1 Criminal Application No.848/2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.848 OF 2011 Balaji s/o Kalba Waghmare & anr. ... APPLICANTS VERSUS State of Maharashtra ... RESPONDENT ..... Mrs. M.A. Kulkarni, Advocate for applicants Shri N.B. Patil, A.P.P. for respondents ..... CORAM : K.U. CHANDIWAL, J. DATE : 18th March, 2011. PER COURT : 1. Heard. The accused, in custody from 14.4.2010 and 13.4.2010 respectively, in Crime No.89/23010, registered at Vazirabad Police Station, for an offence under section 302 read with Section 34 of the Indian Penal Code, seek bail. Learned counsel for the accused submits, the charge sheet/ final report submitted by the police is wanting C.A. report. Hence, it is incomplete charge sheet, benefit of Section 167(2) of the Criminal Procedure Code should be showered upon the accused to release them on bail. In support of her contentions, counsel has placed reliance to the judgment of this Court in the matter of Sunil Vasantrao Phulbande & anr. Vs. State of Maharashtra (2003 (Supp.) Bom.C.R. 101 : 2002 (3) Mh.L.J. 689) 2 Criminal Application No.848/2011 and to the judgment in the matter of Sharadchandra Vinayak Dongre and others Vs. State of Maharashtra [1991 (1) Mh.L.J. 656]. The learned counsel submits, evidence of the so called eye witnesses in itself is shaky, will not implicate the accused. The accused are languishing in jail for virtually one year. Statements of witnesses are unbelievable to its worth, to implicate the accused. She submits that, deceased was a criminal, it was apprehended that he would be eliminating his wife and may be some event by someone else has taken place but for that the accused/ applicant would not be branded to be author of ghastly act. 2. The reliance to the judgment in the matter of Sunil will not be accelerating the defence as said matter was pertaining to infraction of provisions of Narcotic Drugs and Psychotropic Substances Act, wherein brother Judge observed that very genesis of cases under N.D.P.S. Act revolves to deciding whether the seized substance is Ganja or not, which would determine whether provisions of N.D.P.S. Act are attracted or not. The learned brother Judge observed that the Magistrate in such situation undoubtedly cannot proceed to take cognizance of the offence for want of complete charge sheet/ report and, therefore, in the said case, the charge sheet was not treated to be in terms of Section 173(5) of the Criminal Procedure Code. 3 Criminal Application No.848/2011 3. In the matter of Sharadchandra, there was already delay in filing the charge sheet, an application was moved seeking condonation since it was foreign to the procedure, it was not entertained, the learned Single Judge also recorded nature of accusations in terms of Section 108 of the Bombay Prohibition Act, which lean to penalty for import export etc. of intoxicant without payment of duty and the several clauses therein to the extent of payment of fine. No such situation emerge in the present case. 4. The learned A.P.P. submits, in terms of Section 173(8) of the Criminal Procedure Code, the investigator is competent to furnish papers if not so done. 5. The applicability of Section 173(8) comes to play by way of further investigation and would not be attracting producing a document, left to be tendered for want of report from the analyser. 6. Now turning to the primary merits of the matter, even if deceased Shankar had a criminal record, however, that by itself will not provide a licence to counter him to eliminate. It may be that Shankar being outraged due to odd behaviour of his wife Lalita, assaulted her and her brother Balaji felt obnoxious. However, for that, elimination by itself would not provide the answer. 4 Criminal Application No.848/2011 7. The witnesses Sainath Metkar, Sainath Kavit and Bhojraj Choudhary in unison inform, having seen the assailants/ applicants coming from the house of Shankar with sword/ dagger/ Katti in their hands, stained with blood. Even the blood stains splash their apparels. This version of these three witnesses primarily is elaborated by Nagobai, who, owing to the screams of Lalita, had seen Balaji and others barging in the house of his sister Lalita with lethal weapons referred above. Thereafter, Lalita rushed scared yelling and the accused armed with his sword or a lethal weapon after eliminating came out. The shopkeepers in the area had also seen the accused brandishing the weapons and sneaking away. Their statements are recorded. Under the discovery made by the suspects, the seized weapons with stains are recovered. 8. The contention of learned counsel that for want of C.A. report no offence can be established against the accused, in the set of above facts, is difficult to digest as voluminous basic evidence rebels. Taking these aspects into consideration, custody of the accused, for virtually year for itself will not matter. Considering the manner in which the ghastly act at broad day light was committed. Application lacks merits, dismissed. Observations are prima facie. 9. The learned Sessions Judge seized with the matter 5 Criminal Application No.848/2011 shall expeditiously dispose of the Sessions case. K.U. CHANDIWAL JUDGE fmp/cri848.2011