1 (Appa 1579 of 2011) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1579 OF 2011 IN CRIMINAL APPEAL NO.1421 OF 2011 Jotiba Baddhu Rathod Sonabai Jotiba Rathod ...Applicants Vs. The State of Maharashtra ...Respondent ----- Mr.S.R. Chitnis, Senior Counsel i/b. Mr.U.R. Agandsurve for Applicants Mr.P.S. Hingorani -APP for State. ----- CORAM: V.M. KANADE & M.L. TAHALIYANI, JJ. DATE: 15th December, 2011 P.C. 1. Heard the learned counsel appearing on behalf of the Applicants and the learned APP for the State. 2. This is an application for bail. The Applicants have been convicted for the offence punishable under section 302 r/w. 34 of the Indian Penal. 3. Prosecution case in brief is that one Sunil Dhage was informed by the Accused that they had killed the deceased since he had not paid the arrears to them after 2 (Appa 1579 of 2011) consuming liquor from their shop. Accordingly, they brought the dead body of deceased Musa on a handcart and then informed his brother, who in turn lodged the complaint with the MIDC Police Station, Solapur on 11.7.2009 for the offence punishable under sections 302,201, 323 r/w.34 of the Indian Penal Code at 5.15 p.m. 4. Shri S.R. Chitnis, the learned Senior Counsel appearing on behalf of the Applicants submitted that though an enquiry was made under section 174 of the Code of Criminal Procedure on the information which was given by Sunil Dhage. A preliminary enquiry and inquest panchnama was made on that day and the FIR was registered only on 11th July, 2009 at 5.15 p.m. It is submitted that the statement of Sunil Dhage was recorded by the investigating officer on 13th of July, 2009. It is further submitted that the Trial Court has convicted the accused -Applicants herein only on the basis of the said extra judicial confession which was allegedly given by the Applicants to the said Sunil Dhage. It is further submitted that the Police Sub Inspector – Shri Anjalkar who recorded his statement has not stated in his evidence that Sunil Dhage had mentioned about the extra judicial confession given by the Applicants. It is, 3 (Appa 1579 of 2011) therefore, submitted that there was no material on record to convict the Applicant herein. 5. The learned APP for the State, however, invited our attention to the statement of the Investigating Officer and the statement of Sunil Dhage and he submitted that on account of the threat given to him by the accused, he had not mentioned that fact initially and submitted that, therefore, the application for bail may be rejected. 6. In the present case, in our view, there is no explanation given by the prosecution as to why the statement of the brother of the deceased is treated as an FIR and that too when it was recorded on 11th of July, 2009 at 5.5 p.m. , particularly since an enquiry under section 174 of the Cr.P.C. already had been conducted on the basis of the statement made by Sunil Dhage. Dhage who has been examined by the prosecution. He also does not state why he had not disclosed this fact to the PSI Anjalkar who recorded the statement. This creates a doubt regarding his testimony of informing the police about the extra judicial confession. Since that is the only material on record and which, in our view, is a weak type of evidence, the Applicants are entitled to be released on bail. 4 (Appa 1579 of 2011) 7. The Applicants be released on bail on execution of P.R. Bond of Rs.15,000/- each with one or two sureties in the like amount. They shall report to the concerned police station once in two months. Application for bail is, accordingly, disposed of. (M.L. TAHALIYANI J.) (V.M. KANADE J.)