1 apln524-10 IN THE HIGH COURT OF JUDICATURE AT MUMBAI CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.524 OF 2010 Kiran Raghu Pujari. .. Applicant. Vs. The State of Maharashtra. ..Respondent. .......... Mr.A.P.Mundargi, Senior Counsel i/b. Mr.Niranjan Mundargi, Advocate for the Applicant. Mr.A.H.H.Ponda, Advocate for the orig.complainant. Mr.A.S. Gadkari, APP for the State. .......... CORAM : A.R.JOSHI, J. DATED : 29TH JULY, 2010 P.C. 1. Heard rival submissions at length on earlier two dates. Also perused the police investigation papers including the copy of the complaint made by the deceased to the Commissioner of Police somewhere in March, 2008 i.e. prior to the incident of murder. 2 apln524-10 2. Present application for regular bail is preferred by the applicant/orig.accused No.5 for his release on bail during pendency of the Sessions Case registered on C.R. No.116 of 2008 with DCB CID Unit-I. Offences alleged against the applicant is punishable under Section 302 read with Section 120B of Indian Penal Code. Allegedly there are total eight accused persons in the said offence and all are arrested and still in custody as nobody is so far released on bail since the arrest i.e. since sometime from July, 2008. 3. The facts of the present case are rather peculiar in nature and are required to be taken into consideration and the modus operandi in commission of the present offence is required to be considered while deciding the present application for regular bail. Peculiarity of the present case lies in the circumstance in as much as apparently on the date of the incident it was shown as a motor vehicle accident in which seven persons traveling in the vehicle sustained severe injuries and died. In other words, the conspiracy hatched by 3 apln524-10 all the accused persons was designed n such a manner so as to conceal the real design of murder and prima facie the incident should look like a pure and simple motor accident. 4. One Suresh Bhagat, allegedly running gambling business, commonly known as Mataka, was returning back to Mumbai in his vehicle from attending the Court proceeding at Alibaug in one NDPS case lodged against him and another co- accused including his son Hitesh. Said Hitesh is accused No.8 in the present matter. On the day of the incident of 13th June, 2008 Hitesh has not attended the Alibaug Court on the pretext of his illness. However, apparently he was out of India during the said period. As such, while returning from Alibaug to Mumbai when deceased Suresh Bhagat was traveling in his vehicle along with his Advocate and his other relatives and some clients of the Advocate, one motor-truck driven by accused No.1 gave head-on dash to the vehicle. This resulted in death of seven inmates of the vehicle including said Suresh Bhagat. Initially First Information Report was lodged at C.R. 4 apln524-10 No.25 of 2008 with local police station for the offence punishable under Sections 304A, 279, 337, 427 and 333 of Indian Penal Code and also under Sections 134 & 184 of Motor Vehciles Act. Said FIR was lodged against the then unknown truck driver. 5. Relatives of the deceased Suresh Bhatat suspected faul play at the hands of the wife of Suresh Bhagat. Said wife Jaya Bhagat is also accused No.7 in the said matter. Allegedly according to the brother and other relatives of Suresh Bhagat it was a pre-planned conspiracy entered into by the accused persons including the present applicant, to do away with said Suresh Bhagat in order to grab his lucrative business of gambling and commonly known as "Mataka". 6. On the representations made by the relatives of the deceased Suresh Bhagat the matter was transferred to DCB CID, Crime Branch, Unit-I and revealing various circumstances as to pre-planned conspiracy, present C.R. No. 116 of 2008 was registered for the offence punishable under 5 apln524-10 Section 302 read with Section 120B of Indian Penal Code. 7. Initially during the investigation by DCB CID Unit-I, stringent provisions of MCOC Act were applied. However, during the pendency of the Sessions Case No.294 of 2009 provisions of the MCOC Act were quashed and all the accused including the present applicant are facing the trial only for the penal sections of IPC i.e. Section 302 read with Section 120B and/or Section 34 of IPC. 8. During the arguments, learned Senior Counsel Shri Mundargi for the applicant vehemently submitted that here it is a matter in which there is no direct evidence so as to implicate the present applicant/accused No.6 in the offence of murder more so the statements of the alleged witnesses do not spell out the conspiracy as against the present applicant so far as doing away with Suresh Bhagat. It is further submitted that there is no circumstance on record to point out the involvement of the applicant. Moreover, alleged recovery of cash Rs.4 lakhs at the instance of the applicant is 6 apln524-10 not sufficient to connect the applicant with the conspiracy as to the allegedly receiving such cash as and by way of his work in the said conspiracy towards achieving of the goal as to murder of Suresh Bhagat. 9. It is also argued on behalf of the applicant that the statements of one Ajay Pankhade, friend of the applicant and one Bharat Parmar, brother-in-law of the applicant are not of any relevance so far as the involvement of the applicant in the conspiracy of the murder is concerned. In order to substantiate this argument, it is further brought to the notice of this Court that the statement of Ajay Pankhade infact regarding purchase of Hundai Motorcar in March, 2006 and purchase of Hundai Verana Car in January, 2008 by the applicant in the name of said Ajay Pankhade has noting to do with the death of seven persons including deceased Suresh Bhagat while they were returning from Alibag to Mumbai in a car. It appears that the investigating agency has recorded such statements in order to bring on record the conduct of 7 apln524-10 the applicant/accused as to not taking the vehicles on his own name for the reason that he has no any mentionable legal source of income. According to the investigation, such conduct of the applicant and his inability to show any legal source of income is a mitigating circumstance to him and as such the factual position as to recovery of Rs.4 lakh at his instance assumes significance. In other words, according to the investigating agency the circumstance of recovery of Rs.4 lakhs from the house of the applicant is one of the chains to link the present applicant with the offence of conspiracy by that way he had assisted his friend one Suhas Roge for monetary considerations and thereby facilitated the success of the one of the goals of the conspiracy i.e. to do away with Suresh Bhagat. Apparently on this context of the factual position of the conspiracy, it is submitted on behalf of the complainant and also on behalf of the State that the ultimate goal of the conspiracy is to take charge of the business of the deceased Suresh Bhagat and to have control over his 8 apln524-10 properties and earnings. 10. It is also argued on behalf of the applicant that the statement of one Rahul Kudtarkar, the driver of the present applicant is of no help to the case of the prosecution in as much as he mentions regarding a meeting conducted in the car of the applicant with co-accused Suhas Roge. To substantiate this argument, it is submitted that the said alleged meeting in the car while on the way from Byculla to Mantralaya took place much after the accident to the car of Suresh Bhagat and as such the conspiracy to kill Suresh Bhagat was already over and this circumstance of meeting has no relevance, further argued. 11. It is also argued on behalf of the applicant that the statements of the witnesses by names Yunus Mirza Khan, Vijay Lokhande, Lalit Shetty though take name of the present applicant, such statements cannot be considered to link the present applicant with the conspiracy to do away with Suresh Bhagat and to take over his business of Mataka. It is also 9 apln524-10 brought to the notice of this Court that the incident occurred on 13.6.2008. However, such statements were belatedly recorded by end of July, 2008 or in the first week of August, 2008. So also the statement of driver Rahul Kudtarkar was also recorded on 2nd August, 2008. By pointing out this, a doubt is expressed as to whether the said statements were correctly recorded by the officers or whether it is a concoction of the prosecution. On behalf of the applicant, following authorities were relied upon:- [i] (S) A.I.. 1957 S.C. 747 [Sardul Singh Caveeshar Vs. The State of Bombay] [ii] 1956 PATNA 404 [ Shamshet Bahadur Saxena and Ors. Vs. The State of Bihar.] [iii] 1994(Supp.2) SCC 707 [State of Uttar Pradesh Vs. Sanjay Singh] [iv] AIR 1979 SUPREME COURT 366 [Union of India Vs. Prafulla Kumar Samal] 12. On this aspect, learned Advocate Mr.Ponda for the 10 apln524-10 complainant placed reliance on various authorities which are listed below:- [i] AIR 1973 SUPREME COURT 1409 [Ranbir and others. Vs. State of Punjab] [ii] 1999 CRI.L.J. 4603 [Ramesh Laxman Gavli Vs. State of Madhya Pradesh & Ors.] [iii] (2002) 7 Supreme Court Cases 334 [Mohd. Khalid. Vs. State of W.B.] [iv] (2004) 13 Supreme Court Cases 279 [Prithvi (Minor) Vs. Mam Raj and Ors.] [v] (2004) 1 Supreme Court Cases 414 [Banti alias Guddu Vs. State of M.P.] [vi] (2005) 3 Supreme Court Cases 114 [State of U.P. Vs. Satish] [vii] 2005 Supreme Court Cases (Cri) 1230 [Sunil Kumar and Anr. Vs. State of Rajasthan] [viii] II (2010) CCR 179 (SC) [Sidhartha Vashisht @ Manu Sharma. Vs. State (NCT of Delhi) 13. By pointing out the ratios propounded by the above authorities, it is submitted on behalf of the 11 apln524-10 respondent/complainant that the mere delay in recording the statements is not of significance but whether there is any explanation for recording such belated statements is required to be seen. 14. By pointing out the contents of the statements of the above referred witnesses, it is further submitted on behalf of the complainant that the statement of Yunus Mirza Khan recorded on 30th July, 2008 revealed that the person who was to do the job of inflicting the injuries on the another has also executed an affidavit at Thane Court. The said affidavit is also shown to the Court during the arguments. 15. During the arguments, it is further brought to the notice of this Court on behalf of the complainant that the statement of Vijay Lokhande, prima facie establishes the factual position that the present applicant had introduced the said witness to the co-accused Jaya Bhagat, wife of deceased Suresh Bhagat and as such said witness Vijay Lokhande was employed as a bodyguard of said Smt.Jaya. Further it is 12 apln524-10 brought to the notice of this Court that the statement of one Lalit Shetty is also on the similar lines as that of Vijay Lokhande and at the instance of the present applicant he was also employed as bodyguard for accused Jaya. 16. During the arguments, it is brought to the notice of this Court that Vinod Bhagat, first informant, brother of deceased Suresh Bhagat had given three statements to the police. Out of them, the first statement dated 24.1.2006 i.e. much prior to the incident in which Suresh Bhagat was murdered. Reference to the contents of said statements was made on behalf of the complainant in order to substantiate the design of implicating Suresh Bhagat in various criminal cases including the cases under NDPS Act and to see that Suresh Bhagat is rendered handicapped by putting him in jail and thus facilitating his wife Jaya and another co-accused one Suhas Roge to control the entire business of Suresh Bhagat. At this juncture, it may be mentioned that allegedly since many years even prior to the divorce of Suresh Bhagat with 13 apln524-10 his wife Jaya, she had illicit relations with one Suhas Roge, who is accused No.4 in the present matter. It is to be mentioned that said Suhas Roge has also preferred separate application for bail and which is being taken for final hearing independently. By way of such earlier statement of the year, 2006 given by Vinod Bhagat, it is tried to establish by the complainant that it was a long stand design of the accused persons including the present applicant to do away with Suresh Bhagat and to take over his business. Shelter of the contents of two more statements of Vinod Bhagat were taken on behalf of the complainant and also by the prosecution. These statements are dated 19.6.2008 and 27.6.2008. These are recorded after the incident of 13.6.2008 in which Suresh Bhagat was murdered. In the said statements, name of the present applicant is specifically appearing as one of the conspirators in the conspiracy for taking over the business of Suresh Bhagat and one way or the other to get rid of him either by putting him in false cases or by doing away with 14 apln524-10 him. 17. The contents of the statements of other witnesses by name Nimesh Shah and Smt.Varsha Tushar Shah are also brought to the notice of this Court. These statements specifically mention the role of the present applicant as to threatening one Tushar brother of Nimesh and husband of Varsha. It may be mentioned that said Tushar was one of the co-accupants in the vehicle on 13.6.2008 and was accompanying Suresh Bhagat and he was also killed in the said cooked up motor accident. The threats given to Suresh Bhagat, strained relations of Suresh Bhagat with his wife Jaya on account of alleged illicit relations with the co-accused Suhas Roge, is the material which is revealed from the statement of said Nimesh. Statement of Smt.Varsha is more significant so far as the involvement of the present applicant is concerned. Her statement is recorded on 27.6.2008. About two months prior to the incident of 13.6.2008, Suhas Roge had allegedly made a telephone call to her husband Tushar 15 apln524-10 and he was given threats not to be the associate of his maternal uncle Suresh Bhagat or otherwise said Tushar would be shot dead. According to the said witness Smt.Varsha, off and on Suhas Roge used to threaten her husband Tushar over telephone and once Tushar had narrated to his wife that in the hospital on one occasion present applicant had threatened Tushar by pointing barrel of the pistol to his head and gave a sort of warning that the present applicant would shoot the said Tushar and also his maternal uncle i.e. Suresh Bhagat. 18. From all the above material, prima facie case to show that there was a well planned design, undertaken by the accused persons including the present applicant, to deprive Suresh Bhagat of the assistance and company of his associates and near relations. There was preplanned design to plant narcotic drugs in the premises and also in the car of Suresh Bhagat so as to falsely implicate him, there was a plan to do away with Suresh Bhagat and to take control over his 16 apln524-10 business. 19. Considering the above circumstances, it must be said that there is a prima facie material to accept that the present applicant is involved in the conspiracy to do away with Suresh Bhagat and to take control of his business. It is still significant to note that even in order to achieve such goal of the conspiracy, accused persons had gone to such an extent not only to kill Suresh Bhagat but also to cause deaths of other innocent passengers in the vehicle. 20. The arguments on behalf of the complainant that it was a preplanned conspiracy hatched by the accused persons including the present applicant further can be accepted in as much as in March, 2008 itself deceased Suresh Bhagat had sent a detailed letter to then Commissioner of Police pointing out various attempts made by the accused persons including the present applicant. Name of the present applicant is specifically mentioned in the subject of the said letter and request was made by Suresh Bhagat for ensuring safety to his 17 apln524-10 life, limb and liberty giving all the details. Again the arguments on behalf of the complainant are fortified by the factual position that one Criminal Writ Petition No.2486 of 2005 was filed by the deceased Suresh Bhagat. In the said Writ Petition, there are allegations that the accused persons were trying to implicate Suresh Bhagat in false case of narcotic drugs and psychotropic substance. Further more, in order to canvass the preposition that it was a long drawn conspiracy and well planned act on the part of the accused persons, including the presnt applicant, contents of the detailed order in Criminal Bail Application No.969 of 2007 is brought to the notice of the Court. In the said detailed order, another Bench of this Court had granted bail in C.R. No.II-84 of 2005 of Vashi police station in the matter of offence punishable under Section 8(c) read with 20 & 29 of N.D.P.S. Act for alleged finding of 2.9 Kgs. of morphine allegedly seized on 7th September, 2005 from the premises of Suresh Bhagat. On going through the contents of the said order, it 18 apln524-10 must be said that prima facie submissions as advanced on behalf of the complainant are required to be accepted as to long drawn preplanned conspiracy against Sursesh Bhagat and of such conspiracy present applicant is one of the members. 21. So far as the liability of the present applicant is concerned, for the acts of co-conspirators, provisions of Section 10 of the Evidence Act are taken recourse to on behalf of the complainant. Considering such provisions and material prima facie available, the involvement of the present applicant in the conspiracy is required to be accepted while dealing with the application for bail 22. Lastly, on behalf of the applicant reliance is placed on the observation of the Hon'ble Apex Court in (1999) 5 Supreme Court Cases 253 State through Superintendent of Police, CBI/SIT Vs. Nalini and others. By pointing out the ratio propounded by the said judgment on the aspect of applicability of Section 120-B of Indian Penal Code it is 19 apln524-10 submitted that mere association with one of the conspirators or even knowledge of the conspiracy is not enough to rope the person as one of the conspirators. Needless to mention that in the present matter the specific acts are alleged against the present applicant so far as involvement in the conspiracy and the different action taken in order to achieve the goal of the conspiracy. It cannot be said that the role of the present applicant is innocuous so as to consider that he has nothing to do with the conspiracy. 23. In the result, there is nothing to grant bail to the present applicant and present application is disposed with following order :- :: O R D E R :: [i] Criminal Application No.524 of 2010 for regular bail stands rejected and accordingly disposed of. (A.R.JOSHI,J.) PPD