1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.1060 OF 2010 Ratan Khatrya Padavi, Age-45 years, Occu-Agriculturist, R/o.Surwani, Tq.Akrani, Dist. Nandurbar APPLICANT VERSUS The State of Maharashtra, Thrugh Police Station Officer, Dhadgaon Police Station, Tq.Dhadgaon, Dist. Nandurbad RESPONDENT Mr.S.P.Brahme, learned counsel for applicant. Mr.B.V.Wagh, learned APP for respondent State Mr.C.R.Deshpande, learned counsel for original complainant. (CORAM : A.V.POTDAR, J.) DATE : 01/04/2010 PER COURT : 1. By the present application, the applicant has approached this Court for his release on bail in connection with CR No.23/2009, registered in Dhadgaon Police Station, of Dist. Nandurbar, in which the applicant is arrested on 03/11/2009 and after rejection of his earlier application by this Court, as well as by the Sessions Court, after completion of investigation, he has moved this Court. 2 2. Heard learned counsel for applicant followed by the submissions of learned APP, and learned counsel for original complainant. 3. It appears that the said offence came to be registered on the basis of FIR lodged by the wife of deceased Vijay in which it is alleged that deceased Vijay had been to market on 15/04/2009 and not returned even though given the call that he will return late in the night, after purchasing vegetables. The complainant tried to contact the present applicant, who is the nephew of deceased, but even though the assurance was given, there was no further communication. It appears that the dead body of deceased was found in one field, near Dhadgaon in the early hours of 16/04/2009. Initially, on suspicion, complaint was lodged against 3 persons by name Ramdas, Pintya and one Dipabai, who is wife of Pintya. It further appears that after considerable period, on 19/05/2009, supplementary statement of complainant was recorded, wherein she has alleged that even though the present applicant is her nephew, she is having illicit relations with present applicant, and these relations were developed between them prior to 1 years of incident and as the deceased is the hurdle for this love affair, with the help of Ramdas and Pintya, they conspired to commit the murder of deceased Vijay. Before the supplementary statement of the complainant was recorded, statement of one Jobibai was recorded on 06/05/2009 u/s. 164 of The Cr.P.C. before the learned Magistrate. Her supplementary statement was recorded on 31/08/2009. On 3 reading both these statements, it reveals that as her husband Narsing Padvi was working with Ramdas, for some dispute, there was grudge in the mind of said Ramdas against Narsing Padvi and in the fateful night of 15/04/2009, it is alleged by said Jobibai that he saw the deceased in the company of Ramdas and Pintya. It is the evidence according to the prosecution about last seen together the deceasedin the company of Ramdas and Pintya. 3 more statements were recorded during the investigation in the month of August 2009. It appears from those statements that they saw the jeep of applicant near the residential premises of Pintya, where allegedly Vijay first consumed liquor with those two persons, later on dragged on the cot and then throttled by Pintya. It is alleged that these 3 witnesses that they saw the jeep of Ratan, the applicant, near the house of Pintya, and on the next morning, they learnt that dead body of deceased was found in the field near Dhadgaon. It transpired from the statement of Jobibai that when Ramdas and Pintya throttled deceased Vijay, he was talking in loud voice on his cellphone. The case of the prosecution is of the conspiracy, as the case rests on the circumstances. The statement of the eye witnesses recorded, do not disclose that at the time of alleged incident, the present applicant was present there. It appears that during the investigation, incoming and outgoing calls on the cellphone of the concerned were recorded. The cellphone number of Ramdas is 9421538132, while of the Ratan is 9403116979. As against this, the cellphone no.of the complainant is 9420600108. The call record which is produced alongwith the charge sheet appears that all these incoming and 4 outgoing calls are recorded on the cellphone of the applicant, as well as the said Ramdas. No call appeared to be recorded after 7.00 p.m. As against this, the alleged incident occurred at around 11.00 p.m. No question arose to dis-believe the statement of the witnesses at the time of deciding bail application. But whether prima facie statement of the witnesses recorded during the investigation satisfy the test about the involvement of the applicant accused in the crime or not, require to be tested. About communication on cellphone, the investigation carried out is not satisfactory. Apart from it, those witnesses nowhere stated in their statements that at the relevant time, body of the Vijay was lifted, put in the jeep, and taken to the dam, thrown in the nearby field and then returned back. So far as the panchnama, where the dead body was found, that place is a road, abetting to an agricultural field. No tire marks are found near the said road or the said field. The most important aspect is that if the case of the prosecution prima facie to be believed that the dead body was shifted from one place to other in the jeep, then examination of the jeep during the investigation is must and necessary. Entire papers of the charge sheet nowhere discloses that the said jeep was examined to trace out whether any incriminating material can be recovered from the said jeep. Apart from it, the post mortem report as well as the certificate about the cause of death shows that death of Vijay was caused due to head injury. Papers of investigation nowhere discloses that any incriminating article about the injury caused to the deceased was recovered at the instance of this applicant. If the case as projected from the eye witnesses to be 5 accepted as it is, the incident took place outside the premises of Pintya, deceased was throttled to neck and do not disclose that Ramdas and Pintya caused head injury during that incident to deceased. The overall effect of it, even though it is vehemently urged that the circumstances linked with the involvement of applicant, the circumstances stand against him, are not acceptable at this stage. 4. Earlier, the application of present applicant was rejected by this Court on 04/12/2009 as at that time, the investigation was yet to be completed. Now the investigation is over and charge sheet was filed on 29/01/2010. Once the charge sheet is filed, application to be tested on the point, whether prima facie case is made out about the involvement of applicant in the crime alleged. That evidence not to be tested whether sufficient to hold applicant guilty or not, but prima facie the offence require to be stand against the applicant. Now the investigation papers which are submitted alongwith the charge sheet, do not establish prima facie involvement of applicant, as the case is based on circumstances and in the case of circumstances, the chain of circumstances require to be completed and must not be missed at one place or other. In the premise, now the case is made out to enlarge the applicant on bail on putting certain conditions. It is hereby made clear that these observations are prima facie, and trial court not to influence with these observation, while deciding the sessions case against against applicant, Accordingly the order, O R D E R 1. Application is allowed. 6 2. Applicant be released on bail on furnishing solvent surety in the sum of Rs.25,000/- and on executing PR bond in the like amount. 3. After released on bail, applicant is prohibited to enter in village Surwani, village Bhadgaon and village Dhadgaon till the disposal of sessions case against applicant. 4. In case of violation of this term, prosecution to apply for cancellation of bail. 5. Application stands disposed of accordingly. (A.V.POTDAR, J.) khs/APRIL 2010/cri.appl.1060-10