1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. CRIMINAL APPLICATION NO. 433 OF 2011 (Swapnil Subhashrao Puri .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 F.T. Mirza, Advocate for the applicant. Shri M.J. Khan, APP for the respondent/State. CORAM : PRASANNA B. VARALE, J. 27TH SEPTEMBER, 2011. Heard the learned Counsel appearing on behalf of the applicant and the learned Additional Public Prosecutor appearing on behalf of the respondent/State. By way of present application, the applicant is seeking his release on bail under Section 439 of the Code of Criminal Procedure. The brief facts giving rise to the present application are as under :- The FIR dated 11.04.2010 was registered at Kharangana Police Station, District Wardha. It was stated in the report that the police personnel who were on bandobast duty, received information from Police Station that one Dilip Warfad, Police Patil of Borkhedi informed the Police Station through telephone that one dead body of unknown person was lying in the field near Malegaon at village Borkhedi. On reaching the spot, the police personnel found the dead body. An inquest panchnama was drawn. The police personnel found that the deceased received number of injuries by sharp edged weapon. The offence punishable under Sections 302 and 201 of the Indian Penal Code came to registered against unknown person vide Crime No. 26/2010. In the investigation, it was revealed that the deceased was identified as one Santosh Pande, who had advanced an amount of Rs.15 lakhs to one Rajendra Yadav. Rajendra Yadav wanted to get away from the repayment of the advanced amount and as such conspired with other accused persons and committed murder of Santosh Pande. The conspiracy was hatched between 2 the accused persons and accordingly one vehicle Qualis Jeep was hired. The deceased was brought from Nagpur on the pretext that some Pardhi persons were selling gold at cheaper rates. The deceased, on 10.04.2010, left his home informing his wife Swati that he was going to watch IPL match at Jamtha Stadium. The accused persons brought Santosh firstly at Kondhali and thereafter at Bhangadapul where the applicant Swapnil, along with other accused namely Bhushan, Babu, Akshay and Sonu, was waiting for Rajendra. Rajendra alighted from the vehicle with Santosh. From Bhangadapul, accused Nos.1, 4, 5 and 6 continued their journey with the deceased by the said vehicle towards village Borkhedi at about 05:30 p.m. for meeting Pardhi people to purchase gold at cheaper rates. Santosh was not seen alive thereafter by anybody until his corpse was found in the field at Borkhedi. The accused Rajendra and the applicant Swapnil returned from Bhangadapul to Kondhali. The applicant Swapnil asked his servant to get motor cycle at Telephone Exchange of Kondhali. The accused Rajendra and the applicant Swapnil had a drink at one Pushpanjali Bar and returned to Nagpur at about 07:00 p.m. and at about 09:00 p.m., they purchased the garments from “Didi Garments” of one Makrand Bhorkar. The said clothes were purchased so as to handover the same to the other co- conspirators for changing their clothes stained with blood after committing murder of deceased Santosh. The accused No.1 Rajendra and the applicant Swapnil had been to Wardha in one Chevrolet Aveo Car and handed over the clothes to their associates. The accused Rajendra purchased petrol in one can at Pavnar Petrol Pump at about 01:30 a.m. and thereafter accused Rajendra and the applicant Swapnil alighted from the car and burnt the spoiled clothes on Pavnar-Nagpur Road at a place three kilometers away from Pavnar while their other associates were waiting in the Qualis vehicle. After returning to Nagpur, the applicant and the accused Rajendra threw the weapons namely Gupti and Knife in a well near Coffee House Square, Dharampeth, Nagpur. As Santosh did not return 3 for long time, his wife Swati gave a phone call to accused Rajendra making enquiry about Santosh in the night of 10.04.2010, the accused Rajendra gave evasive replies. Sandeep, brother of the deceased, lodged missing report of deceased with the Police Station, Ranapratap Nagar, Nagpur. On receiving information from the Police Patil that a dead body of unknown person was lying in the field near Malegaon at village Borkhedi, the investigating agency was set in motion and after taking up necessary steps of the investigation, the investigation concluded by filing final report i.e. charge sheet. Shri F.T. Mirza, the learned Counsel appearing on behalf of the applicant prays for release of the applicant on bail on the following grounds :- (i) That the accused No.1 Rajendra Yadav is released on bail vide order dated 04th May, 2011 passed by this Court in Criminal Application No. 2001/2010; (ii) The material collected by the investigating agency falls too short to connect the applicant with the crime in question; and (iii) The applicant is behind the bars from 24.04.2010, the trial is yet to commence and no fruitful purpose would be served by keeping the applicant behind the bars for indifinite period. In support of his submission, the learned Counsel for the applicant places reliance on the judgment of Apex Court in the case of Kamaljit Singh .v. State of Punjab and another (reported in 2005(7) SCC, 226) and the judgment of Allahabad High Court in the case of Nanha Nabhan Kha .v. State of U.P. (reported in 1993 Cri.L.J., 938(1)). Shri M.J. Khan, the learned APP for the respondent/ State has strongly opposed the prayer of the applicant. He 4 submits that the case of the applicant stands on the different footings than the co-accused Rajendra Yadav as there is a material in the form of recovery of weapon at the instance of the applicant. He also submits that there are the statements of the witnesses to show the involvement of the applicant in commission of the crime. After giving anxious consideration to the submissions advanced by the learned Counsel appearing on behalf of the applicant and the learned APP appearing on behalf of the respondent/State, I find considerable merit in the submission of the learned Counsel for the applicant. It is not in dispute that as per the case of the investigating agency, accused Rajendra Yadav is the main accused who is string puller behind the crime. This Court, while considering the application of Rajendra Yadav and considering the material, found that there is no material to reveal that at any point of time the deceased was insisting for return of the amount. It is observed by this Court that on the contrary the material reveals from the statement prima facie gives an impression that there were quarrels between the wife of the deceased and the deceased on the count of deceased having advanced huge amount to accused Rajendra Yadav. This Court further observed that it is difficult to perceive that upon such a material an inference even prima facie can be drawn that the accused No.1 Rajendra Yadav was having probable motive for killing the deceased for evading returned of the said amount. In such a situation where there is no material against the main accused against whom an allegation of preparing a plan with motive to do away with deceased Santosh, the material against the present applicant of participating in the plan hatched by accused Rajendra Yadav falls too short. On considering the material, this Court also observed that there is no material prima facie establishing the identity of the deceased. On perusal of the material, I am of the opinion that the material falls too short to establish that the deceased was in the company of the applicant. Though the learned APP submits that 5 the statements of the witnesses show the involvement of the applicant in the commission of crime and tries to place much reliance on the statements of Anant Dhawle, Ketan Wankhede and Nishant Borkute, perusal of the statements of these witnesses falls too short to establish that any of these witnesses had identified the deceased or their statements establish that the applicant was in the company of the deceased. The statements of these witnesses refer to arranging vehicles such as motor cycle and Qualis and having dinner together with the applicant. The statements of these witnesses were considered by this Court and this Court observed that the material is inadequate to come to the conclusion that the deceased had travelled in the same Qualis from Nagpur to Kondhali and thereafter to Bhangadapul and onwards. Learned APP has also placed much reliance on the statement of one Makarand Bhorkar and submits that the applicant along with the accused No.1 Rajendra Yadav had purchased the clothes from the shop of Makarand Bhorkar and delivered the same to the co-accused for changing their clothes which were stained with blood. This aspect is also considered by this Court and this Court found that there is absolutely no material to connect the applicant even with the event of burning of the clothes. This Court further observed that, “even the prosecution has not pointed out any material that the ash seized from the said place was found containing blood stains or any other incriminating material connecting the applicant.” Learned APP has also placed strong reliance on the circumstance that the weapon knife was recovered at the instance of the applicant. The perusal of the record shows that the so called recovery at the instance of the applicant is a joint recovery of two weapons, namely, Gupti and Knife at the instance of the accused Rajendra Yadav, the present applicant and co-accused Bhushan. The material of the recovery of weapon knife at the instance of the applicant shows that the said knife was recovered from the well. The knife was without blade. The handle and the 6 socket of the blade were recovered from the well. This material is wholly inadequate to support the submission of the learned APP. The learned APP submits that there is a material about receiving the phone calls from the accused No.1 to Nishant Borkute and enquiring about the present applicant. While considering this material, this Court observed that, “however, still upon the said material, it will be difficult to accept the submission that the same reveals that the deceased was then with the applicant at the said time and both of them were at Kondhali. The same is obvious merely because the call was given from the mobile of deceased by itself will not be prima facie sufficient to draw the conclusion that the deceased was then also along with the applicant as mobile of the deceased could have been with the applicant for other reason other than deceased being along with him. Needless to add that besides the statement of Nishant Borkute who had received the said call at the house of accused No.2 due to Nishant being then working with accused No.2, no other material from the charge sheet is pointed revealing that at 5 to 5.20 p.m., the applicant or the applicant along with the deceased was at Kondhali. Needless to add that charge sheet does not contain any material in the shape of any witness having seen deceased in company of the applicant at Kondhali at 5 to 5.20 p.m.” As the same material is tried to be used against the present applicant, I am not inclined to accept the submission of the learned APP that this material shows the involvement of the present applicant in commission of the crime. The learned APP also tries to submit that in view of the DNA Test Report there is a material against the present applicant. The perusal of the DNA Test Report shows that two cigarette butts were found in the field. The material reveals that the applicant along with the other accused had consumed liquor and took dinner in the field. This circumstance by itself is not sufficient to show any involvement of the applicant. I find considerable merit in the submission of the learned Counsel for the applicant that as now the investigation is 7 concluded by filing the charge sheet, there is nothing to be recovered at the instance of the applicant. The applicant is behind the bars from 24.04.2010. It is not in dispute that the trial is not commenced. There is considerable merit in the submission of the learned Counsel for the applicant that as the material against the present applicant is similar to the material against the accused Rajendra Yadav who is alleged to be main accused and is released on bail by this Court. The principle of parity can be applied. The learned Counsel places reliance on the judgment of Allahabad High Court in the case of Nanha Nabhan Kha .v. State of U.P. (cited supra) and particularly the observation as follows :- “... While considering bail of different accused the Court has to find out whether they stand on the same footing or not. Even if role assigned to various accused is same yet they may stand on different footing. At the same time if there is no real distinction between the individual case of accused the principle of parity comes into play and if bail is granted to one accused it should also be granted to the other accused whose case stands of identical footing.” The apprehension by the prosecution that the applicant would not be available for trial in case he is released on bail can be taken care of by putting the applicant on conditions. In the result, the application is allowed. The applicant is directed to be released on bail in connection with the said crime upon furnishing PR bond in the sum of Rs.4,00,000/- (rupees four lacs only) with one or more sureties to make up that amount and subject to the following conditions :- (i) The applicant to cooperate with the investigating agency and attend the Police Station, Kondhali everyday between 09:00 a.m. and 10:00 a.m. (ii) The applicant shall not tamper with the evidence nor commit any act such as contacting the prosecution 8 witnesses or pressurize them. (iii) The applicant to submit his residential address and his contact numbers such as phone/mobile numbers to the investigating agency. (iv) In case the applicant is moving out of the area of Police Station, Kondhali, he shall inform the Police Station about his visit to other place. In case of breach of these conditions, the prosecution agency to take necessary steps in accordance with the provisions of law. Nothing in this order should be construed as an opinion expressed by the Court regarding the merits of the prosecution case as all the observations are made primarily for deciding prayer for bail made. The application stands disposed of as such. JUDGE *rrg.