NITIN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The applicant is seeking regular bail in connection with Crime No.290 of 2018 registered with Tuljapur Police Station, District Osmanabad for the offence punishable under Sec. 363, 396 of the Indian Penal Code. His application with similar prayer Exh.6 in Sessions Case No.2 of 2019 came to be rejected by the learned Additional Sessions Judge, Osmanabad vide order dtd. 6/8/2019.

(2.) Learned counsel for the applicant submits that so far as the charge under Sec. 396 of Indian Penal Code is concerned, there is no direct evidence in this case and the prosecution case entirely rests upon the circumstantial evidence. Learned counsel submits that only there is evidence in the form of recovery of mobile handset allegedly belonging to deceased Somnath at the instance of the present applicant and the applicant's identifcation by the informant during the identifcation parade. Learned counsel submits that there is no whisper in the complaint that the mobile handset belonging to deceased Somnath was taken away during the said incident. Learned counsel submits that even after alleged recovery of the mobile handset at the instance of the present applicant, there is no further connecting evidence in the form of supplementary statements of the family members of the deceased that said mobile handset was belonging to deceased Somnath. Learned counsel submits that so far as identifcation parade is concerned, panch witness Devidas Nagnath Devkate on the memorandum and recovery panchnama drawn on 29/9/2018 was again called for identifcation parade held on 22/11/2018 and said witness brought the informant at the place of identifcation to identify the accused persons including the applicant. Leaned counsel submits that even the identifcation parade is also not free from doubt. Learned counsel submits that otherwise also the evidence in the form of identifcation parade is a weak type of evidence. Learned counsel submits that there is no criminal history. The applicant has a fxed place of residence. He is easily available for trial. The applicant may be released on bail.

(3.) Learned A.P.P. has strongly resisted the application on the ground that though it is not specifcally mentioned in the FIR about the mobile handset of the deceased, however, as per the memorandum panchanama and recovery panchanama, drawn under Sec. 27 of the Evidence Act, one mobile handset came to be recovered at the instance of the present applicant. It has been revealed during the investigation that said mobile handset was belonging to deceased Somnath. Learned APP submits that for the identifcation parade usually government servants are taken as panch witness. Coincidentally, if the panch witness on earlier occasion again called for the identifcation parade, however, it is for the informant to identify the accused person and panch witness has a minimal role to play. Learned APP submits that prima facie, there is strong case against the applicant. Bail applications of the co-accused persons came to be rejected. This application is also liable to be rejected.