1 CR.APL NO.4772/2010 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.4772 OF 2010 1. Mahipalsingh Parassingh Parmar, Age 22 years, Occ. Business, r/o Shiyana Ganpatgad Tq. & Dist. Jalod ( Rajasthan), Now r/o. Jagtap Building, Mangalwar Peth, Tuljapur, Tq. Tuljapur, Dist. Osmanabad. 2. Suresh Hunaji Parmar, Age 18 years, Occ: Business, r/o.Jumliganj ( Bithuda) Tq. Shivganj, Dist. Shiroh (Rajasthan) Now r/o Jagtap Building, Mangalwar Peth, Tuljapur, Tq. Tuljapur, Dist. Osmanabad. ...APPLICANTS VERSUS The State of Maharashtra Through Police Station Officer, Police Station, Tuljapur, Tq. Tuljapur, Dist. Beed. ...RESPONDENTS ... Mr.V.D.Salunke, Adv., for the applicant. Mr.N.B.Patil, APP for respondent State. Mr.D.R.Irale Patil, Adv., to assist A.P.P. ... CORAM: K.U.CHANDIWAL, J. DATE:18/1/2011 2 CR.APL NO.4772/2010 PER COURT : 1. Heard extensively. The accused/applicants in custody in Crime No. 60/2010, registered at Police Station Tuljapur for the offense under Sections 394, 328, 323 read with Section 34 of IPC, seek their release on bail. 2. Deceased Habatram was carrying business activity. The applicant nos. 1 and 2 were his employees. The incident has taken place in the night of 18.5.2010 at around 22 hours. Based on FIR of Mahipalsing Parassingh Parmar ( accused no.1) the investigation was accelerated. The accused/applicant no.1, as complainant, informed, unknown persons barged in the shop, they were having in their possession certain powder, which was splashed on Habatram. Habatram took a log, to inflict injury, however, the anonymous person, whose description is given in the report, snatched the log from him and brutally assaulted Habatram at his head. Said person also allegedly assaulted Mahipalsingh by a stick/staff while the other accused removed cash from the counter; around Rs.15,000/- to Rs.20,000/-. Their another associate was waiting outside the shop. All of them sneaked away on a red colour motor cycle. The accused/applicant Mahipalsing was admitted in the hospital, his statement, referred above, was 3 CR.APL NO.4772/2010 recorded in the hospital. 3. In the investigation, prosecution revealed that the accused/applicant Mahipalsing was a key person in eliminating the deceased, the employer, to resolve controversy of his employer with his partner and a fabricated show of events of robbery was created. There is no eye witness to the events. In the statement of owner of the premises, Balasaheb, he implicates the accused, by informing, while at hospital, deceased pointed finger to the accused. He also indicates, there were no injuries to the accused Mahipalsing. In the same tone and tune, identical statements are of Amridevi, widow of deceased, Shailesh are recorded. 4. Learned A.P.P. submits that in the spot panchnama no traces of powder were found and further submits that if in the counter there was cash of Rs.1,50,000/- or more, there was no reason for the intruder to sneak away with paltry sum of Rs.15,000/- to Rs.20,000/-. He reiterates, a show was created by the accused of robbery to eliminate his employer in concert with partner Japaram. Learned A.P.P. also submits that the accused do not hail from this region, they do not possess any property, releasing them on bail would impede the trial. 4 CR.APL NO.4772/2010 5. The above facts, primarily, show laxity on the part of the investigator. If an amount of Rs.1,50,000/- or so was lying in the shop, some amount allegedly was removed/burgled by the suspects, there was no reason for him to hand over the residue/balance to Balasaheb, the landlord. The landlord, in turn, had no business to incur expenses for cremation of the deceased and hand over residue to widow. All this exercise is foreign to the investigation procedure. 6. The sweeping statement of above referred witnesses, is difficult to digest and illustrate that, indeed, the deceased had made a signal pointing finger to the accused/applicant no.1. If it was so, there was no pre-dominant material at the relevant time to take its care and get it so confirmed by the independent witness like medical officer. 7. Learned Counsel for the accused/applicants has flashed medical certificate issued by Rural Hospital, Tuljapur, which display that there was a contusion and injury at the chest (blunt trauma) suffered by Mahipalsing. Non noticing of injury of Balasaheb was possible as the blunt trauma or abrasion would not reflect in any bleeding injury. For that purpose, it cannot be said that Mahipalsing 5 CR.APL NO.4772/2010 did not suffer any injury. All throughout, the prosecution is unable to point role of accused No.2 Suresh Parmar. He may be an employee in the shop, however, he could not be active partner in the concert carried by anybody interested in eliminating the deceased. 8. Then comes the point of accused hailing from Rajasthan. For that purpose, stalling of the trial, as apprehended, may be correct, however, due care can be taken by imposing stringent condition upon the accused/applicants. The accused/applicants are in custody from 17th June, 2010. Investigation is completed, chargesheet is filed. The grievance of widow Amridevi not to release the accused/applicant, much more flows from her sentiments, rather than fitting it in a legal frame, the Court should not sway to it. ORDER (a) The accused/applicant no.1 and 2 (Mahipalsingh Parassingh Parmar and Suresh Hunaji Parmar) be released on bail in Crime No.60/2010 of Tuljapur Police Station on each one of them furnishing P.R. bond and surety in the sum of Rs. 50,000/- (Rs. fifty thousand), each. (b) The accused/applicants shall tender their passports, if any. Also tender details of 6 CR.APL NO.4772/2010 their detailed address/s at Rajasthan. Though such address is indicated in the present petition, however, it is short of house number, lane or other details or taluka of the said village. (c) The other conditions in terms of Section 437 of Cr.P.C. would be equally applicable, to be adhered. Application allowed as above. (K.U.CHANDIWAL) JUDGE agp/4772-10crapl