( 1 ) cria5072.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 5072 OF 2010 Punjaram Karbhari Wagh .. Applicant Versus The State of Maharashtra .. Respondent Mr. Joydeep Chatterji, Advocate for the applicant. Mr. P.P. More, A.P.P. for the respondent/State. CORAM : V.R. KINGAONKAR,J. DATED : 16.12.2010 P.C. :- 1. This is an application for bail. 2. The applicant is the prime accused who allegedly with the help of other accused persons committed culpable homicide of a young boy, by name, Kailas Pakhare and buried the dead-body at the place in agricultural land Gat No. 161, ( 2 ) cria5072.10 situated at village Gondegaon. 3. The father of deceased Kailas Pakhare lodged F.I.R. alleging that his son left house in the evening of 30th November, 2008, for reaching meals to the agricultural servant in the agricultural land and for fetching milk. He did not return home till next morning. The agricultural servant of the informant was interrogated by the informant. The servant narrated that Kailas had been to the agricultural land but did not bring meals. The informant contacted son (Kailas) on cell phone. There was no trace of young son (Kailas) though hectic search was made to find him out. The informant gathered information to the effect that deceased Kailas and son of the present applicant, by name, Atmaram were seen going together towards agricultural land by cart- way. They were spotted together. It appears that inspite of search made by the informant and the others including police machinery, whereabouts of deceased Kailas Pakhare could not be ascertained. The informant had filed a Criminal Writ Petition for Habeas Corpus. It appears that initially son of the applicant, by name, Atmaram was arrested by the police ( 3 ) cria5072.10 for the reason that he was seen together with the deceased in the relevant evening. Nothing incriminating was found during the initial stage of investigation and therefore said Atmaram was released on bail. It appears that after about a couple of years, the applicant came to be arrested. At his instance the dead-body of Kailas Pakhare was recovered from his agricultural land Gat No. 161. The place was allegedly pointed out by the applicant. It appears that after excavation, the dead-body was taken out in highly decomposed condition, but was identified by the first informant due to the clothes and the articles found on person of the deceased. Consequent upon certain investigation, the applicant along with his son Atmaram and brothers of the applicant came to be charge-sheeted for the offence of committing murder of deceased Kailas Pakhare. 4. Heard learned advocate for the applicant and learned A.P.P. for the State. Perused investigation papers. 5. What transpires from the investigation papers is that deceased Kailas Pakhare was a young person and had ( 4 ) cria5072.10 developed intimacy with the daughter of the applicant. The police statement of one Kakuji Wagh, prima facie, shows that about six months before death of Kailas, he had seen that daughter of the applicant, by name, Vandana and said Kailas were sitting together at a place behind bushes. His police statement, prima facie, shows that when they had seen him while coming near the place, deceased Kailas had returned to his Vasti (farmhouse) along with she-goats and Vandana also went to her farmhouse. He did not disclose the incident to anyone because it could be a defamation of the girl. The police also recorded statement of said Vandana. Though she narrated that she was forced to keep sexual relations and become pregnant due to such illicit relations with deceased Kailas, yet one cannot be oblivious of the fact that till she became pregnant, she did not disclose such relationship to anyone else. What appears from her statement is that she was taken to a private hospital of Dr. Kakad at Jalna and was got aborted. The Investigating Officer has recorded statement of Dr. Kakad, however, the relevant record available in the private hospital is not searched and recovered. ( 5 ) cria5072.10 6. The Investigating Officer is present today and assures that he will obtain search warrant and will seize the relevant record. Such steps could be taken during the investigation under Section 173 (8) of the Cr.P.C. and there is no prohibition for further investigation. The Investigating Officer should not just rely on the statement of a private medical practitioner, because the record may be corroborative evidence in-case P.W. Vandana will not support the case of the prosecution. The Investigating Officer shall immediately take such steps by making application to the learned Magistrate for issuance of search warrant. 7. It is pertinent to notice that the dead body was excavated from the agricultural land of the applicant, at his instance. So, the fact that the dead-body of Kailas Pakhare was buried in the applicant’s land coupled with the fact that it was recovered at his instance would together, prima facie, lead to the inference that he is author of the death or may be responsible for the concealment of the dead-body at the place. In any case, this cannot be a simple matter in which the applicant can be attributed only knowledge of concealment ( 6 ) cria5072.10 by somebody else. Coupled with this recovery of the dead- body, there is also prima facie evidence to show that the son of the applicant and deceased Kailas Pakhare were last seen together. The servant of the first informant narrated that though Kailas Pakhare had been to the agricultural land, yet had not delivered him the meals (Bhakar). It appears from the recovery panchanama that the clothes in which the meals were tied was found at the burial place. Thus, the circumstances, prima facie, show that the deceased Kailas Pakhare had gone to his agricultural land and thereafter way laid towards the agricultural land of the applicant, where he was forced to breath his last. Considering the manner in which the applicant attempted to conceal the dead body and caused disappearance of the material evidence, it is more probable that his liberty may be detrimental to the sooth trial of the Sessions Case, in view of the probabilities of tampering evidence of material witnesses, including his own daughter. 8. Having regard to the reasons afore-stated, the application is dismissed. ( 7 ) cria5072.10 9. The parties to act on the authenticated copy of this order. [V.R. KINGAONKAR,J.] snk/2010/DEC10/cria5072.10