1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 1283 OF 2010 Niranjansing Bharatsing Dudhani ...Applicant VERSUS The State of Maharashtra ...Respondent ..... Shri S.S.Bora, advocate for the applicant Shri K.S.Patil, A.P.P. for the respondent ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 19th April, 2010 PER COURT : 1 Heard Shri S.S.Bora, advocate for the applicant and Shri K.S.Patil, A.P.P. for the respondent. 2 This is an application for bail preferred by the applicant herein in connection with CR No.189 of 2009, registered at Majalgaon police station, District Beed, for the offences punishable under Sections 395 and 397 of the Indian Penal Code since the applicant was arrested on 16.9.2009 thereunder and he is under judicial custody presently. 2 3 It appears that the offence has been registered on the complaint lodged by the complainant namely Deelip Dnyanoba Sable on 16.9.2009 alleging that he is conducting the business as Jeweller under the firm, name and style as “Kedareshwar Jewellers” at Bazar Road, Majalgaon. On 15.9.2009 at about 8.00 p.m. he closed his shop and collected the gold and silver ornaments as well as cash in a bag and went to Onkar Jewellers as usual. It is alleged that the said shop “Onkar Jewellers” belongs to his uncle namely Tukaram Solanke. It is also alleged that at about 8.30 p.m. another Jeweller namely Narayan Ramchandra Mali from Kolhapur also arrived there, and as usual he kept his gold and silver ornaments and cash in the cupboard in the said shop and he went to a lodge for sleeping purpose. It is further alleged that at about 9.30 p.m. after having dinner, the complainant as well as Arjun Jadhav, Santosh Solunke, Babasaheb Mule, Sandip Chalak all slept in the shop, namely Onkar Jewellers. However, at about 4.00 a.m. there was noise of shutter, and therefore, Santosh Solunke went there and found that the said shutter was open and he saw at about 5 persons inside whose faces were covered by handkerchiefs and they pushed Santosh Solunke towards the complainant and others and demanded keys of cupboard and safe and thereupon complainant and others stated that they were not possessing keys, hence, the said persons opened the said cupboard and safe by iron rod and removed the bags containing silver and gold ornaments as well as cash. 4 At this juncture, the complainant informed about the said 3 incident to Deelip Solunke on his mobile. The said robbers went out of the shop along with the said bag containing silver and gold ornaments, however, one of them returned back to collect one box which was fallen and by that time the complainant's relatives arrived there and they caught hold of him and he was handed over to the police personnel. It is further alleged that when the complainant came out of the shop, it was revealed that scuffle took place between the robbers and the relatives of the complainant and robbers assaulted Dilip Solunke and Tukaram Solunke by knife and fled away by Omni vehicle along with the said robbed articles containing silver and gold ornaments and cash to the tune of Rs.16,75,000/-. 5 On the afore said background, learned counsel for the applicant submitted that investigation has been completed and charge sheet has been filed and the applicant is in custody since last about almost seven months and the trial against the applicant is not likely to commence, since the other co-accused are absconding, and therefore, urged that the applicant be enlarged on bail. 6 Learned counsel for the applicant also relied upon the observations made by Hon'ble Supreme Court in the case of Jaya Simha vs State of Karnataka, reported at (2007) 8 SCC 145, which are as under :- “ The appellant has already been in jail for about three years and nine months. Charges are framed only 4 in August 2006. It is stated that 256 witnesses have been cited. The trial has not been completed. It is stated that it is likely to take a long time for completion. We have already directed Nanjappa, against whom similar accusations are made, to be released on bail [vide order dated 17.4.2007 in Nanjappa v. Union of India (Criminal Appeal No. 574 of 2007 arising out of SLP (Cri.) No. 6030 of 2006)]. Having regard to the nature of involvement alleged and the role attributed to the appellant, and the period already spent by the appellant in jail, we find it a fit case for grant of bail to the appellant. “ 7 Learned A.P.P. opposed the present application vehemently and submitted that the applicant herein was caught hold red handed on the spot and the robbed bags containing silver and gold ornaments and cash were recovered from him on the spot itself. It is also pointed out by learned A.P.P. that the applicant has given false name, when he was arrested, as Mangalsing Tak, when his name, in fact, was Niranjansing Dudhani. Learned A.P.P. also pointed out that Tukaram Solunke and Dilip Solunke sustained stab injuries during the occurrence of the incident. It is further submitted that the cash and gold and silver ornaments are yet to be recovered and other co-accused are still absconding. Hence, it is urged by learned A.P.P. that the applicant does not deserve grant of bail. 8 On perusal of the investigation papers and after considering the rival submissions advanced by the respective parties, it is apparent that the applicant herein was caught hold of red handed on the spot as afore said in the complaint and the bags containing gold and silver ornaments and cash was found in his possession, which is apparently 5 incriminating circumstance against the applicant herein. Moreover, it is also curious to note that although the name of applicant is Niranjansing Dudhani he gave his name as Mangalsing Tak and apparently tried to give false name to the police personnel after his arrest on the spot. Sight also cannot be lost of the fact that Tukaram Solunke and Dilip Solunke sustained stab injuries during the occurrence of the incident. Hence, it is apparent that there is prima facie evidence against the applicant. 9 As regards the case, on which reliance has been placed by the learned counsel for the applicant, it is apparent that the appellant in the case before Hon'ble Supreme Court was in jail for 3 years and 9 months, but same is not the position in the instant case as the applicant herein is in jail for about seven months only. It is seen from the said case that charges were framed in the said case in August 2006 and the said case was under the Special Act i.e. Prevention of Corruption Act but so is not the position in the present case. It is also seen that 256 witnesses were cited in the said case, and therefore, it was likely to take long time for completion of trial, but so is not the position in the present case as in the instant case only charge sheet has been filed so far. Hence it is apparently clear that the facts and circumstances in the said case before Hon'ble Supreme Court and facts and circumstances in the instant case differ from each other and hence, the observations made in the said case cannot be of any aid and assistance to the applicant herein. 6 10 In the circumstances, the applicant has failed to make out any case for grant of bail and hence present Criminal Application No. 1283 of 2010 deserves to be rejected and same stands dismissed. 11 The above observations are prima facie observations and shall be restricted to this order only and shall not be used in any other matter while deciding it on merits. (SHRIHARI P. DAVARE), JUDGE. dbm/crap1283.10