1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. Criminal Application No. 3436/2009 ( Nandkishor Ramesh Gawai .vs. State of Mah. ) ------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders. and Registrar's orders Mr. R.M. Daga, Advocate for Applicant. Mr. A.D. Sonak, APP for Respondent. CORAM : P.D. KODE, J. DATED : DECEMBER 11, 2009 Heard. The prayer for bail made by accused Nandkishore arrested and charge sheeted by Warud Police Station in connection with Crime No. 9 of 2009 registered on 4.1.2009 at 9.40 p.m. for commission of offence punishable under Section 302 read with 34 of IPC is vehemently objected by the learned APP on the counts of (i) involvement of an applicant being borne out from the statement of eye witness Manohar Gawali recorded on the same day on which the incident had taken place; (ii) applicant/accused having absconded after the incident and having surrendered only after his application for anticipatory bail was rejected by the Court of Session and the same denoting that in the event of release on bail, the applicant may again flee away from justice and (iv) the witnesses being from the same village, there 2 being possibility of the applicant tampering the prosecution evidence. The perusal of the charge sheet supports the submission of the learned counsel for the applicant that the incident has suddenly taken place while returning from market in view of long standing dispute in between them regarding the landed property. The same also supports his further contention of the presence of the deceased at the spot prima facie being not borne by the account given by two other eye witnesses viz. Sahebrao and Dilip and prima facie contrary version has been found in a statement of one more witness by name Gunwant than the one reflected from the statement of Manohar relied by the prosecution. The further submission of the learned counsel for the applicant that in spite of incident having commenced due to applicant having given fist blow upon nose of deceased, none of the witnesses revealed any further role being played by the applicant and further more after injured/deceased having fallen due to receiving a blow from an axe given by the co-accused. The statement of the learned counsel for the applicant that during the entire incident the weapon was used only once for giving a blow is also prima facie found supported by the post mortem report. Having regard to such character of prosecution evidence, prima facie it is difficult to accept the submission of the learned APP that the involvement of an applicant in commission of offence punishable with death or imprisonment for life is borne from the same. Having regard to the same and further submission that excepting 3 the main accused who had given an axe blow, the other two accused are released on bail and/or anticipatory bail, the applicant has made out a case for grant of bail as the other apprehension expressed by the learned APP can be taken care of by imposing suitable conditions and the fact of abscondence by itself is not sufficient to infer even prima facie the guilt much less guilt for offence punishable with death or imprisonment for life. The applicant is directed to be released on bail on his executing a PR bond in a sum of Rs.50,000/- with one or more sureties to make up the amount and further subject to the conditions that applicant (i) attending Warud Police Station everyday for a period of one month in between 11 a.m. and 12 noon and thereafter every Monday for a period of one month, (ii) staying at the address mentioned in the application and not changing the same without prior permission of the Court, (iii) not tampering the prosecution evidence collected so far directly or indirectly and (iv) not committing any offence while being on bail granted by this order. It is further expressly recorded that the observations made in the aforesaid order being made strictly for the purposes of deciding the prayer for bail, nothing therein should be construed as an opinion expressed by this Court upon the merits of the matter. Application stands disposed of. In view of disposal of main application, Criminal Application (APPP) No. 319 of 2009 also stands disposed of. JUDGE halwai