.P. for the Respondent/State. ..... CORAM : V.R. KINGAONKAR, J. DATED : 16TH DECEMBER, 2010 ORAL ORDER:- 1. This is an Application for bail. 2. Heard learned Advocate for the applicant and learned A.P.P. Perused the investigation papers. The investigation is completed and chargesheet is filed. 3. The deceased by name Babu Waghmare was the son of the first informant Sangita Waghmare. Allegedly, on 25.8.2010 at about 1.00 am, he was (2) CRI. APLN. 5154.2010 forcibly abducted by some of the culprits. The informant saw that 5-6 culprits were abusing and pushing away Babu and had forcibly placed him in an auto-rickshaw. She named three of the members of the group comprising of 5-6 persons. She narrated further that those culprits had taken Babu in the auto- rickshaw towards a place behind the S.T. stand. She went to the Police Station for the purpose of lodging the report, but her complaint was not taken down and therefore she again went to the S.T. stand. She learnt that Babu was taken elsewhere in the auto- rickshaw. In the morning she received information that Babu was admitted in Civil Hospital. On enquiry, Babu narrated to her that 7-8 persons had transported him in a van to Burhannagar locality and assaulted him at a place. He named two persons who severely assaulted him. He told the informant that after heavy beating, he was dropped in front of the Civil Hospital by the assailants. It appears that name of the applicant was not revealed to the first informant by deceased-Babu Waghmare as member of the group of assailants nor she identified the applicant during the course of T.I.P. (Test Identification (3) CRI. APLN. 5154.2010 Parade) as the members of the group of assailants. What appears from the statement of one Kailas Chavan, who is a vada-pav vendor, that the applicant was in the group of the assailants who were seen beating deceased-Babu at a place in front of Samrat Travel's Office. He has further not attributed any particular role to the applicant. Obviously, there is no tangible material to infer that the applicant was armed with any dangerous weapon and immediately participated in the course of assault mounted on deceased Babu. The learned A.P.P. points out that there is also oral dying declaration narrated by P.W. Asha Harish Waghmare and Sunita Dhonde Patil. It is pertinent to note that in the statement of Sunita Dhode Patil the name of the present applicant is not revealed. Though Asha Waghmare refers to the applicant as a member of the group of the assailants yet one cannot be oblivious of the fact that she is the sister-in-law of deceased-Babu and prima facie an interested witness. 4. Having regard to the attending circumstances and the relevant material on record, there appears no (4) CRI. APLN. 5154.2010 direct evidence to infer complicity of the applicant and therefore, he is entitled to seek liberty. For, his case is different from that of others who are named by the mother of deceased-Babu or the eye witnesses. Hence, the Application is allowed. The applicant is directed to be released on bail on furnishing of bail bonds in sum of Rs.20,000/- (Rs.Twenty Thousand) with a solvent surety in the like sum and on further condition that he shall not enter limits of Ahmednagar city during the pendency of the Sessions case except and save on the effective dates of hearing of the Sessions case or if so required for in urgent matter, with the leave of the Sessions Judge. He shall furnish an undertaking to such an effect alongwith the bail bonds before the Sessions Court. Sd/- [V. R. KINGAONKAR, J.] arp