FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CRIMINAL APPLICATION NO. 1978/2008 (Manohar Shriram Harde & Shrikant Manohar Harde 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. CORAM : S.R.DONGAONKAR, J DATED : 8 th SEPTEMBER, 2008. Heard Shri R.M.Daga, Advocate, for the applicants and Shri A.S.Sonare, APP for respondent. It appears that the applicants are apprehending arrest for the offence u/s 302 r/w 34 of the IPC in Crime No. 33/2008, registered on 13.4.2008 at Police Station Jawahar Nagar, Distt. Bhandara. The important facts which are to be noted are that, on 30.4.2008 following order was passed by the Ad-hoc Additional Sessions Judge, Bhandara, “Application is hereby allowed. Anticipatory bail granted in favour of both the applicants sands confirmed till one month i.e. up to 30.5.2008. Applicants will be at liberty to apply for further anticipatory bail by filing separate application. It was observed by him that initially police registered an offence punishable under Section 306 IPC. Thereafter, police added offence punishable under Section 302 of IPC. Police recorded statement of witnesses. But learned APP failed to show the learned Judge any statement of any witnesses that both the applicants were involved in that crime. Later on, the learned Ad-hoc Additional Sessions Judge cancelled the ad-interim anticipatory bail granted to the applicants. By this application, the applicants are claiming anticipatory bail. It would be seen that the offence was registered under Section 306 r/w 34 of the IPC on 13.4.2008 and later on, it was converted into offence under Section 302 of the IPC. I had specifically asked the respondent State to submit the affidavits of the Investigating Officer to point out as to what had made the investigating Agency to covert the offence u/s 306 of the IPC into one under Section 302 of the IPC. After several chances, affidavit of one Yadaorao Kokate, API, ACB, Bhandara, has been filed on 25.8.2008. Even on perusal of the same, it appears that on 13.4.2008 everything which was available while converting that offence u/s 302 of the IPC, was available, still the offence u/s 306 of the IPC was registered. Even the statement heavily relied by the prosecution of the witness Yamunabai was recorded on 12.4.2008, so also the statement of the father of the deceased. It is really surprising that the facts which were made the prosecution to covert the offence into one u/s 302 of the IPC, though were available on 13.4.2008, still the offence was not registered u/s 302 of the IPC and the same came to be registered by the superior officers on 16.4.2008, on the same material. As regards the offence u/s 302 of the IPC, suffice it to say that there are statements of the father and one Yamunabai, which are pressed into service. Father has expressed suspicion about the murder of his son, whereas the witness Yamunabai refers only to the alleged voice from the Hostel, “TUMCHA MI KAY KELO, MALA MARTA, MALA WACHVA, MALA WACHVA”. She states that one Manoj Ghatbandhe had locked the gate and was seen going out of the Hostel. Learned APP is unable to point out that she has stated anything against the present applicants. The statement of one Shila Sarode has also been pressed into service to point out the evidence against the present applicants. It is to the effect that the said Manoj Ghatbandhe was followed by these applicants. It cannot be lost sight of the fact that this statement was recorded on 1.5.2008 and there is no explanation for delay in recording the statement. In these circumstances, the evidence against the present applicants appears to be quite weak as regards their involvement in the offence u/s 302 of the IPC. Of course, these observations are in prima facie view of the matter. Needless to say, these facts would not come in the way of applicants for refusal of their anticipatory bail. In these circumstances, in the event of arrest of the applicants for the offence u/ss 306, 302 r/w 34 of the IPC in Crime No. 33/2008 of Police Station Jawahar Nagar, Distt. Bhandara, each of them be released on bail on furnishing surety and P.R.Bond of Rs. 25,000/- each, subject to conditions that they shall not directly or indirectly tamper with the prosecution evidence and shall attend the police station as and when directed by the I.O. for the purposes of investigation. It is made clear that the above observations are in prima facie view of the matter and therefore, they shall not influence the learned trial Judge while deciding anything on merits. Application stands disposed of. Hamdast granted. JUDGE Rvjalit