1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR CRIMINAL APPLICATION NO.611/2009 (Swapnil Talmale--versus- State ) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -- Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - CORAM : S.R.DONGAONKAR, J. DATE : 22nd APRIL, 2009 Heard Shri Surana, Advocate for applicant and Shri Mandpe, A.P.P. for state. This is an application under section 439 of Cr.P.C. for grant of bail. Applicant along with other accused persons is being prosecuted for the offences under section 302, 307, 147, 148, 149 of I.P.C. and section 135 of the Bombay Police Act and Section 4, 25 of the Arms Act. Incident is of 12.9.2007. The report is lodged on 13.9.2007. The applicant is arrested on 22.10.2007. This is a case wherein in complaint the name of the present applicant is not mentioned, so also in the dying declaration of the injured Prakash Langote, in contrast with the names mentioned of the several other accused persons. No doubt the said complaint and the dying declaration refers to some other unknown accused who had been the assailant, as no test identification 2 parade was conducted, it cannot be held that the applicant was one of the unknown assailants. Learned A.P.P. has relied on the statement of Prakash Langote, which was recorded on 26.11.2007 wherein name of one ‘Kalya’ as assailant has been mentioned. It is tried to be suggested that this Kalya means the present applicant. Fact remains that this statement is recorded after about 67 days of the incident. There is no explanation as to why his statement could not be recorded earlier. Learned A.P.P. has submitted that the trial is likely to be held in near future and therefore, applicant should not be released on bail, more so, because he may threaten the prosecution witnesses. In these circumstances, when the complaint & the dying declaration mention specific names of other accused and there is no test identification parade as regards identification of the applicant, during investigation, the evidence of statement of Prakash Langote which is recorded after about 67 days of the incident, looses its significance. In these circumstances, applicant needs to be released on bail, however subject to conditions. Applicant be released on bail on furnishing surety and PRB of Rs.25000/- subject to condition that he shall not directly or indirectly tamper with the prosecution 3 evidence, shall report the Police Station, Godhni Road, Yavatmal on every first Sunday of each month at 11.00 a.m., and shall not commit any offence, so also he shall attend trial regularly. Liberty to prosecution to move for cancellation of bail, if so warranted. Bail in trial court. Application stands disposed of. JUDGE SMP