1 IN THE HIGH COURT OF JUDICATURE AT MUMBAI CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.2876 OF 2009 1.Shankar Yashwant Hole .. 2.Vijay Keru Lavhe .. Applicants. Vs. State of Maharashtra .. Respondents. Mr.M.S.Mohite and Mr.Santosh Bhagwat for the applicants. Mr.S.S.Pednekar A.P.P. for the State. Coram: D.B. BHOSALE, J. Dated : 17TH JULY, 2009 P.C. Heard learned counsel for the applicant and learned A.P.P. for the State. 2. The applicants are seeking bail in C.R.No.205 of 2008 of Daund police station, District Pune. The crime has been registered against the applicants and six others for having allegedly committed an offence punishable under sections 302, 307, 120-B, 504, 506 r/w 34 of IPC, sections 4, 25 of Indian Arms Act and under section 135 of Bombay Police Act. 3. Mr.Mohite, learned counsel for the applicants, at the outset, invited my attention to the report submitted by the investigating officer under section 173 of the Code of Criminal 2 Procedure and submitted that the police have given clean chit to the present applicants, insofar as their actual role in committing the murder is concerned, and have stated that other four accused were the actual assailants. Such report was submitted, because during investigation some witnesses came forward to state that two of the assailants, namely, Ajinath Baban Lavhe and Mahesh Bhiku Hole, were not present at the time of the incident. These two persons, according to the eye witnesses, were also present when the incident occurred and they also assaulted the deceased and the injured witnesses. However, in view of the statements of some witnesses the police discharged them. In view of the subsequent investigation, the investigating officer has stated on the affidavit that the present applicants were only conspirators and they were not the persons who actually participated in the commission of offence. The actual murder, according to the prosecution, was committed by four accused, namely, Sandeep Bhagwat, Dattu Jadhav, Chandrakant Hiwarkar and Avinash Ramwanshi, and not by the persons who are named by the eye witnesses in the statements. The eye witnesses have not named these four persons. I have perused the statements of the eye witnesses. Their statements were recorded within a day or two of the incident. I have carefully gone through the statements of all the eye witnesses. They all have attributed specific overt act 3 to the present applicants. At this stage, I am not inclined to overlook the statements of the eye witnesses and give benefit to the applicants of the report under section 173 of the Code of Criminal Procedure. The application is, accordingly, rejected. While passing this order I shall not be understood to have expressed any opinion on merits of the case and the trial Court shall deal with the case uninfluenced by the observations made in this order. Application is disposed of. (D. B. Bhosale, J.)