1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. CRIMINAL APPLICATION NO. 3304/2009 (Siddarth Ganpat Damodhare .vs. State of Mah. ) ------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders. and Registrar's orders Mr. Mahesh Rai, Advocate for Applicant Mr. D.P. Thakre, APP for Respondent. .......... CORAM : P.D. KODE, J. DATED : NOVEMBER 10, 2009 Heard. The applicant/accused arrested and charge sheeted by Police Station Manora on 10.6.2009 in connection with Crime No. 2/2009 of the said Police Station for commission of offence punishable under Sections 302, 307 read with Section 34 of IPC has prayed for bail. The application is opposed by the prosecution. The learned counsel for the applicant has urged that perusal of the FIR reveals though the applicant has been named in the same, the role played by him is quite different than narrated by the eye witness. He has urged that there is variance in the medical evidence and ocular testimony of the alleged eye witnesses inasmuch as eye witnesses claimed of the applicant having used axe for attacking deceased while no incised wound has been found on the person of the deceased. The prosecution has not bothered to obtain a report from the Doctor as to whether the injuries suffered by the deceased were probable by the weapon 2 allegedly recovered at his behest. He has further urged that statement of co-accused Gautam recorded during the course of the investigation clearly reveals that applicant has not at all played any role in commission of offences alleged against him. He has further urged that act of investigating officer for getting the statement of Gautam recorded under provisions of Section 164 of Cr.P.C. indicates that prosecution wants to rely upon the same and the same in terms contradicts the prosecution case against the applicant. He further urged that on the top of it, the statement of an injured witness recorded by the Executive Magistrate under Section 164 of Cr.P.C. reveals that he has not attributed any role to the applicant nor has spoken about the presence of the applicant during the incident. The learned counsel has thus contended that considering the character of material/evidence collected by the investigating agency, th applicant deserves to be released on bail. He has further urged that the applicant will abide by all the conditions as would be imposed by the Court. The learned counsel for the applicant has also urged that having regard to the fact that the incident had taken place during the night time and witness Rajesh has observed the same from quite away distance, indicates that no much reliance can be placed about the matters spoken by him. Contrary to the aforesaid, the learned APP has vehemently opposed the prayer for bail by contending that the incident had occurred on 6.1.2009 and the prosecution being able to collect the material in the shape of three eye witnesses whose statements are 3 recorded immediately i.e. of Rajesh and Manoj on the next day while that of Suresh on day thereafter. He has urged that there is absolutely consistency in the matters revealed within the said statements and the same precisely reveals the role played by the applicant as well as himself being armed with axe and having used the same for attacking the deceased. He has further urged that considering the said material in proper perceptive, the same squarely denotes involvement of the applicant for committing of offence which is punishable with death or imprisonment for life. He has further urged that the medical evidence reveals that the deceased has suffered inasmuch as 11 injuries and the injured witness having suffered 2 injuries. He has further urged that the prosecution material also reflects the applicant having probable motive for the commission of offences for which they have been arrested and charge sheeted. He has thus urged that considering all facets, the applicant cannot be said to be entitled to be released on bail. The perusal of charge sheet prima facie reveals of there being substance in submission canvassed by learned APP. It is true that the FIR does not precisely reveal the role played by the applicant or the same does not reveal the applicant being armed with an axe at the time of incident. However, the said first information report being filed on the basis of telephonic information conveyed by one Manoj, hardly any significance can be given to the said aspect at the present stage. The FIR being not lodged by eye witness and the same being lodged on the basis of information 4 told to him cannot be said to be having any effect of leading to the conclusion of applicant being not involved in the incident or not being armed with the axe as tried to be canvassed by learned counsel for the applicant. Needless to add that the said facets cannot be said to have any destroying effect upon the material collected in the shape of other witnesses. Similarly considering the statement of injured eye witnesses recorded by the Executive Magistrate and taking into account the purpose for which the same was recorded i.e. predominantly regarding the attack made on the injured and thus the same being silent upon the other aspects of the incident in question merely for absence of details about the other aspects also cannot be said to be having effect as tried to be canvassed by learned counsel for the applicant i.e. the same failing to denote involvement of the applicant in the incident of an attack upon the deceased and the injured. The present being not stage of appreciation of a material in the shape of prosecution witnesses/documents meticulously hardly any credence can be given even prima facie to the so called variance between medical evidence and the ocular account of the incident i.e. to say that the corpse was not found having an incised wound in spite of the applicant involved in the incident having said to have been armed with an axe and having used the same. Needless to add that the oral account being silent about precisely the manner in which the axe was used, no undue weight at present stage can be given to the said aspect for accepting unwarranted inference even prima facie as suggested by 5 the learned counsel for the applicant. Thus without going for a detailed discussion about the other submissions canvassed which are more so of nature of appreciating the evidence and the same being not permissible at the present stage and prima facie involvement of the applicant in commission of offences punishable with death or imprisonment for life being borne out from the material including the material revealing the applicant having probable motive for commission of such offences and the manner in which the crime has been ruthlessly committed, it will be difficult to accept of there being any case for exercising the discretion in favour of grant of bail. Hence prayer made in the application stands rejected with a direction to lower Court to expeditiously complete the trial at the earliest or at least within a period of six months from the date of this order in view of the applicant being in custody since 10.1.2009. It is hereby recorded that nothing in the present order should be construed as an opinion expressed by this Court upon the merits of the matter as the observations upon the merits, if any, made being made strictly for deciding the prayer for bail made in the application. Application stands disposed of in aforesaid terms. JUDGE halwai