1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. CRIMINAL APPLICATION (BA) NO.38/2011 (Herald Anthony Francis .vrs. 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. R.M. Patwardhan, Advocate for applicant, Mr. J.B. Jaiswal, APP for non-applicant/State. .......... CORAM : P.D. KODE, J DATED : FEBRUARY 24, 2011 Heard. By this application, one of the accused charge sheeted by Dewlapar Police Station, Nagpur in respect of Crime No.24/2010 registered on 24.6.2010 for offence under Section 302 r/w 34 of IPC, has prayed for bail. The prayer for bail is opposed by the prosecution on the ground of involvement of applicant being borne from the statement of sole eyewitness so also by the material contained in the statement of sole eyewitness Ramnath Dashmer and the same being found corroborated by the matters stated in first information report lodged by one Pramod, brother of the deceased, in which inter-alia stated that in the relevant night after hearing shouts/noise, he had come out of the house and then seen applicant and co- 2 accused armed with weapon running away from the spot. It is urged that corroboration to the said facet is also found from the statement of a daughter of deceased Sandhya. It is urged that sanctity to said material is added from the recovery of sickle made at the behest of applicant during the course of investigation. The aforesaid submissions were counterveiled by the learned counsel for the applicant by pointing out that even first information report lodged by informant which was nearby the victim in the relevant night fails to stake a claim of having seen the incident as the matters from the same are restricted of having seen the applicant and co-accused assaulting the deceased. It is urged that the same had occurred as even the first informant has not seen applicant or the co-accused nearby the victim but had falsely implicated him due to mother of the first informant being threatened some time prior to main incident by the applicant on mobile phone from Dewlapar on the count of himself being assaulted by the deceased in an incident occurred on the same day earlier. It is urged that support to such a conclusion is found from the inability of investigating agency to get any eyewitness for the incident for a period of about 19 days. It is urged that no reliance deserves to be placed upon material contained in the statement of said so called eyewitness, who was not resident of the said village and still stakes a claim of having identified the applicant and co-accused from a distance much away from the spot and that too during the night time. It is 3 urged that there being no other material in the chargesheet the same prima facie does not rule out possibility of false implication of the applicant. It is urged that the applicant has roots in the society and he is ready to abide any conditions. It is further urged that involvement of the applicant in some offences not of serious nature would not be a good ground to deny him a bail in the present case in which his false implication is apparent by such nature of the prosecution material. The perusal of the material in the complaint and in the chargesheet prima facie supports the said submission canvassed by the learned counsel for the applicant. Having regard to such character of the prosecution material and so also having due regard to the fact that incident had taken place in the night time and the ratio of the judgment in a case of Surendra s/o Sukhadeo Shende .vrs. State of Maharashtra, reported in 2006 (1) Mh.L.J. (Cri.) 447 pointed out by the learned counsel for the applicant, the discretion deserves to be exercised in favour of the applicant for releasing him on bail, as considering the motive behind the crime, the apprehension entertained by the prosecution regarding evidence getting tampered can be taken care of by imposing suitable conditions. The applicant is directed to be released on bail in connection with Crime No.24/2010 of Police Station, Dewlapar, Nagpur upon furnishing P.R. Bond in the sum of Rs.1,00,000/- with one surety in like amount and subject to the conditions that applicant - (i) after his release on bail, shall not enter within 4 the local limits of Sawangi village and shall attend Sadar Police Station, Nagpur in connection with the investigation in between 11.00 am and 1.00 pm on every day for first 15 days and, thereafter, on every Monday until further order; (ii) shall stay at the address mentioned in the application and shall not change the same without permission of the Court; (iii) shall not indulge in any activity of tampering prosecution evidence, (iv) shall not commit any offence while on bail. The application stands disposed of. In view of disposal of main application, Criminal Application (APPP) No.38/2011 also stands disposed of. JUDGE Gulande