(1) CR.APP. 2280.2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 2280 OF 2009 Bhimraj Balwant Darandale, Age : 55 years, Occu.: Agri., R/o Darandale Vasti, Shinganapur, Ghodegaon Road, Shinganapur, Tq. Newasa, Dist. Ahmednagar .. Applicant Versus The State of Maharashtra, Through Rahuri Police Station, Rahuri, District Ahmednagar (Copy to be served on Public Prosecutor, High Court of Bombay Bench at Aurangabad) .. Respondent Mr. S.V. Sudrik, Advocate for the Applicant Smt.R.R. Mane, APP for the Respondent-State CORAM : A.V. NIRGUDE, J. DATED : 13TH JULY, 2009 ORAL ORDER:- 1] The applicant is seeking bail in crime no. 420 of 2008 registered at Rahuri Police Station, Dist. Ahmednagar on 21.11.2008 for the offences punishable under section 302 r/w. 34 of the Indian Penal Code. 2] It is alleged that the applicant and two others committed murder of the deceased Eknath. I (2) CR.APP. 2280.2009 am told that the applicant had secured anticipatory bail in this case prior to filing of the chargesheet. The chargesheet came to be filed on 30.6.2009. On 1.7.2009 the applicant surrendered before the learned Additional Sessions Judge Shri N.V. Nhavkar and sought regular bail. The learned Judge, thereafter perused the chargesheet and came to a conclusion that the applicant does not deserve bail. 3] Today, when the application was moved, the learned Advocate appearing for the applicant Shri S.V. Sudrik informed me that despite the fact that the applicant was on anticipatory bail the learned Additional Sessions Judge, refused regular bail to the applicant. This prompted me to dispense with issuing notices to the prosecution and with the help of Shri Sudrik, I went through the chargesheet a copy of which was shown to me. After going through the chargesheet, following case emerges:- . Eknath, and the other two accused in this case his wife and son stayed at village Taklimiya. Eknath was owning three trucks. The applicant was managing the transport business of the deceased. It is alleged by the prosecution witnesses that the applicant and Eknath’s wife [the other accused in this case] had developed illicit relations. It is further stated that Eknath was habituated to (3) CR.APP. 2280.2009 drinking. The prosecution case further narrates that on 15.10.2008, throughout the day, Eknath was seen drinking country liquor at weekly bazar of Taklimiya. He purchased three quarter size country liquor bottles between 5:00 pm to 7:00 pm. from a country liquor shop. At about 8:30 or so, since Eknath was unable to walk due to intoxication, witness Vasant brought him home riding the motorcycle of Eknath. Vasant said that he left Eknath in front of his house and did not intimate this fact to the family members of Eknath fearing backlash from them. Vasant then took Eknath’s motorcycle to home. At about 10:45 pm or so, the family members of Eknath found Eknath lying unconscious in front of their house. They also noticed that Eknath had sustained bleeding injury on his head. They took Eknath to hospital where he was declared dead. Eknath’s body was subjected to post mortem examination. The report does not indicate that Eknath had died homicidal death or that the injury on his head was fatal. The final opinion of cause of death was reserved. The Medical Officer finally gave opinion about the cause of death of Eknath on 25.3.2009 and he opined that Eknath had died due to ‘pulmonary edema due to ethyl alcohol poisoning’. This clearly established that Eknath did not die of homicide. 4] It is clear from the narration of the (4) CR.APP. 2280.2009 prosecution witnesses that at about 8:30 pm when witness Vasant brought Eknath home, he was under the influence of liquor and sometime thereafter, due to heavy consumption of alcohol, he suffered from poisoning. It is also clear that there was no possibility of any attack or assault on Eknath during that night. 5] Unfortunately, the Police did not take the legal opinion before filing the chargesheet and the chargesheet came under the legal scrutiny for the first time on 1.7.2009, when the applicant made application for bail before the learned Additional Sessions Judge, Ahmednagar Shri N.V. Nhavkar. But despite the assistance of Shri Sudrik, learned Advocate for the applicant, the learned Judge probably did not realise that prima facie this was even not a case of murder as the deceased had died due to alcohol poisoning. The learned Judge, quite confidentally said in the order “From the statements of witnesses, it appears that involvement of the present applicant-accused is due to their previous quarrel and his relationship with accused no.1. There appears a triable case against the applicant-accused. Considering the nature of the involvement of the accused alongwith accused no.1, there is every possibility that the evidence so far collected by the prosecution may get tampered with. Though the medical report shows certain (5) CR.APP. 2280.2009 significance, (sic) the same can be finally considered at the time of trial.” The evidence collected by the Police in this case, even if it is admitted would not spell out any case against the present applicant and the other accused. So there was hardly any possibility of tampering with the evidence. The prosecution witnesses who are related to deceased Eknath simply said that they suspected foul play because the applicant here had illicit relations with the wife of Eknath. This information, at the most could have led the Investigation Officer to assume that the applicant had motive to kill Eknath. But the Investigation Officer did not get any material to connect the applicant to the deceased on 15.10.2008. There is nothing on record to show that the applicant had met Eknath on that day in the bazar or at the liquor shop etc. He was neither seen with him after Eknath came home at 8:30 pm. The picture became clear in March, 2009 when the final medical opinion came which said that it was not a case of murder but due to over consumption of alcohol the deceased died. 6] The order passed by the Additional Sessions Judge, Ahmednagar Shri N.V. Nhavkar was palpably erroneous. It shows non-application of mind to obvious material on record. The most glaring error on his part was his reluctance to look into the final medical opinion about the cause of death. He (6) CR.APP. 2280.2009 simply brushed it aside saying that it could be seen at the time of trial. The order caused serious prejudice to the applicant because till this order, the applicant was at liberty due to the anticipatory bail granted to him. So, it was all the more necessary for the learned Additional Sessions Judge Shri Nhavkar to examine the case meticulously before rejecting the application for bail. 7] The applicant deserves bail and he deserved bail even on 1.7.2009 when he surrendered before the learned Additional Sessions Judge, Ahmednagar Shri Nhavkar. 8] The applicant is released on bail of Rs.5000/- (Rs. Five Thousand) with one surety in the like amount. 9] A copy of this order should be sent to Shri Nhavkar, Additional Sessions Judge, Ahmednagar as well as the District and Sessions Judge, Ahmednagar. 10] Criminal Application stands disposed of. Sd/- (A.V. NIRGUDE, J.) arp/13july9/cr2280.09