1 Criminal Application No.101/2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.101 OF 2011 Uttam s/o Popat Chilgar ... APPLICANT VERSUS The State of Maharashtra ... RESPONDENT ..... Shri A.N. Nagargoje, Advocate for applicant Shri V.H. Dighe, A.P.P. for respondent ..... CORAM : K.U. CHANDIWAL, J. DATE : 23rd February, 2011 PER COURT : 1. Heard. This matter was argued at length on 28th January 2011. Since a doubt was raised as to seizure of the incriminating axe, in terms of panchanama under Section 27 of the Evidence Act, it was thought better to call for the report from analyst, to whom the incriminating article, the axe was referred for analysis by the investigator. Pursuant to directions to the investigator, to ensure production of said C.A. report, after the charge sheet, such C.A. report dated 22.2.2011 is tendered, which illustrate that the incriminating article, the axe, allegedly recovered from the accused/ applicant does not bear blood stains or human blood stains. On the contrary, the axe from the memo, appears to be rusted. 2 Criminal Application No.101/2011 2. In a brutal manner, Ashok was assaulted at his head and at other body parts, suffered injuries and succumbed in the agricultural field. It is informed that the accused/ applicant, his brother, was with Ashok at the material time on 1.10.2010. The accused/ applicant came with a case that two unknown persons stabbed or assaulted his brother and fled. He reported the matter as complainant. It was the doubt expressed by few relations and Urmila, the widow of Ashok, investigation was transmitted to Local Crime Branch, who, on surveillance, found characteristics of the accused/ applicant to be dubious and prima facie found his nexus in elimination of Ashok, he was put under arrest on 12.11.2010. Statements of widow Urmila are inconsistent. At some place she benedicts concessions to the accused/ applicant, at next breath, she suspects the accused/ applicant. In the F.I.R. or during the statement, the accused/ applicant informed to the investigator that he had called one Shahaji Kondiba no sooner he saw his brother Ashok in pool of blood. However, said Shahaji, during investigation, in his statement dated 3.10.2010, disown having knowing the accused/ applicant Uttam. At this stage, even if worth of this statement is considered, it will not be implicating the accused/ applicant with role of eliminating his brother Ashok. There is no prima facie evidence worth to connect the accused/ applicant with a 3 Criminal Application No.101/2011 heinous crime of death of Ashok. The minimal role attributed by virtue of seizure of axe has its inbuilt deficiencies referred herienabove. 3. Charge sheet is filed, investigation is complete, the accused has already faced the brunt of custody for long duration. Further custody not warranted. Hence order : O R D E R 4. The accused/ applicant Uttam s/o Popat Chilgar be released on his furnishing P.R. bond and surety in the sum of Rs. 20,000/- (Rupees twenty thousand). The accused/ applicant shall not live in the village where the widow of the deceased resides. However, the accused/ applicant shall stay at Bhurewadi, Taluka Patoda, District Beed, in either the agricultural field or in the village . He will provide his changed address to the investigator with contact number. The accused/ applicant shall attend the trial scrupulously. Application allowed. K.U. CHANDIWAL JUDGE fmp/cri101.2011