1 Cr. Appln. no. 4231.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.4231 OF 2009 Kishor S/o Kanifnath Warule Age 22 years,Occup.Agriculture, R/o Warulwadi,Ta.Nagar, District Ahmadnagar ... Applicant V E R S U S The State of Maharashtra Copy to be served on the Public Prosecutor High Court of Judicature of Bombay bench at Aurangabad. ... Respondent ... Mr. K.N.Lokhande, Advocate for Applicant. Smt. Y.M.Kshirsgar, A.P.P. for respondent-State. ... CORAM : A.V. POTDAR, J. DATED : 11TH DECEMBER, 2009 PER COURT 1] By the present application, the applicant has prayed for his release on bail, in connection with Crime No. 135 of 2009 registered with Tophkhana Police station Ahmednagar for the offences punishable under section 302,201 read with section 34 of the Indian Penal Code. 2] Heard learned counsel appearing for the applicant followed by submission of the learned 2 Cr. Appln. no. 4231.09 A.P.P. Also perused the papers of investigation till carried out, which are available before me for perusal. 3] During the course of submissions across the bar, it appears from this submissions as well as papers of investigation shows that on 29th March, 2009 this complaint came to be lodged in Tophkhana Police Station on the basis of complaint filed by Rajendra Bhaskar Salwi, who received a call from his sister that their grand-father Peter is murdered at his residential place. Thus, after the phone call received from his cousin sister, accordingly he went there and noticed as to situation of dead body and accordingly reported the incident to the Police Station. Accordingly, an offence came to be registered against unknown persons. During the course of investigation it appears that the present applicant/accused came to be arrested on 2nd April, 2009. After completion of investigation the charge-sheet came to be filed before the competent Criminal Court and on 25th June 2009, after passing necessary committal 3 Cr. Appln. no. 4231.09 orders, the case is committed to the Sessions Court and the same came to be registered as Sessions Case No. 128 of 2009. It is informed that the trial is already commenced against the applicant and other accused, as during the investigation the name of five persons came in the light as they are the persons who have committed murder of Peter. 4] Heard the learned counsel appearing for the applicant that since more than eight months the present applicant is behind bar and he has been arrested only on suspicion, hence he be released on bail. 5] According to the learned A.P.P. even though this is not a case of direct evidence but circumstantial evidence is collected during the investigation. According to her, it is the case of contract-killing, that the contract was given by Babli and on the basis of this contract Peter was murdered by the present applicant and other persons. During the course of investigation scooty 4 Cr. Appln. no. 4231.09 of the present applicant was found parked outside of premises of the deceased from where it was taken in charge. There is absolutely no explanation coming forth as to how the scooty of the present applicant reached there. Therefore, the learned A.P.P. for the respondent draw my attention towards the shop-keeper from whose shop rope and sickle were purchased by the present applicant before the murder of Peter took place. The statement of witness Babli came to be recorded during the course of investigation to whom this applicant and other persons arrested in connection with murder of Peter, had been to the house of Babli who had given contract of murder of Peter, immediately after the incident occurred on 29th March,2009. 6] Considering these submissions across the bar the fact remains that the case stand on circumstantial evidence and not on direct evidence. The fact remains that post mortem notes shows that the death of Peter occurred due to asphyxia due to Smothering. It is due to only 5 Cr. Appln. no. 4231.09 internal injuries which were found at lung. Heart of the deceased was found congested. If it is case of asphyxia due to smothering, then it is to be termed in the medical language that homicidal death, and not suicidal death and accidental death. In the present case, the important circumstance is scooty of the present applicant found parked out side of the residential premise of deceased Peter, who was murdered then there should be some probable explanation as to how this vehicle reached outside the premise of the deceased for which a plausible excuse or explanation is not coming forth. 7] While considering the case whether case is made out to enlarge the applicant on bail, this Court do not feel it necessary to enter into the merits of the matter but the fact remains that circumstances about the parking of the scooty out side of the residential house of the deceased Peter on the day of incident, meeting of the applicant with Babli soon after the incident occurred and identification by shop keeper of the 6 Cr. Appln. no. 4231.09 present applicant about the purchase of rope and sickle from the shop, indicate the involvement of the applicant in the crime. If it is so, the trial is already commenced against the applicant, it is not safe to enlarge the applicant at this stage. At this stage, if the applicant is enlarged on bail, there is every likely hood of tampering of the witnesses of prosecution. In the result, the application fails. Application being sans merit, hence is liable to be rejected. In the premise, following is the order. ORDER. (I) Application stands rejected. (A.V. POTDAR, J.) MTK/