Omkar @ Chikya Sham Phatak v. The State Of Maharashtra

1 33-BA 535-19.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION BAIL APPLICATION NO.535 OF 2019 Mr. Omkar @ Chikya Sham Phatak.

] ... Applicant

Versus

State of Maharashtra.

] ... Respondent Ms. Shubhangi Parulekar for Applicant.

Mr. S. H. Yadav , APP for State.

CORAM :- SARANG V. KOTWAL, J.

DATE :- 04 JUNE, 2019 P. C. :- 1.

The Applicant is seeking bail in connection with C.R.No.36 of 2018 registered with Paud Police Station, District Pune, under Section 302 read with Section 34 of the IPC and under Sections 4 and 27 of the Indian Arms Act.

2.

The FIR is lodged by brother of the deceased. The first informant Pravin's brother Sachin @ Raju was brutally assaulted with sharp weapons on 02/02/2018 near Rotmalnath Mandir in Village Lavale. The first informant had not seen the incident. He lodged his FIR at around 2.46 a.m. on 03/02/2018. The CCTV URS 1 of 3

2 33-BA 535-19.odt footage had captured the incident of assault. However, the chargesheet shows that the assailants were not properly visible in the CCTV footage. Investigation was conducted and the Applicant was arrested on 10/04/2018. Investigation is already over and the charge-sheet is filed. In all 7 accused were arrested including the present Applicant. 3.

There are 3 eye witnesses to the incident namely Bajrang Kavtike, Bharat Malekar and Atul Garud. Though they had seen the incident, they were not knowing the assailants except one Vishal Takle. Identification Parade is not held and thus, the identity of the assailants is not established during investigation. The only evidence against the present Applicant is that at his instance, a Koyta was recovered on 14/04/2018.

4.

I have perused the memorandum panchanama recorded under Section 27 of the Evidence Act. The statement of the Applicant recorded under Section 27 of the Evidence Act does not mention the place where he had concealed the weapon. The panchanama conducted pursuant to his statement shows that the weapon was taken out from under a cactus bush near Shitole Vasti, Village Lavale. URS 2 of 3

3 33-BA 535-19.odt Thus, it can be seen that this recovery is not very reliable in the light of provisions of Section 27 of the Evidence Act. The place from where the weapon was recovered is accessible to all. Secondly, the CA report concerning the weapon, though shows presence of human blood; the blood group is inclusive. Thus, in the entire charge-sheet, the evidence collected against the present Applicant is extremely weak. 5.

In this view of the matter, the Applicant deserves to be released on bail. Hence, the following order.

ORDER

(i) The Applicant be released on bail in connection with C.R.No.36 of 2018 registered with Paud Police Station, District Pune, on his executing P.R. bond in the sum of Rs.25,000/- (Rupees Twenty Five Thousand Only) with one or two sureties in the like amount.

(ii) The Applicant shall attend the trial diligently on each date and shall not tamper with the prosecution evidence. (iii) Application stands disposed of accordingly.

(SARANG V. KOTWAL, J.) URS 3 of 3