119appa38.09.odt 1 . IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application No. 38 of 2009 in Criminal Appeal No.622 of 2008 (Bhojraj s/o. Kantu Pichode .vs. State) Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's orders Coram: D.D.Sinha & P.B.Varale, JJ. Date : 11/09/2009. Heard Mr. R. M. Daga, Adv. for applicant and Mr.S.J.Jichkar, Additional Public Prosecutor for respondent/State. Counsel for the applicant has submitted that, in the instant case, present applicant was prosecuted along with the co- accused Munnalal s/o. Mehatar Nagpure and both of them are convicted for the offence punishable u/s. 302 r/w. Section 34 of the Indian Penal Code for causing murder of Bejanlal Nagpure. It is contended that the prosecution has examined two eye witnesses namely Chandrakala Nagpure (PW 4) who is wife of deceased Bejanlal and Shamkala Nagpure (PW 6) who is sister of Chandrakala (PW 4) and wife of co-accused Munnalal. It is contended that the evidence of Chandrakala (PW 4) so far as the role attributed to the applicant is concerned, has been discarded 119appa38.09.odt 2 . by the trial Court and therefore, the request of applicant for grant of bail may not be rejected on the basis of evidence of Chandrakala (PW 4). Mr. Daga, Adv. has further submitted that, so far as the testimony of Shamkala (PW 6) is concerned, though she has stated in her examination-in-chief that the present applicant caught hold of Bejanlal and also gave kicks and fists blows, but this witness has not stated these facts in her police statement u/s. 161 of the Code of Criminal Procedure. It is, therefore, contended that the evidence of both the witnesses does not specifically attributed any role to present applicant and therefore, the applicant is entitled to be released on bail. It is, therefore, contended that the applicant was on bail before and during the course of trial and has never misused the liberty granted to him. Mr. Jichkar, Additional Public Prosecutor has submitted that both the accused are prosecuted for the offence punishable u/s. 302 r/w. 34 of the Indian Penal Code. It is contended that presence of the applicant on the spot and complicity of the applicant in the crime in question has been established by the prosecution evidence and therefore, the applicant is not entitled to be released on bail. We have considered the rival contentions and perused 119appa38.09.odt 3 . the judgment as well as deposition of Shamkala (PW 6). The observations in the judgment shows that the trial Court has not accepted the part of evidence of Chandrakala (PW 4) in respect of the blow alleged to have been given by the present applicant on the person of deceased and so far as the evidence of other eye witness Shamkala is concerned, there is a material omission in her police statement brought out in the cross-examination as referred to hereinabove. In the circumstances, we are of the view that a case is made out for grant of bail. It is made clear that the observations made by us in the present order are prima facie in nature and are not decisive in character. The Criminal Application is disposed of with a direction to the respondent/State to release the applicant on bail on furnishing a P. R. bond of Rs.10,000/- with one surety in the like amount. JUDGE JUDGE jais