1appln-2862-10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL BAIL APPLICATION No. 2862 of 2010 Hanif Nazir Shaikh .. .. Applicant. versus The State of Maharashtra .. .. Respondent. Mr M. H. Solkar i/by Ms Tahera Qureshi, for the Applicant. Mr P. S. Hingorani, A.P.P.for the State. CORAM:- A.R. JOSHI, J. DATE :- 6th AUGUST, 2010. P.C.:- 1. Heard rival submissions on this application for regular bail preferred by the applicant asking for bail in the matter of offences punishable under Sections 395, 402, 342, 452 read with Section 34 of I.P.Code. 2. There are total five accused. According to the case of the prosecution, out of them, still one is absconding. Rest of the accused are in custody. Offence of dacoity took place at the house of the first 2appln-2862-10 informant on 9.8.2009 at about 6:30 p.m. On that evening, the complainant-woman entered her house by opening the latch when her 80 years old father-in-law was inside the flat. When she entered the flat, four unknown persons followed her. Two of them picked out big knifes and gave threats to her not to raise any alarm or to face the dire consequences of her aged relative would be killed. The accused persons robbed the complainant and her family members’ gold jewellery and cash amount, total worth more than Rs.80,000/-. During such incident the door was knocked from outside and when it was opened by one of the robbers, young daughter of the complainant entered and she was given threats and she was also tied by the robbers. After the incident robbers fled away from the spot. 3. In the F.I.R. there is mention of above detailed incident. However, on the same day supplementary statement of the first informant was recorded and in which she mentioned regarding the presence of one more person, associate of the four persons, standing at the ground floor, near the said building and said person accompanied four robbers and leaving the spot. Apart from the first informant, there are three more witnesses, neighbours – residents of the same locality and according to them, they had seen the present 3appln-2862-10 applicant in the vicinity of the building and when the four robbers came down from the flat he was asked by one of them and his name was taken as Hanif and he was given instructions to run away from the spot. He followed the other co-accused and all of them fled away. 4. All the accused, including the present applicant were arrested on 13.9.2009 i.e.after about one month and four days of the incident. Thereafter, test identification parade was conducted on 7.9.2009 in which the present applicant was put to identification. He was allegedly identified by the three witnesses and also by the complainant as the associate of the four robbers who had earlier entered the flat. Statements of the three witnesses were recorded on 11.8.2009 i.e.two days after the incident. 5. During the arguments much emphasis is placed on the variance in the contents of the First Information Report and the supplementary statement of the complainant. During such arguments, learned Advocate Shri M.H.Solkar for the applicant brought it to the notice of the Court that in the F.I.R. there is no specific mention as to first informant had any chance to see the present applicant near the building and she is silent about such presence of the applicant. However, in the supplementary statement, though apparently recorded 4appln-2862-10 on the same day, she mentioned regarding his presence. It is further submitted on behalf of the applicant that nothing is recovered at the instance of the present applicant and the case against him is only based on his identification by three witnesses and the complainant. He further submitted that the identification is after about two months of the arrest of the present applicant and as such no much importance can be given so far as its evidential value. 6. Counter to the above arguments, learned A.P.P. for the State submitted that, at this stage, the hair-splitting of the evidence is not expected and prima facie there is material against the present applicant, so far as the statements of the three witnesses which are recorded in immediate proximity of the incident. Coupled with this, there is supplementary statement of the complainant and how much weight to be given to such supplementary statement is to be decided during the trial after the opportunity given to the complainant to put forth her case. 7. Considering rival submissions and prima facie though there is no recovery at the instance of the present applicant, the identification of the applicant in the test identification parade and the statements of the three witnesses recorded on 11.8.2009, weigh much with this Court, as 5appln-2862-10 according to the said witnesses the co-accused who ran down from the flat had taken the name of the present applicant as “Hanif” and alarmed him run away from the spot. Prima facie, this material is required to be considered while deciding the present bail application and in that event it would not be in the fitness of situation to release the present applicant on bail during pendency of the trial. Under these circumstances, application is disposed of with the following order. ORDER. (i) Bail Application No. 2862/2010 is rejected. (ii) The learned Sessions Judge who is seized of the matter, shall not be influenced by the observations in the present order so far as merits of the case are concerned and shall deal with the matter in accordance with law. (A.R.JOSHI,J) LRS-PA 6appln-2862-10