Allowed

Sumeet Ganpat Bacchewar v. the State of Maharashtra and Anr.

Bombay HC29 Jul 2013BA/976/2013

Case brief

AI extract

What is this about?

In a bail application for murder, the court evaluated the material against the applicant, who was named as a conspirator. Finding that the evidence relied on was merely suspicion based on disputes and lacked corroborative facts, the court held that the accused deserved bail despite pending further investigation into other conspirators.

What did the court decide?

The applicant is released on bail with Rs.50,000-/- and one surety, subject to specific reporting and movement conditions.

Sumeet Ganpat Bacchewar Vs the State of… — Murder and Culpable Homicide | Bombay HC (2013)

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5-BA-976-2013

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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CRIMINAL APPELLATE JURISDICTION

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CRIMINAL BAIL APPLICATION NO.976 OF 2013

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SUMEET GANPAT BACCHEWAR )...APPLICANT

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V/s.

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THE STATE OF MAHARASHTRA )...RESPONDENT

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Mr.Amit Desai Senior Advocate a/w. Mr.Vinod Gupta i/b. Mr.Ajay S. Patil and Vinod R. Gupta Advocates for the Applicant.

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Mrs.P.H.Kantharia APP a/w. Mrs.G.P.Mulekar APP for the State.

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Mr.Sanjeev Sawant i/b. Mr.H.V.Kode Advocate for the Original Complainant.

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CORAM: ABHAY M. THIPSAY, J.

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DATE : 29^th JULY, 2013.

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P.C. :

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1 The applicant is the accused no.4 in C.R.No.67 of 2013, registered at Vashi Police Station, on 16.2.2013. Later, the case was investigated into by the Detection of Crime Branch, CID, Unit I, Mumbai. Investigation is over and charge-sheet has been filed. However, some other accused are yet to be arrested, and further investigation under the provisions of Section 173(8) is going on.

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2 The facts of the case, in brief, may be stated as follows : Sunil Kumar Lahoria, owner of S.K.Builders and Developers, was, on 16.2.2013, fired at, outside his office. It was at about 8.20 a.m. The assailants, who fired at him were two in number. The assailants also assaulted him by a knife. The assault was noticed by one Ganpat Chawda – an employee of Sunil Kumar Lahoria, on C.C.T.V., installed in the office of S.K.Builders and Developers. Ganpat Chawda, therefore, raised cries and came outside the office along with other employees, including the first informant Surjeet Singh Kabra – Manager of S.K.Builders and Developers. Sunil Kumar Lahoria was lying on the footpath in front of his office. He was severely injured and was bleeding.

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3 The first informant - Surjeet Singh Kabra – tried to apprehend the assailants. One of them managed to escape, but the other could be apprehended by Surjeet Singh Kabra and other employees of S.K.Builders and Developers. It appears, that the police arrived there and took the apprehended person in custody. He is the accused no.1 Venkatesh Chettiyar. Sunil Kumar Lahoria was taken to hospital in a rickshaw. He succumbed to the injuries and was declared dead at about 10.20 a.m.

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4 In the course of investigation, the other assailant – accused no.3 – Wajeed Qureshi – also came to be arrested. Investigation revealed that the crime was committed by these two persons, at the instance of one Emanuel Samuel Amolik – a retired Police Officer – the accused no.2. He was also arrested.

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5 On 21.2.2013, the investigation was transferred to DCB CID. The investigation revealed that Sunil Lahoria, who was in the building construction profession, had made several complaints to various authorities, and had also taken various proceedings in courts, against a number of builders, who had constructed buildings in New Mumbai area. These builders, therefore, had a grudge against him, and that, therefore, accused Suresh Bijlani (who was wanted at the time of filing of charge-sheet, but who has, reportedly, been arrested now) had conspired with the apprehended accused, and it was in pursuance of the said conspiracy, that Sunil Kumar Lahoria was murdered.

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6 The applicant came to be arrested on 27.2.2013. A perusal of the 'brief facts of the case' as appearing in Form No.5E of the printed prescribed proforma of the charge-sheet, indicates that, though the applicant is alleged to be one of the conspirators in the conspiracy to commit murder of Sunil Kumar Lahoria, it is not alleged that he played any overt act in pursuance of the said conspiracy. According to the investigation agency, it is the accused no.2 – Emanuel Amolik – who was given the 'contract' to murder Sunil Kumar Lahoria, and that, the said accused no.2 got him murdered through the accused no.1 – Venkatesh Chettiyar and accused no.3 – Wajeed Qureshi. According to the investigating agency, the planning and preparation with respect to the said murder had been done by the accused no.2 – Emanuel Amolik, and that, for that purpose, he had taken help of accused no.5 – Altaf Khan, accused no.6 – Mohd. Anis Nasir Ansari, accused no.7 – Francis Devraj Chauri, accused no.8 – Kailas Gumane, wanted accused Arif Shaikh and others, for 'keeping a watch and exchanging messages.'

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7 Admittedly, the applicant did not give the 'contract' of killing to the accused no.2 – Emanuel Amolik. Admittedly, applicant is not the actual assailant. Admittedly, he did not contact any of the actual assailants. The allegation against him is that he is a conspirator in respect of the conspiracy to murder Sunil Kumar Lahoria.

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8 Mr.Amit Desai, the learned senior advocate for the applicant, submitted, that there was no satisfactory material against the applicant to justify his detention in custody. The learned senior advocate took the court through the material on the basis of which, the applicant has been involved, and raised a number of contentions about the reliability of the material.

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9 Smt.P.H.Kantharia, the learned APP, on the other hand, submitted, that there was sufficient and satisfactory material against the applicant to show his involvement in the alleged offence. According to her, therefore, the applicant does not deserve to be released on bail. She also submitted that as the person, who was projected as prime accused – one Suresh Bijlani – had been recently arrested, and as further investigation was going on, there was possibility of gathering some further material against all the accused, including the present applicant.

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10 I have taken into consideration the contentions advanced by the learned senior advocate for the applicant, as also by the learned APP. I have carefully gone through the relevant parts of the chargesheet, which were highlighted by them.

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11 I have also taken into consideration the counter affidavit filed by the Investigating Officer, opposing the grant of bail.

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12 The material against the applicant is as follows :

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It is the claim of the investigating agency, that the accused no.1 Venkatesh Chettiyar – while attempting to run away after committing the offence, had uttered the names of certain persons, who according to him, were responsible for the assault. This aspect of the matter has been highlighted by the learned APP. Utterances of the accused no.1 while running away, on which reliance has been placed are as follows :

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“ fcYMjksls iaxk ysdj vPNk ugh fd;k . lqjs'k fctykuh , vuqjkx xxZ , Hkqis'k xqIrk , lqfer cPpsokj , ,l . ih . vxoky , jktq xqIrk , xtjk bu yksxksls iaxk ysds vPNk ugh fd;k . cksyk Fkk uoh eqacbZ NksMds tkusds fy, . ,slk rks gksukgh Fkk . bUgksusgh rqEgkjk dke djok;k gS .”

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It is contended that this amounts to 'direct evidence' against the applicant.

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13 The learned senior advocate for the applicant contended that no reliance on these utterances of the accused no.1 can be placed, even at this stage. He submitted that it was unbelievable in itself, and that the actual assailant had no reason to loudly shout while attempting to run away, as to what wrong the said Lahoria had done, and how, what had happened was inevitable, and to tell Lahoria that the persons named by him had 'got the work of Lahoria done' - ' bUgksusgh

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rqEgkjk dke djok;k gS .'

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14 It is also the claim of the investigating agency, that the deceased had made a dying declaration to his son – Sandeep Loharia, in which he named certain persons as the persons who had got him murdered, and that he named the applicant as one of them. This dying declaration has been highlighted in the counter affidavit filed by the Investigating Officer. Thus, according to Sandeep Lahoria, Sunil Kumar Lahoria in the hospital at about 8.40 hours, told him as follows :

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“ lqjs'k fctykuh , vuqjkx xxZ , lqfer cPpsokj , ,l . ih . vxzoky ,

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Hkqis'k xqIrk , bu lc yksxksus eq>s ejok;k gS . vc eS ugh cpqaxk .” Translated in English, it would read thus :

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“Suresh Bijlani, Anurag Garg, Sumeet Bacchewar. S.P. Agrawal, Bhupesh Gupta, all these persons have got me murdered. Now I will not survive.”

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The disclosure of this dying declaration has come from Sandeep Lahoria on 20.2.2013, when his statement was recorded by the police.

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15 Mr.Amit Desai, the learned senior advocate for the applicant submitted that no reliance on this dying declaration can be placed, as the disclosure thereof has come from the son of the deceased for the first time on 20.2.2013. He pointed out that the deceased was declared as dead at about 10.20 a.m. on 16.2.2013 itself; and that the FIR came to be lodged at about 10.40 a.m. According to Mr.Amit Desai, therefore, had such a dying declaration been made, the son of the deceased would have disclosed about it earlier, and at any rate, before 20.2.2013. To create more suspicion about this aspect of the matter:- unlikelihood of the deceased indeed

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having made such a statement, some contentions are advanced to show that the medical condition of the deceased was not such, so as to make a declaration.

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16 The learned APP attempted to refute this contention by saying that there is material to indicate that Sunil Kumar Lahoria was in a position to speak. She submitted that he was taken to the hospital by one Satyendra Pandey – office boy – employed in the office of S.K.Builders, in the rickshaw of one Tejas Janjurne. The statement of Tejas Janjurne recorded on 16.2.2013 shows that Lahoria was in a position to speak.

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17 That, Lahoria was in a position to speak is prima facie clear from the statements recorded during investigation. Therefore, that the dying declaration could not have been made on the ground that Lahoria was not in a position to speak, or that his condition being critical, he could not have made a dying declaration, cannot be accepted. However, though it appears that Lahoria was in a position to speak, he does not seem to have named any persons, while he was being taken to the hospital. Going by the version of the rickshawala - Tejas Janjurne – whose statement was recorded on 16.2.2013, Lahoria was saying -

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' eq>s ikp xksyh yxh gS! esjh lkl jwd jgh gS .'

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Translated in English, it would read thus :

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'I have been hit by five bullets. I am unable to breathe.'

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18 The statement of Tejas Janjurne was again recorded on 24.2.2013 also. In this also, he does not mention that Lahoria was stating anything about the assailants, except that, he had said something about the co-accused – Suresh Bijlani. As per this statement, Tejas Janjurne, remembers Sunil Lahoria saying to one Satyendra Pandey, something like - “ fctykuhus fd;k gS .” This is criticized as an 'improvement', but without going into it, it may be observed that even when more information was given by Tejas Janjurne about eight days after, this additional information also did not implicate the applicant.

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19 The statement of Satyendra Pandey was recorded for the first time on 20.2.2013. He does state about Sunil Kumar Lahoria mentioning to him the names of persons who had got him murdered. The attempt of the learned counsel for the applicant was to create a doubt on this aspect on the ground that Tejas Janjurne – an independent person, did not mention in his statement recorded on 16.2.2013 about Sunil Kumar Lahoria taking the names of any such persons. However, it is not necessary to discuss this aspect of the matter. It is because, even according to Satyendra Pandey, Sunil Kumar Lahoria did not mention the name of the applicant as one of the persons, who had got him killed. This is what Sunil Kumar Lahoria said to Satyendra Pandey while going to the hospital by the rickshaw of Tejas Janjurne:

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“ lqjs'k fctykuh o vuqjkx xxZ bUgksus eq>s ejok;k , vc eS ugh cpqaxk , eq>s yxkrkj /kedh nsrs jgs , vkSj bUgksugh eq>s ejok;k gS .”

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20 It is not necessary to go deeper into the matter inspite of the lengthy arguments advanced by the learned senior advocate for the applicant in his anxiety to show the unreliability of the material that has been collected in the course of investigation. His emphasis on the unlikelihood of the assailant uttering such names while attempting to run away, and the unlikelihood of the dying declaration having been made, is not without basis, but in my opinion, that is not the crucial aspect of the matter. It is true that some doubt can be felt on whether the assailant while running away had indeed uttered the names of certain persons as aforesaid, in as much as, the statement of Ganpat Chawda, which was recorded on 18.2.2013, does not mention about the assailant uttering names of eight persons, while attempting to run away. Similarly, Rajabhau, a Police Constable, whose statement was recorded on 16.2.2013 itself and who apprehended the assailant, says that the assailant was taking the name of one Sunil Raut, and was saying that he was knowing Police Officer Pirjade and Amolik.

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21 A deeper discussion on the evaluation (though prima facie and limited) of the material in the charge-sheet, is not necessary, because in my opinion, even if the assailant had uttered what has been attributed to him, and even if the deceased had made the statement, which his son claims as was made by him, still there is a case for releasing the applicant on bail.

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22 Even if an important aspect of the matter viz., that it is, after all, only a statement of a co-accused made in the course of investigation is ignored, still, and even otherwise, not much value can

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be given to the alleged utterances of the accused no.1 – the assailant. The assailant in his alleged statement, while attempting to run away does not say that he was told by all these eight persons to commit the murder of Sunil Kumar Lahoria . His statement is in the nature of explaining why the incident had taken place, and it is not his claim that he was told by all these persons to commit murder of Sunil Kumar Lahoria. This would show 'what the assailant thought, had led to the assault', and cannot be construed as a statement of fact made by the assailant on his own knowledge . It is not the case of the investigating agency – and it is not even suggested that the assailant had any contact with the present applicant, and that, the assault had been carried out at the instance of the present applicant.

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23 Similar is the case with respect to the dying declaration. Keeping aside the contention advanced about the unreliability of the dying declaration and assuming that such a statement had been made, it is clear that this statement cannot be construed as a statement of fact .

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24 We may examine the precise statement of Sunil Kumar Lahoria, as spoken about by Sandeep Lahoria :

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'My father told me that Suresh Bijlani, Anurag Garg Sumeet Bacchewar, ( applicant ), S. P. Agrawal and Bhupesh Gupta, in logone muze marvaya hai, ab main nahi bachunga ( bu yksxksus eq>s ejok;k gS vc eS ugh cpqaxk ) .'

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According to Sandeep Lahoria, the applicant was repeatedly saying these sentences.

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25 The learned APP contended that this statement constitutes 'direct evidence' against the present applicant. It is impossible to agree with this contention. Assuming that indeed such statement was made by the deceased, it is only the opinion or belief of the deceased as to who were the persons behind the assault. It is obvious that the deceased suspected all the aforesaid persons which included the applicant, as the persons who had managed the assault. However, simply because this inference of the deceased or the belief of the deceased, has been put forth as a 'fact', it cannot be construed as 'direct evidence' against the applicant. All that it shows is that the deceased before his death suspected and believed these persons for the assault on him.

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26 Much has been stated about the false implication of the applicant by Sandeep Lahoria. However, I do not think that there is no bona fide belief of the applicant being involved in the alleged offence in the mind of the son of the deceased. The fact, however, remains, that assuming the deceased, and also his son, strongly felt the applicant to be behind the assault, and that the applicant to be a conspirator along with the other accused, still, this cannot be put forth and accepted as a 'statement of fact.' 'Opinions' are required to be separated from 'facts.' Though such opinion, might be sufficient for initial arrest of the applicant, after the investigation is over, and no further or confirmatory material supporting the suspicion is found in the course of the extensive investigation that has been carried out, such suspicion cannot be given an undue importance, by treating it as 'conclusive' for showing the involvement of the applicant.

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27 I find that there is no improvement in the situation, so far as the material against the applicant is concerned. It certainly indicates – if accepted – that the deceased suspected the applicant, along with the others, and that the son of the deceased also suspected the applicant. However, such suspicion, though natural, is based only on the disputes between the applicant and the deceased.

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28 Significantly, against some of the other accused, who were also suspected by the deceased and his son, further material has been found in the course of investigation. In other words, in case of some other accused in this case, the suspicion felt against them, could be strengthened by gathering material against them in the course of investigation. The absence of such material against the applicant is significant in itself.

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29 Interestingly, though the name of one Gajara is also alleged to have been mentioned by the assailant while running away, Gajara is not an accused in this case and no allegation of his having been involved in the conspiracy has been levelled against him. This itself shows that mere utterance of the names by the assailant, which obviously, was not based on the assailant's own knowledge, was nothing more than an opinion or belief and could be wrong. The fact of not sending Gajara for trial, indicates that the investigating agency does not think such statement by itself to be sufficient to put a person on trial. If the involvement of Gajara is not established, inspite of the utterances attributed to the assailant, the least that can be said is that with respect to Gajara, the statement of the assailant – or the fact that he made it – is

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not believed. This shows the awareness on the part of the investigating agency that such statement of assailant cannot be treated as a fact establishing the involvement of the persons named by him.

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30 The only other circumstance which is put forth in support of the case against the applicant is the contacts – telephonic and otherwise – between the main accused Suresh Bijlani and the present applicant. I have considered this material. It is nobody's case that the applicant and Suresh Bijlani were not known to each other. They being in building construction profession or related profession, their meetings by themselves, would not be a suspicious circumstance. Similarly, the telephonic contacts between them would also not be sufficient, by themselves, to support the theory of conspiracy.

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31 Indeed it appears that the applicant had also ill-will and ill feelings against the deceased, and it is this, that has led to suspicion against him and his arrest. If there were a number of persons who wanted to get rid of Sunil Kumar Lahoria, as alleged, it is not a necessary inference on his murder, that all such persons had conspired to murder him. One cannot reasonably suggest that a few, out of such enemies, could not decide to murder him, and that, the murder could not take place unless all the enemies of Sunil Kumar Lahoria had conspired together. At the cost of repetition, it may be observed that while against some of the accused, material supporting the theory of conspiracy, has been found in the course of investigation, the same investigating agency has not been able to find out anything of similar nature against the present applicant.

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32 At this stage, the court is not required to decide – and cannot decide – whether the applicant is guilty or innocent. The evaluation of the material in the charge-sheet, to a limited extent would still, be necessary, even at this stage. Suspicion, felt by the son of the deceased – and perhaps by the deceased against the applicant, howsoever genuine, cannot be substituted for 'facts' necessary for showing the involvement of the applicant in the alleged offence.

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33 In my opinion, considering the nature of material against him, the applicant deserves to be released on bail.

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34 The application is allowed.

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35 The applicant is ordered to be released on bail in the sum of Rs.50,000/-, with one surety in the like amount, on the condition to report to the office of the investigating agency on every Monday and every Thursday, between 11.00 a.m. to 1.00 p.m., and more often, if so required by the Investigating Officer, until further orders.

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36 The applicant shall not leave the local area of BrihanMumbai and Thane, except with the express permission of the Investigating Officer, or the court of Sessions.

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37 The applicant shall not contact, meet or approach, any of the prosecution witnesses, in any manner, whatsoever.

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38 At this stage, the learned APP prays for staying the operation of the order. Prayer rejected.

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39 The learned counsel for the applicant prays for cash bail. Prayer rejected.

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(ABHAY M. THIPSAY, J.)

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Sumeet Ganpat Bacchewar v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

Sumeet Ganpat Bacchewar v. the State of Maharashtra and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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