1 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1016 of 2010 Shri Babaso Raghunath More ... Applicant versus The State of Maharashtra ... Respondent ... Mr. A.P. Mundargi i/b Vinayak Patil for the applicant. Mr.S.R. Shinde, APP for the State. Mr.Dilip Bodke for intervenor. CORAM : D.G. KARNIK, J. DATED : 25th June 2010 P.C. 1. This is a second bail application and as per the standing orders of the Hon’ble The Chief Justice, has been placed before me. 2. The applicant is accused no.5 facing criminal trial for an offence punishable u/s.302, 307, 201, 120B as well as section 34 of the IPC and section 3 of the Arms Act. The applicant is alleged to be involved in the murder of Sanjay Patil which took place at 3.30 p.m. on 15th January 2009. The facts have been stated in my previous order dated 4th February 2010 and it is not necessary to repeat them here. Suffice it to say that the previous bail application of the applicant was rejected on 2 two grounds viz. (i) report of the ballistic expert regarding the possibility of the bullets recovered from the body of the deceased being fired from the pistol discovered by the applicant u/s.27 of the Evidence Act was not received and (ii) that applicant could be a part of the conspiracy. This would be clear from the observations made in paragraph no.6 of the previous order dated 4th February 2010 which reads thus:­ “6. So far as the present applicant is concerned after the arrest, he made a discovery of a pistol u/s.27 of the Indian Evidence Act. This distinguishes the case of the present applicant from the three accused who have been granted bail. Mr.Mundargi learned counsel for the applicant submitted that apart from the pistol was discovered by the applicant, two other pistols were also discovered, one each by accused nos.1 and 2. Only two pistols were used for the purpose of crime and in view of the discovery of three pistols by thee different accused, it cannot be said which two pistols were used for the purpose of the crime. It may be noted that the report of the ballistic is awaited and at this stage, it would be hazardous to guess which pistol has been used for the purpose of actual shooting. Furthermore, allegation against the present applicant is that he was a part of the conspiracy and in pursuance thereof he imparted training to the two shooters. Though the fact of applicant imparting training to the sharp shooters is seriously disputed by the applicant that fact which would be 3 required to be proved at the trial. I am of the prima facie view that the material available against the present applicant does connect him too the crime. Applicant therefore, cannot be granted bail at this stage.” 3. The report of the ballistics expert has since been received. The ballistic expert has given an opinion that the bullets which were recovered from the body of the deceased could have been fired from the two pistols which have been recovered from accused nos.1 and 2. He has further given an opinion that the said bullets could not have been fired from the pistol which has been recovered from the applicant in pursuance of a discovery made by him u/s.27 of the Evidence Act. The report of the ballistic expert therefore, does not support the case of the prosecution that the bullets were fired from the pistol discovered by the applicant. 4. It may be noted that the matter regarding conspiracy was not examined in detail by me in the order dated 4th February 2010 in view of the fact that I was not inclined to grant bail pending report of the ballistic expert. It would therefore be necessary to examine in brief the case of conspiracy alleged against the applicant. 5. It is the case of the prosecution that two groups, one led by a sitting MLA and another led by Sanjay Patil ­ the deceased, contested the elections to Karad Agricultural Produce Market Committee, held on 26th December 2008. The group led by Sanjay Patil was elected and the group of the MLA was defeated. The applicant was a supporter of the group of the MLA and was a part of the conspiracy hatched to eliminate 4 Sanjay Patil. It may be noted that the MLA is not charged with an offence of conspiracy or any other offence. There is some evidence to show that applicant and few others used to visit Koyna Co­operative Bank and meet its manager prior to the killing of Sanjay Patil. It is alleged that applicant and other persons used to meet the son of MLA who was the Chairman of that bank. A judicial notice can be taken of the fact that large sum of money is often required during the elections period. Therefore, the visit of the applicant and others to the bank during the period of the elections cannot by itself cannot be regarded as visits for the purpose of hatching a conspiracy for eliminating the deceased Sanjay Patil. The learned Prosecutor took me through the statement of Prakash Patil who has stated about the applicant firing one round in the air on 23 and 24 December 2008. Admittedly, the deceased was not present at that time and therefore, the motive for the firing of two rounds in the air, at the most could be to frighten the voters of the other side. That incident, prima facie, does not connect the applicant with the conspiracy to kill the deceased Sanjay Patil. Yet another incidence which is alleged against the applicant is that on 23 or 24 December 2008, he obstructed the motor vehicle in which the deceased was travelling by cutting across the lane and halting his motor vehicle. Except for the stopping of the vehicle in which the deceased was travelling, there is no other allegation of threatening the deceased or otherwise. That incident occurred couple of days prior to the elections and could be a part of the strategy to prevent the deceased from reaching his voters and does not prove the conspiracy to kill. Couple of other minor incidences were also pointed out which do not support in any way, the case of controversy to kill. 5 5. Mr.Bodake, learned counsel appearing for the intervenor – brother of the deceased and the complainant, invited my attention to the order of this court dated 12th June 2009 on an application for bail by another co­accused Sambhaji Patil. He submitted that therein the Court has held that there was a prima facie evidence of conspiracy and therefore I should not take a view different than the view taken by another Bench. Firstly, I may state that the applicant was not a party to the said application and was not heard. Any observations therein therefore cannot prima facie be used against the present applicant. Even otherwise, the Court has not held that applicant was a part of the conspiracy. It appears to have held that there was a prima facie maerial that Mr.Sambhaji Patil (accused no.7) was one of the conspirators. The decision nowhere holds that the applicant was one of the conspirators. That decision therefore is of no assistance. 6. Though Mr.Bodake, attempted to show that the applicant was a dangerous person and if released on bail he could be a threat to the prosecution witness, the learned prosecution did not make any such submission and did not support Mr.Bodke. He did not submit that the applicant would post a threat to any of the prosecution witness, if released on bail. He had only submitted that applicant did not have good antecedents. That by itself cannot be a ground for rejecting the bail unless there is some material prima facie connecting the applicant to the crime or there is a prima facie material to show that applicant, if released on bail, would hamper the trial or would abscond or threaten the prosecution witnesses or interfere with the course of justice. Three other accused have already been granted bail and I see no reason to refuse bail to the present applicant. Hence I pass the following order:­ 6 O R D E R The applicant be released on bail on his executing P.R. Bond of Rs. 50,000/­ with two sureties each for the like amount subject to the following conditions: 1) Applicant shall not enter the limits of Karad City Police Station till the conclusion of the trial 2) Applicant shall not threaten prosecution witness nor directly or indirectly make contact with any of them. 3) The applicant shall report attendance to the nearest police station i.e. Rebe wadi police station once a week on every Monday between 11.00 a.m and 5.00 p.m. 4) Within 48 hours of the release, accused shall inform his residential address to the aforementioned police station and shall also inform his mobile telephone number and inform any change and address or the mobile telephone number within 48 hours of the change. Any breach of the conditions shall result in cancellation of the bail forthwith. It is clarified that all observations made in this order are only prima facie and shall not be taken into consideration by the Court at the time of trial. (D.G. KARNIK,J.)