1 1266.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1266 OF 2010 IN CRIMINAL APPEAL NO.1055 OF 2008 Nitin Dattatray Kasbe ....Applicant Versus The State of Maharashtra ....Respondent ....... Ms.Revati Mohite Dere for Applicant. Mr.J.P.Yagnik, A.P.P. for Respondent. ...... CORAM:- A.M.KHANWILKAR AND P.D.KODE, JJ. DATED:- OCTOBER 29, 2010. P.C. 1. Heard Counsel for the Applicant and the learned A.P.P. Perused the relevant documents to which our attention is invited to by the Counsel appearing for the respective parties. 2. This Application is for bail filed by the original accused No.5 Nitin Dattatray Kasbe. Indeed, the said accused is convicted and sentenced for offence punishable under Sections 143, 147, 148, 324, 302 and 504 r/w 149 of the Indian Penal Code. However, prima facie, we find substance in the argument of 2 1266.10 the Applicant that the evidence on record is not enough to record finding of guilt with regard to the offence of murder against the Applicant before this Court. Further, the Applicant is entitled to get benefit of doubt. In that, neither the Complainant nor PW 2 who have mentioned about the involvement of Applicant/accused No.5 Nitin Dattatray Kasbe in their original statements before the Police or for that matter, in the supplementary statements. They have spoken about the name and involvement of Applicant/accused No.5 for the first time before the Court during the recording of evidence. This aspect has been considered by the Trial Court while analysing the evidence, amongst others, in Paragraphs 12 and 13 of the impugned Judgment. In our opinion, it is not correct to suggests that the benefit of such omission and improvement should enure to the prosecution but should be extended to the accused whose name did not appear in the original statement or supplementary statement recorded before the Police. Besides, no recovery of any weapon or incriminating material has been made at the instance of the Applicant before us. The evidence of PW 2 and 4 suggests that weapon was used by accused Bhalchandra and accused Baba Gaikwad. 3. Taking overall view of the matter therefore, in our opinion, the Applicant deserves to be granted bail. The Appeal has already been admitted and it is 3 1266.10 unlikely that the same will reach for hearing in the near future. Accordingly, we direct release of the Applicant/accused No.5 on bail on the following terms: ORDER (i) Applicant/Accused No.5 Nitin Dattatray Kasbe is ordered to be released on bail, on executing bail bond in the sum of Rs.25,000/- (Rupees Twenty-five Thousand) with one or two sureties in the like amount. (ii)While on bail, Applicant shall attend Swargate Police Station, Pune, once in a month on 1st Monday of every English Calender Month till further orders to be passed by this Court and/or disposal of the Appeal. (iii) Needless to say that the Applicant is expected not to threaten the witnesses and not to indulge in illegal activities. (iv) Needless to say further that in case he commits breach of the aforestated conditions, the Police will be free to move for cancellation of bail. 4 1266.10 4. Application stands disposed of on the above terms. 5. Needless to mention that the observations made hitherto are only for considering the prayer for bail and will not influence the merits of the Appeal pending before this Court. (P.D.KODE, J.) (A.M.KHANWILKAR, J.)