Cri. Apln. No. 2104/2011 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 2104 OF 2011 Rajdhar s/o. Gulab Mali ....Applicant. Versus The State of Maharashtra ....Respondent. Mr. Sachin Deshmukh h/f. Mr. J.R. Shah, Advocate for applicant. Mr. G.R. Ingole, APP for State/respondent. CORAM : T. V. NALAWADE, J. DATED : 8th July, 2011. PER COURT : 1. This application is filed for bail in Cr. No. 249/2010 registered in Nandurbar City Police Station for offences punishable under sections 302, 201 read with 34 of IPC. 2. In application filed for bail in Sessions Court, bail was granted to the applicant on 14.12.2010. Misc. Application No. 5/2011 came to be filed in Sessions Court for the State for cancellation of the bail. Sessions Court has cancelled the bail by the order dated 2.5.2011. The bail is cancelled on the ground that there is more material collected against the applicant to make out case of murder against him and the applicant has misused the liberty by threatening the witnesses. Papers of investigation Cri. Apln. No. 2104/2011 2 were made available by State including the report of Investigating Officer. Both the sides are heard. The advocate of applicant has relied mainly on order made by this Court, by Justice K.U. Chandiwal on 2.5.2011 in Criminal Application No. 1379/2011 by which the application filed for State for cancellation of bail of other main accused Tukaram Mali came to be rejected. 3. Present applicant, Tukaram and deceased Kailash Mali were close friends and they always used to remain together. Contribution was collected by these friends from public for celebration of Ganesh Festival and after spending the amount for celebration, there was amount of Rs. 12,000/- with Kailash. Present applicant was in need of money as he wanted to purchase a motorcycle and so he demanded the money to Kailash. Kailash refused to give money and there were verbal exchanges between Kailash on one side and present applicant and Tukaram on other. 4. On 9.11.2010 as usual Kailash was in the company of applicant and Tukaram and they were seen in the company of each other till 11 am. After that the mother of Kailash did not see Kailash alive. Inquiry was made with the applicant and Tukaram and they gave false information by telling that Kailash had gone to other place. Since then Kailash was missing. Cri. Apln. No. 2104/2011 3 5. The dead body of Kailash was noticed in field from Manjara Tahsil, District Nandurbar on 9.11.2010. This dead body was seen by some persons and Police Patil, but Police Patil did not inform to police about this dead body on which there were bleeding injuries. On the next morning, the dead body was not there. Then the search was taken and out of suspicion, some digging was done by the police in presence of Executive Magistrate at a place situated by the side of railway line of Manjara village. From there, dead body of Kailash was recovered and there were bleeding injuries mainly on neck and hand. There were photographs of a girl and a boy in a pocket of pant of dead body and there was some material, on the basis of which police reached to the residential place of deceased. Dead body was then identified. 6. At the time of granting bail on 14.12.2010, there was no sufficient material with police and only suspicion was expressed against the present applicant and Tukaram. There was no witness with police to say that after 11 am on that day, they had seen the applicant in the company of Kailash. Subsequently, it transpired that Kailash was having mobile handset, having EMI number. On that basis police made more investigation and found that present applicant and Tukaram had together sold the mobile handset to one person. During the investigation the statements of persons from whom the mobile handset Cri. Apln. No. 2104/2011 4 was purchased by Kailash and the person who purchased mobile handset from applicant and Tukaram came to recorded. These persons are Ahamad Menon, Wasim Irani, Nikhil Sonar, Ganesh Mali and others. These statements were came to be recorded in the month of January and March. The relevant record like SIM cards used by Kailash and others is also collected by police. Thus, the property of the deceased is shown to be recovered and there are statements that this property was in possession of present applicant and Tukaram. 7. Police have recorded statements of other witnesses like Nakubai Mali, Kalpanabai Mali, Rakesh Mali, Sangitabai Mali too and these statements recorded in March 2011 show that after 2 pm of 9.11.2010 they had seen present applicant and Tukaram in the company of Kailash at railway station and in railway. They had seen the third accused Raju Bewada also. But he had not boarded the railway when applicant, Tukaram Mali and deceased had boarded the railway. The witnesses like Kalpanabai Mali had seen that at a place railway was stopped and there Kailash and the two applicants alighted from the railway. This material was not available when the bail was granted to the applicant and Tukaram. 8. Allegations against the present applicant are that on 1.5.2011 at about 9 pm when Jitendra Mali and Babloo Gurav were closing their Cri. Apln. No. 2104/2011 5 flower shop, present applicant had gone there and he had assaulted them by using stick as cousin of Jitendra Mali was taking part in the agitation made for taking action against murderers of Kailash. It is contended that due to the stick blow bleeding injury was sustained by Jitendra Mali and the Crime is registered for offences punishable under sections 324, 504 etc. against the applicant. Allegations are made that threats of life are given by saying that nobody should take interest in the case of murder of Kailash, otherwise he will be also finished. 9. The papers of investigation show that the dead body of Kailash was noticed in the field from Manjara Tahsil, District Nandurbar on 9.11.2010 and it was buried by the side of railway line by the present applicant, Tukaram and Raju Bewada. At the instance of Raju Bewada, the material used for digging like spade etc. is recovered and even the chopper allegedly used for murder is also recovered. It was submitted for the state that State is likely to take steps to make Raju Bewada's approval and in that case, there will be more material against the applicant. There is also record of extra judicial confession of Raju Bewada. 10. On the other hand, it was submitted for the applicant that this Court has refused to cancel the bail granted to Tukaram Mali and so different treatment cannot be given to present applicant. This Court holds that there is no force in respect of this submission. The order of Cri. Apln. No. 2104/2011 6 this Court does not show that the aforesaid material was made available. Further, there is allegation against the present applicant that he is tampering with the prosecution witnesses. There is report of Investigating Officer that in spite of giving direction by the Sessions Court and this Court to co-operate the police, when interim relief was given, the applicant has not co-operated. In view of these circumstances, no error can be found in the order made by the Sessions Court. Application can be moved after some time, may be after one month after the arrest of the applicant and it is necessary to see as to whether police can collect more material and can take steps with regard to which submissions are made in this proceedings. So this Court holds that bail cannot be granted to the present applicant and so the application stands rejected. [ T. V. NALAWADE, J.] ssc/criapln2104.11