1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR Criminal Application No.44/2011 Amar s/o Abdulbhai Wadsaria Vs. The State of Maharashtra and another. =-=-=---=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, Office Memorandum of Coram appearances, Court's orders or directions & Registrar's orders. Court's or Judges Order =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- CORAM : U.V. BAKRE, J. Order reserved on 14.10.2011. Order Pronounced on 18.10.2011. This is an application under Section 439(2) of the Code of Criminal Procedure, 1973 (Cr. P.C., for short). 2. The respondent no.2, who was arrested in Crime No. 51/2011 for offence punishable under Sections 302, 392 and 201 of the Indian Penal Code (I.P.C., for short), has been granted bail under Section 439(1) of Cr. P. C., by the learned Additional Sessions Judge, Gadchiroli, vide order dated 26.7.2011 passed in Misc. Criminal Bail Application No.124/2011. 3. The applicant is the younger brother of the 2 deceased Akbarbhai who was murdered on 26.3.2011. The deceased was engaged in family business of wholesale grocery and the respondent no.2 had business transaction with him. It is alleged that the respondent no.2 was owing some amount to the deceased which he was avoiding to pay. On 26.3.2011 at about 4.30 p. m., the deceased left his house at Gadchiroli on his motorcycle for recovery of payment from retail shop owners of village Kunghada, but did not return back. On 27.3.2011, the brother of the deceased, namely Asif lodged a missing report. On 27.3.2011, the dead body of the deceased was found at Murum Khadan near Hirapur - Gurwala Road. Said Asif Wadsaria then, on the same day, lodged the report with Gadchiroli Police alleging that unknown person has killed his brother by stabbing with sharp weapon. 4. The investigation started which culminated into a charge-sheet filed against the respondent no.2 for offence punishable under Sections 302, 392 and 201 of the I.P.C. After the filing of charge-sheet, the respondent no.2 preferred the said bail application (Misc. Criminal Bail Application No.124/2011) which came to be granted, by 3 order dated 26.7.2011, by the learned Additional Sessions Judge, Gadchiroli. 5. The applicant has prayed for cancellation of the said bail mainly on the ground that the learned trial Court has mechanically granted bail by ignoring the material on record in the nature of circumstantial but clinching evidence, without bothering even to refer to the same and that too in a heinous crime of cold-blooded and pre-planned murder. 6. Upon notice being duly served on both the respondents, the respondent no.1 (State) filed the reply supporting the application filed by the applicant. The respondent no.2 has, however, chosen not to file any written reply. 7. Heard learned Advocate Shri V. N. Morande for the applicant and learned Advocate Shri N. R. Bhishikar for the respondent no.2. Learned A.P.P. Shri M. A. Kadu has adopted the arguments advanced by the learned Advocate for the applicant. 4 8. Perused the case papers made available to me by the learned A. P .P. 9. Panchanama of the spot of occurrence, where the dead body was found, was drawn on 27.3.2011 and, inter alia, a belt was found and attached. According to the prosecution, this belt belongs to the accused and has been identified by one Keshav Latilwar as belonging to the accused. It is further alleged that the buckle of that belt has been identified by one Gulam Sadik Gulam Shaikh as purchased by the accused from him. The applicant has mentioned this as one of the clinching circumstances. 10. There is no reference to the above circumstantial evidence of the belt, in the impugned order dated 26.7.2011. However, as far as the identification of the said belt by Keshav Latilwar, as argued by the learned Advocate for the respondent No. 2, the question arises as to why the same was not shown to him on 3.5.2011, when his first statement was recorded and as to why it was shown to him belatedly on 30.3.2011, when his supplementary statement was recorded. As far as the identification of only the buckle 5 of that belt done by Gulam Sadik, it should be kept in mind that such buckles are easily available anywhere in the market and hence are difficult to be identified as the same purchased by someone. What is material, as further pointed out by the learned Advocate Shri N. B. Bhishikar, is that the photographs of the deceased clicked during the spot panchanama clearly show that the deceased was himself wearing a belt. The inquest panchanama also mentions that deceased was wearing belt. The said Jean pant of the deceased with belt was not attached during the Inquest panchanama. The dead body along with clothes was sent for post-motem examination. But the post-mortem examination report though reveals that the deceased was wearing blue Jeans, there is however, no mention of any belt. One of the photographs of the deceased taken out at the spot shows the Jean pant of the deceased lowered down and here the belt is not seen. The learned Advocate for the accused has pointed out all the above facts and has rightly questioned further as to how a belt worn by the accused would fall down at the spot and if at all, it had fallen down, why he would leave the same there only. 6 11. There is on record a disclosure statement made by the accused under Section 27 of the Evidence Act, about a knife, a Gupti, Mobile of the deceased, Yellow metal Neck chain (Gof), documents of deceased and clothes of the accused, having been kept by him at his own grocery shop and there is panchanama of recovery of said articles, at his instance. This is another circumstance stated by the applicant as clinching but not considered by the Trial Judge. 12. As far as the knife and Gupti attached as above, it is is pointed out by the learned Advocate for the accused that one blood stained knife was also attached from the spot of occurrence. Therefore, according to him, the question is which of these three weapons was used for committing the murder. There is no identification of any of those weapons as the weapon of assault. There is no eye-witness to the incident. As far as the chain is concerned, Shri Bishikar, the learned counsel for the respondent No. 2 (accused) has argued that only a broken piece of yellow metal chain is allegedly attached at the instance of the accused and that it should be kept in mind that a piece of broken yellow 7 metal chain was also attached from the spot of occurrence. The learned counsel questioned that if the accused wanted to commit robbery, why would he leave the piece of chain and other ornaments at spot and take away only one piece of chain at his grocery shop. The question further, according to the learned Advocate for the accused, is as to why accused should take away documents of the deceased and the mobile of the deceased and keep all these incriminating articles at his own shop, and that also all the articles in one bag only. 13. Then, another circumstance pointed out by learned Advocate Shri Morande, for the applicant, is the fact that the accused had injuries to his right hand palm. With regard to the same, the learned Advocate for the accused has an answer that in fact, these injuries may go to explain about his own blood on his clothes. He pointed out that as per the Medical Officer, the lacerated wound over right index finger may have been caused due to fall. 14. Call details between mobile to mobile cannot prove as to who talked on those mobiles and as to what was the 8 conversation. Even otherwise, there was business transaction between the deceased and the accused. 15 I have discussed above only the facts pointed out by the learned counsel for the parties but I have not actually discussed the merits or demerits of the case, based on the said contentions of the parties. Even then, before proceeding further, it is made clear that the above discussion on evidence is made only for the purposes of this application and should not at all influence the mind of the learned trial Judge while deciding the case on merits. 16. No doubt, the trial Judge has passed a cryptic order by not discussing the material on record to find out whether there is prima-facie evidence or not. However, the trial Court was aware of the circumstantial evidence on record as the same was incorporated briefly in the reply filed by the State. It is mentioned by the trial Judge that there is no eye witness and case is based on circumstantial evidence and that though the murder is of heinous nature, as the case is based on circumstantial evidence and since charge-sheet has been already filed and there being no 9 likelihood of interference of accused with prosecution evidence, there is nothing to keep the accused behind the bars. Bail has been granted with condition that accused shall attend the Court on effective hearing and shall not interfere with the prosecution evidence. 17. There is no allegation that the accused has violated the conditions of bail. 18. Learned Advocate Shri. V. N. Morande, on behalf of the applicant, has relied upon the following citations, for following propositions : - (i) “Lokesh Singh V/s. State of U.P.” [(2008) 16 S.C.C. 753] Proposition : - “Grant of bail – Murder case – Factors to be taken into account while dealing with application for bail – Merits of the case not required to be examined – But reasons for prima facie conclusion to grant bail must be indicated – In absence of such reasons, order granting bail would be vitiated by non-application of mind.” 10 (ii) “State of U.P. V/s. Amarmani Tripathi” [(2005) 8 S.C.C. 21] Proposition : - “General rule that the Supreme Court will not ordinarily interfere in matters relating to bail, is subject to exceptions where there are special circumstances and when the basic requirements for grant of bail are completely ignored by the High Court.” (iii) “Puran V/s. Rambilas” [(2001) 6 S.C.C. 338] Proposition : - “Discussing evidence is totally different from giving reasons for a decision. An order granting bail passed by ignoring material and evidence on record and without giving reasons, would be perverse and contrary to principles of law. Such an order would itself provide a ground for moving an application for cancellation of bail. Power of Court to cancel bail order may be invoked either by State or any aggrieved party”. 11 19. After consideration of the entire evidence on record, I find that though the trial Judge has not discussed the above material on record, however, it cannot be said that material and evidence on record has been ignored or that a perverse order granting bail has been passed. Therefore, the above citations would not help the applicant. 20. Learned Advocate Shri. N. R. Bhishikar has relied upon “Dolat Ram V/s. State of Haryana” [(1995) 1 S.C.C. 349)], wherein the Hon’ble Apex Court has held thus : - “Rejection of bail in a non-bailable offence and cancellation of bail already granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to 12 the accused, in any manner. The satisfaction of the Court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be canceled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial.” 21. Nothing is brought before this Court either by the applicant or by the State to show that the respondent no. 2 has, in any manner abused/misused the concession of bail during the intervening period. 22. I am therefore not inclined to cancel the bail. 23. Application is rejected. JUDGE Ambulkar.