IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

BAIL APPLICATION NO.74 OF 2021

Uttam s/o Jesaram Sundesha @ Mali,

Age 30 years, Occupation Labour,

R/o Ward No.01, Junjani Road,

Bhinmal Dist. Jalor. Rajasthan

343029.

...Applicant

VERSUS

The State of Maharashtra,

Through City Police Station,

Nandurbar Tq. And Dist.

Nandurbar.

...Respondent

…..

Advocate for Applicant : Mr. J. M. Murkute.

APP for Respondent : Mr. N. T. Bhagat.

…..

CORAM : SMT.VIBHA KANKANWADI, J.

Date of Reserving The Order

:

08-03-2021.

Date of Pronouncing The Order :

19-03-2021.

ORDER :

1.

Present applicant is the original accused No.3 who came to be

arrested on 28-10-2020, in connection with Crime No.658 of 2020,

registered with Nandurbar City Police Station, Nandurbar, for the

offences punishable under Section 394, 342, 120-B, 380, 323, 34 of

Indian Penal Code, under Section 37 (1) (3), 135 of Maharashtra Police

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Act, and under Section 3/25 of Arms Act. He has fled present

application under Section 439 of Code of Criminal Procedure.

2.

Heard learned Advocate Mr. J. M. Murkute for applicant and

learned Additional Public Prosecutor Mr. N. T. Bhagat for respondent-

State.

3.

It has been vehemently submitted on behalf of the applicant

that perusal of the First Information Report which is lodged by one

Devendra Chandanmal Jain would show that he and his relative

Hitendra Jain run a business by name D. C. Developers in partnership

which is in respect of purchase and sale of land / plot. Their ofce is

near Ganpati Temple in Nandurbar. He states that the ofce was

closed around 05.00 p.m. on 18-08-2020 in which they had kept

about Rs.15,69,000/- in cash. On the next day at about 08.40 a.m.

he was informed that there is theft in their ofce, it was informed by

accused No.1 who was then working with the informant. It was

pretended that two persons had tied him and by showing gun, the

amount was stolen. There were CCTV cameras installed in the ofce,

and after going through the CCTV cameras, it was concluded that the

accused No.1 and 2 who were also then working with the informant

had hatched up a conspiracy and stolen the cash and other articles

to the tune of Rs.19,69,000/-.

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4.

It has been further submitted on behalf of the applicant that

the name of the present applicant is stated to have been disclosed

by accused No.1. In fact, now investigation is over and charge-sheet

is fled. Perusal of the charge-sheet would show that there is

absolutely no direct evidence against the present applicant. He has

not seen in the CCTV Footage. So also the necessary certifcate

under Section 65-B of the Indian Evidence Act has not been annexed.

Nothing has been seized from the present applicant which can be

said to be connecting to the articles stolen. The statement of

accused No.1 in which the name of the present applicant has been

disclosed is inadmissible in nature. Further though it is stated that

amount of Rs.1,70,000/- has been recovered from the present

applicant, it appears that the recovery panchanama is prepared back

dated. In fact, that amount which has been recovered from his

house belongs to him. It would take long time to stand his trial and,

therefore, he deserves to be released on bail.

5.

Per contra, the learned Additional Public Prosecutor strongly

opposed the applicant and submitted that at this stage it cannot be

said that the panchanama is back dated. Amount of Rs.1,70,000/-

has been recovered from possession of the present applicant. In

fact, when the name of the present applicant came to be disclosed

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by accused No.1, the investigating team had gone to Rajasthan from

where the present applicant belongs and had made investigation at

that place also. The cream colour pant has been recovered from the

present applicant which can be seen in the CCTV Footage. There

was no necessity to have any identifcation parade under the s