IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.380 OF 2009 Ashish Bharat Jadhav ...Applicant Vs. The State of Maharashtra ... Respondent --- Shri S.R. Mohite and Shri A.R. Kapadnis and Shri Ashish Sawant for Applicant Shri D.P. Adsule, APP for State. ---- CORAM: V.M. KANADE J. DATED 4TH FEBRUARY, 2009 P.C. 1. Heard the learned Counsel appearing on behalf of the Applicant and the learned APP for the State. 2. The Applicant has been arrested in connection with an offence punishable under sections 302 and 307 of the Indian Penal Code and 4(25) of the Arms Act and 37(1) r/w. 37(1)r/w. 135 of the Bombay Police Act, on 17.3.2008. 3. The prosecution case is that one Shivprasad and his friend Ajit Godambe was having their dinner at dhaba, a phone call was received by the brother of Shivprasad while they were returning home to Pune from Satara and he was informed by his brother's wife that Shivprasad has been assaulted. The brother of the Shivprasad promptly returned back and noticed that his brother Shivprasad and Ajit Godambe were assaulted by some persons. He, therefore, lodged a complaint. Statement of Ajit Godambe, who was also injured in the said incident was recorded on 15.3.2008 while he was in the hospital. On 16.3.2008, the statements of Rohan Tiwari, Mahesh Chakankar and Rahul Godse were recorded, who had witnessed the said incident. 4. The learned Counsel appearing on behalf of the Applicant submits that there are discrepancies in the statements made by the witness, who was injured in the incident viz. Ajit Godambe and other three eye witnesses. He submitted that whereas in the statement of Ajit Godambe, he had stated that two persons had assaulted him and one of them was the person, who was apprehended while he was stealing petrol from the car parked in the compound and there was one other person along with him. The other three witnesses, however, named the present Applicant and two other persons as the assailants. He submitted that in the test identification parade, Ajit Godambe did not identify the Applicant and the other accused. He further submitted that though the first informant, brother of the deceased Shivprasad had contacted Tiwari, who had allegedly witnessed the said incident, in his FIR, he has not mentioned the names of the present Applicant and the other accused. He further submitted that the statements of these three eye witnesses have been recorded after two days from the date of the incident and they have stated that after having witnessed the said incident, one went to Kolhapur and others went to Nashik. The learned Counsel appearing on behalf of the Applicant submitted that, therefore, there are several discrepancies in the statements between the said two witnesses and the conduct itself was questionable. 5. The learned APP for the State, on the other hand, submitted that the three eye witnesses had witnessed the said incident and had named the Applicant. Specific role has been attributed by these three witnesses to the Applicant. Recovery has been made at the instance of the other Accused. He further stated that, therefore, at this stage, the question of appreciating the statements of the witnesses does not arise. 6. At this stage of granting bail by this Court, the Court is not expected to appreciate the material on record but has to consider whether the prima facie case is made out or not. The Court also has to consider the gravity of offence. If, however, prima facie, it is established by the Applicant that there is possibility of the Applicant being acquitted in the trial, in that case, the Applicant is entitled to get bail. 7. In my view, there are several discrepancies in the statements given by the three eye witnesses and persons, who are actually injured in the said incident. The Complainant's brother deceased Shivprasad had also not mentioned the name of the present Applicant or the others when his FIR was recored at 2.30 in the afternoon. It has come on record that Tiwari, who was one of the eye witnesses, had contacted the Complainant, he, however, did not disclose the names of the three assailants at that time and, therefore, in the FIR the names of the Applicant is not mentioned. The chargesheet has been filed. 8. Taking into consideration, these discrepancies, in my view, prima facie case is made out by the Applicant for grant of bail. 9. The Applicant, therefore, be released on bail in a sum of Rs.5,000/- within one or two sureties in the like amount. The Applicant shall not enter the jurisdiction of Warje Malwadi Police Station, Pune till pending the hearing and final disposal of the trial. The Applicant shall give his fresh address to the Superintendent of Jail and shall report to the nearest police station from his residence twice in a month. The Applicant shall not contact or threat the prosecution witnesses. If any complaint is received by the police, the bail granted by this Court to the Applicant shall be cancelled. 10. The Trial Court shall not be influenced the observations made by this Court while considering the application of the Applicant for bail since the observations are not on merits but are prima facie observations of the Court. The Trial Court shall decide the trial, on merits and in accordance with law. 11. Application is disposed of. V.M. KANADE J.