1 criap-1185.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO.1185 OF 2011 Dr. Subhash Mahadeo Patharkar Applicant versus The State of Maharashtra. Respondent ------ Shri Shirish Gupte, Senior Counsel, i/by Shri V.I. Thole and Shri Joydeep Chatterji, Advocates, for applicant. Shri S. G. Nandedkar, A.P.P. for the Respondent-State. ------ Coram : Shrihari P. Davare, J. Date : April 07, 2011. P. C. 01. Heard learned counsel for the parties. 02. This is an application preferred by the applicant (original accused No.3), seeking bail in connection with CR No.82/2010, registered with Supa Police Station, District Ahmednagar, on 2 criap-1185.11 13.11.2000, for offences punishable under Section 302, read with Section 34, 120-B and 201 of Indian Penal Code, and Sections 3 and 5 of the Arms Act, since he has been arrested thereunder on 15.11.2010, and in judicial custody presently. 03. The applicant is a doctor by profession, and was serving in Civil Hospital, Ahmednagar, as Medical Officer, at the relevant time i.e. on 14.11.2010. On 13.11.2010, victim Prakash Kandekar, a political worker, was killed, by shooting a bullet, by fire arm on his head, which gave rise to CR No. 82/2010, registered with Supa Police Station, on 13.11.2010, as stated earlier. After registration of the said crime, investigation was proceeded and various persons were arrested and it was transpired that the murder of victim Prakash kandekar, was a contract killing. 04. The victim Prakash Kandekar succumbed to the injuries sustained by him on his head, due to fire arm on 13.11.2010 itself. X-ray of his skull was taken, which disclosed existence of one bullet in skull/brain, in earlier night, i.e. on 13.11.2010. 3 criap-1185.11 Post mortem on the dead body of the victim Prakash was performed on 14.11.2010 by the present applicant and his assistant, namely, Dr. A.A. Raut. However, the said bullet could not be retrieved, at the time of said post mortem. Moreover, accused No.4 viz. Dr. Pakale was also present during the said post mortem and also performed role in searching for the said bullet in the skull of the victim, but the said bullet could not be found. Hence, the applicant instructed Dr. A.A. Raut to take note in the post mortem notes, that the said bullet could not be retrieved, and accordingly, Dr. Raut noted down the said fact. Moreover, at the request of the applicant, Civil Surgeon Dr. Sonawane also arrived in the post mortem room and searched for the bullet in the skull of the victim, but he also could not found the same. Therefore, again x-ray of the skull/head of the victim Prakash Kandekar was taken, but no bullet was found therein. The discovery statements of Rajaram Shelke dated 23.11.2010 and Atish Bhalsing dated 9.12.2010 revealed that the said bullet was retrieved/discovered from the field of Rajaram Shelke, at village Narayangavan. 4 criap-1185.11 05. Shri Shirish Gupte, learned Senior Counsel, for the applicant, canvassed that the incident of alleged killing of victim Prakash Kandekar took place on 13.11.2010 at about 16.30 hours and the applicant was serving as Resident Medical Officer in Civil Hospital, Ahmednagar, and Dr.A.A. Raut was one of his assistants, at the relevant time. The dead body of the victim Prakash Kandekar was sent to the Civil Hospital, Ahmednagar, and x-ray of his skull/head was taken, wherein the bullet was seen. Applicant and Dr. A.A. Raut performed post mortem on the dead body of the victim, on 14.11.2010, between 9.45 a.m. to 10.45 a.m., but said bullet could not be retrieved from the skull of the victim. According to the learned Senior Counsel for the applicant, there is no direct evidence to indicate that the applicant removed the bullet from the head/skull of the victim Prakash Kandekar. Moreover, learned Senior Counsel also pointed out that the applicant did not leave the post mortem room, which aspect, according to him, absolves the liability of the applicant. 5 criap-1185.11 06. Shri Gupte, learned Senior Counsel for the applicant, also submitted that, even accepting the case of the prosecution as it is, the allegation against the applicant is only in respect of offence under Section 201 of IPC, and there is no link/evidence regarding actual involvement of the applicant-accused in the alleged conspiracy, and considering the offence under Section 201 independently, or even coupled with the offence under Section 302 of IPC, the maximum punishment for the same is to the extent of seven years, which is bailable as per schedule to the Code of Criminal Procedure. It is also submitted that the prosecution does not allege that the applicant was one of the conspirators since beginning in the alleged offence, and hence, he prayed that the applicant be enlarged on bail. 07. Besides, learned Senior Counsel for the applicant also submitted that the applicant is the resident of Pune, and he has given his address at Pune and applicant's family is residing there and his family has been deserted, since the applicant is in jail for the substantial period i.e. since about 15.11.2010. 6 criap-1185.11 08. It is also canvassed by learned Senior Counsel for the applicant that there is nothing on record, indicating that the applicant was on inimical terms with the victim Prakash, so as to connect him with the crime, and further submitted that the applicant can be put to the terms, or stringent conditions, if released on bail, and if required, he may also be directed to stay away from Ahmednagar District. 09. Shri S.G. Nandedkar, learned A.P.P., for the Respondent- State, opposed the present application, vehemently, and submitted that the statements of Dr. A.A. Raut and Anil Chajlani, both dated 15.11.2010, as well as discovery statements of Atish Bhalsing dated 9.12.2010 and Rajaram Shelke dated 23.11.2010 involve the present applicant, in the crime. It is canvassed by the learned APP that, at the relevant time, applicant was working as Medical Office, who performed the post mortem on the dead body of the victim, and hence, he is responsible for missing of the bullet, allegedly fired on the victim, by the assailant. He also pointed out that the present applicant had preferred two applications before the 7 criap-1185.11 Court of Sessions, i.e. one before filing of charge-sheet, and another, after filing of the charge sheet, and both the said applications were rejected. It is also canvassed by the learned APP that the entire episode discloses that the applicant was a party to the conspiracy. 10. It is further submitted by learned APP that, in spite of being Medical Officer, the applicant helped in causing disappearance of the bullet from the skull/head of the victim, and thus intended to weaken the prosecution case. Moreover, learned APP also submitted that the applicant being the Medical Officer, there is every possibility that he may influence upon the witnesses and/or tamper with the evidence. Learned APP also submitted that longstanding custody of the applicant, cannot be a ground for grant of bail, and accordingly, he urged that the present application bears no substance, and it is devoid of any merits, and therefore, same be rejected. 8 criap-1185.11 11. I have perused the post mortem notes dated 14.11.2010, bearing signatures of the applicant, namely, Dr. S.M.Patharkar and Dr. A.A. Raut, and inquest panchanama, as well as statement of Dr. A.A.Raut, and also discovery statement made by Rajendra Babaji Bhor dated 24.11.2010, and also discovery statements made by Rajaram Shelke dated 23.11.2010 and Atish Bhalsing, dated 9.12.2010, and also perused the charge-sheet and its annexures, and I am inclined to accept the submissions advanced by the learned APP Shri Nandedkar for Respondent-State, since the aforesaid statements, and more particularly the statement of Dr. A.A. Raut, are incriminating against the applicant-accused, and apparently, involve him in the alleged crime, and same reveal that x-ray of skull of the victim Prakesh Kander taken earlier, clearly disclosed existence of bullet in his skull/head, but at the time of post mortem on 14.11.2010, the said bullet could not be retrieved. Moreover, said statement of Dr. Raut clearly discloses that prior to the post mortem, the applicant herein and Dr. Pakale i.e. accused No.4 were the only persons present in the post mortem room for about 10-15 minutes, which 9 criap-1185.11 apparently, raises finger of suspicion towards the applicant and proximates his complicity in the alleged offence. Further, as regards second exit wound on the head/skull of the victim Prakash Kandekar, it is to be noted that Dr. A.A. Raut raised an objection and differed from applicant's opinion, by making a categorical endorsement in that respect in the post mortem notes, as under:- " I personally do not agree with the finding regarding exit wound. It is incised lacerated wound approxi. 2x1x2.5 cm (depth)." According to the statement of Dr. Raut, thereafter, when the skull of the victim Prakash Kandekar was broke-opened, the bullet in question could not be retrieved, and apparently, the statement of Dr. Raut connects the applicant with the alleged crime. 12. Moreover, the statement of Anil Chajlani, working as sweeper in Civil Hospital, Ahmednagar, discloses that the applicant tried to search for the bullet in the skull of the victim, but could not find it, which indicates that the applicant 10 criap-1185.11 was involved in the conspiracy of missing of the bullet which had mysteriously disappeared and was discovered, as per the discovery statements of Atish Bhalsing and Rajaram Shelke, in the filed of Rajaram Shelke, at village Narayangavan. 13. Considering the totality of the investigation papers, and more particularly the statement of Dr.A.A.Raut, it is inconceivable that the applicant is not a conspirator, and it is difficult to digest that the conspiracy was terminated, as soon as murder of the victim Prakash was committed, and several facets of conspiracy are to be considered in terms of Section 10 of the Evidence Act. Conspiracy precedes commission of offence, and it is a continued act and remains active, so long as crime to effect unlawful object, continues. 14. Moreover, Respondent-State's apprehension that the applicant, if admitted to bail, is likely to influence upon the witnesses and/or tamper with the evidence, also cannot be ignored. Longstanding custody of the applicant cannot be the parameter for enlarging him on bail, more particularly when he 11 criap-1185.11 is a Medical Officer and since the faith of general public bestowed in him, was paralysed and hence, present application deserves to be rejected. 15. Moreover, sight can not be lost of the fact that the very bullet, which was in the skull of the victim as per earlier X-ray, was disappeared later on, and the applicant, as well as Dr. Pakale were alone in post mortem room for about 10 to 15 minutes, and therefore, involvement of applicant in disappearance of said bullet with intention to weaken the prosecution case, can not be ruled out. Moreover, my attention was invited to the fact that considering the involvement of Dr. S.M.Pakle, in the crime, the application seeking bail preferred by him has been rejected by this court recently, and hence, present application preferred by applicant, who is, apparently, perpetrator to the crime of mysterious disappearance of the bullet, also deserves to be rejected. 16. In the result, having comprehensive view of the matter, and considering the gravity and seriousness of the offence and 12 criap-1185.11 its ramifications on the society at large, I am not inclined to enlarge the applicant on bail. Hence, present application stands dismissed. 17. However, it is clarified that the observations made hereinabove are prima facie in nature and the learned trial court shall not, in any manner, get influenced by the said observations. 18. Present application stands disposed of, accordingly. pnd/criap-1185.11 (Shrihari P. Davare, J.)