1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR CRIMINAL APPLICATION (APPA) NO. 163 OF 2011 IN CRIMINAL APPEAL NO. 393 OF 2009 (Bijendra Sukhram Varma vs. State of Maharashtra) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Shri R.P. Joshi, Advocate for the applicant. Mrs. Ketki Joshi, APP for the respondent. ….. CORAM : MRS. V.K. TAHILRAMANI & PRASANNA B. VARALE, JJ. MARCH 17, 2011. Heard Shri Joshi, learned counsel for the applicant (original accused No. 3) and Mrs. Joshi, learned Additional Public Prosecutor for the respondent. The applicant along with other accused was convicted under Section 302 read with Section 34 of Indian Penal Code. The applicant is now seeking bail. The learned counsel APP pointed out that there are four eye witnesses in the present case i.e. P.W. 1 - Bacholi Batho, P.W. 2 – Sitaram Kewat, P.W. 4 – Pradeep Raut and P.W. 6 – Sitaram Batho. She stated that P.W. 1 has stated about the incident in detail. On going through the evidence of P.W. 1, we find that no role is attributed by this witness to the applicant of actual assault on Ghansham. The only role attributed by this witness to the applicant is that he stated that Ghansham should be killed. 2 The learned counsel for the applicant pointed out that the spot of the incident was not visible from the place where this witness was standing hence his evidence cannot be relied upon. To support this contention, he has drawn our attention to the cross examination of this witness wherein he has stated that “it is true that the spot where I was standing from there the spot where the incident occurred was not visible”. This witness has further stated that “It is true that the information about the incident given to me by some other person”. He submitted that this clearly shows that P.W. 1 has not actually witnessed the incident but he was told about this incident by some other person. On going through the cross examination of P.W. 1, we find some merit in this contention. The learned APP then placed reliance on the evidence of P.W. 2 – Sitaram Kewat. Sitaram Kewat has deposed that the applicant was beating Ghansham by stone and the applicant also stated that Ghansham should be killed. Mr. Joshi, learned counsel for the applicant pointed out that the averment of this witness in his cross examination “that Ghansham should be killed” is an omission. On perusing the record, we find that this averment is indeed an omission. Shri Joshi, learned counsel for the applicant then submitted that this witness has not seen the incident at all as at that time he was standing in front of the hospital of Dr. Sonkar. The spot of incident was not 3 visible from the place where this witness was standing. In order to fortify this contention, he has drawn our attention to the evidence of P.W. 3 – Ramkisan Kewat, who is the panch witness to the scene of offence. Ramkisan has stated in his evidence that the spot where the dead body was lying was not visible from in front of the hospital of Dr. Sonkar. It is the prosecution case that Ghansham. died on the very spot where he was assaulted. Thus, if a person standing in front of the hospital of Dr. Sonkar cannot see the dead body, he also could not have seen the incident. Prima facie we find merit in the submission that P.W. 2 was not able to witness the incident from the spot where he was standing. Thereafter, reliance was placed by the learned APP on the evidence of P.W. 4 – Pradeep Raut. Pradeep has stated that accused No. 2 Deepak lifted a stone, at that time present applicant was saying “Maro Maro” then Deepak gave a blow with stone on the head of Ghansham. Then they said “Chalo Chalo”. At that time, the present applicant again lifted a stone and gave a blow with stone on the head of Ghansham. However, the learned counsel for the applicant pointed out that the averment of this witness in cross examination that the present applicant was saying “Maro Maro” and thereafter the applicant lifted a stone and gave a blow with it on the head of Ghansham, is an omission. We find from the cross examination of P.W. 4 that P.W. 4 4 has stated that these averments are all in the nature of improvements. Lastly, reliance was placed by the learned APP upon the evidence of P.W. 6 – Sitaram Batho. In relation to the actual incident, this witness has stated that Accused No.1 – Raju assaulted the deceased with sword on the back, at that time the applicant was saying “Abhi Sala Jinda Hai Sale Ko Jinda Mat Chodo Sale Ko Janse Mar Dalo”. Then accused No. 2 - Deepak lifted one stone and gave a blow with it on the head of Ghansham. As far as this witness is concerned, he has not attributed to the applicant any role of assault on Ghansham but he has stated that the applicant uttered the above words. As far as these words are concerned, from the cross examination of this witness, we find that it is an omission. Thus, prima facie, we find that there is no reliable material to connect the applicant with the crime in question. Thus, we are inclined to grant bail. Hence, the following order : The applicant be released on bail on P.R. Bond in the sum of Rs.30,000/- and on furnishing surety in the like amount. The applicant to report to Ramnagar Police Station, Chandrapur, once in a fortnight till the disposal of the appeal. Criminal Application is accordingly allowed. JUDGE JUDGE *GS.