1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JUTISDICTION CRIMINAL APPLICATION NO. 3228 OF 2009 1. Shyam Hiralal Sable 2. Ganesh Jankiram Ghuge 3. Nagnath @ Nagesh Kondiba Bansole ....Applicants. V/s The State of Maharashtra ..... Respondent. Mr. S.V. Marwadi i/b B. Jagtap & Sunita Sharma for the applicants. Mr. H.J. Dedhia, APP for the State. ALONGWITH CRIMINAL APPLICATION NO.3952 OF 2009 Bhausaheb Kisan Sasane .... Applicant. V/s The State of Maharashtra .... Respondent. Mr. A.P. Mundargi, Senior Counsel i/b Hrishikesh Mundargi for the applicant. Mr. H.J. Dedhia, APP for the State. 2 CORAM: V.M. KANADE, J. DATE : 10TH NOVEMBER, 2009 P.C.: 1. Heard the learned Counsel for the applicants and the learned APP for the State. 2. Applicant in Criminal Application No.3952 of 2009 was arrested on 7/3/2009 and the applicants in Criminal Application No.3228 of 2009 were arrested on 8/3/2009 in connection with the offence which is registered with Dahisar Police Station vide C.R. No.76 of 2009 for the offence punishable under sections 302, 324, 120(B) read with section 34 of the Indian Penal Code and section 37(1) read with section 135 of the Bombay Police Act. 3. Prosecution case is that on 2/3/2009, complainant and the deceased were proceeded to market to purchases cloth badges for the meeting which was to be held on that date. The complainant and deceased belonged to the Bahujan Mahasangh and, initially, they belonged to Athavale Group of RPI and later on formed their own group. It is alleged that, as a result, the applicants had a grudge against the deceased for having 3 defected from their party. On that date, two unknown assailants assaulted the deceased with knives and he succumbed to the injuries and died. Two assailants were thereafter arrested. During investigation, statements of witnesses were recorded by the Investigating Officer and some of the witnesses stated that the applicants in Criminal Application No.3228 of 2009 were seen in the company of the assailants on 26/2/2009. Thereafter, some witnesses have stated that these accused/applicants in Criminal Application No.3228 of 2009 were in the company of the applicant in Criminal Application No.3952 of 2009. There is also material on record that the applicant Bhausaheb Sasane was seen paying money to the applicants in Criminal Application No.3228 of 2009. Apart from this material, prosecution has also relied on the phone calls which were made by the applicant – Bhausaheb Sasane to the assailants and the phone calls made by the applicants in Criminal Application No. 3228 of 2009 to the assailants. 4. Mr Mundargi, the learned Senior Counsel appearing on behalf of the applicant in Criminal Application No.3952 of 2009 submitted that there is no material on record to prove the alleged case of conspiracy by the applicants herein to eliminate the deceased Yeshwant Otale. He submitted that the transcript 4 of the telephone calls made by the applicants to the assailants has not been produced by the prosecution. He submitted that merely because certain phone calls have been made, that alone would not prove that they had hatched conspiracy to eliminate the deceased. He submitted that so far as applicant – Bhausaheb Sasane is concerned, he and the other applicants were members of the same political party and were known to each other and, therefore, no inference could be drawn from the fact that these applicants had met each other on 26/2/2009 and on the date of attack on the deceased. He submitted that merely because certain money was paid by the applicant – Bhausaheb Sasane to the other applicants in Criminal Application No.3228 of 2009 that by itself is not sufficient evidence to draw the inference that the money was paid for the purpose of eliminating the deceased. 5. The learned APP appearing on behalf of the State submitted that the deceased was stabbed mercilessly by the assailants and he succumbed to the said injuries. He submitted that these applicants had given contract to the assailants to eliminate the deceased since the deceased defected from their political party. He submitted that, at this stage, the Court is not expected to weigh and shift the evidence if there is some 5 material on record to indicate involvement of the present applicants and, at this stage, the applicants do not deserve to be released on bail, more particularly when the offence is punishable with death or imprisonment for life. 6. In my view, there is some substance in the submissions made by the learned Counsel appearing on behalf of the applicants. In my view, after having seen the statements of witnesses and the circumstances under which the said offence was committed, there is no material to establish direct nexus of the applicants with the assailants save and except the said telephone calls which have been made by the applicants to the assailants. So far as the applicant – Sasane is concerned, he was not seen in the company of the actual assailants at any time and merely because certain monies were given by him to the applicants in Criminal Application No. 3228 of 2009 who belonged to the same party, it cannot be said that the said monies were given for the purpose of giving contract to the assailants to kill the deceased. It is a well settled position in law that while considering the question of granting bail, the Court has to take into consideration various circumstances such as (i) gravity of the offence, (ii) circumstances under which the said offence has taken place, (iii) material which is on record, (iv) 6 possibility of the applicant absconding and being available for trial and (v) possibility of the applicant tampering with the evidence and threatening the prosecution witnesses. At this stage, for the grant of bail, the Court is not expected to weigh and shift the evidence which exercise has to be done only at the final hearing of the case after the evidence has been adduced by the prosecution. Court, however, can take into consideration the material which is brought on record by the prosecution in its charge-sheet in order to find out whether there is any possibility of applicant being acquitted during trial and if such a possibility exist, then court can see whether trial is likely to commence immediately or whether the applicant would languish in jail as under trial prisoner indefinitely. Normally, the Court is not expected to make any observations on merits in respect of the case while granting bail but prima facie observations can be made. In the present case, allegations which are made against the applicants are of grave and serious nature. However, it cannot be said that merely because applicants are seen in the company of the assailants, applicants had given contract to the assailants. Trial is not likely to commence immediately in the near future. Apart from the fact that the deceased has defected from their political party, there was no other personal enmity between the applicants and the deceased. Police could have 7 produced transcript of the telephone conversation. However, for the reasons best known to them, that course of action is not undertaken by them. Therefore, at this stage, in my view, applicants are entitled to be released on bail subject to certain conditions being imposed upon them. 7. Applicants be released on bail in C.R. No.76/2009 registered by Dahisar Police Station in the sum of Rs 5000/- each with one or two sureties each in the like amount. Applicants, however, shall not enter the jurisdiction of Dahisar (East) and Dahisar (West) Police Station during the pendency of the trial. They shall give their new residential address to the Superintendent of Police before their release from jail and report to the nearest Police Station from their new residential address twice in a month. Applicants shall not threaten any of the prosecution witnesses and if any complaint is received by the Investigating Officer, he may apply to this Court for cancellation of bail. 8. Trial Court shall not be influenced by any observations made by this Court while granting this bail application since these observations essentially are prmia facie in nature. 8 9. Both the above applications are accordingly disposed of. (V.M. KANADE, J.)