1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.885 OF 2009 Shri Ganesh Balu Patil ..... Applicant. V/s The State of Maharashtra ....... Respondent. Mr. Shivraj Patil for the applicant. Mrs. M.H. Mhatre, APP for the State. CORAM : V.M. KANADE, J. DATE : 16th March, 2009 P.C:- 1. Heard the learned Counsel appearing for the applicant and the learned APP appearing for the State. 2. Applicant has been arrested in connection with the offence punishable under sections 302, 201, 397 and 120-B read with section 34 of the Indian Penal Code. 3. Prosecution case is that the applicant alongwith others hatched a conspiracy to call the deceased to their car on the pretext of celebrating the birth day of one person. The applicant further conspired to take cash which the deceased was carrying alongwith him from the cash box of his shop and thereafter to kill him and to dispose of his body. Accordingly, the applicant alongwith others, took the deceased in their car. He was strangulated by a rope and, thereafter, 2 his dead body was thrown from bridge in the river. The dead body was found after four days. One of the accused went to the Police and disclosed this incident. His statement was thereafter recorded by the Magistrate under section 164 of the Criminal Procedure Code. On the basis of the said statement, other accused were arrested. From present applicant, the cash which was stolen from the deceased was recovered. The statements of witnesses who had last seen the deceased in the company of the applicant and others were recorded, over and above the confessional statement of the co-accused. One witness also has stated about the conduct of the applicant and others in the night of the incident when they had spent huge amount lavishly. 4. Counsel appearing on behalf of the applicant firstly submitted that the applicant is entitled to be released on bail on the ground of parity. It is submitted that the Sessions Court had granted bail to one of the main accused who was responsible for strangulating the deceased. Secondly, it is submitted that the only material which is available with the prosecution is the statement of the co-accused and on the basis of the said statement, the applicant cannot be convicted. It is further submitted that recovery of cash by itself is not sufficient to indicate that the said money was stolen from the deceased since there is no material to show that notes which are recovered from the applicant are the same notes which were on the person of the deceased. Counsel for the applicant invited my attention to the judgment of the Kerala High Court in the case of R. Ravindran Nair and others Vs. Superintendent of Police, C.B.I. reported in 1981 CRI. L.J. 1424. He also relied upon the judgment of the Apex Court in 3 the case of State (NCT of Delhi) Vs. Navjot Sandhu alias Afsan Guru, reported in 2005 SCC (Cri) 1715. It is submitted that on the basis of confessional statement of the co-accused, accused cannot be convicted. 5. The learned APP appearing on behalf of the State submitted that so far as the bail which was granted to the principal accused is concerned, the same is being challenged by filing an application for cancellation of bail. The said submission is made on the basis of instructions given by the Investigation Officer who is present in Court. She submitted that there is sufficient material, apart from confessional statement of the co-accused. 6. In my view, submissions made by the learned Counsel appearing on behalf of the applicant cannot be accepted. In the present case, it is only because one of the accused came forward and informed about the said incident to the police, the offence of murder and extortion came to light. Prosecution case discloses a very sordid tale where a group of young men hatched a conspiracy to abduct a businessman who was returning home and all accused conspired to call the victim to their car on the pretext of celebrating birth day of one of their friends and, according to the complaint, it was a pre-arranged plan. After the victim came in the car, he was strangulated. The cash which was carried by him was taken away and, thereafter, he was thrown in the river. The cause of death, as shown by the postmortem report, is of asphyxia due to drowning, though it was argued that there was no strangulating marks and, therefore, the case of the prosecution itself was false. This submission also cannot be accepted since it is possible 4 that after he was strangulated by the rope, he was still alive and he was thrown in the river and, therefore, he died due to asphyxia and not due to strangulation. The fact remains that the dead body was found. Apart from the confessional statement of the co-accused, the statements of other witnesses have been recorded who had last seen the deceased in the company of the applicant and others. There is also recovery of money at the instance of the present applicant. Prosecution is considering whether the co-accused whose confessional statement is recorded should be made approver or not. That decision is not yet taken. There cannot be any dispute regarding the fact that the accused cannot be convicted only on the basis of confessional statement. In the present case the co-accused whose confessional statement is recorded, however, also has given an extra judicial confession to one of the other witnesses whose statement is recorded by the police. There are three witnesses who had last seen the deceased in the company of the applicant and others. The recovery of cash is made at the instance of the present applicant. One witness has stated that soon after the said incident, the applicant and others had lavishly spent that amount. He has stated that the applicant and others had booked a room in the hotel and had spent huge amount on liquor and food. The case of the prosecution, therefore, is based on the circumstantial evidence. However, in my view, the circumstantial evidence is sufficient to point out the guilt of the applicant and others. 7. No case is therefore made out for grant of bail. Application for bail is rejected. However, the trial is expedited. 8. It is clarified that the Trial Court shall not be influenced by any 5 observations made by this Court while deciding this application for bail as they are prima facie in nature. Trial Court shall decide the case on its own merits and in accordance with law. 9. Application is disposed of. (V.M. KANADE, J.)