IN THE HIGH COURT OF MADHYA PRADESH AT INDORE BEFORE HON'BLE SHRI JUSTICE PRANAY VERMA rd ON THE 3 OF JULY, 2023 MISC. CRIMINAL CASE No. 54504 of 2022 BETWEEN:-

PIYUSH MAHESHWARI S/O MUKESH MAHESHWARI, AGED ABOUT 21 YEARS, OCCUPATION: LABOUR, R/O; 444, MAIN STREET MHOW, INDORE (MADHYA PRADESH)

.....APPLICANT (BY SHRI SANJAY KUMAR SHARMA - ADVOCATE)

AND THE STATE OF MADHYA PRADESH STATION HOUSE OFFICER THROUGH POLICE STATION MHOW, INDORE (MADHYA PRADESH)

.....RESPONDENT (BY SHRI SUDHANSHU VYAS - GOVERNMENT ADVOCATE)

This application coming on for admission this day, the court passed the following:

ORDER

1. This is the second application under Section 439 of Criminal Procedure Code, 1973. The applicant is implicated in connection with Crime No.38/2022 registered at Police Station- Mhow, District- Indore (MP) for offence punishable under Sections 302 and 34 of IPC and Sections 25(2) of Arms Act. The applicant is in custody since 22.01.2022.

2. First application of the applicant bearing M.Cr.C. No.27727 of 2022 was dismissed as withdrawn vide order dated 29.06.2022.

3. As per the prosecution, on 18.01.2022 Gopal, brother of deceased Signature Not Verified Signed by: SHILPA Anup Solanki furnished an intimation to the effect that Anup is lying in a gutter and blood is coming out from his body. He was taken to the hospital but was declared dead. During investigation, the CCTV footage of the incident and the weapon and clothes of the applicant were recovered and the statement of one Sourabh to whom the applicant had made extra judicial confession was recorded. After completion of the investigation, the applicant has been implicated and arrested for the present offence of having committed the murder of Anup Solanki in the intervening night of 17.01.2022 and 18.01.2022.

4. Learned counsel for the applicant submits that the applicant is innocent and has falsely been implicated in the case. The witness Sourabh Batham to whom the applicant had allegedly made the extra judicial confession has been examined before the trial Court as PW/1 and he has not supported the prosecution case and has been declared hostile. Hemant PW/3, a witness to the CCTV footage has also been examined and he has also not supported the prosecution case and has been declared hostile. The other witness namely Gopal has not been turning up before the trial Court for recording of his statement though arrest warrant has been issued against him by the trial Court itself. It is further submitted that the FSL report in respect of the weapon and clothes recovered from the applicant has been received and in that only blood has been found on the T-shirt recovered from the applicant but it has not been stated as to whom the said blood belongs to. It is hence submitted that in view of the state of evidence on record, the applicant deserves to be enlarged on bail.

5. Per contra, learned counsel for the respondent/State has submitted that in view of the allegations levelled against the applicant, he is not entitled to be released on bail.

6. I have heard learned counsel for the parties and have perused the case Signature Not Verified Signed by: SHILPA diary.

7. The witness namely Sourabh, to whom extra judicial confession was made and Hemant, witness of the CCTV footage have been examined before the trial Court and they have not supported the prosecution case and have been declared hostile. The second witness to the CCTV footage namely Gopal has not been turning up for recording of his statement despite issuance of arrest warrant against him. The FSL report in respect of the weapon and clothes recovered from the applicant, prima facie has remained inconclusive. Thus in my opinion, the applicant deserves to be enlarged on bail.

8. Accordingly, without commenting on the merits of the case, the application filed by the applicant is allowed. The applicant is directed to be released on bail upon furnishing a personal bond in the sum of Rs.50,000/- (Rupees Fifty Thousand) with one solvent surety of