IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.170 OF 2009 Bharat Balaram Sharma ...Applicant Vs. The State of Maharashtra ...Respondent ---- Shri Prashant Gurav for Applicant Shri Mukesh Subramaniam for Complainant Shri S.R. Shinde, APP for State ----- CORAM: V.M. KANADE J. DATED 3RD FEBRUARY, 2009 P.C. 1. Heard the learned Counsel appearing on behalf of the Applicant and the learned APP for the State and also the learned Counsel appearing on behalf of the Complainant. 2. The Applicant has been arrested in connection with an offence punishable under sections 380, 454 r/w. 34 of the Indian Penal Code. 3. The prosecution case is that on 3.7.2008, the Complainant' s daughter came home, she found that a theft was committed in the house of the complainant and, thereafter, she noticed that their watchman Ram Adhikari was not present in the bungalow premises. The Complainant, therefore, lodged a complaint against the said watchman Ram Adhikari and two other unknown persons. 4. The Applicant was working as a watchman in the building where the complainant's husband having an office for a period of seven years prior to the said incident. Before the alleged offence took place, the Accused left for his village situated at Nepal in the month of March,2008. The Applicant was arrested and other persons were also arrested. Recovery was made at the instance of other two persons. No recovery has been made at the instance of the present Applicant. 5. It is the prosecution case that the Applicant is the main conspirator, who has made a conspiracy of committing theft in the house of the Complainant. 6. The learned Counsel appearing on behalf of the Applicant submitted that there was no material on record to indicate that any such conspiracy has been made by the Applicant or that he has informed in any manner to the other accused. 7. The learned APP for the State has invited my attention to the statements of three witnesses and to the recovery panchnama, which indicate that certain amount was recovered at the instance of the other accused. 8. The learned Counsel for the Complainant submitted that the Applicant belongs to Nepal Country and that if the bail is granted to him, he is likely to be absconded. He has invited my attention to the judgment of the Apex Court in the case of Narayan Ghosh vs. State of Orissa (2008) 3 Supreme Court Cases 698 in which the Apex Court has held that if the presence of the accused cannot be secured, then bail should not be granted in his favour. The Supreme Court has also relied upon the similar judgment in the case of Union of India vs. Abdul Momin reported in (2005) 13 Supreme Court Cases 144. 9. In my view, perusal of the statements of three witnesses clearly indicate that no role has been attributed to the present Applicant by the said witnesses. The prosecution story has stated that merely introducing one person to work in his absence, the Complainant himself, in any manner, cannot implicate the present Applicant, who has stated that he was working in the building where the Complainant's husband having his office. 10. Perusal of the said statement thus indicates that no role has been attributed to the present Applicant. Admittedly, no recovery made at his instance. In my view, the Applicant deserves to be released on bail subject to certain conditions being imposed on him: (i) The Applicant be released on bail in a sum of Rs.10,000/- with one or two sureties in the like amount. (ii) The Applicant shall report to the Dahisar Police Station twice in a week on Monday and Saturday between 11 a.m. & 2 p.m. till disposal of the case. (iii) The Applicant shall not threaten the witnesses or tamper with the evidence. (iv) Applicant shall give one local surety. 11. Application is, accordingly, disposed of. V.M. KANADE J.