1 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL BAIL APPLICATION NO.5125 of 2009 Babaso Raghunath More ... Applicant (original accused no.5) versus The State of Maharashtra & Anr ... Respondents And Shri Dhananjay Tukaram Patil & Anr ... Applicants (original intervenors) ... Mr.Datta Mane with Mr.Dilip Bodake for the applicant/original complainant. Mr. A.P. Mundargi, Sr. Advocate with S.M. Gorwadkar, Sanjeev Kadam for the respondent. Mr.A.S. Gadkari APP for the State. CORAM : D.G. KARNIK, J. DATED : 4th February 2010 P.C. 1. By this application, applicant Babaso R. More (shown as accused no.5 in the charge-sheet) seeks bail in connection with C.R. No.19 of 2 2009 registered with Karad City Police Station for an alleged offence punishable u/s.302, 307 212, 120-B and section 34 of the IPC r/w section 3, 5, 25 and 27 of the Indian Arms Act. 2. The prosecution case in short is that there was a rivalry between Sanjay Patil (hereinafter referred to as “the deceased”) and one Mr.Udaysinh V. Patil on account of the elections to the Agricultural Produce Market Committee. 15 members belonging the front of the deceased were elected while all candidates of the party/front of Udaysinh Patil except 2 were defeated. According to the prosecution, on account of this, a conspiracy was hatched for eliminating the deceased. Accused nos.1 and 2 were engaged as a sharp shooters The present applicant was engaged for training the sharp shooters to carry out the killing. Other persons took different parts in the conspiracy to eliminate the deceased. In pursuance of the said conspiracy, on 15th January 2009 at about 3.30 p.m, accused nos.1 and 2 came on a motor cycle, each one of them carrying a pistol and fired 12 rounds of bullets at the deceased. The deceased was taken to the hospital but succumbed to the injuries. Brother of the deceased lodged an FIR whereupon the investigation was carried out. Charge-sheet has been filed naming 10 persons as accused though Mr. Uday Singh Patil has not been named as 3 one of the accused. An application u/s.173(8) made for carrying out further investigation, as according to the complainant Mr. Uday Singh Patil was the main conspirator, was granted by the Sessions Judge. I am informed at the bar that a Petition challenging that order is pending this Court. 3. Mr. Mundargi, learned Senior Counsel appearing on behalf of the applicant submitted that three of the accused namely Lazam Alauddin Hodekar (Accused no.4), Sachin Laxman Chavan (accused no.7) and Muddassar Nijam Momin (accused no.8) have been granted bail by this Court by three different orders passed in Criminal Application Nos. 4013/09, 2729/09 and 2523/09 respectively. Counsel submitted that all the said three applicants who have been granted bail were also charged with the conspiracy as the present applicant and therefore applicant is entitled to a bail on the ground of parity. He further submitted that even otherwise the material on record does not disclose involvement of the applicant to the crime and therefore also the applicant is entitled to bail. 4. Per contra, learned counsel appearing for the original complainant – intervenor, and learned APP submitted that the case of 4 the applicant was different from the three accused who have been granted bail and the ground of parity would not apply. They submitted that there was material other than that which was before the Court qua the accused released on bail and that additional material distinguishes the case of the applicant from the three accused who have been granted bail. Counsel also invited my attention to an order dated 12th June 2009 passed by this Court in Criminal Application No.2449 of 2009 rejecting bail to Sambhaji Khashaba Patil. He submitted that the Court had made a differentiation between Mr.Sambhaji Patil and bailed accused against whom there was no prima facie material and granted bail only to the persons against whom there was no prima facie material and no bail to Mr.Sambhaji Patil. Since there was a prima facie material available connecting the applicant to the crime, the present application should be rejected. 5. So far as the bailed accused no.8 is concerned, the only relevant material available against him was that he had helped Salim Shaikh, other accused in the case, to flee by permitting him to use his car. There was no material that the accused no.8 was a part of the conspiracy and so he was released on bail. So far as bailed accused no. 7 is concerned, the only material available against him was that his 5 vehicle was also used by one of the co-accused in the election and he was seen with a co-accused on 14th January 2009, a day prior to the murder. The Court was of the prima facie view that that material was not sufficient to connect the accused no.7 to the crime and therefore he was granted bail. So far as the bailed accused no.4 is concerned, the material available against him was that he had stayed with a co- accused at Aditi Lodge on 12th February 2009 i.e. nearly four weeks after the murder and therefore the Court was of the prima facie view that that was not sufficient to connect him to the crime. 6. So far as the present applicant is concerned after the arrest, he made a discovery of a pistol u/s.27 of the Indian Evidence Act. This distinguishes the case of the present applicant from the three accused who have been granted bail. Mr.Mundargi learned counsel for the applicant submitted that apart from the pistol was discovered by the applicant, two other pistols were also discovered, one each by accused nos.1 and 2. Only two pistols were used for the purpose of the crime and in view of the discovery of three pistols by three different accused, it cannot be said which two pistols were used for the purpose of the crime. It may be noted that the report of the ballistic is awaited and at this stage, it would be hazardous to guess which pistol has been used 6 for the purpose of actual shooting. Further more, allegation against the present applicant is that he was a part of the conspiracy and in pursuance thereof he imparted training to the two shooters. Though the fact of applicant imparting training to the sharp shooters is seriously disputed by the applicant that fact which would be required to be proved at the trial. I am of the prima favie view that the material available against the present applicant does connect him to the crime. Applicant therefore cannot be granted bail at this stage. 7. It is however necessary to observe that the prosecution must expedite obtaining of the ballistic report as to which of the three pistols were or could have been used for the purpose of assault i.e. firing of the bullets at the deceased. If this is not done expeditiously, the case of the applicant for bail would have to be considered as he cannot be detained in custody indefinitely for want of the ballistic report. With this observation, application is rejected with liberty to the applicant to apply afresh if the ballistic report is not received within a reasonable period of say four months. (D.G. KARNIK,J.)