1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. CRIMINAL APPLICATION (BA) No. 68/2011 ( Nilesh Kisanrao Jawarkar .vs. State of Mah. through PSO PS Chandur Bazar, Dist. Amravati. ) ------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders. and Registrar's orders Mr. R.M. Daga, Advocate for Applicant. Mr. D.P. Thakre, APP for Respondent. .......... CORAM : P.D. KODE, J. DATED : APRIL 20, 2011 Heard. By the present application, one of the accused out of four accused charge sheeted by Chandur Bazar Police Station, district Amravati, as a result of investigation of Crime No. 109/2009 registered on 30.7.2009 for offence under Section 302, 201 read with 34 of IPC, has prayed for bail. It is crux of the submissions of the learned counsel for the applicant that case of the applicant stands on par with case of co-accused Gajanan and Ritesh released on bail respectively vide order passed on 19.10.2010 by trial Court and vide order passed on 21.6.2010 by this Court and as such on principle of 2 parity the applicant also deserves to be released on bail. The learned counsel urged that the account of incident and/or the role played and/or the weapon used by the accused persons as revealed from statement of four eye witnesses for the crime in question exhibits glaring inconsistencies. Out of them Mohan Jawarkar claims all the four accused having assaulted the deceased by means of stick; while Vinayak claims the applicant and co-accused Gajanan having assaulted deceased with weapon alike iron pipes and Ritesh with stick; while Ganesh had not claimed any of the accused during assault having used the weapon; while Pradip Patil claims the applicant having used the rod for assaulting deceased on head and others having used sticks. The learned counsel further urged that considering such character of prosecution material, the applicant deserves to be released on bail. He further urged that reference to P.M. report reveals that the deceased had sustained two lacerated wounds and one stab wound. It is urged that thus account of incident as revealed from the said statement even prima facie fails to account for stab injury sustained by the deceased and the same prima facie creates reasonable doubt about their claim of having witnessed the incident. It is thus urged that having regard to the said circumstances and there being no material difference regarding the role played by the applicant and the other co-accused released on bail, on principle of parity he deserves to be released on bail. It is further urged that the observation 3 made in the order dated 21.6.2010 granting bail to Ritesh that the applicant is main assailant, will not prima facie deserves credence as P.M. notes reveals deceased having sustained two contused lacerated wounds on head while even the eye witness account of incident of three witnesses does not reveal the applicant having given two blows on head of the deceased and the sole witness Mohan claims of applicant having given a blow on the head of the deceased. The aforesaid submissions were countered by the learned APP by stating that there is positive material showing that the applicant had assaulted upon the head of the deceased and the death has been attributed due to trauma to the head and as such case of the applicant cannot be said to be on par with the other co-accused who are released on bail. After giving thoughtful consideration to the submissions advanced by both the sides, though at this stage prima facie it is difficult to accept the submission canvassed by learned counsel for the applicant that the case of the applicant is identical or on par with the accused Gajanan, still prima facie there appears much substance in the submissions canvassed of there being inconsistency in the account of incident as reflected from the material contained in the statement of four eye witnesses and so also with the medical evidence regarding the injuries as revealed from the P.M. report. Needless to add that the perusal of the material in the charge sheet supports submissions advanced by the learned counsel for the applicant regarding the material in the statement of eye witnesses. The same also 4 reveals that the prosecution case of the applicant having given a blow of pipe on head of deceased rests solely upon such a claim staked by witness Mohan only. At any rate the perusal does not reveal any specific material in the charge sheet denoting that applicant had given two blows upon the head of the deceased i.e. the blows which had caused two injuries upon the head of the deceased. Hardly there is any material in the charge sheet to account for stab injury sustained by the deceased. Having regard to the said facets and the other co-accused are released on bail, the applicant cannot be said to be not entitled for bail. The applicant is directed to be released on bail in connection with said crime upon furnishing P.R. Bond in the sum of Rs.1,00,000/- (Rs. One Lac) with two solvent sureties in like amount and subject to the conditions that applicant - (i) after his release on bail, shall stay outside the jurisdiction of Chandur Bazar Police Station and shall intimate his place of abode to the investigating officer and shall not change the same without the permission of the trial Court and shall also attend the said local Police Station within whose jurisdiction he would be staying on every Monday and Thursday in between 11 a.m & 2 p.m. for a period one month and thereafter on every Monday of month until further orders. It is clarified that in the event of commencement of within the said period, the applicant need not to attend the said Police station; (ii) shall not indulge in any activity of tampering prosecution evidence and/or indulge in any activity hampering the progress of the trial, 5 (iii) shall not commit any offence while on bail. The application stands disposed of. JUDGE halwai