1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 4355 OF 2009 Amit Prakash Gawali ...Applicant vs. The State of Maharashtra ...Respondent Mr.Shirish Gupte, Sr.Counsel with Mr.Sachin Thombare for the Applicant. Mr.Y.M. Nakhwa, APP for the State. WITH CRIMINAL APPLICATION NO. 498 OF 2009 Mr.Umesh Nagraj Mudliyar & Anr. ...Applicants vs. Shri Amit Prakash Gawali & Anr. ...Respondents Mr.Madhav J. Jamdar for the Applicants. Mr.J.P. Kharge, APP for the State. CORAM : V.M. KANADE, J. DATED : NOVEMBER 24, 2009 P.C. :- 1 Heard Counsel for the applicant and APP for 2 the State and Counsel for the Intervenor. 2 The applicant has been arrested in connection with an offence punishable under Sections 302, 307 read with 34 of the IPC registered vide C.R.No.72/2998 with Lonawala City Police Station. 3 Prosecution case is on 26th May, 2009 at about 2.30 to 2.45 p.m., two persons entered in the cabin of the President of the Lonawala Municipal Council and assaulted him with a knife and other sharp instrument. At that time, one Umesh Mudliyar was also present in the said cabin and he was also assaulted with knife by both the assailants. The President of Municipal Council Raju Chaudhary succumbed to the injuries on the spot, however, Umesh was grievously injured in the said incident. He identified the two assailants as Sumit Prakash Gawli and Jafar Shaikh who was subsequently identified by said Umesh. Two other persons who were seen outside his cabin were also named by the said 3 complainant. An FIR was lodged and the present applicant was also arrested and it is alleged he he is co-conspirator. According to the prosecution, the Municipal Corporation has damaged two shops belonging to the applicant and the father of the applicant and they had grudge against the President and thought that he was responsible person for the said demolition. There was some enmity about the post of Presidentship. According to the prosecution, the present applicant was co-conspirator in the said crucial murder of the President of the Council. 4 Shri Shirish Gupte, learned Senior Counsel for the applicant submitted that apart from mere suspicion, there was no other material on record to indicate the involvement of the present applicant. He submitted that the name of the applicant is not mentioned in the FIR or in the immediate subsequent statement which was recorded. However, wife of the deceased had expressed her doubt and suspicion that the present applicant also could have been involved 4 in the said incident. He further submitted that there was no recovery at the instance of the present applicant and according to the prosecution, one Gawali had purchased SIM cards by using the identity card of a doctor and these SIM cards were activated after the incident had taken place and were used by the present applicant and the said Gawali. These two Mobile phones alongwith SIM Cards were seized from the said Gawali. According to the prosecution, Gawali and the present applicant had stayed in various hotels. There is also statement of one witness Shankar Bharekar who has stated that when he had gone to the hotel Ekveera Chinese to take home delivery, at that time, he noticed that father of the applicant Appa Gawali was talking to the applicant and others and he was saying that Raju Chaudhary was responsible for the demolition of their shops and therefore, he should not be spared. A similar statement was also made by one Sagar Gawali who had accompanied the said Shankar. The learned Senior Counsel for the applicant submitted 5 that on the basis of this material, no interference could be drawn that the applicant was a co- conspirator in the said incident. 5 Shri Jamdar, learned Counsel for the intervenor vehemently urged and invited my attention to the said statement and pointed out that the said Gawali and the applicant were staying in various hotels and had activated two SIM cards after the incident. He submitted that this clearly indicates that the applicant was co-conspirator and had stayed with the co-conspirator accused Gawali from whose possession these two mobile phones and the bogus SIM cards were procured. He submitted that on these two Mobile phones, the applicant and the said Gawali had contacted various people and the said material was brought on record though the transcript of the conversation was not produced by the prosecution. He submitted that the several cases were pending against the present applicant and the other accused. He also submitted that wife of the deceased had 6 received threats on telephone. He submitted that this is not a fit case for granting bail to the applicant. 6 The learned APP adopted the arguments made by the learned Counsel for the intervenor and submitted that the application may be dismissed. 7 In the present case, there is no manner of doubt that the incident took place is a grave and serious incident where President of the Municipal Council was killed in broad daylight in his own house and two assailants were identified by a person who was injured in the said incident. The said accused are in jail. The applicant is the brother of one of the assailants. In my view, prima facie case is made out by the applicant for grant of bail as in my view, the said material which is on record is not sufficient to indicate that the applicant was a co- conspirator in the said incident. No recovery has been made at the instance of the present applicant. 7 Merely because the applicant had stayed with one of the co-accused who also did not participate in the commission of the offence, could not be sufficient to indicate that he had actually planned and conspired in the said offence. The statement of the two witnesses viz. Sagar Gawali and Shankar Bharekar does not indicate that the father of the applicant was conspiring to kill the deceased. The statement only indicates that there was some kind of enmity between the two groups. The said statement by itself cannot be said to be a circumstance regarding the commission of the offence of murder. So far as the criminal antecedents are concerned, I am informed that the applicant has been acquitted in two cases. The applicant is also a Municipal Corporator. He admittedly was not seen anywhere near the corporation when the said incident took place. Under these facts and circumstances, the applicant, therefore, in my view, deserves to be released on bail subject to certain conditions being imposed on him. 8 8 The applicant be released on bail in the sum of Rs.15,000/- with one or two sureties in the like amount. He shall not enter the jurisdiction of Lonawala City. He shall give his new address to the Superintendent of Jail before his release and shall report to the nearest police station from his new residence once in a week. I am informed that the applicant is a Corporator and it is submitted that he may be permitted to enter the city for the purpose of attending the Municipal Council. I am afraid the said permission cannot be granted under the facts and circumstances of the said case since there is every possibility that the applicant if released may threaten the prosecution witnesses or try to tamper with the evidence. The applicant, however, if does not attend the meetings may not be disqualified as a Councilor on that ground subject to the provision of The Maharashtra Municipal Councils, Nagar, Panchayats and Industrial Townships 9 Act, 1965. 9 The application, accordingly, is disposed of. (V.M. KANADE, J.)