Single judge granted bail to applicants charged with murder and conspiracy. Court held lack of direct nexus and absence of call transcripts justified release despite serious charges, subject to conditions.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JUTISDICTION
CRIMINAL APPLICATION NO. 3228 OF 2009
V/s
The State of Maharashtra ..... Respondent.
Mr. S.V. Marwadi i/b B. Jagtap & Sunita Sharma for the applicants.
Mr. H.J. Dedhia, APP for the State.
ALONGWITH
CRIMINAL APPLICATION NO.3952 OF 2009
Bhausaheb Kisan Sasane .... Applicant.
V/s
The State of Maharashtra .... Respondent.
Mr. A.P. Mundargi, Senior Counsel i/b Hrishikesh Mundargi for the applicant.
Mr. H.J. Dedhia, APP for the State.
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CORAM: V.M. KANADE, J. DATE : 10TH NOVEMBER, 2009
P.C.:
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defected from their party. On that date, two unknown assailants assaulted the deceased with knives and he succumbed to the injuries and died. Two assailants were thereafter arrested. During investigation, statements of witnesses were recorded by the Investigating Officer and some of the witnesses stated that the applicants in Criminal Application No.3228 of 2009 were seen in the company of the assailants on 26/2/2009. Thereafter, some witnesses have stated that these accused/applicants in Criminal Application No.3228 of 2009 were in the company of the applicant in Criminal Application No.3952 of 2009. There is also material on record that the applicant Bhausaheb Sasane was seen paying money to the applicants in Criminal Application No.3228 of 2009. Apart from this material, prosecution has also relied on the phone calls which were made by the applicant – Bhausaheb Sasane to the assailants and the phone calls made by the applicants in Criminal Application No. 3228 of 2009 to the assailants.
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of the telephone calls made by the applicants to the assailants has not been produced by the prosecution. He submitted that merely because certain phone calls have been made, that alone would not prove that they had hatched conspiracy to eliminate the deceased. He submitted that so far as applicant – Bhausaheb Sasane is concerned, he and the other applicants were members of the same political party and were known to each other and, therefore, no inference could be drawn from the fact that these applicants had met each other on 26/2/2009 and on the date of attack on the deceased. He submitted that merely because certain money was paid by the applicant – Bhausaheb Sasane to the other applicants in Criminal Application No.3228 of 2009 that by itself is not sufficient evidence to draw the inference that the money was paid for the purpose of eliminating the deceased.
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material on record to indicate involvement of the present applicants and, at this stage, the applicants do not deserve to be released on bail, more particularly when the offence is punishable with death or imprisonment for life.
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possibility of the applicant absconding and being available for trial and (v) possibility of the applicant tampering with the evidence and threatening the prosecution witnesses. At this stage, for the grant of bail, the Court is not expected to weigh and shift the evidence which exercise has to be done only at the final hearing of the case after the evidence has been adduced by the prosecution. Court, however, can take into consideration the material which is brought on record by the prosecution in its charge-sheet in order to find out whether there is any possibility of applicant being acquitted during trial and if such a possibility exist, then court can see whether trial is likely to commence immediately or whether the applicant would languish in jail as under trial prisoner indefinitely. Normally, the Court is not expected to make any observations on merits in respect of the case while granting bail but prima facie observations can be made. In the present case, allegations which are made against the applicants are of grave and serious nature. However, it cannot be said that merely because applicants are seen in the company of the assailants, applicants had given contract to the assailants. Trial is not likely to commence immediately in the near future. Apart from the fact that the deceased has defected from their political party, there was no other personal enmity between the applicants and the deceased. Police could have
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produced transcript of the telephone conversation. However, for the reasons best known to them, that course of action is not undertaken by them. Therefore, at this stage, in my view, applicants are entitled to be released on bail subject to certain conditions being imposed upon them.
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of.
(V.M. KANADE, J.)
2 issues framed by the court
Whether applicants charged with conspiracy to commit murder are entitled to bail at this stage considering gravity of offence and lack of material establishing direct nexus.
Whether telephone calls and payments made by applicants are sufficient evidence to infer conspiracy and commitment to contract killing for bail purposes.
2 provisions across 2 enactments
Shyam Hiralal Sable
Ganesh Jankiram Ghuge
Nagnath @ Nagesh Kondiba Bansole
Bhausaheb Kisan Sasane
State of Maharashtra
V.M. Kanade
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
