1 ba683.11.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR CRIMINAL APPLICATION (BA) NO.683 OF 2011 (PRABHU PANDHARI GIRIPUNJE //VS// STATE OF MAH. THR. P.S.O. PS DESAIGANJ) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr.N.R.Bhishikar, Advocate for Applicant. Mrs. B.P.Maldhure, A.P.P. for Respondent/ State. CORAM : M.N.GILANI, J. DATED : DECEMBER 22, 2011. Heard both sides. 2. This is an application under Section 439 of the Code of Criminal Procedure for releasing the applicant on bail against whom chargesheet alleging commission of offence punishable under Sections 302, 143, 145, 147, 148, 149, 364 read with 34 of the Indian Penal Code has been filed and is pending in the Court of Sessions Judge at Gadchiroli. 3. The facts are thus : One Samarth Hatwar had been to village Udapur, Tahsil : Brahmapuri where his in-laws (parents of his wife Sharda) reside. On 06.05.2011 in the night at about 10.30 to 11.00 p.m. five persons went to the house of parents of Sharda. They were telling that the deceased had committed theft of motor cycle and therefore, they were carrying him to the Police Station. 4. On 07.05.2011 i.e. on the next day at about 9.00 a.m. information was received by the police that one dead body is lying in the shrubs on Desaiganj to Ekalpur road. The police visited the spot and found the dead body in a pool of blood with multiple injuries. Head Constable Bhimrao lodged first information report and on that basis offence came to be 2 ba683.11.odt registered. From the spot five stones, stained with blood, were recovered. Post mortem examination revealed multiple injuries on the vital organs. 5. On 10.05.2011 applicant/ accused was arrested. In all five accused have been named as assailants. During course of investigation statements of Sharda and Shalu were recorded. In their presence five persons came to their house at about 10.30 to 11.00 p.m. and carried the deceased with them. The present applicant was not known to them. Identification parade was held and in that both identified the applicant/ accused as the person who was amongst those five who had come to their house. Other circumstance relied upon is seizure of blood stained clothes on 11.05.2011 at the instance of the applicant/ accused. One full pant and one shirt were recovered. They were stained with blood of group 'A', which matches to the blood group of the deceased. 6. The learned counsel for the applicant/ accused contended that the circumstances relied upon by the prosecution are wholly insufficient to charge the applicant/ accused with the offence punishable under Section 302 of the Indian Penal Code. The recovery of the blood stained clothes on its face appear tainted in the sense that no person after committing crime would keep his clothes hanging on the peg in the house and that too in the same condition. He also criticized the manner in which the identification parade was conducted. His next contention is that the deceased was a person with criminal antecedents. Number of offences were registered against him. 7. It is well settled that the detailed examination of the evidence is not to be conducted while deciding the bail application. What prima-facie appears is significant. Admittedly, the applicant / accused was not known to two 3 ba683.11.odt witnesses namely Sharda and Shalu who are on the point of 'last seen' theory. The identification parade was conducted after about a month although the accused was arrested within three days of the spotting of the dead body. The learned counsel for the applicant invited my attention to the fact that the details of the features, appearance etc., given by the witnesses, do not match to the present applicant. There is substance in his contention. The other circumstance is finding of the clothes stained with blood of Group 'A' hanging on the peg in the house. This being the state of evidence, the application will have to be allowed. 8. The application is allowed. The applicant is directed to be released on bail on his executing P.R. Bond in the sum of Rs.fifty thousand with two sureties in the like amount with a condition that he shall not tamper with the prosecution witnesses. Hamdast granted. JUDGE RR..