1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.4334 OF 2009 Sahebrao Kumaji Madhe, APPLICANT VERSUS The State of Maharashtra, RESPONDENT Mr.U.S.Malte, learned counsel for applicant. Mr.N.B.Patil, learned counsel for respondent State. (CORAM : A.V.POTDAR, J.) DATE : 17/12/2009 PER COURT : 1. By the present application, the applicant has approached this Court for his release on bail in connection with CR No.237/2009, registered in Parner Police Station for an offence punishable u/s. 302, 201 r/w. 34 of IPC in which the present applicant was arrested on 29/06/2009 and after completion of investigation, the charge sheet was filed on 09/09/2009. 2. Heard learned counsel appearing for applicant followed by the submissions of learned APP appearing for State. Perused the papers of investigation. 3. From the perusal of papers of investigation as well as the submissions across the bar, it appears that the said offence came to 2 be registered in Parner Police Station on the complaint of one Shobha Rambhau Gadhe on 29/06/2009 wherein it is alleged that the deceased have an illicit relations with one Shakubai and this Shakubai and deceased were staying as husband and wife at the place of deceased as well as at the place of said Shakubai and at the work place wherever they used to work, as they both were working as a labourer on brick kiln. It is alleged that in the evening of 16/06/2009, this deceased and Shakubai went to Kaluchi Thakurwadi for their work. It appears that one dead body without head was found in de-composed condition in the river bed of river Kalu, which is stagged with the shrubs in the river. It is the rainy season and it is found that name Shakubai Haribhau was tattoed on one of the hand of the dead body without head. After this news was flashed in the newspaper, the complainant and his brother went on the spot and identified the dead body as the dead body of Haribhau and then the offence came to be registered on 29/06/2009, on the complaint dated 26/06/2009 against Shakubai, brother of Shakubai, Keshav and present applicant. It is informed that the said Shakubai is released on bail, but the brother of Shakubai i.e. Keshav is still behind the bars. The present applicant is the brother in law of said Shakubai. 4. It is urged across the bar that there is no direct evidence about the merciless killing of said Haribhau, but the entire case of prosecution stands on the circumstances. According to learned counsel appearing for the applicant that nothing was recovered at the 3 hands of present applicant. But only on suspicion, he is arrested in the present case and is behind bars for more than 6 months, hence be released on bail on any conditions as the Court deems fit. 5. While opposing the bail application, it is urged across the bar that the alleged incident might have occurred in the night of 21/06/2009. The day when the incident occurred were the rainy days and the dead body was found in the river bed wherein the water was about 1 ½ feet and because of that, removed head of the dead body was not traced. There are statement of witnesses who have seen that the deceased was in the company of applicant, the brother of Shakubai, Keshav and Shakubai where the deceased was beaten by the applicant as the brother of Shakubai, Keshav do not like the illicit relations of deceased with Shakubai. Thereafter, Haribhau was not seen at all. The chopper was recovered at the instance of co- accused Keshav, who accompanied allegedly alongwith the applicant and was found in the company of deceased on the faithful night when the incident occurred. In the premise, according to learned APP appearing for the State, even though the case rests on circumstances, it attribute to the act of the present applicant. If he released on bail, then he may tamper with the evidence of prosecution witnesses. 6. Considering these submissions across the bar, it required to be considered that the place of residence of Shakubai which is far away from the human residential locality, about a kilometer away and it is 4 situated in a hilly area and isolated residential premises. In the premise, it is difficult that there may be an independent witness who may have an occasion to see that all these persons on the night of incident, when the deceased was assaulted by the applicant and Keshav, but there are witnesses from whose statement the theory of last seen together is transpired. There shall not be any doubt that the death of deceased is homicidal and not accidental or suicidal death and if it is so, considering the fact that even if the case rests on the circumstances and not on the direct evidence, the involvement of applicant can not be rulled out. In the premise, no case made out to release the applicant on bail. Hence application stands rejected. 8. But considering the fact that the applicant and co-accused are behind bars for more than 6 months, the directions to be issued to the concerned Additional Sessions Judge on whose file the case appeared after the committal order is passed as it is informed that the committal order is passed after filing of the charge sheet and the case against the applicant is already committed to the Sessions Court to dispose of the trial within the period of 6 months on receipt of writ of this order. It is hereby clarified that these observations are primafacie observations on the basis of papers of investigation. Learned Additional Sessions Judge, before whom the trial to proceed, not to influence with these observations. (A.V.POTDAR, J.) khs/DEC 2009/cri.appl.4334-09