1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 3393 OF 2009 Mahesh @ Dada Bapurao Gavali Sachin Dattu Survase ....... Applicants versus The State of Maharashtra ........Respondent. Mr. Shirish Gupte Sr. counsel i/b Mrs. Sharmila Kaushik adv. for the Applicant Mr. Y.M. Yagnik APP. for the Respondent/State. CORAM: A. P DESHPANDE, J. DATED : 24th September, 2009. P. C.: 1. This application is moved under section 439 of Cr.P.C. seeking bail by original accused nos. 2 and 4 by name Mahesh and Sachin in C.R. No.1/09 registered at Haveli police station for offence punishable under section 302 read with 34 of IPC. The applicants are charged in the said crime along with five other accused persons for the murder of one Vikram on the night intervening between 31-12-2008 and 1-1-2009. The FIR came to be lodged on 1-1-2009 at the instance of one Ganesh Dyaneshwar Mengade. 2. According to the learned counsel for the applicants, the first informant Ganesh Mengade and his friends went in search of one 2 of his relatives by name Vinayak Vithal Dangat on ¾ motor cycles. Said Vinayak Dangat was not in sound mental condition and had gone missing. The first informant in the company of his friends had been to the village of the present applicants `Ambegaon Pathar’ and met a person wearing lungi and when they were making enquiry from him about the whereabouts of the missing person, a group of about 10/15 persons was seen approaching from other end of the lane with swords, iron bar, stick, sickle etc. and there was sort of commotion. Apprehending danger, the first informant along with his friends, moved their motor cycles in a haste and fled away from the said place. Vikram Shendge the deceased was seated on the motor cycle. Vikram Shendge fell down from the motor cycle. However due to fear and scare the first informant and others moved away. When they halted at one place, they realized threat and danger to the life of Vikram Shendge and hence returned back in search of Vikram. They searched for Vikram but he was not found. The first informant and his friends had taken help of `batteries’ as it was dark then. However, they could not find Vikram. The first informant thereafter came to know from the watchman near the Sai Medical Shop that the dead body of Vikram was lying in a lane in a pool of blood. The first informant and his colleagues went there and found that Vikram had sustained various injuries on his person. While making a search prior to the finding of the dead body, the first informant and others had learnt that one Somanath Gaikwad in the company of 10/15 unknown persons had quarreled with 3 some boys from the neighbouring village. It appears that the boys residing in two neighbouring villages had a quarrel and hence when the first informant, in the company of the deceased and their friends had arrived in the village, the villagers had assumed that the boys of the adjoining village had come to assault the boys from their village. Hence on account of some misunderstanding Vikram seems to have been attacked and killed. 3. There are no eye witnesses and the case is based on circumstantial evidence. The learned counsel for the applicant had in the first place submitted that the names of the present applicants are not stated in the FIR. No one has seen the present applicants assaulting the deceased. There are only two circumstances against the present applicants and those are (1) recovery of sword from applicant no.1 and recovery of sickle from applicant no.2 and recovery of blood stained clothes from the person of the applicants when they were arrested. It is submitted that the incident had taken place in the night between 31-12-2008 and 1-1-2009 and the applicant no.1 came to be arrested on 5-1-2009 whereas the applicant no.2 on 8-1-2009. It is then submitted that no person who has committed a crime would wear the same blood stained clothes for a period of 5 to 7 days. The C.A. Report has not been filed along with the charge sheet. (2) That the applicant no.1 has been identified in the test identification parade by one of the witnesses viz. the first informant Ganesh whereas the applicant no.2 has been identified by one Prashant. Other witnesses have not identified either 4 applicant no.1 or applicant no.2. The identification of the present applicants does not carry the case of the prosecution any further for the obvious reason that none of the witnesses including those who have identified the applicants have seen the present applicants chasing and/or assaulting the deceased. In above factual matrix, the learned senior counsel for the applicant Shri Gupte has submitted that the present applicants need to be released on bail on parity with one another co-accused Sagar Shinde who has been granted bail by the Sessions Judge vide its order dated 3rd July 2009. Perusal of the said order reveals that similar circumstances were also available against the said accused such as recovery of weapons and recovery of clothes at the time of his arrest. The only difference in the circumstance against the co- accused Sagar Shinde who is granted bail and the present applicant, is that each of the present applicants are identified by one witness. As observed by me hereinabove in the facts of the present case, identification of the applicants looses its significance as there is no ocular evidence about involvement of the applicants in commission of the crime. The witnesses who have identified the present applicants, have nowhere stated that they have seen the present applicants in any act which could suggest that they have assaulted the applicants. In that view of the matter, in my opinion this is a fit case for grant of bail to the applicants. In the result the application is allowed. 4. The applicant nos.1 and 2 by name Mahesh @ Dada Bapurao Gavali and Sachin Dattu Survase, original accused nos. 2 5 and 4 be released on bail in C.R. No.1/09 registered at Haveli police station for offence punishable under section 302 read with 34 of IPC, on executing personal bond in the sum of Rs. 25,000/- with one solvent surety in the like amount. The applicants are directed to attend Haveli police station on every Saturday during 4 to 6 p.m. till conclusion of the trial. The applicant shall not leave the jurisdiction of district Pune without permission of the Sessions Judge. Application is disposed of. (A. P. Deshpande, J.)