1 Cri-A-2-11-&-4-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL APPLICATION NO. 2 OF 2011 ALONG WITH CRIMINAL APPLICATION 4 OF 2011 CRIMINAL APPLICATION NO. 2 OF 2011 Ganesh Balu Shene ... Applicant (Orig.accused No.6) Vs. The State of Maharashtra ... Respondent Shri R.D.Suryawanshi, Advoate, for the applicant. Ms. A.T.Javeri, APP, for the respondent. Shri J.S.Kini, i/b. Shri Suresh Dubey, Advocate, for the complainant. WITH CRIMINAL APPLICATION NO. 4 OF 2011 Shri Rahul Suresh Patil ... Applicant Vs. The State of Maharashtra & Anr. ... Respondents Shri Prakash Naik, Advocate, for the applicant. Smt. G.P.Mulekar, APP, for the respondent - State. Shri J.S.Kini i/b. Shri Suresh Dubey, Advocate, for the complainant. CORAM: J.H.BHATIA,J. DATE : 1st February, 2011. P.C. 1. These two applications are filed by accused No.5 - Rahul Suresh Patil 2 Cri-A-2-11-&-4-11.sxw and accused No.6 Ganesh Balu Shene seeking bail in Crime No.76/2010 under Sections 302, 201, 120B, 404, read with Sec. 34 of IPC registered at Shahapur Police Station, Dombivli. 2. Prosecution case, in brief, is that accused No.1 Bablu @ Abdulla Khan had entered into an agreement with the deceased Nandgopal Pandey and his brother Anilkumar Pandey to sell certain immovable property at Bhivandi and had received amount of Rs.17 lakh. However, he did not deliver possession nor he executed any documents for conveyance of the property in favour of the deceased Nandgopal Pandey and his brother. The said property was disposed of by accused No.1 Bablu in favour of somebody else. When deceased Nandggopal Pandey made repeated enquiries from Bablu about the property, the accused No.1 Bablu abused and threatened to kill him. The dead body of Nandgopal Pandey was found by the Police Patil Chande of Village Asangaon on 7.4.2010 and he immediately reported the matter to the police. Before that, a missing report was lodged by Anil brother of the deceased. The police registered the offence against unknown persons. During investigation, it was revealed that because of the repeated enquiries about the property by Nandgopal Pandey, accused No.1 Bablu decided to eliminate him and for this purpose, he gave contract to accused No.2 Vijay Binbansi, who in turn gave contract to accused No.3 Rajesh @ Raja Harde. 3 Cri-A-2-11-&-4-11.sxw According to prosecution, accused No.3 Rajesh @ Raja Harde contacted accused No.5 Rahul and accused No.6 Ganesh for killing said Nandgpal Pandey. Admittedly, there is no eye-witness of the incident. Whole case is based on circumstantial evidence. Investigation is completed and charge sheet is filed. 3. Heard the learned Counsel for the applicants, the learned APP and the learned Counsel for the intervener Anilkumar Pandey. 4. Investigation papers reveal that on the basis of information given by accused No.6 - Ganesh, a wallet and a diary of the deceased Nandgopal Pandey came to be recovered on 17.5.2010 from a very interior and remote place. One Dattatraya Ramchandra Jadhav, who runs a roadside Dhaba or hotel near Khativali Village, stated before police that on 6.4.2010, at about 1.30 p.m. Raja Harde along with two persons had come to his Dhaba on a motorcycle. They had taken meals. Both these persons were Hindi-speaking. He also gave description of those two persons. According to him, after the lunch was over, one more person came on a motorcycle from the side of Vashind. Deceased was one of the persons who had come there along with Raja. During the test identification parade, accused No.6 Ganesh was identified as another person who was with accused No.3 Raja. According to the prosecution, on 6.5.2010, a mobile handset of Virgin Company 4 Cri-A-2-11-&-4-11.sxw with Sim Card No.9220520322 was recovered from accused No.6 Ganesh and that phone was used for contacts with several accused persons and particularly accused No.5 Rahul. The panchanama under which said mobile was allegedly recovered from accused No.6 Ganesh purports to have been prepared between 16.40 hours to 17.05 hours. For the reasons best known to the Investigating Officer, same handset with same sim card was recovered from accused No.5 Rahul on the same day i.e.6.5.2010 under a panchnama recorded between 15.35 hours to 16.00 hours. It is also to be noted that one more mobile handset with Sim Card No. 9272661167 was also allegedly recovered from accused No.5 Rahul under a panchnama. 5. The learned APP contends that the panchnama about seizure of the handset Mobile Sim Card No.9220520322 from accused No.6 Ganesh appears to to be be a mistake. Whether it is a mistake or not, can be considered at the time of trial. But fact remains that same mobile handset appears to have been seized from two accused persons under two different panchnamas. Therefore, much importance cannot be given to seizure of the said mobile handset from accused No.6. Even if the seizure of the said mobile handset from accused No. 6 Ganesh is not taken into consideration, in my opinion, the circumstances pima facie are sufficient to connect him with the offence. 5 Cri-A-2-11-&-4-11.sxw 6. As far as accused No.5 Rahul is concerned, from him a mobile handset with said Sim Card No.9272661167 was recovered under a panchnama. An attempt is made to show that from this mobile he was in contact with accused No.6. Ganesh and others at the relevant time. The calls from that number were made from the area of a tower, situated at Vashind Village Near Railway Station Bridge. The dead body was found at the distance of about 8 kms. or so from that tower. Accused No.5 Rahul is resident of Village Vashind. One call was received on that mobile from Asangaon. This is only evidence against him. He received some calls from No. 9220520322. Admittedly, statements of number of witnesses about the different circumstances were recorded. Some of them were also required to identify the accused Rahul during test identification parade, but none of them identified him. In view of these circumstances, bail to accused No.5 Rahul cannot be refused. 7. For the aforesaid reasons, Application No.2 of 2011 filed by accused No.6 Ganesh is hereby rejected. 8. Application No.4/2011 filed by accused Rahul Suresh Patil is allowed and he be released on his executing P.R. of Rs.50,000/- with one or two solvent 6 Cri-A-2-11-&-4-11.sxw sureties in like amount with condition that he shall not tamper with the prosecution evidence and shall report at the Shahapur Police Station on every Sunday between 11 a.m. and 1 p.m. till the end of trial. (J.H.BHATIA,J.)