1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. CRIMINAL APPLICATION (BA) No. 71/2011 (Umakant Ramavatar Nishad .vs. State of Mah. through PSO PS Ballarpur, Dist. Chandrapur. ) ------------------------------------------------------------------------------------------------- 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. A.S. Sonare, APP for Respondent. .......... CORAM : P.D. KODE, J. DATED : MAY 03, 2011 Heard. The prayer for bail made by the applicant/accused charge sheeted by Ballarpur Police Station as a result of investigation of Crime No. 92/2010 registered on 9.6.2010 for offences under Sections 302, 376(g) of IPC and Section 3(2)(5) and 3 (1)(12) of Scheduled Castes and Scheduled Tribes ( Prevention of Atrocities) Act, is objected by the learned APP on the count that the material collected during the investigation prima facie shows the involvement of the applicant in commission of offences for which he is charge sheeted. The said crime was registered upon police receiving information of dead body with injuries was found lying in an open place behind Bhalerao Convent, Gorakshan Ward, Ballarsha and said information being found true after the police visiting said spot. The 2 investigation effected revealed that said body was of one Sonam who after ravishing was murdered by strangulation. It is not in dispute that no eye witness could be traced for the crime committed and the prosecution case squarely rests upon the circumstantial evidence collected during the investigation. The learned counsel for the applicant urged that the prosecution material accepted as it is, does not transcend beyond casting suspicion regarding involvement of the applicant in the crime alleged only on the count of firstly the applicant said to having a motive for killing the deceased as earlier he had an affair with her but lateron he had refused to marry her and was to marry with some other girl and thereon deceased being after him for marrying her and secondly, applicant having allegedly talked with her on mobile at about 7 pm or thereabout on the day of the incident. It is urged that the material regarding the said two aspects and other prosecution material prima facie fails to form a formidable chain of circumstances leading to the sole inference of the guilt of the applicant. The perusal of the charge sheet prima facie supports said submission canvassed by the learned counsel for the applicant. Though material in the statement of star prosecution witness Dharam Sathe , a pan shopkeeper, reveals that at about 7 p.m. or thereabout on the relevant day, the applicant has given a phone call to some girl and called her behind Bhalerao Convent and offered his friend to join him for enjoyment with the girl called at the said place, the said material even examined in light of the call record details of the 3 phone of the deceased collected by the prosecution prima facie fails to establish that during the relevant period i.e. after 7 pm the applicant had given call only to the victim. Such a prima facie inference emerges as though the record reveals call being received by victim girl from the applicant, hardly any record is produced by the prosecution regarding calls given by the applicant from his mobile at relevant time to exclude the possibility of the applicant having not given call to any other girl during the relevant period i.e. after 7 p.m. In view of the same , it is difficult to accept even prima facie that by production of such a record, prosecution has established that the call referred by Pan shopkeeper being the call given by the applicant to the deceased. Having regard to the same, there appears substance in the submission advanced by learned counsel for the applicant by drawing attention to the same call record produced by the prosecution that since the same also shows that deceased had also given calls to the applicant on the same day at about 1840 hours onwards , the same also shows that deceased was also talking with the applicant. It was thus rightly canvassed that hence merely on the basis of the call record of deceased showing one/two call was received from applicant , it cannot be said that the prosecution has prima facie established that call given by the applicant at about 7 p.m. and referred by Pan Shopkeper was given by him to the deceased calling her at Bhalerao Convent. Apart from the same, charge sheet does not contain any semblance of material for prima facie coming to the conclusion that applicant had been to the 4 place at which dead body was found or the place at which the crime was allegedly committed. Apart from there being no eye witness at least to the fact of applicant or co-accused being to the said place being not traced out during the investigation, no other material justifying drawing of such an inference is also collected during the course of investigation. Another circumstance relied by the prosecution that after giving a phone call at about 7 p.m., the friends of the applicant had purchased condoms from the medical shop, though is spelt from the other material collected, still hardly there is any material to establish that the condoms found at the spot are one and the same which were purchased by those friends from the shop. Though learned APP tried to urge that the condoms seized from the spot and the blood samples of the applicant and co-accused have been collected and the same are sent to C.A. , the reports about the same are also not received. Thus presently there exists no other evidence other than the material in the shape of the friend of the victim which amongst other indicates that the applicant was enraged due to deceased being after him for marriage even in spite of his refusal to marry him. Thus considering such character of evidence, it is difficult to negative prayer for bail. However, the learned APP having pointed out that there is likelihood of getting further evidence prima facie showing involvement of the applicant in the offence in the event of C.A. reports being positive, the prosecution be granted necessary liberty to move the Court for obtaining appropriate orders including 5 cancellation and/or modification of an order of bail in favour of the applicant, the said request will not be liable to be out-rightly rejected at this stage having regard to the serious nature of crime and the manner in which a young girl have been ravished for the lust and thereafter murdered. The applicant is directed to be released on bail in connection with said crime upon furnishing P.R. Bond in the sum of Rs.50,000/- (Rs. Fifty Thousand) with two solvent sureties in like amount and subject to the conditions that applicant - (i) after his release on bail, shall not leave the Ballarsha village without the permission of the trial Court and attend the I.O. on every Monday in between 11 and 1 p.m. until further orders; (ii) shall stay at the address mentioned in the application and shall not change the same without the permission of the trial court, (iii) shall not indulge in any activity of tampering prosecution evidence and/or indulge in any activity hampering the progress of the trial, (iv) shall not commit any offence while on bail. Liberty to the prosecution to apply for cancellation and/or modification of order in event of receipt of further positive material in the shape of C.A. report regarding the involvement of the applicant with the crime in question. The application stands disposed of. JUDGE halwai