IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.36055 of 2009 NITYANAND PANDEY @ VINAY PANDEY S/O DAYANAND PANDEY @ SACHIDANAND PANDEY VILL.- ONDA, POLICE STATION- SARE, DISTT.- NALANDA ….Petitioner. Versus THE STATE OF BIHAR ----------- 2. 03.11.2009. Heard counsel for the petitioner, counsel for the State as also counsel for the informant. The case against the petitioner for offence under Section 302 and other allied offence of Indian Penal Code is based on circumstantial evidence, one arising out of the presumption that the petitioner was last seen with the accused. It is said that the son of the informant had gone to Mela in the night of 17.5.2009 along with the petitioner and his brother but when he did not return even in next 24 hours, the informant had initially lodged a Sanaha (information) to the police on the next date i.e. on 18.5.2009 and the dead body was recovered after four days i.e. 21.5.2009 from a well and it is only thereafter a formal FIR was lodged alleging that the son of the informant was done to death by the petitioner and his brother in suspicious circumstances due to 2 previous enmity arising out of theft of mobile of the deceased. Counsel for the petitioner has pointed out that even if the entire allegation in the first information report is taken to be correct, the fact that the informant did not disclose the name of the petitioner to have accompanied his son to the Mela in his earliest information i.e. SANHA filed before police on 18.5.2009 itself would be sufficient to establish false implication of the petitioner inasmuch as he was named only in the FIR filed on 21.5.2009. Counsel for the petitioner seems to be correct because it is admitted in the first information report recorded on 21.5.2009 that when the son of informant did not return from Mela in the night of 17.5.2009 the informant had lodged SANHA on 18.5.2009 before the police in which though he had stated about son going to Mela but he did not name the petitioner or his brother to have accompanied his son to Mela. Thus this vital omission in SANHA and improvement made by the informant in F.I.R. would rather weaken the case of prosecution. Added to it 3 when there is nothing in case diary to show that the petitioner was seen with the deceased either in Mela or any other circumstances to connect killing of the son of the informant, the allegation against the petitioner did not get substantiated even in course of investigation. Counsel for the informant however was quite emphatic that Dy. S.P. in his supervision note has found the allegation against the petitioner to be true but he too could not point out any particular statement of any witnesses on the basis of which the Dy. S. P. has gone to form such an opinion. As noted above, no one claims to have seen the petitioner with the informant’s son in the Mela or the petitioner to be last seen person along with the son of the informant. Considering all these aspects and also taking into account that the petitioner has got no criminal antecedent, this court would direct for release of the petitioner namely, Nityanand Pandey @ Vinay Pandey on bail on his furnishing bail bond of Rs.10,000/-(ten thousand) with two sureties of the like amount each to the satisfaction 4 of Chief Judicial Magistrate, Nalanda at Biharsharif in connection with Sare P. S. Case No. 51 of 2009, subject to the condition that one of the bailors must be either parents or wife of the petitioner and that the petitioner will remain present in course of trial regularly and punctually and his absence of two consecutive dates itself shall entail the automatic consequence of cancellation of his bail under this order. kanchan (Mihir Kumar Jha, J.)