-1- IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL MISC. APPLICATION (BAIL) NO. 151 OF 2011 Mr. Prashant Konadkar, s/o. Janardhan Konadkar, r/o. H. No. 115, Aska Waddo, Mandrem, Pernem, Goa. (Presently lodged in Judicial custody at Sada, Vasco-Goa) …... Applicants V e r s u s S T A T E (Through P. I. Attached to Anjuna Police Station Bardez-Goa) …... Respondent (The registered addresses of both the parties are as shown in the cause title) Mr. Menino Teles, Advocate for the Applicant. Mr. C. A. Ferreira, Public Prosecutor for the Respondent. Coram :- F. M. REIS, J Date : 13 th December, 2011. ORAL ORDER Heard Shri M. Teles, learned Counsel appearing for the Applicant and Shri C. A. Ferreira, learned Public Prosecutor, appearing for the Respondent. 2. The above application for bail under Section 439 Cr. P. C. is filed to release the Applicant on bail during the pendency of the trial which is going on CRMAB-151-11 -2- before the learned Addl. Sessions Judge, at Mapusa. It is the contention of the Applicant that he is 38 years old, married and a permanent resident of Pernem, Goa, at the address as reflected in the cause title of the application. It is further his contention that besides his wife, he has two minor children and that he is a law abiding citizen. A chargesheet was filed by the Respondents against different accused including the Applicant for offences punishable under Section 302, 120-B read with Section 34 of the Indian Penal Code and Section 3 read with Section 25 of the Arms Act. Thereafter, charges were directed to be framed by the learned Addl. Sessions Judge by Order dated 16.06.2011. The Applicant was taken in custody on 29.09.2010 in connection with the said crime and he is in judicial custody during the pendency of the trial before the learned Sessions Judge. 3. It is not in dispute that the Applicant did not seek bail during the period when he was either in police custody or in judicial custody upto the time he filed an application before the learned Addl. Sessions Judge, Mapusa, which came to be rejected by Order dated 16.06.2011. It is also not in dispute that the Applicant never sought bail from this Court up to the filing of the above application for bail. 4. Shri Teles, learned Counsel appearing for the Applicant, has pointed out that as per the case of the prosecution, the Applicant is part of the conspiracy which led to the murder of the victim. Learned Counsel has pointed out that in the chargesheet as well as the statements produced by the Respondents, there are only three circumstances relied upon by the prosecution to implicate the Applicant in the crime which is under trial before the learned Addl. Sessions Judge. Learned CRMAB-151-11 -3- Counsel has further pointed out the circumstances which curl out from the chargesheet and the statements and material produced by the prosecution are namely : (i) That the Applicant was in the company of the other accused outside the Court building with one unknown gunman on the relevant date. (ii) That the Applicant was also along with the other accused and the said unknown gunman at the Restaurant of one Shirish. (iii) That one of the witness has stated in the statement that the family of the deceased in the earlier case had threatened the family of the person murdered in the present case with dire consequences or revenge on account of such murder. The learned Counsel further points out that though there may be evidence on record to prima facie establish that the other accused are involved with the crime, nevertheless, as far as the Applicant is concerned, there is no evidence worth to be considered in order that the Applicant can be implicated in the alleged crime. Learned Counsel has further pointed out that even during the examination of the Complainant there is nothing on record deposed by the Complainant to the effect that the Applicant had ever threatened her or any member of the family in connection with the alleged crime. Learned Counsel has further pointed out that the Applicant is innocent and he is in no way involved in the alleged crime and, as such, the question of detaining the Applicant during the pendency of the trial does not arise at all. Learned Counsel further pointed out that the Applicant can be CRMAB-151-11 -4- subjected to whatever terms and condition deem fit by this Court to ensure that he is available during the trial of the criminal case. In support of his submissions, the learned Counsel has relied upon the Judgment of this Court reported in 1995 (1) Bom. C. R. 334 in the case of Menino Lopes vs. State of Goa, Judgment of the Apex Court reported in 2005 CRI. L. J. 883 in the case of Jayendra Saraswathi Swamigal vs. State of Tamil Nadu and another Judgment of the Apex Court reported in 1984 CRI. L. J. 160 in the case of Bhagirathsinh Judeja vs. State of Gujarat. Learned Counsel further pointed out that in view of the ratio laid down in the said Judgments, the Applicant is entitled for bail. 5. On the other hand, Shri C. A. Ferreira, learned Public Prosecutor appearing for the Respondent has pointed out that the Applicant is part of the conspiracy which was hatched in order to hire a gunman for the purpose of committing the murder for which the chargesheet has been filed against all the accused includes the Applicant herein. Learned Public Prosecutor has further pointed out that a conspiracy can be established not only through the evidence of the Complainant but even by examining witnesses as well as the Investigation Officer. Learned Public Prosecutor pointed out that in the chargesheet filed by the Respondents, there are about 80 witnesses named therein which may have to be examined in the course of the trial. Learned Public Prosecutor further pointed that the main accused who was the said unknown gunman has not yet been traced and it would be inappropriate to release the Applicant on bail at this stage. Learned Public Prosecutor further pointed out that there is no dispute with regard to the well CRMAB-151-11 -5- settled principles of law relied upon by the learned Counsel appearing for the Applicant, but, however, in the present case, considering that the Applicant is involved in a serious crime, the question of granting bail to the Applicant does not arise at all. Learned Public Prosecutor has relied upon the Judgment reported in 1999 (5) S.C.C. 252 in the case of State through Superintendent of Police vs. Nalini & Ors. in support of his contention that cases of conspiracy have to be dealt with in a specific manner. The learned Counsel as such submits that the application deserves to be rejected. 6. Having heard the learned Counsel and on perusal of the records produced alongwith the above application, it is not in dispute that the only material which is peculiar to the Applicant in the chargesheet as well as the statements and material produced alongwith such chargesheet are the aforesaid three circumstances as submitted by the learned Counsel appearing for the Applicant. The learned Public Prosecutor did not set out from the records any other circumstance against the Applicant. In case all the three circumstances are taken together, I find that the said material on record is not sufficient to keep the Applicant in custody during the pendency of the criminal trial. Admittedly, there is no direct evidence against the Applicant. The main accused, no doubt, has not been traced but even his identity is not found in the chargesheet. Hence, considering the character of the evidence relied upon by the Respondent, I find that the evidence on record does not justify that the Applicant should be in custody during the pendency of the criminal trial. CRMAB-151-11 -6- 7. Taking note of the ratio laid down by this Court as well as by the Apex Court in the Judgments relied upon by the learned Counsel appearing for the Applicant, I find that subject to imposing conditions to ensure that the Applicant will be available during the trial of the crime before the learned Addl. Sessions Judge, Mapusa, the Applicant can be released on bail during the pendency of the trial. The above observations are made for a limited purpose to ascertain whether the Applicant is entitled for bail during the trial. 8. In view of the above, I pass the following : ORDER (i) The Applicant shall be released on bail upon furnishing a personal bond of Rs.25,000/- with one surety in the likeamount to the satisfaction of the learned Addl. Sessions Judge, Mapusa. (ii) The Applicant shall surrender his Passport, if any, to the learned Addl. Sessions Judge, Mapusa. (iii) The Applicant shall not leave the state of Goa without the permission from the learned Addl. Sessions Judge. (iv)The Applicant shall not tamper with the evidence nor interfere with the witnesses in any manner during the pendency of the criminal trial before the learned Addl. Sessions Judge, Mapusa. CRMAB-151-11 -7- (v) The Applicant shall attend the hearings of the criminal trial before the learned Addl. Sessions Judge. (vi)The Applicant shall also report to the Investigation Officer at the Police Station, every first and third Saturday of the month during the pendency of the criminal trial before the learned Addl. Sessions Judge, Mapusa. (vii) The Application stands disposed of accordingly. F .M. REIS, J. arp/* CRMAB-151-11