1 Appln 4288-10 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.4288 OF 2010 WITH CRIMINAL APPLICATION NO.559 OF 2010 Salim Mohammed Shaikh ..Applicant V/s. The State of Maharashtra ..Respondent Mr.A.P.Mundargi, Senior Counsel with Mr.Vinayak Patil, for the Applicant Mrs.P.H.Kantharia, APP, for the Respondent  State Mr.Dilip Bodke, Advocate, for the original Complainant CORAM : R.C.CHAVAN, J. DATE : 19TH OCTOBER, 2010 P.C. . This is an application for bail by accused arrested in connection with C.R.No.I-19 of 2009 for the offence punishable under Sections 302, 307, 201, 212, 120-B read with Section 34 of the Indian Penal Code and Sections 3/25, 5/27 of the Indian Arms Act and Section 56/142 of the Bombay Police Act, 1951 registered with Karad City Police Station. He has been branded as contract killer engaged to 2 Appln 4288-10 kill one Sanjay Patil, who was shot dead on 15th January, 2009 by co-accused Sagar Parmar and Hamid Shaikh. Investigation is complete and charge sheet has been filed. 2. I have heard the learned Counsel for the applicant, the learned APP and the learned Counsel for the victim's brother, who filed an application for intervention, to their satisfaction. 3. The evidence which is collected against the applicant is receipt of a sum of Rs.2,00,000/- on 16th January, 2009 from one Sambhaji Patil, who is a Manager working in the District Central Co-operative Bank. Said Sambhaji Patil is in jail. His bail application has been rejected. The story is that witnesses Pramod Patil, Nandkumar Jangam and Sanjay Shewale carried this amount of Rs. 2,00,000/- at the instance of Sambhaji Patil to be paid to a relation from whom Sambhaji 3 Appln 4288-10 was to purchase a vehicle. The amount was thereafter paid as per the instructions of Sambhaji to the present applicant. The witnesses claim to have realized later, after seeing photograph in the daily news paper that the person to whom they had paid money was in fact accused wanted in case of murder of Sanjay Patil. 4. A sum of Rs.89,000/- was recovered from the house of the applicant on 10th February, 2009. The material collected in investigation itself shows that a Santro car was to be purchased from Mahalaxmi Motors, Kolhapur for which a sum of Rs.2,53,000/- had been paid, but since the car was eventually not purchased. A sum of Rs.2,20,000/- was refunded between 7th to 8th January, 2009. Thus, possession of Rs.89,000/- in the house of the applicant is ambivalent circumstance which is explicable on the basis of applicant's receiving refund of consideration 4 Appln 4288-10 for the car which was not purchased. 5. There is no other evidence which connects the applicant to the crime. The applicant is stated to have been seen in the company of Uday Vilasrao Patil, Baba More, Sallya Chepya, Sagar Parmar & Sambhaji Patil in the Bank. In fact, the learned Counsel for the victim's brother, who filed intervention application stated that it is Uday Patil, who had enemity with Sanjay Patil. According to him, the present applicant Salim, had been engaged to kill Sanjay by said Uday Patil. Now it is curious, that inspite of a statement that applicant was in the company of Uday Patil and others, Uday Patil was not touched by the police. The learned APP drew my attention to a statement where the applicant is alleged to shown the spot where conspiracy was hatched. Even this statement shows that the applicant had stated that the conspiracy was hatched at the instance of Uday 5 Appln 4288-10 Patil. Merely being found in the company of Uday Patil and others, would be inadequate to conclude at this stage that the applicant was involved in the conspiracy since Uday has not been touched by the police so far. To prove conspiracy, it has to be shown as to why this conspiracy was hatched, what was the object and how it was executed. In this case, except for collecting the evidence to show that a sum of Rs.2,00,000/- was paid to the applicant on the next day of the incident and that a sum of Rs.89,000/- was recovered from the house of the applicant, both of which facts can be explained otherwise, there is nothing brought on record. 6. The learned APP submitted that the applicant was in fact externed from the District and had entered the District to commit crime. She referred Criminal antecedents of applicant. There are 27 cases filed against him out of which 13 cases are 6 Appln 4288-10 pending. There was no conviction in any of these cases. Out of the 13 pending cases, 3 cases have been filed after the applicant was arrested in the present crime. One is about threats to the witness who had gone to the Court for attending the matter. Second is about threatening a Police Constable in jail. Third is about assaulting an inmate of the jail. The learned Counsel for the applicant submits that all these cases are filed only to ensure that the applicant is denied bail. 7. The learned Counsel for the victim's brother submitted that another case has been filed against the applicant for possessing and using fire arms. This too was filed after the applicant was arrested is about the practice sessions for shoot out which the applicant is alleged to have conducted along with the co- accused before the actual killing. Incidently, the witnesses who report about this practice sessions to the police are the 7 Appln 4288-10 same who have stated about applicant's carrying a sum of Rs.2,00,000/- to the applicant. 8. Considering nature of evidence collected, it would have to be found out if the applicant's being in custody is necessary for proving the case against him. His criminal antecedents alone would not ensure denial of bail to the applicant. However, except for stating that a sum of Rs.2,00,000/- was allegedly carried to the applicant at the instance of Sambhaji Patil, who himself does not seem to have any enemity or grouse against the victim Sanjay Patil, and recovery of Rs. 89,000/- a month after the incident, which could also be from the proceeds of purchase of a car which did not materialise, nothing further is brought on record. 9. The learned Counsel for the victim's brother submitted that the applicant and 8 Appln 4288-10 others had also sought to stop victim's car some time before the incident in respect of which an offence had been registered. This aspect has been dealt with in Criminal Application No.1016 of 2010 while admitting Baba More to bail, since Baba More was also with the applicant at the time the victim was stopped. 10. In view of this, it is not clear as to why the applicant ought to remain in jail till the trial concludes. As to the criminal antecedents stringent conditions could be imposed. 11. Given the nature of the evidence collected which could be duly considered at the trial, Criminal Application is allowed. Applicant be released on bail on his furnishing P.R.Bond of Rs.50,000/- with one or more solvent sureties in the like amount of Rs.50,000/- on the condition that he shall 9 Appln 4288-10 keep himself outside the limits of Karad Taluka except for attending cases which may be pending against him in Court at Karad after informing the police officer about his intention to enter, and shall inform his place of residence to the trial Court as well as investigating officer and shall report at Police Station nearest to his house every Sunday between 10.00 a.m. to 1.00 p.m. till the trial is over. The applicant shall scrupulously keep himself away from witnesses and shall not tamper with the prosecution evidence. 12. Criminal Application is disposed of. 13. In view of disposal of Criminal Application No.4288 of 2010, Criminal Application No.559 of 2010 does not survive and the same is disposed of. (R.C.CHAVAN, J.) 10 Appln 4288-10