1 SNS IN THE HIGH COURT OF JUDICATURE AT MUMBAI APPELLATE CRIMINAL JURISDICTION CRIMINAL APPLICATION NO.5226 OF 2010 Pratap Ramrao Kadam (Accd.no.8) ...Applicant. v. The State of Maharashtra ...Respondent. Shri Kuldeep S. Patil, adv. For the applicant. Smt. G.P.Mulekar, APP for the State. WITH CRIMINAL APPLICATION NO.2739 OF 2010 Kailas Laxman Bhikule (Accd.no.6) ..Applicant v. The State of Maharashtra ...Respondent. Shri A.P. Mundargi i/by Avinash Kamkhedkar, advs. For the applicant. Ms P.P.Shinde, APP for the State. WITH CRIMINAL APPLICATION NO.3209 OF 2010 Hanmant @ Bablu Dinkar Kadam (Accd.no.11) ..Applicant v. The State of Maharashtra ...Respondent. Ms Anjali Patil, adv. For the applicant. Smt. G.P.Mulekar, APP for the State. 2 WITH CRIMINAL APPLICATION NO.4541 OF 2010 1 Raju Ramchandra Jadhav (Accd.No.2) 2 Rakesh Kashinath Jagtap (Accd.no.5) 3 Dattatray Ramchandra Jadhav (Accd.no.9) 4 Datta Bhimrao Tonpe (Accd.no.4) ...Applicants. v. The State of Maharashtra ...Respondent. Mr. Harshad V. Nimbalkar i/by Vikas Shivarkar, advs. For the Applicants. Smt. G.P.Mulekar, APP for the Respondent/State. CORAM : J.H. BHATIA, J. DATED : JANUARY 12, 2011. P.C. 1 These applications for bail are filed by seven accused persons in Crime No.116 of 2009 registered at Borgaon police station District: Satara for the offences punishable under Sections 395, 397, 201 IPC with certain provisions of Indian Arms Act. 2 Heard the learned counsel for the accused persons as well as the learned APP and perused the relevant police papers filed alongwith the charge-sheet. 3 Prosecution case in brief is that complainant Vijay Bobde, who was working with a courier company, was traveling by bus 3 no.MH-09-BC-9007 from Kolhapur to Mumbai. The bus left Kolhapur at about 10.30 p.m. on 3.12.2009. When the bus reached Nagthane in Satara district, two persons, who were sitting in the bus, assaulted the complainant and forcibly took out parcels, which he and other employees of the courier company were carrying. Those two persons alongwith their other associates, who were also traveling in the said bus, took the said bus to secluded spot and threatened all the passengers and took away ornaments and cash worth Rs.19,07,000/-. Report was lodged with the police. The above incident took place on 4.12.2009 at about 1.15 to 1.30 a.m. and on the same day, report was lodged with the police and the said offence came to be registered. In all 13 accused persons came to be arrested. Some of them are already released on bail. Seven persons, who are before this Court, seek the bail. 4 At the outset, it may be stated that in view of the evidence collected by the prosecution and the circumstances on record, Mr. Nimbalkar, the learned counsel for the applicants in Criminal Application No.4541 of 2010 did not press application for the accused no.2 Raju, Accused No.4 Datta and Accused no.5 Rakesh. He only pressed application to the extent of accused no.9 Dattatray, who happens to be brother of accused no.2 Raju. There is no material to show that 4 accused no.9 Dattatray was either one of the conspirators or had participated in the commission of crime. After arrest, accused no.9 Dattatray had informed the police that on 6.12.2009 his brother Raju had given him an amount of Rs.1 lac and one air pistol with certain cartridges and that amount was part of the booty of the dacoity in the said bus during the night between 3rd and 4h December, 2009. He agreed to produce the same and the property was recovered. Statement of his wife Vaishali was also recorded. She also stated that on 6.12.2009, her husband Dattatray had brought an amount of Rs.1 lac, which was given to him by his brother accused Raju for her treatment. She also stated that a pistol with cartridges was also brought by Dattatraya, which was allegedly given by Raju. In view of the material collected by police, accused no.9 could be accused for the offence of receiving the stolen property under Section 412 but there is no evidence to connect him directly with the offence of dacoity. In view of this material and the role played by him only in receiving the amount from his brother, particularly when chargesheet has been already filed, he may be granted bail. 5 As far as accused no.8/Pratap is concerned, the only material against him is that when he was in police custody, on 17.12.2009 he had confessed that he was a party to conspiracy and he 5 agreed to show place where the conspiracy had taken place. Accordingly, memorandum panchanama was prepared and the spot was shown by him. Mr. Patil, the learned counsel for the accused no.8/ Pratap, pointed out that accused no.11 Hanmant had already shown the same spot to the police on 15.12.2009 as per the panchanama supplied with the charge- sheet. Thus, place allegedly shown by accused no.8 Pratap on 17.12.2009 was already known to the police since 15.12.2009 on the basis of information given by accused no.11 Hanmant. Besides this, no discovery or recovery was made. No incriminating article was recovered from him. He was not identified as one of the culprits. If the confessional statement of accused does not lead to any discovery, it is not admissible in evidence in view of the provisions of Section 27 of the Evidence Act. Thus, except the above statement, which appears to be not admissible in evidence, there is no material against the accused no.8/Pratap, therefore, he may also be granted bail. 6 As far as accused no.11 Hanmant is concerned, there are statements of number of witnesses to show that he was working as a driver on the bus no.MH-09-BC-9007 for a long time. The special box was prepared in that bus for keeping valuable articles of the courier companies and that fact was known to Hanmant. On regular basis courier 6 companies were taking valuable articles, gold ornaments, etc. from Kolhapur to Bombay by the said bus. Hanmant was on duty on that bus upto 29.11.2009 when he went on leave. Thereafter till the incident, he was not on duty. According to the prosecution, accused no.11 Hanmant is one of the main conspirators alongwith accused Santosh and Raju. It may be noted that accused Santosh has been refused bail even by this Court and in view of the material against him, application for the accused no.2 Raju is not pressed by his learned counsel. According to the prosecution, Hanmant had supplied the whole information and was part of the conspiracy. On 3.12.2009, he had received four calls from accused Santosh Ghadge between 6.06.51 p.m. to 6.51.08 p.m. Again he had received call from Santosh on the same day at 7.16 p.m. Offence of dacoity was committed on 4.12.2009 between 1.15 to 1.30 a.m. and almost immediately after that at 2.06 a.m. he received first call and at 2.08 a.m. he received second call from Santosh. It indicates that Hanmant was continuously and constantly in contact with Santosh. The learned counsel contended that all the calls were incoming calls on his mobile and, therefore, no importance could be given to the same. She points out that on the earlier date also he had calls from Santosh. In fact on 2.12.2009 he had 12 incoming calls from Santosh. On 3.12.2009 in 7 the evening also he had received four calls from Santosh. If it could be assumed that they were close friends and, therefore, Santosh used to call him frequently, it is difficult to understand why said Santosh called him almost immediately after the commission of dacoity in the said bus. It is also contended by the learned counsel that even though prosecution has produced record about the calls received by Hanmant from Santosh, no transcription of conversation on mobile is produced to show as to what talk had taken place between them. If the police would have prior information about the plan to commit the offence, they could have tapped their phones and then transcription of their conversation could be available. There was no reason for the telephone department or the police to tap their calls and, therefore, at the most only record could be shown about the calls from one person to another. It was impossible to produce transcription of the calls for the prosecution. Therefore, I find no substance in this contention. Taking into consideration all this material, at least at this stage, prima-facie accused no.11 Hanmant appears to be part of the conspiracy. Taking into consideration serious offence of dacoity on the bus of which accused Hanmant was a driver till four days before the incident and which was well planned, in my considered opinion, it will not be in the interest of justice to grant bail to him. If the 8 bail is granted, there is strong possibility that he may either abscond or may tamper the prosecution evidence. 7 As far as accused no.6 Kailas is concerned. According to the prosecution on 3.12.2009, he had calls from accused Santosh as well as accused Raju on mobile. On 5.12.2009 he had call from accused Raju at 18.16 hours and another call from Santosh at 18.18 hours. On 5.12.2009 at 16 hours he had calls from accused Santosh and he had also number of calls from other two accused namely, Nitin Shinde and Satish Dighe, both of whom are on bail. As pointed out above Santosh and Raju appear to be among the main culprits. Accused no.6 Kailas was found on 12.10.2009 and an amount of Rs.75,000/- and a mobile handset of Rs. 4,000/- were recovered from his person. On 14.12.2009 on the basis of information given by him an amount of Rs.4,65,000/- was recovered. 8 Mr. Mundargi the learned counsel for the accused no.6 Kailas contended that most of the calls were from Nitin Shinde and Satish Dighe, who are already granted bail and, therefore, much importance can not be given to the same. Possibly he is right. However, record reveals that he was also in contact with accused Santosh and Raju on 3.12.2009 a few hours before the bus left and again on the next day after the incident, i.e., 5.12.2009 and the material collected by the 9 prosecution shows that he had received substantial amount out of the booty of the said dacoity. The learned counsel contended that mother of the accused no.6 Kailas made an application claiming that said amount was kept by her in the house. Infact his mother is not a party before this Court nor this Court is required to decide that application, therefore, any comment about the same would be unwarranted. However, because this point has been raised on behalf of the accused no.6 for seeking bail, it is necessary to say something. She claims that she had entered into agreement for sale of immovable property and she had received amount as earnest amount and it was kept in the house because accused Kailas wanted to purchase car and the amount was to remain in the house till he could manage some more amount to purchase a car of Rs.7 lac. This is something unnatural that for purchase of the car by son, mother would enter into an agreement for sale of immovable property. Anyhow, I am not willing to give much importance to claim of his mother to the said money. Taking into consideration the material collected against the accused no.6/ Kailas, it will be dangerous to grant bail to him. 9 For the aforesaid reasons, accused no.8 Pratap Ramrao Kadam and accused no.9 Dattatray Ramchandra Jadhav be released on their executing PR of Rs.10,000/- each with one surety in the like 10 amount with condition that they shall not tamper the prosecution evidence and shall also attend Local Crime Branch, Satara on every first and 3rd Sunday between 11 a.m. to 1 p.m. till the end of the trial. 10 Bail application for accused no.2 Raju, accused no.4 Datta and accused no.5 Rakesh stands rejected as not pressed. 11 Bail applications filed by accused no.6 Kailas and accused no.11 Hanmant stand rejected. (J.H. BHATIA,J.)