1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application No. 3479/2009 [KAILAS SARDAR CHAVNA VS. STATE OF MAHARASHTRA ] ..................................................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ..................................................................................................................................................................... Mr. N.A.Badar, Advocate, for the applicant. Mr. D.P.Thakare, APP , for respondent. .......... CORAM : P.D. KODE, J. DATE : DECEMBER 10, 2009. Heard. The applicant/accused arrested and charge sheeted along with one more accused by Police Station Borakhedi, District Buldhana, in connection with Crime No. 10/2009, registered on 23.01.2009 for commission of offence punishable under Section 302, 201 r/w Section 34 of I.P.C., has prayed for a bail. The said crime has been registered upon the first information report lodged by the father of the deceased residing at village Varkhedi, Tq. Soygaon, Distt. Aurangabad, regarding an incident which had taken place on 15.1.2009 at village Nimkhed, Tq. Motala, Distt. Buldhana, in which son of deceased was said to have been assaulted by the applicant and co-accused during the quarrel ensued in a party arranged in between them and during which the applicant himself along with co-accused 2 said to have assaulted the deceased and during same applicant having hit deceased on head by stone and thereafter himself and co-accused having continued to assault the deceased and ultimately having pushed the deceased in a well. The copy of post-mortem report submitted along with the charge sheet shown by the learned APP reveals that the death had occurred due to head injury. The first information report amongst others also reveals that the first informant after receipt of phone call from Motala regarding death of his son having ensued due to fall in a well, had been to village Motala and having gathered about the events occurred from his daughter-in- law Geetabai, who in her turn had gathered about the same from her son Vishal who is also said to had been at the place of incident/party due to the deceased having asked him to bring initially Roties from his house and later on battery from the house of the applicant. The learned counsel for the applicant amongst others has urged that co-accused who had also played a similar role i.e. accused Ramesh, have been released on bail by this Court vide order dated 18th September, 2009, and as such upon the principle of parity, the applicant also deserves to be released on bail as there is no much difference in the acts committed by the said accused and the applicant, with an exception that in the hit of moment, the applicant having once used the stone. The learned counsel for the applicant has 3 further urged that the explanation given by the first informant for lodging the report after about 8 days of occurrence of an incident is neither convincing nor probable. He has urged that investigation of the involvement of an applicant being emanating from material which is admittedly collected after about 6 days of occurrence of an incident smacks concoction as the same is forth coming only from persons who are related to the deceased. The learned counsel for the applicant further urged that this court being empowered to enlarge the accused person on bail, even accused for commission of offence punishable for death and imprisonment of life, in facts and circumstances of the present case, which amongst others also indicates that the incident had occurred at the spur of moment and the offence allegedly committed as revealed from the material collected may not transcend beyond commission of an offence under Section 304 Part II of I.P.C and the applicant having not any criminal antecedent, the discretion deserves to be exercised in releasing the applicant on bail as such a release is unlikely to result in any danger to the society but on the contrary, the refusal may result in severe hardship for the applicant. Learned APP has objected the request on the count of role played by the applicant being not identical as that of co-accused, who was released on bail. The learned APP has further urged that prima facie consideration of 4 material itself reveals that the applicant has also used the stone for hitting head of the deceased. He has thus contended that considering the role played by the applicant, prayer for bail deserves to be rejected. After giving the anxious consideration to the submissions advanced by both the sides and after perusing the material in the charge sheet given by the learned APP, the submissions of the learned counsel for the applicant apparently appears to be prima facie supported from the same. Apart from there being delay in lodging the first information report and consequently recording of statement of sole eye-witness, the relevant material against the applicant is in the shape of the statement of witness closely related with deceased. Having regard to the same and having regard to the delay caused in reporting the matter to the police and also taking into account the manner in which the incident had taken place, and same amongst others prima facie revealing that the same had occurred at the spur of moment, the statement of the learned counsel that the applicant might have used the stone in a heat of moment prima facie cannot be said to be altogether devoid of merit, in view of account of incident not disclosing repeated use of stone by applicant. Having regard to the same and having regard to the fact that there are no antecedents and the co- accused who had almost played the similar role with a little variation being released on bail, the prayer for bail 5 deserves to be considered upon principle of parity, but by imposing strict condition. Hence the order. The applicant/accused is directed to be released on bail in connection with the said crime subject to himself furnishing a P.R.Bond in the sum of Rs. 50,000/- with one or more solvent sureties for making up the said amount and further subject to the condition that applicant shall (i) attend the police station once in a fortnight on Sunday between 11 a.m to 2 p.m. Untill conclusion of trial (ii) reside at the address mentioned in the application for bail and shall not change the same without the permission of the trial court; (iii) not directly or indirectly tamper with the prosecution evidence; (iv) not commit any offence while being on a bail granted by this order. Nothing in the aforesaid order should be construed as an opinion expressed by this court upon the merits of the matter as all the observations are made in the order strictly for the purposes of deciding merits of the prayer for bail made. Application stands disposed of. Hamdast allowed. JUDGE Rvjalit