1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. Criminal Application No. 1183 of 2009 [Tirath Prakashrao Chavan Vs. State of Mah., through PSO, City Kotwali, Akola] Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Mr. P.C. Madkholkar, Adv., for the applicant. Mr. D.P. Thakre, Addl. Public Prosecutor for the respondent. ----- CORAM : A.H. JOSHI,J. DATE : 03rd July, 2009. 1. Applicant is an accused facing the trial in Sessions Case No. 159 of 2007. 2. This is second application for bail and hence listed before me, as earlier application claiming bail on the ground of parity was rejected by me. 3. The effort of the accused-applicant in filing present bail application with apparently de novo or fresh grounds which were not agitated on earlier occasion is undoubtedly his permissible exercise. True it is that on earlier occasion, he had prayed for bail on the ground of parity, and this Court had, by order dated 2 18th June, 2008, declined the said prayer by recording reasons. 4. Heard learned Adv. Mr. P.C. Madkholkar for applicant in support of application for grant of bail. 5. Heard APP Mr. D.P. Thakre for the respondent-State in reply. 6. Present application for bail is pressed on various circumstances and grounds. It would be convenient to deal with those by quoting each one as is done hereinafter. 7. Perused the photo copy of First Information Report appearing at Page 53, copies of First Information Report given in a comparable form, typed copy of statement  [report on the basis of which First Information Report is recorded] at page 29, photo copy thereof at pages 54 and 56, and supplementary statements of witnesses, copies of FIR supplied with highlighting marking furnished for comparison, and sketch maps of site of offence and surroundings. 8. Submissions as to Point Nos.[i] & [ii]:- [i] So-called alleged witnesses and eye-witnesses have nowhere 3 clarified at any point of time throughout in their statements that accused Nana Chavan and present applicant Tirath are one and the same person. A N D [ii] No statements are recorded by police pointing out therein that the accused to whom the witnesses have referred as Nana is actually Tirath, Analysis of Submissions (a) On perusal of record annexed to the application, it is seen that:- [i] in the supplementary statement of Ajay, the informant, he has described the accused as Nana alias Tirath Chavan. In the same statement, Nana is repeatedly referred as Nana . [ii] In the statement of another witness  Ganesh Prakash Sapkal, Nana Chavan is consistently referred as Nana Chavan . [iii] In the statement of another 4 witness - Soni Keshavprasad Mishra, Nana is described as Nana alias Tirath Chavan and as Nana Thakur. [iv] All other witnesses have referred to the accused-applicant as Nana Chavan. (b) By the submissions, subject-matter of analysis, the applicant is, at this stage, attempting to persuade this Court to believe a plea akin to or analogous to a plea of alibi, or alternatively argues that there is a doubt about identity of accused-applicant when prosecution treats Tirath Chavan, the applicant, as accused. (c) Learned Adv. Mr. Madkholkar, therefore, persistently urges that in view of de novo introduction of name of applicant in supplementary statement, prosecution is bringing the applicant in picture for the first time through supplementary statement of the informant. (d) This Court finds that exact words coming from the mouth of informant-witness Ajay are Nana alias Tirath. In respect of none amongst the informant or witnesses, the police neither seem to possess any doubt whether Nana and Tirath are different persons, nor they have any confusion or doubt. 5 (e) By taking the benefit of appearance of two names, i.e., Nana and Tirath, in the supplementary statement of Ajay, learned Adv. Mr. Madkholkar is seen arguing that Nana and Tirath are different persons. (f) Such an argument is possible by learned Adv., for applicant only because learned Adv. Mr. Madkholkar is not adverting to the word alias appearing between Nana and Tirath , lest he would not be able to argue what he is arguing. (g) Admittedly, it is not a case of assault by unidentified accused, which situation would have ordinarily made it necessary to have an Identification Parade. 9. Submission as to Point No.[iii] :- No Identification Parade was held so as to establish the identity of accused  whether he is Nana or Tirath, or both these are names of one and the same person. Analysis of Submissions (a) Had different witnesses named different persons as accused, and some amongst those may have been unidentified, in order to establish presence of a particular accused, Identification 6 Parade would have become indispensable. In the present case, the investigating machinery appears to be sure that there did not exist any confusion as to identity of the accused Nana. (b) In this background, the argument that the absence of Identification Parade drives the accused to the bail, is an ingenuous, but untenable submission. 10. Submission as to Point No.[iv]:- There are two different copies of FIR on record, with same serial number of format, having different contents. There are various discrepancies in FIR, which create a grave doubt about truthfulness of involvement of the applicant in the accusation charged, i.e., the act of murderous assault. First copy of FIR, which was sent to JMFC, shows one dated 13th August, 2008 and copy which is sent along with charge-sheet to the JMFC shows a different date, i.e., 12th August, 2007. Analysis of Submissions (a) It is seen that the oral report, on the basis of which First Information Report is registered, is at pages 54 and 56 being back 7 side of printed format [photo copy] and [typed copy is at page 29]. This FIR was recorded on 11th August, 2007. The statements of witnesses and Supplementary statement of informant recorded on 12th August, 2007. (b) The patent discrepancies in First Information Report, which have been very emphatically argued and pointed out by learned Adv. Mr. Madkholkar, are relating to Column Nos. 3,4,5 and 6 of format of FIR. (c) This Court has, therefore, compared both the copies of First Information Report  [1] which is said to be copy of FIR sent to the Court, and, [2] which was said to be the copy of FIR accompanying the charge-sheet. (d) Scrutiny of both copies of FIR disclose the following:- ___________________________________________________________ Sr. no. What is seen/found in the copy of FIR & column _____________________________________ no. of FIR. Filed in Filed along the Court. with charge- sheet. ____________________________________________________________ 1. 3(a) Time of occurrence Time of occurrence of offence is of offence is left blank. shown 19.10 written thrice with over writing at two places. 2. 3(b) Time of getting the Column is left 8 report is 22/30. blank. 3. 3(c) The time when Time is mentioned diary entry as 22/30. was made is 22/30. 4. 4:- There is a Narration is: mention of fatal Oral Report. assault. 5. 5:- The distance is Distance is one mentioned as furlong South of one furlong, at beat Kholeshwar South of beat Opp : Rahul Bhavan, Kholeshwar, Kholeshwar, Akola, behind Hanuman behind Janga Mandir, Hanuman Temple. at Akola. 6. 6(a):- Name of the Ajay Ratansingh complainant is Thakur is shown mentioned as as complainant. Ajay Ratansingh Thakur. ____________________________________________________________ (e) Serious doubt is raised by applicant about truthfulness, correctness and worthiness of First Information Report on account of the discrepancies noted above. (f) Any discrepancy or contradiction, whatsoever, rather worth mentioning, is not pointed out in the copy of oral report, on the basis of which information is filled in the columns of the First Information Report, i.e., page nos. 29, 54 and 56 of present application paper-book. 9 (g) This Court has noted in sub-paragraph no.(d) above the observations as to contradictions or variations pointed out and argued by the applicant and said to be apparent from the copies of charge-sheet. (h) It is clear that the First Information Report was purportedly received by Judicial Magistrate First Class on 13th August, 2007, and the Magistrate had endorsed seen on that date. It is not disputed that the incident had occurred on 11th August, 2007 and FIR is registered on the same date. At this stage, the question whether FIR was sent to Magistrate on 12th or 13th does not assume much significance and importance at least grave to the extent that incident reported therein as regards involvement of accused-applicant be ruled out. (i) This discrepancy about date of dispatch of FIR to the Magistrate may be gone into and appropriately used by the accused persons as and when the trial proceeds. (j) Moreover, the discrepancies in the FIR have been explained by the Police Sub-Inspector, stating on oath that those are errors in the process of making extra copies. (k) The explanation by the Police Sub- Inspector, at this stage, is undoubtedly plausible, since it is a common knowledge that 10 FIR is to be written and including original, about five more impressions [copies] are required. These copies are not made in the fact of case by use of mechanical device, such as computerized printing or photo copying from the original, and what is done is a human involvement in making extra copies. (l) Committing error in the process of copying is to be avoided, but cannot be ruled out as an imminent possibility. Moreover, present is not the stage to entertain a doubt, and investigate into fact of incident, having nothing to be tried by the Court of competent jurisdiction. (m) The fact that contents of oral statement on the basis of which FIR is recorded are correctly recorded is not in debate. The incorrect recording, or filling incorrect / incomplete information in the format of FIR or other discrepancies very emphatically argued by the applicant do not go to the root of the case. (n) Therefore, no further discussion on this point would yield any fruits in favour of the applicant. The Point [iv], therefore, does not merit any further discussion, and cannot be weighed in favour of the applicant. 11. Submission as to Point No.[v] :- 11 There is a substantial change in the location of the alleged incident ranging from 100 mtrs. to 300 mtrs. considering the description contained in two FIRs. In the first FIR, it was alleged that incident took place at Janga Maroti Hanuman Mandir, whereas in second FIR the incident is alleged to have taken place behind Janga Hanuman Mandir in front of Rahul Bhavan and the distance between two places is 300 feet. Analysis of Submission Learned Adv. Mr. Madkholkar has tried to give emphasis on the location map, suggesting that prosecution is not sure on location of place of offence. It is not shown or suggested that there exists some object between the passage within two locations, i.e., back side of Hanuman temple and front of Rahul Bhavan. Said submission drags the Court into field of speculation, which is impermissible, while considering application for bail. Moreover, maps/sketches relied upon by learned Adv. Mr. Madkholkar do not lead the Court to a point urged. The submissions are based more on imagination than on tangible and palpable evidence. 12 12. Submissions as to Point Nos. [vi] & [vii]:- [vi] Trial has been stayed, since accused including present applicant have applied for discharge on the ground of discrepancies, and as said prayer is declined, they have challenged said order refusing discharge and the sessions trial has been stayed. [vii] The applicant, who is being tried for offences punishable under Sections 143, 147, 149 and 307 read with Section 302 of Indian Penal Code, is in custody/jail from 13th August, 2007, waiting investigation and now the trial. Analysis of Submissions It appears that it is because of the type of legal advice the applicant got that he has moved application for discharge. Now, when the trial is stayed because of a motion made by the applicant, he cannot blame anybody. This is, therefore, not a ground with strength, whatsoever, to urge that on the ground of stay 13 of trial, the applicant be granted bail, particularly when the said stay, inter alia, is on account of applicant s own motion. 13. Submission as to Point No. [viii] :- During pendency of application before this Court, an ad interim bail on the ground of illness of the father of applicant was granted to the applicant and the temporary bail was granted from 28th March, 2008 to 16th June, 2008 and the applicant Tirath has not misused the liberty and did abide by all the conditions of grant of bail. Analysis of Submission The ground that the applicant did not misbehave, and did not abuse the liberty would be a matter to be considered when on merits he would otherwise be entitled for bail. Had his behaviour been otherwise, it would certainly have been an adverse fact. When this Court finds that on merits, the applicant is not entitled for bail on the basis of reasons pressed in this application, this point will not weigh with significance. 14. Submission as to Point No. [ix] :- 14 In the event because of the various discrepancies and variations in two copies of FIR, the applicant is not found involved in the offence for want of identification. If Nana, the applicant, is ultimately found to be not guilty of any offence, then his arrest will amount to detention without any reasons or trial. Analysis of Submission The submissions that the accused would be languishing in jail, while there appears to be a strong possibility of his being totally falsely involved, and he would be entitled for bail, are prima facie attractive submissions, but those are without any foundation. Duration of applicant s being in jail under trial is, therefore, not an unknown incident. If based on facts of a case, an accused does not get bail. On merits, it is an inevitable incident and duration by itself and in exclusion to all other facts does not constitute a ground for bail. 15. The tenor of submissions advanced do demonstrate discreet study of record by the learned Adv., for the applicant, and based thereon, his effort is to impress upon this Court that even at this stage it is easy to infer that the accused-applicant is not at all involved in the offence, and who is involved is 15 one Nana Chavan or Thakur, as well that the alleged incident involving present applicant is highly improbable. 16. For the reasons and discussion herein before, the application for bail has no merit, and deserves to be dismissed, and is dismissed. Judge |Hedau| 16