1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR CRIMINAL APPLICATION NO.4352 OF 2008 IN CRIMINAL APPEAL NO.129 OF 2008 (Shriram s/o Hajarilal Sonwane vs. State) ___________________________________________________________________ Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : D.D. SINHA AND A.P. BHANGALE, JJ. DATED : DECEMBER 16, 2008 Heard Shri Daga, learned Counsel for the applicant/appellant, and Shri Jichkar, learned Additional Public Prosecutor for the respondent. Shri Daga, learned Counsel for the appellant, states that so far as appellant is concerned, there is no evidence adduced by the prosecution to show that appellant either participated in the assault or abetted the same. It is contended that even presence of the appellant on the spot of incident at the relevant time is not properly established by the prosecution. On the other hand, evidence of sole eye witness Tulsabai (PW 4) creates serious doubt about very presence of the appellant on the spot of incident at the relevant time. It is further contended that 2 merely on the basis of discovery under Section 27 of the Evidence Act, that too of wooden handle of axe, which had no blood stains, the appellant is convicted. It is submitted that evidence of sole eye witness Tulsabai (PW 4) shows that other co-accused (absconding), whose trial was separated, assaulted deceased Chimanlal with knife. It is further submitted that entire prosecution evidence is silent about participation of the appellant in the crime. Insofar as presence of appellant on the spot of incident is concerned, prosecution evidence is doubtful and except discovery under Section 27 of the Evidence Act, nothing incriminating has been discovered by the appellant. It is, therefore, prayed that appellant may be released on bail. Shri Jichkar, learned Additional Public Prosecutor for the respondent, states that the appellant was present on the spot at the relevant time and there is a discovery by the appellant under Section 27 of the Evidence Act of wooden handle of axe, though it did not have blood stains. We have considered the contentions canvassed by the respective Counsel for the parties. In the backdrop of the above referred evidence as discussed by us, it appears that prima facie case is made out for grant of bail. Hence, Criminal 3 Application No.4352/2008 is disposed of with direction to the respondent to release the appellant on bail on furnishing PR bond of rupees five thousand with two sureties of like amount. JUDGE JUDGE khj