4crn2015-10 1 IN THE HIGH COURT OF JUDICATURE AT MUMBAI CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.2015 OF 2010 1. Manohar Murlidhar Pathak, & 2. Anwar Dastgirali Sayyed. ..Applicants. Versus State of Maharashtra. ..Respondent. .... Mr.S.R. Chitnis, Senior Counsel i/b. Mrs.V.R. Raje, Advocate for the applicants. Mr.S.N. Gawade, A.P.P. for the State. .... CORAM : A.R.JOSHI, J. DATED : 21ST JUNE, 2010 P.C. 1. Heard rival submissions at length on today and also on earlier date. 2. This is an application for regular bail preferred by both the applicants (accused Nos.1 & 2) for their release on bail in C.R. No.I-189 of 2009 registered by Virar police station for the offence punishable under Section 302 read with 4crn2015-10 2 Sections 201 & 34 of Indian Penal Code. 3. As on today, reportedly, the investigation is over and the chargesheet has already been filed. 4. Apparently, the case of the prosecution is based on circumstantial evidence as to the deceased last seen in the company of the applicants while allegedly the deceased was taken to some secluded place in order to do away with him on certain rivalry. Initially, a missing complaint was lodged on 7th August, 2009 by father of the deceased. Subsequently dead body was found on 8th August, 2009 and FIR was lodged by some agriculturist as to finding of unidentified body. Said unidentified body was identified on 9th August, 2009 by the father of the deceased. Offence was registered under Section 302 of IPC and investigation was taken out by Virar police station. During investigation the mobile handset was traced by its IMEI number and police could reach one Sameer. Said Sameer happened to be brother of present applicant No.2. According to the statement of Sameer, he was 4crn2015-10 3 given said handset by his brother accused No.2 who took it from his another brother Wasim. However according to the police, said handset was given to accused No.2 by accused No.1 and it was revealed during investigation only after the arrest of both the accused. 5. It is significant to note that both the applicants/accused were arrested on 26th October, 2009 i.e. after more than two & half months of finding the dead body. It is significant to note that the clothes recovered from the person of accused No.1 at the time of his arrest, were sent to C.A. on 20.11.2009 with a noting that those were the clothes used by accused No.1 for himself during commission of the offence of murder. 6. According to the learned A.P.P., there is another piece of evidence against accused No.1 as to recovery of one old used Topaz brand blade. Said recovery, according to the police was done under memorandum of panchanama dated 2.11.2009. Whereas on this aspect, learned Senior Counsel 4crn2015-10 4 Mr.S.R. Chitnis for the applicants pointed out that as per the police case papers and as per the statement of accused No.1 recorded by the police on 26.10.2009, with copy to the accused as part of the chargesheet papers, the police were knowing that such blade was used by the accused and the place where it was thrown was also known to the police. Whatever is the evidential value of such recovery, still it is to be ascertained whether the present application praying bail can be allowed when the investigation is already over and when the entire case is based on circumstantial evidence. 7. During the arguments, learned A.P.P. for the State submitted that there are three statements, one is of wife of accused No.1 recorded on 2.11.2009, another one is of one Siddhesh recorded on 5.11.2009 and third one of Vikrant recorded on 7.11.2009. According to these statements, learned APP further argued, there was a link established between applicant No.1 and the offence inasmuch as to his own wife of applicant No.1 had disclosed and narrated the 4crn2015-10 5 entire incident as to taking away and abducting the deceased and thereafter doing away with him. Statements of Siddhesh and Vikrant are also incriminating, further argued, inasmuch as they give the history as to on the relevant night of 7th August, 2009 they had an occasion to witness one stranger boy in the company of accused No.1 and his other associates and allegedly there was a sort of confession by accused No.1 that he and other co-accused were going to abduct said boy and were going to kill him and anybody is afraid he may back out and leave the vehicle. These are the statements of Siddhesh and Vikrant recorded on 5.11.2009 and 7.11.2009. 8. After ascertaining the role or otherwise of the present applicants, it must be said that the dates are very significant as to finding of dead body on 8.8.2009 and its identification on the next date, arrest of the applicants on 26.10.2009 and alleged recovery of razor blade at the instance of accused No. 1 on 2.11.2009. 9. Considering the above circumstances, in the opinion of 4crn2015-10 6 this Court, on certain conditions both the applicants can be released on bail during pendency of the trial. Hence the order:- :: O R D E R :: [i] Criminal Application No.2015 of 2010 is allowed and accordingly disposed of. [ii] Both the applicants - Manohar Murlidhar Pathak & Anwar Dastgirali Sayyed shall be released in C.R. No.I-189 of 2009 committed in Sessions Case No. 13 of 2010 on bail, on their executing P.R. bond in the sum of Rs.20,000/- (Rs.Twenty Thousand Only) each with one surety for the like amount each; [iii] On availing of bail, as above, both the applicants shall attend the Virar police station on every Tuesday and Friday between 10:00 a.m. to 12:00 noon till commencement of the trial; (A.R.JOSHI,J.)