1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. Criminal Application No. 1449 of 2009 Milind and anr v. State of Maharashtra Criminal Application No. 1446 of 2009 Bhau and ors v. State of Maharashtra -------------------------------------------------------------------------------------- Office notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's Orders. Mr R.P. Joshi, Advocate and Mr N.B. Kalwaghe, Advocate with him for applicants Mr D.B. Patel, AGP for State Coram : A.P. Bhangale, J Dated : 24th July 2009 1. Heard Mr R.P. Joshi, learned counsel for applicants and Mr D.B. Patel, learned Addl. Public Prosecutor for State in both the applications. Applicants have prayed for grant of bail in connection with Crime No. 151/2008 reported at Police Station, Dhamangaon Budhe for an offence punishable under Section 302 read with Section 34 of the Indian Penal Code. 2. During the course of hearing, my attention has been invited to the following observations made by the Additional Sessions Judge, Buldana in the order dated 16.1.2009 while rejecting bail application of the applicants. 2 “5. It is to be noted that during investigation I.O., also recorded the statements of Parwatabai Patil, Suman Aubuskar, Sushila Aatole, Vitthal Patil, Bandu @ Ramchandra Patil, Atmaram Ahire and Virendra Sambhaji Patil u/s 161 of the Cr.P.C. It reveals from their statements that on the date of incident deceased Prabhakar was under the influence of liquor and while climbing on the steps for going to third floor, he lost his balance and thereby failed down from the stair case.” In view of these observations, learned Addl. Public Prosecutor was directed to produce typed copies of statements of the persons referred to in the order of the Additional Sessions Judge. Inspite of this specific order, respondent-State has failed to produce copies of relevant statements. 3. Learned Addl. Public Prosecutor even today has maintained his argument that it is sweet choice of the Investigating Officer whether to produce statements of all the witnesses or withhold any of them in view of the provisions of Section 170 read with Section 175 (5) (a) and (6) of Cr.P.C. The issue is no more res integra. This Court in Ramesh v. State of Maharashtra reported in 1995 (2) Mh.L.J. 724 has held that the accused is entitled to have copies of all statements of witnesses recorded by prosecution under Section 161 Cr.P.C. even if a particular statement is not being relied upon by the prosecution. This view has been followed in Angadh and ors v. State of Maharashtra reported in 2007 (2) Mh.L.J. 394 wherein this Court has held that fundamental right guaranteed under Article 21 of the Constitution of India would recognize the right of an accused for fair trial. If the prosecution is permitted to withhold statements only on the ground that they do not support the 3 prosecution, then the very concept of fair trial would be jeopardized. Since the legal position is very much settled, it was not open for the prosecution to withhold statements of the witnesses referred to in the order of the Additional Sessions Judge and copies of whose statements were directed to be produced vide order dated 29.4.2009. Hence, adverse inference prima facie will have to be drawn that the witnesses named above did not support the prosecution. 4. According to applicants, deceased Prabhakar was addicted to liquor and on the fateful day, while climbing on the stair- case, deceased Prabhakar lost his balance and fell down from the stair-case. Statements of witnesses who have testified this plea, have been suppressed by the prosecution. It appears that there is inordinate delay in recording statement of eye witness. 5. When prima facie two versions appear from the material collected during the course of investigation – one pointing out to the guilt of the applicants and the other indicating the death of deceased by accident, applicants are entitled to the benefit of bail pending trial. Although the accusations are serious, considering the submissions that the applicants are likely to be acquitted at the end of trial due to material pointing out that deceased might have met with accidental death, I am inclined to release applicants on bail. Hence, the following order. 6. Each of the applicants is directed to be released on bail upon their executing PR Bond in the sum of Rs. 25,000/- with one or two sureties in the like amount to the satisfaction of the Additional Sessions Judge, Buldana. Applicants shall attend the trial on each date of its hearing and shall not commit any offence during the pendency of trial. They are further directed to leave their permanent 4 address with the Investigating Officer as also the Court concerned and shall communicate change, if any, in their address in future. Observations made in this order are limited for the purpose of deciding criminal application for bail and the Trial Court shall not be influenced by any of the above observations while dealing with the trial on merit. Application stands disposed of accordingly. Judge. hsj