1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE CRIMINAL APPLICATION NO.1252 OF 2009 IN CRIMINAL APPEAL NO. 977 OF 2009 UPENDRA ARJUN GAUND .. APPLICANT VERSUS STATE OF MAHARASHTRA .. RESPONDENTS Mr. Prakash Naik for the applicant Ms. P. H. Kantharia, APP Mr. N. Bhutekar for Original complainant CORAM: SMT. RANJANA DESAI & SMT. MRIDULA BHATKAR,JJ. DATED: 9th February, 2010 P.C. The applicant was tried along with two others in Sessions Case No. 75 of 2007 for offences under Section 302, 307 read with 34 of the Indian Penal Code (”IPC” for short). Two of the accused were absconding. Their case was 2 separated. At the outset, we must state that by order dated 3/7/09 passed by the Division Bench to which one of us (Smt. Ranjana Desai, J.) was a party, original accused 5 was released on bail. By order dated 24/8/09 the Division Bench of this court presided over by Justice Bilal Nazki released original accused 4. The present applicant is original accused 1. 2. We have heard at some length Mr. Naik, learned counsel for the applicant and learned APP. 3. The incident in question took place on 2/1/01. FIR was lodged by PW 1 on that day. PW 1 claims that he knows the applicant. However, in the FIR, PW 1 did not mention the name of the present applicant. He gave description of all the accused and stated that, if they are shown to him he would be able to identify them. On 4/1/01 a supplementary statement came to be recorded in which he referred to the applicant. PW 3 is a person who resides in the same locality. He took PW 1 to the hospital, however PW 1 did not inform him that the applicant was his assailant. PW 1 was examined by PW 7 Dr. Rajendraprasad on 2/1/01. PW 7 has stated that PW 1 did not give history of assault by the applicant. 4. If PW 1 knew the applicant then his not mentioning the name of the applicant in the FIR and also to PW 3 and PW 7, in our prima facie opinion, is 3 significant. In his cross-examination PW 1 has stated that he was conscious. According to him his statement was recorded in Marathi and he did not understand it. Prima facie, we are unable to appreciate this explanation. If he was conscious and if he had seen the applicant he would have certainly given the name of applicant to the police. This prima facie creates doubt about the prosecution case. Apart from this evidence, there is no other clinching evidence,which in our opinion can connect the present applicant to the crime in question. There is no recovery at the instance of the applicant. In any case the role assigned to him is that he was standing when the incident occurred and he instigated the other accused. Indeed a belated recovery of sticks is alleged by the prosecution and on sticks blood of “O” group is said to have been found. However, blood group of the deceased could not be ascertained. Morever, if no role is assigned to the applicant then finding of blood on the sticks is not an incriminating circumstances against the present applicant. Besides the applicant was on bail in the trial court. 5. Undoubtedly in order dated 3/7/09 we have deprecated the applicant’s conduct of absconding after conviction. We had said that he was in Mumbai when the murder took place. Therefore, his case stands on different footing. But we must note that his application was not before us and, therefore, we had not considered his case in depth. His conduct of not remaining present at the time of conviction and not being available thereafter is sought to be explained 4 by him. That explanation, in our opinion, is not acceptable. But for that it is not possible for us to deny him bail when prima facie, we find that the evidence against him is not credible. We, however, feel that because of his conduct stringent conditions need to be imposed on him. Hence, the following order: Applicant Upendra Arjun Gaund, is ordered to be released on bail in the sum of Rs.30,000/- with one or two sureties to make up the amount. While on bail the applicant shall stay outside the jurisdiction of Nalasopara Police Station. He shall inform the police the address where he proposes to reside and he shall attend the nearest police station once in a month. Application is disposed of in the aforestated terms. (SMT. RANJANA DESAI, J.) (SMT. MRIDULA BHATKAR, J.)