1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. CRIMINAL APPLICATION NO. 525 OF 2010. (Lalit Ramesh Prabhawat .v. State of Maharashtra) Office Notes, Office Memoranda of Coram appearances, Court's orders or directions Court's or Judge's Orders and Registrar's orders. Shri S.V. Sirpurkar, Advocate for the applicant. Smt. A.R. Taiwade, APP for the respondent/State. CORAM : PRASANNA B. VARALE, J. 24TH SEPTEMBER, 2010. Heard. The present application is moved by the applicant seeking grant of bail in Sessions Trial No. 160/2009 arising out of Crime No. 20/2009 registered with Virur Police Station for the offences punishable under Sections 302, 364, 120(b) of the Indian Penal Code and Sections 3 and 25 of the Arms Act. A report came to be lodged at Verur Police Station by Smt. Sadhana Nalamwar that her husband Pradip Nalamwar, an advocate by profession, left Chandrapur on 05.09.2009 along with one Raazik. He told to the complainant that he was proceeding to Rajura for some work of Raazik. A phone call was received by Sadhana at about 1 o' clock in the night from one Sadhana Vijay Bisne asking that whether Pradip has returned back. It was told by Sadhana Bisne that her husband Vijay had accompanied Pradip and left Chandrapur at about 09:30 p.m. for some work. Sadhana Nalamwar had tried to contact her husband on his mobile phone but as there was no response, she informed her brother-in-law Deepak. The relatives, who reached to the house of Sadhana were Deepak Bhimanwar, Vandana and Samir and thereafter they proceeded to Ballarshah to enquire with Smt. Bisne regarding whereabouts of Mr. Bisne and Mr. Nalamwar. Raazik was also contacted and they made enquiry with Raazik. Raazik gave evasive reply. Though extensive search was taken out, there was no trace of Mr. Pradip Nalamwar. Therefore, a report was lodged with the Police Station, Rajura. 2 The Police Officer of Rajura Police Station informed Smt. Sadhana that the dead body of her husband and dead body of Mr. Bisne were found in the jungle and they were shot dead by pistol. On receiving the complaint, the investigation was carried out further and it was revealed in the investigation that deceased Pradip Nalamwar was occupying the premises of one Vangipuram Kirshnaswany, the landlord. It is the case of the prosecution that the landlord Vangipuram Krishnaswamy wanted Pradip Nalamwar to vacate the premises but Pradip Nalamwar was not ready to do so. It is further the case of the prosecution that landlord Vangipuram Krishnaswamy hatched the plan to eliminate Pradip Nalamwar with the help of Abdul Raazik, Raju Bhong, Deepaksingh Bawari and the applicant Lalit Prabhawat. The applicant moved an application before the learned Sessions Court and vide order dated 17th March, 2010, the application was rejected. Shri S.V. Sirpurkar, the learned Counsel appearing on behalf of the applicant submits that the investigation is complete. The only material against the applicant is in the form of confessional statement of co-accused Abdul Raazik and the recovery of amount of Rs.60,000/- from the applicant. Learned Counsel prays for releasing the applicant on the following grounds :- (i) There is no admissible evidence available with the investigating agency to connect the applicant with the offence; (ii) The investigating agency has nothing to show the role of the applicant/accused in the statement of co-accused Abdul Raazik; (iii) The recovery of an amount of Rs.60,000/- cannot be said to be the material to link the applicant with the crime as the applicant is a businessman – hotelier by profession and amount of Rs.60,000/- can be available with him at any time; (iv) The landlord Vangipuram Krishnaswamy, who is the main accused, is released on bail and on the principle of parity, the applicant is also entitled to be released on bail. 3 Learned Counsel Shri Sirpurkar to support his contentions, places reliance on the judgments of the Apex Court in the cases of Jayendra Saraswathi Swamigal .v. State of T.N. (reported in 2005(2) SCC, 13); Keshav .v. State of Maharashtra (reported in 2007(13) SCC 284) and Aloke Nath Dutta and others .v. State of West Bengal (reported in 2007(12) SCC 230). Smt. A.R. Taiwade, the learned APP appearing on behalf of the respondent/State, submits that the applicant is involved in serious crime where one advocate along with his friend Vijay Bisne is shot dead. She further submits that the investigating has collected sufficient evidence against the applicant and the other accused persons. It is revealed in the investigation that the accused persons hatched plan to eliminate Advocate Pradip Nalamwar. The weapon, namely, country made pistol was produced and the pistol and the bullets were recovered. Learned APP further submits that the investigating agency has also collected the information to show that the accused persons were in contact with each other through the telephone conversation and the calls details are obtained from the service provider company. Shri S.V. Sirpurkar, the learned Counsel for the applicant, by placing strong reliance on the judgment of the Apex Court in the cases of Jayendra Saraswathi Swamigal .v. State of T.N. (cited supra) and Aloke Nath Dutta and others .v. State of West Bengal (cited supra), submits that the evidence available with the investigating agency against the applicant is only in the form of confessional statement of the co-accused in relation to recovery of the amount. Learned Counsel further submits that the Apex Court in Sharad Sarda's case observed that in case of circumstantial evidence, the prosecution must prove the circumstances relied upon by them and it should form the complete chain. There is no dispute on the proposition of law as submitted by learned Counsel Shri Sirpurkar that the evidence in 4 the form of statement of the co-accused and recovery under Section 27 is the weak evidence. In the case at hand, apart from the material as referred to above, there is adequate material available involving the applicant. The investigating agency has collected video recording from the bank as well as the statement of bank official of ICICI Bank that the applicant has withdrawn an amount of Rs.1,60,000/- from the account of Vangipuram Krishnaswamy (landlord). There is also sufficient material collected by the investigating agency to show that the applicant was in contact with the other accused persons through telephonic conversation. It is also seen from the record that at one hand the applicant is trying to say that being businessman and hotelier, it is probable that the applicant may carry an amount of Rs.60,000/- and on the other hand, the applicant has filed affidavit of his father Ramesh Prabhawat and tried to give break up of an amount of Rs.60,000/-. In the affidavit of the father of the applicant, “it is stated that the amount of Rs.60,000/- which is shown to have been recovered from my son is in fact given by me to the Police Authorities for which I withdrew Rs.15,000/- from Dharampeth Mahila Bank on 14.08.2010, Rs. 5,000/- was already with me and rest of Rs. 40,000/- was given by the father-in-law of the accused”. In view of the aforementioned facts, it cannot be said that there is no material collected by the investigating agency against the applicant except the confessional statement of the co- accused. Learned Counsel for the applicant submits that the case of the applicant is to be considered on the ground of parity, in view of the fact that the main accused Vangipuram Krishnaswamy is released on bail by this Court vide order dated 10th February, 2010 in Criminal Application No. 140 of 2010. Perusal of the order dated 10th February, 2010 shows that the applicant submitted that he is suffering from urinary ailment and he can avail better facilities and medical treatment if he is released on bail. This Court while considering the application of Vangipuram Krishnaswamy observed that, 5 “although accusations are grave, in the alleged incident of murder of Pradeep, no active role has been attributed to the present applicant except accusation that he was interested to recover possession of tenanted premises in respect of which civil dispute was pending between applicant and the deceased. Accusations against the present applicant consist of alleged criminal conspiracy by making payment to the alleged assailant. Taking into consideration all these circumstances as also medical ground pleaded for grant of bail and advanced age of the applicant, I am inclined to grant conditional bail in his favour”. In view of the above observations of this Court, the application of the applicant has considered mainly on the health ground. Learned APP has placed on record the copy of the order passed by this Court in Criminal Application No. 443 of 2010 i.e. application moved by co-accused Montu @ Yogendra N. Varma. This Court has observed in para 10 of the order that, “in so far as the case of main accused Vangipuram, to whom the bail is granted in Criminal Application No. 140 of 2010 is concerned, it is seen that the said accused is not granted bail considering the nature of his involvement in the case. The said accused has been released on bail mainly because of his age and ill health, as is clearly spelt out in para 4 of the order”. As such the applicant cannot claim parity. In view of the above mentioned facts, I am of the considered opinion that the investigating agency has collected sufficient evidence against the applicant to show his involvement in the serious offence. In the result, the application is rejected. JUDGE *rrg.