1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.2363 OF 2010 Bandu @ Suryakant Ranoji Andekar and ors. ..Applicants. Vs. State of Maharashtra. ..Respondent. Mr. Shirish Gupte, Sr.Advocate i/by Mrs.S. Kaushik for the Applicants. Smt.M.H.Mhatre,APP for the State. CORAM : R.S. MOHITE, J. DATE : 06/5/2010 PC : 1 This is an application for grant of anticipatory bail. The applicants are shown as an accused in CR No.54/2010 registered by Lashkar Police Station, Pune for the alleged offences under Sections 307, 143,147,148, 149 of the IPC read with 3(25) of the Indian Arms Act. The injured is one Somnath Padwal. The prosecution case is that Somnath Padwal was on enmical terms with one Bandu Andekar. That, on 20.3.2010 at about 5 to 5.30 p.m. 2 in the evening Somnath Padwal, his friend Rohit and Raj were chit chating and at that time somebody fired a shot from behind them. Bullet hit Somnath on his back and when he turned he saw applicant No. 1 Bandu Andekar sitting in a rickshaw along with one Pintya and three others. He saw that two of them were holding pistols. At that time Bandu Andekar and Pintya again fired at the injured and injured managed to run away from the spot. While running away he again turned around and found that his assailants were chasing him and firing their gun while doing so. From the shots so fired he was again injured on his chest, shoulder and knee. He however, managed to escape from the spot and ultimately was taken to the hospital. 2 There are two other eye witnesses to this crime both of whom named as applicant no.1 as being present on the spot. These two eye witnesses are Rohit and Jokim. Out of these two eye witnesses, witness Jokim also names the applicant No.3 3 Krishana Andekar who is son of the applicant No.1 Bandu Andekar as being a person present on the spot. Since there were eye witnesses who involved the applicants No.1 and 3, in so far as applicants Nos. 1 and 3 I am not inclined to grant anticipatory bail to them and therefore, their applications in so far as they are concerned is rejected. A statement was by the counsel that if given some protection, they will surrender on or before 10.5.2010. Statement is accepted. They may not be arrested till 10.5.2010. 3 In so far applicant No.2 Udaykant Andekar is concerned he is not named as being present on the spot by any of the eye witness. According to the prosecution, material against him comprises of a statement made by the co accused in his memorandum panchanama U/s. 27 recorded on 2.4.2010. Memorandum panchanama records a conspiracy of which the applicant No.2 is alleged to be a part. The learned counsel argued that this confessional 4 part of the memorandum cannot be proved in evidence. The argument is that if this cannot be ultimately proved in evidence, it should not be the basis of an arrest. It is the correct legal position that confession made to the police would hit by Section 25. Nevertheless, in my view, based upon the memorandum statement the police may pursue leads from whatever information they may get. However, since ultimately the confessional part would be hit by section 25 I would not be proper to effect an arrest unless there is some further material against the applicant No.2. In such circumstances, I am not presently inclined to grant bail to the applicant No.2. The investigation in this crime is still going on and the charge sheet has not been filed. In the circumstances, in so far as the applicant No.2 is concerned, I direct that he should not be arrested unless there is some further material and if any such material emerges then he should be given 72 hours notice before his arrest is effected. With these directions 5 application is disposed off. 4 Before parting I must mention that in both these cases the defence relied upon a plea of alibi which rests on documents to show that on the day of the incident the applicants took a flight to Delhi on the way to a pilgrimerge. The documents are air line tickets and boarding passes. In my view, those documents by themselves may not be sufficient. However, this point is left opon and it will be open for the defence to take up and prove the defence of alibi at the stage of the trial. 5 Parties to act on a copy of this order duly authenticated by the registry of this court. ( R.S. MOHITE, J.)