1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. CRIMINAL APPLICATION (BA) NO. 33/2011 (Deepak Manohar Kale, Manohar Dhanaji Kale and Shrikant Chinduji Natkar .vs. State of Maharashtra through Police Station Arni ) ------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders. and Registrar's orders Mr. Y.B. Mandpe, Advocate for Applicants. Mr. S.S. Doifode, APP for Respondent. .......... CORAM : P.D. KODE, J. DATED : MARCH 10, 2011 Heard. The prayer for bail made by the three applicants charge sheeted by Arni Police Station for triple murder, for attempt to murder and for offence under Section 397 of IPC is vehemently objected by the learned APP on the ground that involvement of all the applicants is prima facie borne from material contained in the statement of injured eye witness Anil recorded during the course of the investigation. The learned APP urged that as said injured witness was found unconscious at spot and thereafter hospitalized , his statement could not be recorded earlier than that of 1.11.2010 but even much prior to same i.e. on 9.9.2010 names of the culprits/applicants were gathered from him and on said basis the applicants were arrested. 2 It is urged that submission canvassed that the applicants were falsely implicated for meeting unrest arisen in Arni regarding inaction of Police in investigation of such a heinous crime, is wholly incorrect and unfounded. It is urged that material in the statement of sole surviving victim considered in proper perspective militates against submission canvassed of the said witness being planted by the prosecution for roping the applicants. It is urged that material in the statement of the said witness prima facie shows involvement of the applicants and as such they are not entitled for bail. It is urged that merits or demerits of submission of statement of said witness being belatedly recorded could be determined only after the evidence is adduced and tested. It is urged at present stage said material is prima facie sufficient to show involvement of applicants in crime for which they are charge sheeted. It is further urged that in addition to the said material, the blood stained clothes were recovered as a sequel to the statement leading to the discovery of the same made by applicant no.1 Deepak Kale and applicant no.3 Shrikant Natkar. It is urged that the pairs of chappals found at the spot of the offence i.e. the temple has been identified to that of the applicants. It is urged that merely because the investigation is complete, the applicants cannot be said to be entitled for bail considering the grave accusations against them. It is further urged that merely because a report regarding theft was lodged by one of the victims i.e. priest of temple, one day prior to occurrence of incident that some persons had attempted to steal sand 3 from the river at the rear side of temple, the same by itself would not lead to the conclusion, even prima facie that the present crime was committed by some other persons other than the applicants. It is further urged that the FIR in the case was lodged by Constable on patrolling duty who had found injured and three dead bodies lying within the precincts of the temple and so also the investigating agency having noted that the lock of the cash box was broken, also denotes that an attempt was deliberately made by the culprits for the investigating agency going upon the false track. The learned counsel for the applicants by placing reliance upon the decision in a case of Surendra s/o Sukhadeo Shende .vs. State of Maharashtra reported in 2006 (1) Mh.L.J. (Cri) 447 urged that the said decision reveals that the accused persons were granted bail when it was found that the statement of the injured person was recorded after five days. It is urged that on the basis of the ratio of the said decision, the applicants are entitled for bail in present case wherein statement of injured witness is recorded after delay of about two months. It was vehemently contended that the investigating agency having failed to produce any record for substantiating the matters mischievously stated in para 4 of the affidavit-in-reply that the names of the applicants were transpired long back on 9.9.2010 also supports the submission of the applicants of themselves being falsely implicated by the Police by planting a false witness at the later stage of the investigation. It is urged that the investigation being complete and the applicants being ready to abide any 4 conditions as would be imposed, the applicants be released on bail considering such character of the prosecution material. Now firstly considering the decision upon which the reliance is placed, it is difficult to accept that the same could be of any useful assistance to the applicants. The matters recorded in paragraph 5 of the same in terms reveal that even in the said case the bail was granted upon the sole criteria that the statement of the injured witnesses was recorded after 5 days. As a matter of fact, the said decision reveals that many other factors such as the incident had occurred in a dark, the injured had not named anybody in medico legal papers, the names of the accused therein having transpired after five days, injured was discharged from the hospital and the investigation being complete, all were taken into consideration while accepting the prayer for bail. Needless to add that in the light of the said factors, the discretion was exercised in the said case which was involving an offence of attempt to commit murder. Now considering the facts and circumstances of the present case, it is difficult to perceive that the crime committed in the present matter can be said to be on par with the crime in the said case as brutally taking away life of three persons probably due to themselves having intervened in an attack made upon the sole eye witness, who had been to the said temple for guarding the material kept for marriage of daughter of Chandabai to be solemnized on the next day and seriously injuring him due to applicants no.1 and 2 having animus against 5 him for having relationship with sister of applicant no.2- Chandabai, till he becomes unconscious, and the motive for which the same was committed, in terms reveals that the crime in the instant case stands on a much higher pedestal than the crime in the said case relied. Now with regard to the submission canvassed about the statement of sole witness being recorded at the belated stage and without even going to the merits and demerits of the said contentions of the investigation being not properly conducted in the matter, it will be necessary to say that the legal position regarding such aspect has been well settled to the effect that the follies of the investigating officer cannot be allowed to accused having benefit of the same. Now considering the matters from the said angle and there being tangible material in the shape of eye witness, it is difficult to accede with the prayer for bail in such a crime. No doubt it is true that the investigating agency has not recorded the statement of eye witness on 9.9.2010 and as such they are not able to produce any record about the same, however, merely because of the same, it is difficult to discard the statement made by investigating officer in the affidavit that the names of the applicants were transpired during the investigation from the eye witness on 9.9.2010. Now with regard to the question of delay, it is settled position that delay in every case cannot be said to be detrimental or fatal to the prosecution. Now examining the material contained in the statement of the sole eye witness from the said angle, it is difficult to say that the said statement or the other material in the charge sheet does not explain 6 reasons for which the statement of the eye witness could not be recorded earlier. The material in the statement of the said eye witness considered in proper perspective also reveals the nature of the injuries sustained by him. The submission that the prosecution having not produced any medical certificate regarding the injuries sustained by said witness, makes the claim staked by him vulnerable for want of corroborative material for the same, is also an aspect to be examined at the time of the trial and not at the bail stage. Thus in the premises aforesaid, considering the enormity of the crime and there being tangible material regarding involvement of the applicants in the offences committed in the night at the said temple , it is difficult to accede to the prayer for bail. Such a conclusion is inevitable as the material in the statement of the said eye witness prima facie reveals that at midnight after hearing the noise of arrival of somebody had seen the applicants at the temple and thereafter Devidas Gawande and applicant no.1 having rushed at him with sticks and before witness realizing anything, applicant no.1 having assaulted by means of the same upon his head and after witness had questioned them, thereon applicant no.2, applicant no.3 and the other co- accused having rushed at him and having caught his hands and legs and within then priest of the temple and two more persons sleeping at the temple had awakened and loudly questioned the assailants and within then Devidas Gawande had given another blow on the head of the witness and thereafter he had become unconscious. Though it is true that the said account 7 prima facie reveals that witness had not seen further happenings as he had become unconscious. However, considering the said material in proper perspective and the fact that corpse of the said priest and the two other persons with injured in half dead condition was found by constable on patrolling duty in the morning time, prima facie leads to no other conclusion about the applicants being involved in the entire incident which had occurred at the said temple resulting into death of three persons who had tried to intervene in the murderous assault effected upon the witness. Having regard to the same and the place at which such a crime was committed and the reason for which the innocent persons were killed due to having intervened in the incident and visualizing the reason for killing them being none else but for not leaving a witness behind for heinous crime committed by the assailants, it is difficult to find any merits in the prayer for bail made by the applicants whose prima facie involvement in the crime is borne from the said material. Hence the application deserves to be and accordingly stands rejected. JUDGE halwai