HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR /media/Transcend/U.V. BAKRE/BA481.11.odt 1/5 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR. CRIMINAL APPLICATION (BA) NO. 477 OF 2011 (Shri. Wasimuddin S/o. Faimuddin Ansari @ Wasimuddin Khan S/o. Faimuddin Khan V/s. State of Maharashtra through P.S.O. P.S. Lakadganj, Nagpur) WITH CRIMINAL APPLICATION (BA) NO. 481 OF 2011 (Mohsin @ Mosim Khan S/o. Rashid Khan V/s. The State of Maharashtra through P.S.O. P.S. Lakadganj, Nagpur). ............................................................................................................ Mr. A. S. Manohar, Advocate for the Applicant in Cri. Appln. (BA) No. 477 of 2011 Mr. A. B. Mirza, Advocate for the Applicant in Cri. Appln. (BA) No. 481 of 2011 Mr. S. S. Doifode, A.P.P. for the Respondent in Cri. Applns (BA) No. 477 and 481 of 2011. ............................................................................................................ CORAM: U. V. BAKRE, J. DATE OF RESERVING ORDER : 14th SEPTEMBER, 2011. DATE OF PRONOUNCING ORDER : 15th SEPTEMBER, 2011. O R D E R: 1. This common order shall dispose of the above two applications for bail filed by the applicants who have been arrested in Crime No. 55/2011 registered at Police Station Lakadganj, Nagpur, for offence punishable under Sections 452, 324, 307, 302, and 212 read with Section 34 of the Indian Penal Code (hereinafter referred to as the “IPC”). 2. The charge-sheet has already been filed and the case has been committed to the Court of Session at Nagpur and is registered as Sessions Trial No. 274/2011. HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR /media/Transcend/U.V. BAKRE/BA481.11.odt 2/5 3. Case of the prosecution, in short, is as follows: (I) On 21/03/2011, the accused no. 1 Sachin Yadav and the applicant of the bail application No. 477/2011 namely Wasimuddin had been to the room of the deceased Sangita at Bhaskar Galli, Ganga Jamuna, Nagpur and the accused Sachin quarreled with the deceased asking her to marry with him and to allow him to live on the earning of the deceased through prostitution. (ii) On the next day i.e. on 22/03/2011, the four accused persons including the present applicants with a pre-plan and design to commit murder of Sangita went to the room of deceased Sangita and the applicant of the bail application No. 477/2011 (Wasimuddin) and Pramod @ Pintu caught hold of Ramadevi and assaulted her by kicks and fist blows whereas the accused Sachin and the applicant of the bail application No. 481/2011 (Mohsin) caught Sangita and Sachin inflicted knife injuries on her. The deceased Sangita died on the next day dueto the said injuries. 4. The applicants have alleged that in the F.I.R., Ramadevi has not named them and improvement has been made by her in her supplementary statement dated 30/03/2011. According to them, they have been falsely implicated in the case and that nothing incriminating has been seized from any of them. They have stated that they are sole bread earner in their family and are ready to abide by any conditions which may be imposed on them. HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR /media/Transcend/U.V. BAKRE/BA481.11.odt 3/5 5. On the other hand, by way of reply filed by the respondent, the respondent has resisted both the applications alleging that there are four eye-witnesses namely Ramadevi Mangalsingh Dhanavat, Rika Mangalsingh Dhanavat, Sheikh Afsar Wald Sheikh Ibrahim and Deepak Chandrakumar Awale. According to the respondent, the witnesses have specifically stated about overt act committed by both the applicants. It is also stated in the reply that the witnesses Ramadevi and Rika have identified Wasimuddin, Sachin and Pramod in a test identification parade conducted by the Executive Magistrate whereas the accused Mohsin was not arrested at that time. According to the respondent, there is strong prima facie case against the applicants and if they are released on bail, they may tamper with the prosecution witnesses. 6. Heard arguments. 7. Perused the case papers made available to me by the learned A.P.P. 8. It is seen from the first information report lodged by maternal aunt of the deceased namely Ramadevi on 22/03/2011, that it was only the accused Sachin who had come to the room and had assaulted Sangita with the knife. No other person has been named in the F.I.R. HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR /media/Transcend/U.V. BAKRE/BA481.11.odt 4/5 9. However, in the supplementary statement dated 30/03/2011, Ramadevi has changed the version by stating that on 21/03/2011, Sachin and Wasimuddin came to the room of Sangita and asked her to marry with Sachin and to look after him with the earnings of Sangita on prostitution and since Sangita refused, on 22/03/2011, all the four accused came to the room and Wasimuddin and Pramod @ Pintu caught Ramadevi whereas Sachin and Mohsin caught hold of Sangita and Sachin stabbed Sangita. 10. If the said supplementary statement of Ramadevi is compared with the statement of Rika Dhanavat, Sheikh Afsar and Deepak Awale, it is seen that they do not at all corroborate with each other. Sheikh Afsar and Deepak Awale have not named any of the accused persons. Sachin and Wasim were subsequently shown to Deepak at the police station. 11. The over all effect of the evidence prima facie reveals that Sachin is the main culprit in the crime. The evidence collected reveals that there are various sets of evidence (i) attributes overact to the applicants; (ii) does not at all attribute overact to them (iii) partly attributes overact to the applicants. 12. In my view, since there is prima facie inconsistency in evidence on record due to contradicting versions given by witnesses and further since now there is no possibility of collection of any further evidence since the charge-sheet has already been filed, both the applicants above named are entitled for bail though HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT NAGPUR /media/Transcend/U.V. BAKRE/BA481.11.odt 5/5 the same yardstick may not be applicable to the other accused persons. 13. The learned Counsel for the applicants have relied upon the order of the learned Single Judge of this Court dated 24/08/2007, in Criminal Application No. 2276/07 (Kalicharan Parmaja Nage ...vs.. The State of Maharashtra), wherein reference has been made to the decision reported in 2002 ALL MR (Cri) 573 (Rohidas Gangaram Jadhav Vs. The State of Maharashtra) and in Criminal Application No. 1744 of 2000 (Manohar Sane Vs. State of Maharashtra). It has been held in the cases supra that when there are two sets of evidence and prima facie inconsistency, the accused shall be entitled to be released on bail. 14. In view of the above, both the applications are allowed. The applicants shall each be released on bail in the said case upon execution of personal recognition bond of Rs. 25,000/- with one solvent surety in the like amount under condition that they shall not tamper with the prosecution witnesses and shall not leave India without previous permission of the trial Court. JUDGE Punde.