1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. CRIMINAL APPLICATION No. 2001/2010 (Rajendra Bhayyalal Yadao .vs. State of Maharashtra through PSO PS Kharangana, Wardha.) ------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders. and Registrar's orders Mr. Asif Rizwy Advocate for Applicant. Mr. S.S. Doifode, APP for Respondent. Mr. K.S. Motwani, Advocate for Intervenor. .......... CORAM : P.D. KODE, J. DATED : MAY 04, 2011 Heard. The prayer for bail made by accused no.3 Rajendra Yadao charge sheeted by Kharangana Police Station as a result of investigation of Crime No. 26/2010 for offence under Sections 302, 201, 120B read with 34 of IPC and Section 4 and 24 of the Arms Act, is vehemently objected by the learned APP on the count of involvement of the applicant and particularly himself being the main conspirator for murder of Santosh Pandey being borne from the circumstances emanating of material collected during the course of investigation. Mr. Rizwy, the learned counsel for the applicant, however, urged that the circumstances pointed by the learned APP are miserably insufficient to 2 reasonably lead such an inference. Bereft details, the prosecution case regarding said crime seems to be that deceased Santosh Pandey in the month of November, 2009 has advanced an amount of Rs.15 lacs or thereabout to the applicant for lending same for commercial purpose on interest. In order to get away from the repayment of the said amount , the applicant is said to have conspired with other co-accused through accused no.2 for doing away with Santosh. In pursuance to the conspiracy hatched, the applicant hired Qualis jeep of one Ketan Wankhede on 10.4.2010 at about 2 noon for bringing deceased to isolated place much away from Nagpur on the pretext of purchase of gold from Pardhi persons of Kondhali at the rate half than rate prevailing in market. The deceased on the said day has left the home at about 2 to 2.30 p.m. informing wife Swati that along with the applicant he was going for IPL Match to be played at Jamtha Stadium. However, instead of being to the said stadium, the applicant had brought him in the said Qualis firstly to Kondhali at about 5 p.m. and thereafter at Bhangadapul by 5.20 p.m. at which co-conspirator accused no.2 Swapnil, accused no.1 Bhushan, accused no.4 Babu, accused no.5 Akshay and accused no.6 Sonu were waiting for the applicant. The applicant alighted at Bhangadapul and the accused nos.1 4,5 and 6 continued the journey along with the deceased by the said vehicle towards side of Borkhedi by 5.30 p.m. for meeting Pardhi people for purchase of gold at cheaper rate. The deceased thereafter was not seen alive by anybody until his corpse was found in the forest of 3 Borkhedi. The applicant and accused no.2 from Bhangdapul returned to Kondhali on motorcycle of accused no.2 Swapnil brought by servant of accused no. 2 namely Nishant Borkute at the telephone exchange of Kondhali. Both of them enjoyed drink at Pushpanjali Bar and thereafter at 7 p.m. returned to Nagpur and at about 9 p.m. purchased the garments at Didi Garments of one Makrand Bhorkar. They had purchased the same for handing over the said garments to the co- conspirators for changing their clothes spoiled and/or stained with the blood while murdering the deceased. The applicant and accused no.2 by midnight had been to Wardha in Cheverlot Aveo Car and handed over the clothes to their associates who had by then been to Wardha. All the charge sheeted accused thereafter came to Pavnar. The applicant purchased petrol in a can at Pavnar petrol pump at 1.30 a.m. Thereafter applicant and accused no.2 alighted car and burnt spoiled clothes on Pavnar- Nagpur road at a place 3 kms. away from Pavnar by alighting Cherverlot Car while the other associates waited in the Qualis halted at said place. After returning to Nagpur, applicant threw away gupti and accused no.2 knife in a well near Coffee House Square near Dharampeth. Ghanshyam Verma- servant of Ketan Wankhede went to the house of applicant on 11.4.2010 and collected the keys of Qualis parked nearby the house of the applicant at Dharampeth Children Park. The deceased having not returned, Swati 4 called the applicant in the night of 10.4.2010 but he gave the evasive answers regarding whereabouts of the deceased. Sandip-brother of the deceased on the next day lodged missing complaint with Ranapratap Nagar Police Station. The Police Patil of village Kharangana on 11.4.2010 at about 1.10 p.m. noticed the corpse with injuries on it lying in the forest of Borkhedi, reported the matter to PSO Borkhedi. After ascertaining truthfullness of information received, the PSI Bhusari of the said Police Station lodged the report and thereon crime in question was registered and after completion of investigation, the applicant and other co-accused arrested during the course of investigation, were charge sheeted. Now considering the first circumstance tried to be canvassed by of the learned APP that the applicant was having probable motive for commission of a crime for evading return of money advanced by applicant and after considering the statement of wife of the deceased Swati and that of his sister Mamta and brother Sandip, though the same support deceased having advanced money to the applicant, the same does not reveal that any point of time the deceased was insisting for return of same and/or there was any dispute/quarrel or furthermore any denial or refusal on the part of the applicant to return the said money. On the contrary the material in the said statement prima facie gives an impression that there were quarrels between the wife and deceased on the count of deceased having advanced such a huge amount without obtaining any 5 written record for the same from the applicant. Such a position being prima facie seen from the said material, it is difficult to perceive that upon such a material an inference even prima facie can be drawn that the applicant was having/entertaining probable motive for killing the deceased for evading returned of the said amount. Now considering to the second circumstance urged and the material in the statement of Narendra Choudhary pointed in the said context, the same duly supports the submission of the learned APP of Narendra Choudhary having seen deceased in the company of applicant and both of them travelling at 2 to 2.30 pm by a Qualis vehicle in Nagpur. Now considering the said material along with the material contained in the statement of Ketan Wankhede, the same also leads to plausible inference that in all probability the deceased must have been travelling by the same Qualis vehicle which was hired by the applicant from Ketan Wankhede. Now considering the next circumstance and the material in the statement of Nishant Borkute in the said context and the call reports/record that the said material justifies the submission of the learned APP that Nishant Borkute had received the call from the applicant given on the mobile of the deceased and then applicant at about 5 to 5.20 pm had inquired about the accused no.2 Swapnil Puri and then having claimed to be at Kondhali. However, still upon the said material, it will be difficult to accept the submission that the same reveals that deceased was then with applicant at the said time and both of them were at Kondhali. The same is obvious 6 as merely because the call was given from the mobile of deceased by itself will not be prima facie sufficient to draw the conclusion that the deceased was then also along with the applicant as mobile of the deceased could have been with the applicant for other reason other than deceased being along with him. Needless to add that besides the statement of Nishant Borkute who had received the said call at the house of accused no.2 due to Nishant being then working with accused no.2, no other material from the charge sheet is pointed revealing that at 5 to 5.20 p.m. the applicant or the applicant along with the deceased was at Kondhali. Needless to add that charge sheet does not contain any material in the shape of any witness having seen deceased in company of the applicant at Kondhali at 5 to 5.20 p.m. Now considering the further circumstance and the material in the statement of witness Anant Dhavle pointed in the said context though reveals that said witness had met the applicant accompanied with a person unknown to him at about 5.30 p.m. at Bhangadapul and then applicant and the said unknown person had been to the said place in silver colour Qualis and at the said place the applicant had alighted down, the said unknown person had continued by the said Qualis and accused nos.1,4,5 and 6 had also boarded and continued by the same Qualis, but accused no.2 and applicant had not travelled along with them by the said vehicle, still it is difficult to accept that the said material is sufficient to draw the inference as suggested by the learned APP that said unknown person 7 accompanying applicant up-till Bhangdapul and thereafter continued to travel by the sliver colour Qualis was the deceased. Needless to add that the entire prosecution charge sheet does not contain any material prima facie establishing identity of the said person as being deceased. The same is the case regarding about identity of the said Qualis as being Qualis which was hired by the applicant from Ketan Wankhede. Needless to add that the learned APP was not able to pin-point any material from the said statement or from the other material from the charge sheet of the same establishing identify of the said vehicle by which applicant along with un-known person had been to Bhangdapul and from the said place said unknown person along with the other accused persons referred hereinabove had travelled further. Having regard to the same, it is difficult to accept the submission of the learned APP that the material so far referred leads to the legitimate conclusion of the deceased along with the applicant having firstly travelled to Kondhali and thereafter to Bhangdapul and at the said place the applicant having alighted while the deceased along with the other accused persons who are said to have boarded the said vehicle had continued by the said vehicle. It is also difficult to accept the submission of the learned APP that the said material is sufficient to prima facie establish that Qualis by which the deceased has travelled from Bhangdapul along with accused nos. 1,4,5 and 6 and thereafter he was not seen alive , was the Qualis which was hired by the applicant from Ketan Wankhede. 8 The learned APP thereafter by making reference to the material contained in the statement of owner of the Qualis Ketan Wankhede and particularly the part therein regarding the return of the Qualis by the applicant, tried to canvass that all the aforesaid material considered together reveals that the Qualis hired by the applicant being collected by the driver of Ketan Wankhede after making an inquiry with the applicant also reveals that the said vehicle was returned by the culprits to the applicant or at the house of the applicant after crime in question was committed. It is difficult to accept the said submission even though material in the statement of Ketan Wankhede reveals that Qualis which was hired by the applicant was required to be collected in a manner as stated in the said statement, still in absence of any material to come to the conclusion that it was the same Qualis by which the deceased had travelled from Nagpur to Kondhali and thereafter to Bhangdapul and onward. The learned APP thereafter by making reference to the results of DNA test regarding hair found in soil seized on 13.5.2010 from the Qualis vehicle hired from Ketan Wankhede urged that the same having prima facie established the said hair being that of accused no.1 also supports the prosecution case against the said accused and so also applicant. It is difficult to accept the said submission even prima facie at least against the applicant even ignoring the aspect about there being no proximity of time in between the date of crime, date of seizure. The learned APP thereafter by pointing out 9 an entry from the pass book of the applicant to the effect of having withdrawn Rs.1 lac at the relevant time, tried to canvass that same denotes of the applicant having withdrawn the said amount for paying the same to the hirelings. The learned APP in the same context also pointed out material regarding recovery and seizure of amounts from the house of accused no.1 ,4 and 5 for supporting the said submission. Without unnecessarily referring the said material in details, which also do not show the seizure of an amount totalling to Rs.1 lac , it appears prima facie difficult to accept the said submission in absence of any further material regarding such a payment being made by the applicant at any point of time to any of the accused. Needless to add that learned APP was not able to pin-point any mateiral from the charge sheet linking amount withdrawn by the applicant with the amount seized from the house of the said co-accused. The learned APP by drawing the attention to the material in the statement of Makrand Bhorkar , the garment shop owner at Nagpur, urged that the material in the said statement also reveals that at about 9 p.m. on 10.4.2010, the applicant along with accused no.2 had been to the said shop and purchased the garments. No doubt such a position being prima facie spelt out from the material in the said statement, however, merely because of the same, the further submission canvassed cannot be accepted that the said garments were delivered by the applicant and accused no.2 to the co- accused for changing their clothes which were stained with the blood while committing the crime. Such a 10 prima facie inference is obvious as there is paucity of any material in the charge sheet revealing such clothes being given by the applicant to accused nos. 1,4,5, and 6 who are said to be involved in the commission of main act of committing the murder. Needless to add that there is absolutely no material to connect the applicant even with the said event of burning the clothes. The material pointed out regarding the relevant aspect is confined to the statement made by accused no.2 regarding the place at which the clothes were said to be burnt. Even the prosecution has not pointed out any material that the ash seized from the said place was found containing blood stains or any other incriminating material connecting the applicant. At the repeated insistence of the learned counsel assisting the prosecution, the learned APP has also drawn the attention to a decision in a case of State of Maharashtra .vs. Ritesh s/o Vasudeo Wanjari reported in (2001) 4 Supreme Court Cases 224 and urged that even in absence of precise material regarding the talks ensued in between two accused, the such a facet can be considered as a circumstance denoting existence of a conspiracy. After careful perusal of the same, it is difficult to accept that the said decision would be of any assistance to the prosecution to advance its case as the said aspect is related to talks in between the co-accused and not regarding a talk in between one of the accused and one of the witnesses i.e. in the instant case talk between the applicant and Nishant Borkute. Needless to add that pointing out such a decision for present application, also appears to be 11 superfluous as in the instant case the statement of Nishant Borkute itself reveals the talk which had ensued at relevant juncture in between the applicant and the Nishant Borkute. Thus considering the material upon which much stress was laid by the learned APP, it is difficult to accept that the said material leads to a conclusion of themselves forming a formidable chain pointing out towards the guilt of the applicant with the crime of commission of murder of the deceased and/or the same being committed by accused nos. 1,4,5 and 6 engaged by accused no.2 for the said purpose by the applicant through him. Such a prima facie conclusion emerges as the prosecution material even accepted as it is, prima facie does not reveal deceased having travelled in a Qualis hired by applicant beyond Nagpur after 2.20 p.m. and in view of the failure of the prosecution material to prima facie establish the movements of the deceased after 2.20 p.m. at Nagpur. The same emerges as prima facie there being also no material in the charge sheet denoting that the applicant has either handed over the clothes purchased to the co-accused or was party to the event of burning the clothes of the co-accused containing blood stains and/or allegedly thrown gupti in a well at Nagpur and/or paid amount to the co-accused as alleged by the prosecution. Needless to add that the material showing prima facie involvement and the material raising some what suspicion being two entirely different things, the submission canvassed cannot be accepted. In the premises aforesaid, the prayer for bail 12 made by the applicant will be required to be accepted. However, considering the nature of accusations revealed against the applicant, it appears proper to insist for a heavy bail and impose proper conditions to ensure his presence at the trial and to take care regarding the apprehension expressed by the APP that in the event of the release of the applicant on bail, there is likelihood of prosecution evidence getting tampered. The applicant is directed to be released on bail in connection with said crime upon furnishing P.R. Bond in the sum of Rs.4,00,000/- (Rs. Four Lacs) with one or more sureties to make up that amount and subject to the conditions that applicant - (i) after his release on bail, shall attend M.I.D.C. Police Station everyday in between 9 a.m. and 10 a.m. until further orders; (ii) shall stay at the address mentioned in the application and shall not leave the same without the permission of the trial court, (iii) shall not indulge in any activity of tampering prosecution evidence and/or indulge in any activity of hampering the progress of the trial, (iv) shall not commit any offence while on bail. The application stands disposed of. Nothing in this order should be construed as an opinion expressed by the court regarding the merits of the prosecution case as all the observations are made primarily for deciding prayer for bail made. Criminal APPP No. 363/2011 Heard. 13 In view of disposal of main application, the application does not survive and stands disposed of accordingly. JUDGE halwai