1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.1656/2008. The State of Maharashtra - APPLICANT VERSUS Maroti s/o Namdeo Salunke - RESPONDENT ***** Mr.KM Suryawanshi, APP for Applicant/State. Mrs.Sadhana S. Jadhav, Adv. for Respondent. ----- CORAM : K.U.CHANDIWAL, J. DATE : 1st September, 2009. PER COURT : 1) Heard learned APP for the applicant/State and learned Counsel for the Respondent/accused extensively. 2) Grant of anticipatory bail by order dated 4.10.2007 by the learned Ad hoc Additional Sessions Judge, Latur in Criminal Application No. 225/2007, for an offence punishable under Section 302, 120-B r/w 34 of IPC, vide Crime No.90/2007 registered with Bhada Police Station, Tq. Ausa, is subject of criticism from the State. 3) Mother of the deceased felt investigation was faulty,it was taken over by C.I.D. 4) The cause of death of her son, as reported by the Medical Officer on 23.11.2007, to 2 be due to neck compression (strangulation) and the witnesses, whose statements were recorded by the Investigating Officer of the C.I.D., implicate the accused – Maroti s/o Namdeo Salunke and his associates. 5) The Counsel representing the accused, submits that whatever material was available with the learned Sessions Judge, was sufficient for him to exercise the powers for releasing the accused on bail in the event of his arrest. The accused, pursuant to the conditions imposed, has regularly attended the police. There is nothing to demonstrate that any inquiry was made by the Police and that the accused did not cooperate the police. The Counsel informs, the slumber demonstrated by the police from 4.10.2007 till 12th May, 2008, landed in a blot for their apathy and considering the yawning period and post conduct of the respondent/accused, the liberty should not be curtailed. 6) The learned Counsel for the Respondent/accused, took recourse to the judgment in the matter of Ashok Kumar Vs. State of U.P. and Anr. reported in 2009 AIR SCW 1529. In the said case, the learned Judge, while granting the bail, reached a definite conclusion that the injuries could not be caused in the manner suggested by the prosecution. The Hon'ble Lordships found that this course was unwarranted 3 and improper. However, in paragraph 8, the Hon'ble Lordships observed - " Since the accused is on bail for considerable length of time, we do not think it appropriate to cancel the bail, though there appears to be some substance in the plea that the impugned order granting bail suffers from various infirmities. Let the trial be completed within three months." 7) The parameters, as indicated by the Hon'ble Lordships in the matter of Ashok Kumar (cited supra), will not be applicable with the same scale to the present case. 8) In this case, it was an application under Section 438 of Cr.P.C. by the accused/applicant and the learned Judge oblivious to the F.I.R. of mother of the deceased, dated 7.9.2009, in which she has suspected the accused/Respondent, however, learned Judge has reached prima facie erroneous conclusion about no role of the accused. The State has approached for cancellation of bail with 7 months and more, particularly the investigation prompted added material against the accused. 9) The observations of the learned Judge that the dead body was in a decomposed condition is a betrayal from the record as the photographs demonstrate and as indicated in spot panchanama 4 that there was no such decomposition. 10) In unequivocal terms, the photographs display external injuries at the eyes, thighs, private part of the deceased. A show of self- strangulation was tried to be created, which rebels against the fact situation. But the victim was allegedly had a knot on a weak branch, while could not sustaining his weight. That apart legs were in folded condition with slippers in tact. He could not, rationally faced compression and arrest of respiration. This rules out of possibility of a suicide. It was the remorse of the mother, which ultimately could make the police to follow pursuit of their obligation in the matter. 11) One of the allegations is, brother of the accused is village police Patil. He too was influencing the witnesses, not to come forward he coerced the witnesses. The investigation indicates prima facie role of the accused. He and his brother has created terror in the village as could be seen from the statements of witnesses. 12) Learned APP placed before me statements of Mahadeo Jagannath Mule, which in unequivocal terms indicated that the accused – Maroti, on the date of incident, had threatened them, not to speak anything against them. 13) Though learned Counsel while taking to 5 the F.I.R. informed that after the incident in the hotel/Bar, the victim has reached his home, the fact remains the victim has disclosed his mother as to how he has suffered the injuries at his face and particularly to his eyes giving names of accused to be assailant This should have been weighed by the learned Judge. 14) In the situation, the order, exercising the powers under Section 438 of Cr.P.C. by the learned Judge was uncalled for as prima facie, it is not in the parameters of the powers vested in the learned Judge. 15) Consequently, the order is set aside. The accused – Maroti s/o Namdeo Salunke Age: 45 Yrs., occu. Business, r/o Belkund, Tq. Ausa, District Latur to surrender before the Investigator in the present case on or before 10th September, 2009. ( K.U.CHANDIWAL ) JUDGE bdv/cran1656.08