1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.3845 OF 2009 Maniram S/o.Padamsing Thapa, Age-57 years, Occu-Service, R/o.Nandanwan Nagar, Bahind Hundekar Showroom, Savedi, Tq. and Dist. Ahmednagar APPLICANT VERSUS The State of Maharashtra RESPONDENT Mrs.S.S.Jadhav, learned counsel for applicant. Mr.N.R.Shaikh, learned counsel for respondent State. (CORAM : A.V.POTDAR, J.) DATE : 15/12/2009 PER COURT : 1. By the present application, the applicant has approached this Court for his release on bail in connection with Crime No.75/2009, registered in MIDC Police Station, Ahmednagar for the offence punishable u/s. 302, 201 of IPC in which after completion of investigation, charge sheet is filed against the applicant accused on 12/08/2009, but it appears that trial is yet to be committed to the Court of Sessions. 2. Heard learned counsel appearing for the applicant followed by 2 the submissions of learned APP appearing for the State. Also perused the papers of investigation till carried out as the charge sheet is already filed in respect of the present crime. 3. It appears from the papers of investigation that the dead body of deceased was found in abandoned condition in Dongargan Shiwar, 20 km away from the city of Ahmednagar in the morning of 20/05/2009. On the basis of report of recovery of abandoned dead body given by the Police Patil of Dongargan by name Adinath Mate, ADR was recorded vide ADR No.44/2009 in MIDC Police Station in the early morning of 20/05/2009. It appears that subject to the said ADR, spot panchanama was carried out at the spot as well as the inquest of the dead body was also conducted on the spot. Thereafter, the dead body was referred to the Civil Hospital, Ahmednagar. It appears that somebody has intimated about the dead body of one Nepali Person that it is brought for post mortem in the Civil Hospital, Ahmednagar. The son of deceased Deepsing rushed to the hospital where other persons from his community were found present. In inquiry with them, it appears that the complainant, son of deceased came to know that, in the afternoon of earlier day i.e. on 19/05/2009, the present applicant, who is brother of deceased and nephew of the complainant have been to the residence of deceased on account of recovery of some hand-loan given by the applicant to the deceased. This hand-loan was repaid by the deceased. Thereafter both of them enjoyed alcohol and some exchange of words took place which resulted in scuffle between deceased and two other persons 3 and hence on suspicion, an offence was registered as stated against the applicant accused for an offence punishable u/s. 302, 201 of The IPC. 4. During the investigation, on the very day, the present applicant came to be arrested and since then he is in custody. During the course of submissions across the bar it is urged on behalf of applicant that about the scuffle between the deceased and the applicant, applicant has lodged one complaint in Tophkhana Police Station on 19/05/2009 which was treated as NC. It appears that the said complaint was lodged at about 7.30 p.m. The applicant was referred for medical treatment alongwith the police yadi. According to learned counsel appearing for the applicant that this complaint shows that at least till 7.30, the present applicant was in Tophkhana Police Station, where he has reported about the incident took place in the afternoon. Other than this incident, according to him, the case of the prosecution rests on the circumstances, and there is no direct incriminating evidence against the applicant. As now the investigation is over and for more than 7 months, the applicant is in custody, he be released on bail. 5. The application is opposed by learned APP appearing for State on the ground that one wooden rod was recovered at the instance of applicant. According to the learned APP, this wooden rod was used by the applicant to assault the victim which resulted in his demise. Again one bicycle was recovered at the instance of present applicant 4 on which he had allegedly carried the deceased from the Nagar city to the Wambhori Ghat where the dead body of deceased was found. Considering these circumstances, it is urged that the applicant is responsible for the death of deceased and may not be released on bail. 6. Considering these submissions across the bar, one fact is clear that so far as the death of deceased is concerned, there is no direct evidence about the involvement of the present applicant. Then the case rests on the circumstances. Even though the specific query as to whether there is any witness came forward on the point that the deceased and the victim were last seen together on 19/05/2009, there is no evidence that they were seen together in that night. On the contrary, it is a statement that in the evening of 19/05/2009, the deceased have also visited the police station from where he was sent for his medical treatment but whether he had actually taken the medical treatment or not, no medical record is available to that effect. Considering these aspects, other than the recovery, there is no other circumstances which are incriminating to the credit of the applicant. At the same time, one fact required to be considered that in the post mortem notes which post mortem was conducted on 20/05/2009 in between 11.30 to 12.30 p.m., some semi digested food smelling alcohol was found in the large intestine of the deceased which indicate that before the post mortem was conducted, there was intake in the body of the deceased at least before 3 to 6 hours that means the time of death might be somewhere at the mid night of the 5 night in between 19/05/2009 and 20/05/2009 and before that the deceased have taken the food, and if it is so, then if the deceased was dead after he took food then at least some evidence must be before the Court on the point of last seen together which is missing at least at this stage. In the premise, case is made out to enlarge the applicant accused on bail on certain conditions. It is made clear that these observations are prima facie observations on the basis of papers of investigation and the learned Sessions Judge to whom the trial will be assigned, not to influence with these observations, hence the following order - O R D E R 1. Application is allowed. 2. Applicant be released on bail on furnishing surety in the sum of Rs.20,000/- and on executing PR bond in the like amount. After released on bail, applicant not to leave the local jurisdiction of MIDC Police Station without previous permission in writing from the Investigation Officer concerned. 3. Application stands disposed of accordingly. (A.V.POTDAR, J.) khs/DEC 2009/cri-appl-3845-09