1 Cri.A.5146.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 5146 OF 2011 Tukaram Kondiba Bobde, R/o Mali Galli, Parbhani, District Parbhani. ...APPLICANT. VERSUS The State of Maharashtra, ...RESPONDENT. ... Shri.S.S.Rathi, Advocate for Applicant. Shri.B.J.Sonwane, A.P.P. for Respondent-State. ... CORAM: R.Y.GANOO, J. DATE : 22.12.2011. PER COURT : 1. Heard learned counsel on both sides. 2. The applicant is arrested in connection with Crime No. 129 of 2011, registered with Kotwali Police Station, District Parbhani, under sections 302, 147, 148, 149 of the Indian Penal Code. Copy of the charge-sheet is made available to the Court. 2 Cri.A.5146.11 3. Learned Advocate for the applicant has taken me through the entire charge-sheet. Post mortem report speaks about the injuries suffered by Kalyan, since deceased. Final cause of death is ‘Haemorrhage shock secondary to stabs wound over liver’. Reading of FIR goes to indicate that the incident took place on 19.07.2011 and the victim Kalayn disclosed to the complainant Vikas, the manner in which event took place. In the incident, it is noticed that one Yogesh Shinde was accompanied by 15 persons and occurrence has taken place. According to the police, present applicant was one of those 15 persons. 4. The charge-sheet indicates that so far as victim Kalyan is concerned the present applicant was unknown to him. The police in the course of investigation have conducted identification parade and present applicant was put up for identification parade, which was conducted on 13.08.2010. Perusal of the said identification parade goes to indicate that present applicant 3 Cri.A.5146.11 Tukaram was no doubt identified by identifying witnesses Vikas, Avinash and Pandit. However, while identifying the present applicant identifying witnesses have not attributed any role and the present applicant is simply pointed out. 5. Learned advocate for the applicant relied upon the judgment in the case of Ismail Amir Shaikh Vs. State of Maharashtra reported in 1984(2) Bom.C.R. 615. The learned Division Bench of this Court in para No. 34 has indicated effect not attributing any role to the person, who was identified in the said case. The Division Bench declined to use the evidence regarding identification parade. Relevant Para No. 34 of the said judgment reads as follows: “34. The infirmity of this identification parade is further seen from the fact that when the identifying witness Malleshayya picked up the suspects, he has not mentioned as to which accused had played which role when the incident 4 Cri.A.5146.11 in question took place. Normally the usefulness of an identification parade is established if at the time of the identification parade the identifying witness identifies a particular suspect by attributing an action in which he was involved at the time of the incident. It is for these reasons that we are reluctant to act upon the evidence relating to the identification parade despite the fact that the learned Sessions Judge found that there is no effective challenge to the testimony of the Special Executive Magistrate. A challenge need not be direct as it is some times done at least in Bombay by saying “ I put it to you....” 6. Learned Advocate appearing for the applicant submitted that if this is the view taken by the learned Division Bench of this Court, then identification of the applicant is of no avail to fix his alleged involvement in the crime, particularly when the prosecution has not been able to bring on record any other material 5 Cri.A.5146.11 against present applicant. Learned Advocate for the applicant submitted that on this ground present applicant is entitled to bail. 7. Learned APP Mr. Sonwane, appearing on behalf of the prosecution state submitted that according to the prosecution the applicant was one of those 15 persons and since the applicant has been identified by the witnesses his presence on the site along with other assailants is made out and therefore he is not entitled to bail. 8. After having considered the judgment referred above as well as material placed on record, one thing is sure that there is no material available against the present applicant. In the FIR or in the statements there is nothing stated so as to implicate the present applicant with positive role for having participated in the entire occurrence. Learned APP could not dispute this position. I have already indicated that at the time of identification of parade identifying witnesses 6 Cri.A.5146.11 have merely pointed out towards present applicant. In the light of the text of para No. 34 of the judgment of learned Division Bench of this Court this identification is no identification for the purpose to say that present applicant had participated in the occurrence. 9. Looking to the entire material, it is apparent that even eye witnesses have not named the present applicant and that is how it became necessary for the investigation agency to direct identification parade. In my view, this is case where apart from defective identification there is no other material placed before this court to link the present applicant with alleged crime. The material including identification parade falls short to come to the conclusion that the present applicant is concerned in the crime alleged. 10. For the aforesaid reasons, I hold that the prosecution has failed to make out a prima facie case against the applicant for the charge under 7 Cri.A.5146.11 section 302 of the Indian Penal Code. 11. It is clarified that in the absence of material as regards identification if there is any other material to link an accused with the crime alleged that would be another aspect of the matter. Each case will have to be considered on the basis of over all material placed before the Court. 12. For the reasons mentioned aforesaid bail canbe granted to the applicant. Hence, following order is passed. (i) The Application for bail is granted. (ii) The applicant is ordered to be released on bail, in connection in Crime No. 129 of 2011 registered with Kotwali Police Station, Parbhani District Parbhani in the sum of Rs.20,000/- (Rupees Twenty Thousand) with one surety in the 8 Cri.A.5146.11 like amount. The applicant shall execute P.R. bond of sum of Rs. 20,000/- (Rupees Twenty Thousand). (iii) The applicant shall report the concerned Police Station on every Second Saturday between 11.00 a. m. to 4.00 p. m. till evidence of material witnesses on behalf of prosecution is recorded. (iv) It is clarified that whatever stated in this order shall not be used at the time of trial. . The Criminal Application stands disposed of in the above terms accordingly. Sd/- [ R.Y.GANOO, J. ] MTK 9 Cri.A.5146.11