( 1 ) cria4852.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 4852 OF 2011 WITH CRIMINAL APPLICATION NO. 5237 OF 2011 Arun s/o. Sakharam Jadhav, .. Applicant Age. 25 years, Occ. Labour, R/o. Umrane, Tq. Deola, Dist. Nasik. Versus The State of Maharashtra .. Respondent Mrs. S.S. Jadhav h/f. Mr. S.S. Jadhav, Advocate for the applicant. Mr. D.R. Kale, A.P.P. for respondent/State. Mr. Amol Savant, Advocate for original complainant. CORAM : R.Y. GANOO, J. DATED : 15.12.2011 P.C. :- 1. Criminal Application No. 5237 of 2011, seeking to assist the prosecution is allowed. 2. Now I turn to Criminal Application No. 4852 of 2011. The applicant is arrested in connection with C.R. No. 64 of 2011, registered with Mohadi Police Station, ( 2 ) cria4852.11 Dist. Dhule, along with co-accused Borse and others. The F.I.R. is lodged by one Mr. Harish Taneja on 8th June, 2011. According to him, his father Dharmeshlal had gone to Umrane, Dist. Nasik to transact his cloth business and to recover moneys from his customers. According to the complainant, he made enquiries with Arun Jadhav regarding his father as his father, since deceased, had not returned home. Said Jadhav told him that he and Banti @ Tushar Borse had seen off deceased at the bus stand of Umrane. This Arun Jadhav is the only applicant before this Court. As said Dharmeshlal did not return home, the complainant and his brother Uday started on motor-cycle for taking search. Said complainant could see the applicant and Borse at Malegaon in the early hours of 1.00–1.15 a.m. on 8th June, 2011 and the story of seeing off the deceased was repeated. 3. Police have carried out investigation and there is no material placed before the Court through the ( 3 ) cria4852.11 charge-sheet that present applicant had indulged in an act so as to cause death of the deceased. It is pertinent to note that postmortem notes indicate the cause of death as ‘asphyxia due to strangulation’. The dead body of the deceased was found at a spot in the village Laling near Mohadi and police had informed about this fact to the complainant and that is how the F.I.R. is filed against unknown persons. There is no independent material to show that present applicant and deceased were found together at the bus stop of Umrane. The statement made by present applicant to the complainant on the telephone as in the night of 7th June, 2011 indicates that the present applicant and Borse had seen off deceased at Umrane. Since that was a statement made to the complainant, not in the presence of the police and before registration of the F.I.R., it could be treated as statement which could be read by the Court for the purpose of deciding bail application. Said statement, if read, at the most would go to show that present applicant ( 4 ) cria4852.11 and Borse had seen off the deceased at Umrane bus stop. There is no material to show that these persons had also boarded said bus or had followed said bus. As to how the deceased was killed between Umrane and Laling has not come before the Court. 4. In the charge-sheet, the police have recorded statement of one Mr. Prashat Thakare, Garage owner. According to Mr. Prashant, in the morning of 8th June, 2011, at about 8 a.m. present applicant and Tushar visited the garage of this person situated at Umrane in white Indica car and informed him that while they were carrying an injured person from Malegaon to Umrane, seat cover got stained with blood and that car should be attended to in the nature of servicing and the seat cover should be washed. Even if this statement is accepted as it is, said statement gives no clue as to whether said blood was of human blood of a group that of deceased, as by the time the statement was recorded, said car appears ( 5 ) cria4852.11 to have been duly washed. 5. Learned Advocate Mr. Amol Sawant submitted that present applicant had a mobile connection bearing No. 9921015910. According to learned advocate Mr. Sawant, it is apparent that some of the telephone calls are made at places which fell within tower of Laling and those calls have been made at late night; whereas some of the calls are made from Umrane. The prosecution has been able to annex to the charge-sheet the call details. However, as per the call details, it is difficult to accept that some of the calls are made from Laling or from Umrane as such statement merely gives serial numbers of the towers alloted by the company without mentioning the spot where the tower was installed. Hence, said circumstance cannot be used by the prosecution as of today. 6. Apart from these two circumstances, there is no other material placed before the Court to link the ( 6 ) cria4852.11 present applicant to the crime alleged. The circumstance that the present applicant had seen off deceased at Umrane bus stand on 7th June, 2011, being a circumstance of last seen with is on the basis of record produced before the Court, is a very weak circumstance and on the basis of that alone, it would not be possible for this Court to accept the case of the prosecution that prima facie case for offence under section 302 of the I.P.C. is made out. If this is so, on the basis of record, which is produced before the Court it would be difficult to accept case of the prosecution that present applicant was involved in the act, namely, causing death of the deceased. In view of above, application for bail will have to be granted. 7. Learned Advocate Mr. Savant submitted that the applicant is facing trial and charge is framed against the present applicant and he has pleaded not guilty. According to Mr. Savant, now that trial will commence and ( 7 ) cria4852.11 present applicant should not be granted bail. I am not inclined to accept this argument because I have discussed the material and I have observed that the prosecution has not been able to place before the Court the material so as to come to the conclusion, of course prima facie, that charge under section 302 of the I.P.C. is made out. It is possible to accept the stand of the prosecution that the applicant can be put to stringent terms. Hence, the following order is passed :- 8. The application for bail is granted. It is hereby ordered that the applicant be released on bail in connection with C.R.No.64 of 2011, registered with Mohadi Police Station, Dist. Dhule, in the sum of Rs. 20,000/- (Rupees Twenty Thousand) with one surety in like amount. The applicant shall execute P.R. bond in the sum of Rs. 20,000/- (Rupees Twenty Thousand). The applicant shall report to the concerned police station on every 2nd and 4th Saturday, between 11.00 a.m. to 4.00 p.m. till ( 8 ) cria4852.11 recording of evidence of material witnesses of the prosecution is over. [R.Y. GANOO, J.] snk/2011/DEC11/cria4852.11