1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. Criminal Application No. 3403/2009 (Narendra J. Chaudhary .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 Mr. A.S. Mardikar, Advocate for Applicant. Mrs. K.S. Joshi, APP for Respondent. CORAM : P.D. KODE, J. DATED : DECEMBER 3, 2009 Heard. By present application, applicant/accused arrested on 11.6.2009 by Shirajgaon Kasba Police Station in connection with Crime No. 46/2009 registered for commission of offence under Section 302 read with 34 of IPC and charge sheeted after investigation for commission of such offence has prayed for bail. The said crime was registered on 23.5.2009 upon FIR lodged by API P.P. Atram of the said Police Station as a result of report of Merg. No. 14/2009 registered with the said Police Station on 20.5.2009 upon the report of one Atul Gomkale of his uncle Ganesh Gomkale having committed suicide by hanging on a mango tree in the field. The Crime was registered for commission of offences under Section 302 of IPC as PM report received had revealed the death of said Ganesh Gomkale had occurred due to strangulation by rope around the neck 2 with signs of throttling and on 21.5.2009 said Atul Gomkale has lodged another report expressing suspicion that co-accused Diwakar Korde was author of the said crime as on 17.5.2009 deceased Ganesh had quarrel with Diwakar Korde and he had threatened Ganesh that he would be killed. The learned counsel for the applicant has urged that entire prosecution case rests upon circumstantial evidence as investigating agency has not been able to collect any direct evidence of the crime occurred. He further urged that the entire material is of fragile nature and even accepting the same as it is , the same is incapable of pointing towards guilt of an applicant much a less prima facie establishing the same for the offence alleged. The learned counsel urged that said entire material is in the nature of (i) deceased being seen in the company of the applicant and co-accused, (ii) deceased having dispute with co-accused and (iii) one witness having seen deceased being assaulted by applicant and the co-accused in the field of the deceased. The learned counsel further urged that the material regarding first circumstance in a shape of statement of witness Nilesh and Arun apart from prima facie being belated even otherwise also is inconsequential as the same by itself is prima facie incapable to drive to any plausible inference as the same fails to give precise time and the place at which the said witnesses had seen the deceased in company of applicant and co-accused. It is urged that having regard to the said aspect the same cannot be said to be establishing any 3 link of the said event with the death of deceased which is said to be have occurred in his field. The learned counsel further urged that the other material regarding the deceased having a dispute with the co-accused, in the shape of the statement of wife, son and father of the deceased is also prima facie inconsequential against the applicant as the same speaks about dispute of deceased with co-accused and not with the applicant. The learned counsel further urged that further material in a shape of statement of witness Janrao in the nature of the said witness having seen deceased being assaulted by applicant and co-accused in a field, from his field apart from being belated version of the said witness coupled with non-plausible explanation for the delay occurred in reporting the matter to the Police is also prima facie incredible and leads to nowhere due to absence of cogency therein to have any link with death of deceased occurred. The learned counsel has thus urged that after taking into consideration all the said material even together, the same by itself failing to prima facie establish nexus of the applicant with the crime occurred , the applicant has made a case for granting a bail as prayed. The application is opposed by the learned APP by pointing out that the opinion of a Doctor to the specific query made by the prosecution as to whether strangulation and throttling of deceased was possible to be effected by one person or the same would require involvement of more than one, being answered positively. 4 He has further urged that considering the circumstances as spelt out from the material collected by the prosecution, the same prima facie points out the involvement of the applicant in commission of offence alleged and hence he is not entitled for bail. After giving anxious consideration to the material in the case diary in light of the submission canvassed, there appears prima facie substance regarding submission canvassed by learned counsel for the applicant regarding the character of the prosecution material. Since it is settled legal position that in a cases based upon a circumstantial evidence, each of the circumstance relied is required to be established by cogent evidence and circumstance such established being further required to form a formidable chain leading to the sole inference compatible with the guilt of the accused and such a position being not prima facie seen from the material presently contained in a charge sheet due to lack of details to link the relevant circumstance with the place at which the dead body was found and or with death occurred and absence of material of probable motive for applicant for commission of offence and even the position regarding the material in shape of the alleged eye witness for some incident being somewhat the same as the said person of aged 79 though have claimed to have seen some event occurring at a distance away from his field again relevant lacking material to show nexus of the same with the death occurred, it is difficult to accept the submission canvassed by the learned APP that the said material prima facie reveals involvement of an applicant in commission of offence alleged against 5 him. Even accepting the submission of the learned APP that the opinion of the Doctor reveals possibility of involvement of more than one person in a crime occurred still merely on the said basis in absence of the other cogent material , the submission as canvassed by learned APP that the same considered along with other material points towards the involvement of an applicant in offence alleged cannot be accepted, even in prima facie. In the premises aforesaid, the submission of learned for the applicant of applicant having made out a case for a bail will deserve due credence. Hence the applicant is directed to be released on bail on his executing a PR bond in a sum of Rs.30,000/- subject to the conditions that the applicant (i) shall stay at the address mentioned in the application and shall not change the same without permission of the Court, (ii) shall not indulge in any activity to come in contact with the prosecution witness and/or in whatsoever manner attempt to tamper the prosecution evidence, and (iii) shall not commit any offence while being on bail vide this order. It is further expressly recorded that the observations made in the aforesaid order being made strictly for the purposes of deciding the prayer for bail, nothing therein should be construed as an opinion expressed by this Court upon the merits of the matter. Hamdast allowed. JUDGE halwai