1 appln.805.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Criminal Application No. 805 of 2009 IN Criminal Appeal No. 727 of 2009 Rajendra Kedar Behra ....Applicant Vs. The State of Maharashtra ....Respondent Mr. Shyam Mehta-advocate appointed for the applicant. Mr. D.P. Adsule-APP for the State. CORAM:- A.M.KHANWILKAR AND P.D.KODE, JJ. DATED:- OCTOBER 20, 2010. P.C. Heard Counsel for the parties. 2. This Application for bail is filed through jail. We have heard Learned Amicus Curiae and the Public Prosecutor. We are in agreement with the criticism about the approach of the Lower Court both in respect of the reasoning and also the procedure adopted. The reasoning of the trial Court on the basis of which finding of guilt has been recorded can be discerned from Paragraphs 30 – 32. In Paragraph 30, the Court has dealt with the evidence of Yamini who has stated that the Applicant was alone in the house alongwith the deceased at the relevant time. However, that case has not been put to the accused in the 2 appln.805.09 statement recorded under Section 313 of Cr. P.C. Whereas, Question-12 in the 313 statement merely suggests that the Applicant was present in the house and not that he alone was present in the house alongwith deceased. 3. Besides, we prima-facie agree with the submission that mere exhibition of CA Report Exhibit 57 was not enough. Inasmuch as, the discrepancy about the description of the articles referred to in the CA Report are given as Exhibit A to Exhibit H; whereas in the results of the analysis of the items is given as Exhibit 1 to Exhibit 8. This discrepancy has not been explained by either Chemical Analyser himself or for that matter the Investigating Officer. The fact that CA Report has been exhibited does not, therefore, take the matter any further. 4. We also find force in the argument that in the questions regarding CA Report and postmortem report put during 313 statement are question nos. 22 and 23, except referring to the said reports having been exhibited, no incriminating material therein was put to the Accused. In other words, the accused was not offered opportunity to explain the prosecution case on the basis of which finding of guilt came to be recorded. Besides, the Petitioner is admittedly suffering from HIV-1. 5. Taking over all view of the matter, therefore, this Application is allowed. 3 appln.805.09 The Applicant is ordered to be released on bail on the following conditions. O R D E R i) The Applicant is ordered to be released on bail on furnishing bail bond in the sum of Rs. 10,000/- with one or two local sureties in the like amount. ii) The Applicant shall report to the local Police Station where he would reside, once in a month i.e. on first Monday of every English calender month between 10.00 a.m. to 1.00 p.m. iii) The Applicant shall furnish his latest residential address to the local police station and shall not travel outside Mumbai without prior intimation of 48 hours to the local police station and also disclose his travel programme and the contact place where he would visit. 6. Application disposed of accordingly. 7. Court expresses word of gratitude for the able assistance given by the Learned Amicus Curiae. 8. Copy of this order be forwarded to the Petitioner who is in jail. (P.D.KODE, J.) (A.M.KHANWILKAR, J.)