108appln3387.08.odt 1 . IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application No. 3387 of 2008 and 2795 of 2009 in Criminal Appeal No.658 of 2008 Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's orders Coram: D.D.Sinha & P. B. Varale, JJ. Date : 10/08/2009. Heard Mr. S. V. Sirpurkar, Adv. for appellants/applicants and Mr. A. S. Fulzele, Additional Public Prosecutor for respondent/State. Counsel for applicants has submitted that, in the instant case, prosecution has examined only one eye witness namely Nilima Deshmukh (PW 7), who is aunt of deceased Umesh. It is contended that the said witness claims to have witnessed the incident which had taken place on 8.9.2005; however, she has admitted in her testimony that, till her statement was recorded i.e. on 11.9.2005 by police, she did not tell anything about the incident to anybody, more particularly even to her own husband. This witness has admitted in the cross-examination that on 10.9.2005 police had visited the village. However, she did not tell about the 108appln3387.08.odt 2 . incident even to police nor to the mother of the deceased. It is contended that the peculiar conduct of this witness creates doubt about trustworthiness of the prosecution case. Mr. S. V. Sirpurkar, Adv. for appellants/applicants has further contended that Nitin (PW 5) is examined by prosecution in order to prove oral dying declaration given by Umesh; however, in the cross-examination, this witness has specifically stated that though he has told to the police that Umesh told him that Vijay and Sanju (appellants) assaulted him; however, he cannot assign any reason why this fact is not mentioned in his police statement. Counsel for the applicants has submitted that this is a material omission which completely destroys the testimony of this witness and also creates doubt about genuineness of the prosecution case. It is, therefore, contended that the applicants are entitled to be released on bail. The Additional Public Prosecutor, on the other hand, has submitted that, though there is some delay caused in recording statements of witnesses from the date of incident; however, the First Information Report itself was lodged by the complainant on 10.9.2005 and therefore, police have recorded statements on the very next date i.e. On 11.9.2005. It is further contended that though Nilima (PW 7) did not tell about the incident to police as well 108appln3387.08.odt 3 . as mother of deceased before her statement is recorded; however, this conduct does not take away the efficacy of her evidence. Similarly, the omission in the testimony of Nilin (PW 5) does not render the whole evidence of this witness untrustworthy and therefore, the applicant is not entitled to be released on bail in view of other evidence available on record. Considered the rival contentions canvassed by the respective counsel. It is nodoubt true that, in a given case, non- disclosure of the incident by the eye witness to others by itself may not be fatal to prosecution. However, the facts and circumstances of the present case are of peculiar nature. Nilima (PW 7) who claims to have witnessed the incident is an aunt of deceased Umesh and therefore, the normal and natural human conduct of this witness required that she should have disclosed the incident atleast to her husband as well as mother of deceased Umesh before her statement was recorded i.e. on 11.9.2005 since the incident had taken place on 8.9.2005. Similarly, when the police visited the village on 10.9.2005, even then this witness has failed to disclose the incident to police which, according to us, is not a normal human conduct. Even if the witness was afraid or under pressure, even then there was no reason to be afraid of police. In fact, that was the proper opportunity to disclose the 108appln3387.08.odt 4 . incident to the police. The subsequent conduct of this witness of keeping mum till her statement was recorded by police on 11.9.2005, in the facts and circumstances of the present case, is not the normal human conduct, which, creates doubt about authenticity of her evidence. Nitin (PW 5) though claims that deceased Umesh gave him oral dying declaration, however, in the cross-examination, has stated that though he had stated to the police that the deceased Umesh told him that the appellants have assaulted him, however, he cannot assign any reason as to why this fact is not mentioned in his police statement. This omission, according to us, is material omission and therefore, assumes importance. Considering the evidence, prima facie, we are of the view that a case is made out for grant of bail. In the circumstances, the Criminal Applications are disposed of by directing the respondents to release the applicants on bail on furnishing a P.R. Bond of Rs.10,000/- each with one surety each in the like manner. JUDGE JUDGE jais