1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.752 OF 2010 Dnyaneshwar @ Pintu S/o.Satwa Maske, Age-26 years, Occu-Agriculture, R/o.Patrud, Tq. Majalgaon, Dist. Beed APPLICANT VERSUS The State of Maharashtra, Through Police Station, Majalgaon, Tq.Majalgaon, Dist. Beed RESPONDENT WITH CRIMINAL APPLICATION NO.754 OF 2010 Pralhad S/o.Eknathrao Zagade, Age-55 years, Occu-Service, B & C Office, Majalgaon, R/o.Patrud, Tq.Majalgaon, Dist. Beed APPLICANT VERSUS The State of Maharashtra, Through Police Station, Majalgaon, Tq.Majalgaon, Dist. Beed RESPONDENT Mr.S.J.Salunkhe, learned counsel for applicant in both the applications. Mr.B.J.Sonwane, learned APP for State in both applications. (CORAM : A.V.POTDAR, J.) DATE : 09/03/2010 2 PER COURT : 1. By the present applications, the applicants have approached this Court for their release on bail in connection with CR No. 162/2009, in which the applicants in first application were arrested on 12/08/2009 and charge sheet was filed on 07/11/2009 after completion of investigation. It appears that one writ petition was filed by the father of deceased Bhagwat Shankarrao Wedpathak bearing Cri.W.P. 1005/2009 as he suspect that the applicant in Cri.Appl.No. 754/2010 is also involved in this offence, but no investigation was carried out to connect this applicant in connection with the said offence. It appears that on 15/12/2009, applicant in the second application was arrested in connection with this crime and the said criminal writ petition was withdrawn. After arrest of the applicant in second application, supplementary charge sheet came to be filed on 04/03/2010. 2. Heard learned counsel for applicant followed by the submissions of learned APP appearing for the State. During the course of submissions across the bar, learned counsel for applicant as well as learned APP taken me through the entire record of the papers of investigation. It is to be made clear from the post mortem notes that the death of deceased Santosh Bhagwat Wedpathak is an un-natural death, whether homicidal or otherwise, it is risky to comment on this issue at this juncture. But the death is not natural. It also require to consider that this death occurred in the early hours of 08/08/2009, around 7.00 a.m. or prior to that. But 3 the viscera collected during the post mortem about the contents collected from the intestine of deceased was sent for chemical test. The report of chemical analyser is before this Court which shows that this viscera found contents of alcohol 100 gms. which gave rise to number of things to consider whether the death is a homicidal or otherwise, but it is better to left it for the trial court to decide this issue. 3. Considering the papers of investigation, it appears that in the morning of 08/08/2009, son of complainant by name Santosh had been to his field to collect the meal. Around 7.15 a.m., servant of complainant Surwase informed the complainant that he noticed Santosh lying in injured condition on the way to his field. This Surwase came to know that Santosh was lying in the injured condition from one Macchindra Shinde, who is the person, who saw for the first time Santosh lying in the injured condition on the way and in turn pass on this information to Surwase, the servant of informant/complainant. At that time, one Sontakke was also present there, who is also servant of the informant. In turn, this Surwase went on motor-bike, and informed this information to the father of Santosh. They were coming to the field alongwith auto driven by one Shaikh. Within meantime, Macchindra was also shifting the injured towards the village. Then the injured was shifted to that auto and taken to the hospital at Majalgaon. Initially the injured was taken to the private hospital where on seeing the condition of injured, it was advised by the concerned medical practitioner to shift him to the civil 4 hospital, where at the time of admission, Santosh was declared dead. In this scenario, on suspicion, the complaint came to be lodged against these applicants that as there is boundary dispute over the agricultural land between Bhagwat Wedpathak, the father of the deceased and the applicant in first application. In due course, statement of witnesses were recorded and charge sheet came to be filed as stated initially on 07/11/2009 and on 04/03/2010. Thus the fact is clear that now the investigation is over and the evidence to be scanned in the light of this evidence collected. 4. Perusal of papers of investigation discloses that this is a case of circumstantial evidence and not of direct evidence. The fact further remains that during the investigation, no incriminating articles were recovered at the instance of either of the applicants. It require to be considered that applicant in the first applicant was in custody since 12/08/2009 and charge sheet was filed on 07/11/2009 i.e. before filing of the charge sheet for about 80 days, this applicant was in the custody. So far as the applicant in second applicant was in the custody before filing of the charge sheet from 15/12/2009 to 04/03/2010, i.e. for the period of 85 days. Still the fact remains that no incriminating articles were recovered at the instance of either of the applicants. 5. The circumstances which shows that as per the complaint against these applicants that there is boundary dispute over the agricultural land between father of the deceased and the applicant in 5 the first application. Papers of investigation discloses that on asking by the complainant, the victim discloses as to how he sustained the injuries at the hands of these assailants, which do not support from the papers of investigation, from the statement of mother of the deceased, servants of the deceased, Macchindra, who first saw the deceased lying in the injured condition and if the case of the prosecution rests on the oral dying declaration by the deceased to his father, which is not supported by other witnesses, a case is made out to enlarge the applicants on bail on certain conditions. In the premise, following in the order : O R D E R 1. Bothe the applications are hereby allowed. 2. Both the applicants be released on bail on furnishing surety in the sum of Rs.15,000/- each and on executing PR bond in the like amount. 3. After their release, both the applicants not to enter in village Patrud, Tal.Majalgaon, Dist. Beed till disposal of Sessions Case No. 50/2009 4. Both the applications stand disposed of accordingly. (A.V.POTDAR, J.) khs/MAR 2010/cri.appl.752-10