1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. CRIMINAL APPLICATION NO. 1938/2010 (Naresh Mahadeo Bhagat .vs. 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. N.A. Gaikwad, Advocate for Applicant. Mr. P.V. Bhoyar, APP for Respondent. .......... CORAM : P.D. KODE, J. DATED : JANUARY 21, 2011 Heard. By the present application, the applicant/accused arrested and charge sheeted by Ladkhed Police Station, Yavatmal in connection with Crime No. 64/2009 for offence under Section 302, 201 read with Section 34 of IPC and Section 135 of the Indian Electricity Act has prayed for bail. The leaned counsel for the applicant has urged that the entire prosecution rests upon circumstantial evidence and there is no direct evidence available regarding involvement of applicant in commission of alleged crime. It is urged that the material collected during the investigation fails to establish the deceased having met with homicidal death. It is urged that initially the accidental death was 2 registered upon the report given by the applicant about deceased in the morning being found dead in the house of the applicant. It is urged that the FIR in the instant case has been filed as an after though and that too after about 26 days after the occurrence of death. It is urged that during the course of investigation no incriminating material could be seized from the scene of offence. It is urged that the circumstances arising out of the material collected by the prosecution prima facie does not lead to the sole inference about the guilt of the accused. It is urged that it is undisputed that in the relevant night three persons i.e. the applicant, his wife and his son were also in the said house in which the deceased had succumbed to death. It is urged that the wife and son of the applicant are already released on bail. It is urged that the case of the applicant stands on par with his wife and son and hence on principle of parity he deserves to be released on bail like them. It is urged that the first informant i.e. the wife of the deceased has earlier demanded money from the applicant for not lodging the report and applicant being not in a position to fulfill the said demand, she has falsely implicated the applicant. It is submitted that the applicant will be abiding all the conditions as would be imposed by the Court and as such no fruitful purpose would be served by detaining him in custody as the investigation is practically complete. Similarly considering the nature of evidence in the instant case, there is bleak possibility of the evidence being tampered. The prayer for bail is vehemently opposed by the learned APP. By drawing the attention to the 3 various aspects flowing out of the material in charge sheet, it is urged that the same is prima facie sufficient to infer/establish of deceased having met with homicidal death in relevant night in the house of applicant. It is urged that there exists ample material regarding the applicant entertaining strong motive to commit the crime. It is urged that there is absence of such a motive to commit crime for the co-accused/wife and son of the applicant who are released on bail. It is submitted that apart from the applicant having admitted the fact of deceased having met death in his house in night in the application for bail, there exists ample material regarding the same in the shape of the report lodged by the applicant in next morning regarding the same and the material in the shape of inquest panchanama and the spot panchanama. It is urged that considering the matters stated in the said panchanama and the statement of the witnesses prima facie reveals that undisputedly the dead body was found in the room of house of the accused. It is urged that considering the circumstances in which the deceased was found dead considered along with the material contained in the post mortem notes and cause of death given, the same reasonably exclude the possibility of death having occurred for any other reason other than the homicidal one. It is urged that prima facie such inference emerges from the said material as the same prima facie fails to suggest of death having occurred in such a manner, primarily due to no sign suggesting such an inference being found at the place at which body was found and so also the situation in which the same was found. The 4 matters in the P.M. report and cause of death given also rules out the possibility of death having occurred for any natural cause. It is further urged that in addition to the same there is evidence in the shape of recovery of burnt stick at the behest of the applicant i.e. the stick which he has used for giving the shock to the deceased by means of electric wire to cause him injury and death and the one which he had burnt lateron. After perusal of the material in the charge sheet, the same prima facie supports the submission of the learned APP. The material in the shape of the statements of the witnesses Shankar Kove, Ramchandra Bansod, Maroti Bansod, Laxman, Kasabai Patil, Rahul Patil and Yashoda Patil amongst other prima facie reveals that the deceased was having some relationship with the wife of the applicant i.e. co-accused released on bail and he was staying in the said house. The material also reveals that the at the time of death there were injuries on both the cheeks and the chest of the deceased i.e. the injuries in consonance with the material stated in the P.M. report. The said material amongst other prima facie also reveals that the applicant having sort of a grudge against the deceased and as such probable motive for commission of crime. Even prima facie consideration of the said material supports the submission of the learned APP that in the light of the said material the wife of the applicant with whom deceased is said to had an affair cannot be said to be having such a motive against the deceased. Even the said submission prima facie would be applicable for 5 the case of the other co-accused in the case of son. Thus it is difficult to accept submission canvassed that case of the applicant is on par with his wife and son who are released on bail and/or due to the same he also deserves to be released on bail. Needless to add that it cannot be lost sight of that even both of them are charge sheeted by the investigating agency on the count of themselves being present in the house in which death of deceased had occurred shrouded with suspicion. Now in the aforesaid backdrop, no much weight can be attached to the submission made that the applicant himself had immediately reported the matter to the Police. It is significant to note that even the said report was regarding deceased having died accidentally and not for having met homicidal death. Since involvement of the applicant for the death occurred in homicidal manner in his house being prima facie suggested by other material and particularly due to his failure to give explanation for the same, lodging of such report would be an additional circumstance against him as the same would be indicative of misleading the investigating agency and/or leading them to false track and/or attempt to give the false explanation for death having occurred in his house in homicidal manner. Needless to add that ultimately the death being homicidal one and the same having occurred in the house of the applicant and the applicant having failed to give cogent explanation for occurrence of such a death in his house, has a strong potential even prima facie for linking him with the death occurred. 6 Similarly considering the circumstance of deceased having met with homicidal i.e. due to electrocution and inference about the same being not apparently possible on the day of death due to no electric wire being found then nearby body and the FIR being filed by the wife on the basis of the suspicion rather than any concrete material, it is difficult to accept that 26 days delay in lodging the same can be prima facie said to be a circumstance negativing the prima facie inferences arising out of the other material about the applicant in all probability being guilty for the said death. In these circumstances it will be difficult to accept prayer for bail made by the applicant. Hence the application stands rejected. The observations made in the aforesaid order are only for the purpose of deciding the prayer for bail and the trial Court should not construe any of them as opinion expressed by this Court upon merits of the matter. Lastly the learned counsel for the applicant has prayed for expediting the trial. The request is not objected by the prosecution. Inform the trial Court to decide the Sessions Case No. 21/2010 arising out of Crime No. 64/2009 as expeditiously as possible and in any event within six months from today. JUDGE halwai