1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 4600 OF 2009 Ritesh Vasant Jain ....Applicant Vs. The State of Maharashtra ....Respondent ----- Mr.A.P. Mundargi, Senior Counsel i/b. Mr.Avinash Kamkhedkar Mr.H.J. Dedhia  APP for the State. ---- CORAM: V.M. KANADE J. DATED: 25TH NOVEMBER, 2009 P.C. 1. Heard the learned Counsel appearing on behalf of the Applicant and the learned APP for the State. 2. The Applicant was arrested on 21st May, 2009 in connection with an offence punishable under sections 302, 201 r/w. 34 of the Indian Penal Code vide C.R. No.63/2009 registered with Lonavala Police Station. 3. The prosecution case is that one Arun @ Shakil Burman was in the employment of the Accused No.1 Ashwin. The said Arun @ Shakil Burman was removed by the Accused No.1- Ashwin from his job and according to the prosecution, the deceased Arun @ Shakil Burman 2 used to blackmail the Accused No.1 and also used to threaten him on phone that he would kidnap his son and kill him. Thereafter, on 9th May, 2009, the dead body of the said Arun was found in Khandala and an FIR was registered against the unknown persons on 9.5.2009 and the Applicant was arrested on 21.5.2009. Charge sheet has been filed. The original Accused No.1 who had allegedly strangulated the said deceased, was released on bail by the Sessions Court on 11th September, 2009. The application for bail filed by the present Applicant- Original Accused No.2, however, was rejected. 4. The learned Senior Counsel for the Applicant submitted that there are eye witnesses to the said incident and prosecution case is based solely on the circumstantial evidence. It is submitted that the prosecution is relying on the recovery which was made at the instance of the present Applicant. One Ashfak has made a statement that the present Applicant purchased the paper spray and handcuffs and he identified the present Applicant as the person who had purchased the said paper spray and handcuffs. Shri Mundargi, the learned Senior Counsel for the Applicant submitted that it is not established by the prosecution that the Applicant had purchased the same paper spray and handcuffs which were recovered from 3 the person of deceased. It was submitted that though the said Ashfak had identified the present Applicant, he did not identify the handcuffs on the person of deceased and as such, this recovery of the articles was not material and could not be relied upon. He submitted that prosecution has relied on the mobile phone and alleged conversation on the mobile phone between the present Applicant and the deceased. One chit was found in the pant of the deceased, in which the phone number of the Applicant was mentioned. The prosecution case is that the said number was the mobile number of the Applicant and that the deceased had made phone calls on the said mobile number. The learned Senior Counsel firstly submitted that in the FIR which was registered by the First Informant viz. the Police Officer, in which it is clearly stated that nothing was found in the pant s pocket of the deceased, though in the panchnama which was conducted, it has been stated that one chit having the said mobile number was recovered. He then invited my attention to the statement of the First Informant who had stated in his statement, which was recorded after two months, that when he had taken search of the deceased, inadvertently he did not notice the said chit. He, therefore, submitted that hearing of the telephonic conversation is clearly an after-thought and the said chit and number was planted by the 4 prosecution. He submitted that, therefore, no reliance could be placed on the said conversation between the deceased and the Applicant. He then invited my attention to the letter dated 18th May, 2009, which was written to the Superintendent of Police by the Company by name Idea Cellular Limited wherein the name of Suraj Pratap Shankar, who was the subscriber of the said mobile, was mentioned. He submitted that the statement of the Suraj Pratap Shankar was not recorded by the police and, as such, he submitted that it could not be said that the said number belonged to the Applicant herein. He further submitted that there were two other witnesses on which reliance is placed by the prosecution viz. wife of the Accused No.1 who had stated that the Accused No.1 had confessed in person that he killed the deceased. He submitted that the said statement was not admissible since the said statement was in respect of confession given by the Accused No.1 in the presence of a police officer and, therefore, it was clearly hit by section 25 of the Evidence Act. He also invited my attention to the statement of one John. He submitted that, therefore, there was no material on record to indicate that the Applicant had any role to play in the alleged commission of the said offence. 5 5. There is some substance in the statement made by the learned Senior Counsel for the Applicant. The aforesaid submission made by the Senior Counsel, therefore, will have to be accepted. The recovery of the original seat cover having blood stains cannot be a circumstance to link the present Applicant since no recovery has been made by the police showing that the blood on the seat cover was of the deceased. Mere identification by Ashfak of the Applicant, who purchased the paper-spray and handcuffs also would not be sufficient since it does not link the present Applicant with the commission of the said offence. One of the witnesses John also in his statement has stated that the Accused No.1 told him that if the deceased contacts him, he should be accosted and taken to the police and complaint should be lodged against him. The deceased appears to be a person who was blackmailing the present Applicant and also threatening him. A N.C. Complaint was lodged by the Accused No.1 against the said deceased. Though there was previous enmity between the two and the Applicant had motive to kill the deceased, that itself is not sufficient to establish that the Applicant had committed the said offence. Taking over all view of the matter, therefore, the Applicant deserves to be released on bail. 6 6. The Applicant, therefore, be released on bail in a sum of Rs.5,000/- with one or two sureties in the like amount. He shall report to the concerned police station once in a month. 7. The Trial Court shall not be influenced in any manner by the observations made by this Court while deciding the case since these observations are essentially prima facie nature. The Court while considering an application cannot weigh and sift the evidence, however, it can prima facie form an opinion in order to find out the possibility of the prosecution not establishing any case against the Applicant and if it comes to that conclusion, the Court may consider granting bail to the Applicant. This becomes necessary because the trial does not begin for quite some time and the matters remain pending in the Court for years together and, therefore, the Court also takes into consideration this aspect. The Trial Court, therefore, to decide the case on merits and in accordance with law. 8. Application is disposed of. (V.M. KANADE J.)