1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. Criminal Application No.3373/2009 ( Vinod Satwaji Shrigadi and Sunil Satyakumar Nakka .vs. State of Maharashtra. ) ------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders. and Registrar's orders Mr. F.T. Mirza, Advocate for Applicants. Mrs. K.S. Joshi, APP for Respondent. CORAM : P.D. KODE, J. DATED : DECEMBER 16, 2009 Heard. By the present application, the applicants arrested on 27.3.2009 in connection with Crime No. 178/2008 of P.S. Deulgaon Raja and ultimately charge sheeted for commission of offence punishable under Sections 302, 201 read with Section 34 of IPC , have prayed for bail. The said crime was registered by the said Police on 31.12.2008 upon receiving report of a dead body lying near the Bhivgaon Shivar and the steps taken thereon by the Police revealed the same being of deceased Umesh Sirsudda. The prayer for bail is opposed by the learned APP on the count of the material collected by the investigating agency containing the circumstances showing involvement of applicants in commission of the 2 offence of murder of the said deceased and so also the offence of destroying of evidence of crime committed by them. The learned APP urged that the material collected by the prosecution amongst other clearly reveals that applicant no.1 was enraged due to the love affair of his niece with the deceased and he had called the deceased for meeting in connection with the same. The learned APP urged that further material collected by the prosecution in shape of statements of four witnesses viz. Raju, Lakhan, Sagar and Ghanshyam in terms reveals that applicant no. 1 had called the deceased, the deceased in the evening prior to the day of detection of the body, deceased along with applicant no.2 had left the spot at which the said witnesses were having talks with the deceased, thereafter after some time witness Raju had attempted to contact the deceased on mobile phone but he was not able to establish the contact and thereafter Lakhan had called the deceased on his mobile phone and the deceased had informed him of himself being with applicant no.1. The learned APP urged that the material collected by the investigating agency thus undisputedly establishes of applicant no.1 having some sort of motive or animosity against the deceased, the deceased was lastly reported to be alive in the company of applicant no. 1 and some time prior to the same he was taken by applicant no.2. The learned APP urged that the present being not the stage of dissecting the prosecution material, the cumulative effect of all the aforesaid circumstances prima facie leads to the conclusion of the applicants being the perpetrators of the crime in 3 question occurred. The aforesaid submissions were counter-veiled by the learned counsel for the applicants by urging that even though the circumstantial evidence said to be equivalent enough to that of a direct evidence, sill for giving such value to such type of evidence, it is now well settled that each of a circumstance must be established with a cogent evidence and the circumstances thus established must form a formidable chain leading only the inference about the guilt of the accused. The learned counsel urged that even accepting the prosecution material as it is and without going to the relevancy of the admissibility of the circumstance of deceased having reported of Lakhan to be in the company of applicant no.1 and/or the applicant no.2 having taken him along with him in the evening, still there is a vacuum in the prosecution material regarding long phase for about more than 16 to 20 hours in between circumstance of last seen alive and dead body being found at an isolated place in Deulgaon Shivar. The learned counsel urged that the prosecution material failing to reveal of deceased having reported to Lakhan that he was in the company of applicant no.1 at a place at which the dead body was found or nearby the same and the prosecution failing to explain the precise place at which the deceased was in the company of applicant no.1, no much significance can be given to the circumstances relied by the prosecution. He states that there being no proximity of a time of the circumstances of the deceased being seen alive in the company of either applicants no.1 and 2 and the place at which he was found , merely because the other 4 prosecution material revealing of the deceased having met homicidal death is not sufficient to conclude even prima facie of the applicants being the perpetrators of the crime. The learned counsel further urged that applicant no.2 having an antecedents would be also an irrelevant circumstance to deny the bail in the view of the failure of the other material pointing out towards his involvement in commission of the offence alleged. After giving thoughtful consideration to the submissions advanced by both the sides and considering the material in the charge sheet against the applicants, there appears substance in the submission canvassed by the learned counsel for the applicants. The same appears accordingly as there is a long gap in between the material regarding the circumstances of deceased being seen alive and/or in the company of applicant no.2 and lateron said to be with applicant no.1 and the time at which his dead body was found at an isolated place in Deulgaon Shivar. Thus prima facie the circumstances relied by the prosecution by themselves being unable to point out unerringly towards the guilt of the applicants, even though they may be sufficient to raise a suspicion regarding the involvement of the applicants, the applicants cannot be denied the bail. The applicants are directed to be released on bail on each of them executing a PR bond in a sum of Rs. 1,00,000/- with two solvent sureties in the like amount by each and subject to the conditions of each of them (i) attending Police Station Kadim Jalna everyday in between 5 p.m. to 6 p.m. for first 15 days and thereafter every 5 Monday for a period of four weeks and thereafter on every alternate Monday until the conclusion of the trial; (ii) not tampering the prosecution evidence so far collected or threatening or intimidating the prosecution witnesses; (iii) furnishing the detail address while furnishing bail and not changing the same without prior permission of the Court and (iv) not committing any offence while being on bail granted vide this order. Hamdast allowed. JUDGE halwai