Cri. Appln. No. 2463 of 2000

9th August, 2000

Petitioner Counsel: Mr. RAJENDRA PAI
Respondent Counsel: Mrs. V. K. TAHILRAMANI, P. P. with Mr. S. R. SHINDE

JUDGMENT

JUDGMENT:- This is an application for bail in a case under Sections 143, 147, 148, 302, 323, 427, 149, IPC and Sections 37(1),(3) and Section 135 of the Bombay Police Act.

2. In short, the prosecution case runs as under:-

On 11-9-1999, the applicant and his uncle Abhay Singh Bhosale were contesting M.L.A. election from the Satara Constituency: the former was a candidate of Bhartiya Janata Party and the latter of the Nationalist Congress Party. The deceased Appa Baban Leve was a worker of Abhay Singh Bhosale.

On the said date, at about 2.30 a.m. while the informant Vijay Krishna Jadhav, the deceased Appa Leve, Deepak Bhosale and Ravi Patkar were proceeding by a Gypsy towards the tunnel area at Satara, they saw a crowd of 30/35 persons breaking glass panels of trucks at the tunnel square. The Informant tried to reverse the Gypsy and drive away from the spot but, by that time it was intercepted by the applicant and 14 others. Thereafter, the deceased was dragged out from the Gypsy by Yadu Narkar and Sushil Mozar; the applicant inflicted a blow with a sword on the head of the deceased: then handed over the sword to co-accused Sushil Mozar; and shouted that Apa Leve should not be left alive. Then, Sushil Mozar, Yadu Narkar and others with swords, iron rods and wooden logs assaulted the deceased. The informant Vijay Jadhav was also assaulted by a stick. As a consequence of the assault launched on him by the applicant and others, the deceased succumbed to his injuries on the spot. Thereafter, the applicant and others ran away.

According to the prosecution, a large number of eye witnesses witnessed the incident.

2A. The FIR of the incident was lodged at 5.05 a.m. at Satara Shahar Police Station by the informant Vijay Jadhav and on its basis, a case under Sections enumerated in para I of this order was registered against the applicant and others.

3. The informant Vijay Jadhav was medically examined at 2.40 a.m. same night by Dr. S. J. Jadhav who found a contusion over the occipital region of the dimension of 2 cm x 2 cm, which in his opinion was attributable to a hard and blunt object and was inflicted within six hours.

The postmortem examination on the corpse of Appa Leve was conducted on 11-9-1999 between 7.15 a.m. and 8.30 a.m. by the Medical Officer of General Hospital, Satara who found on it 3 vertical incised wounds, 1 contused lacerated wound, 3 oblique incised wounds and 4 oblique contusions. The internal examination showed crack fracture of the left parietal and temporal bones, damage to brain tissue in frontal and parietal region and some other damage.

In the opinion of the Autospy Suregon, the deceased died on account of coma due to multiple fracture of skull bone and laceration to brain

4. I have heard Mr. Rajendra Pai for the applicant and Mrs. V.K. Tahilramani, Public Prosecutor for the State of Maharashtra - Respondent. I have also perused the affidavit filed by Mr. Vijay Naryan Gaikwad, Additional Superintendent of Police, presently attached to CID, Kolhapur Range, Kolhapur.

5. Mr. Pai strenuously contended that since the investigation is over and the charge has been framed, the applicant's right of an effective defence would be impaired in case he is not enlarged on bail. He also urged that the statements of the eye witnesses incriminating the applicant should be taken with reservation because, they were recorded at the instance of Abhay Singh Bhosale who was the rival candidate in the M.L.A. election, against the applicant. He further urged that the applicant did not participate in the incident and at the time of the incident was at Hotel Rajtara.

In the alternative, he urged that since the applicant is suffering from chronic cardiac aliment, he be shifted to Ruby Hall Clinic, Pune, where Dr. Hiremath, a doctor of his trust, would treat and examine him.

6. I have reflected over the submissions canvassed by the applicant's counsel. It is well-settled that at the stage of considering the question of grant of bail, this Court does not enter into a threadbare examination of the prosecution case but, sees whether the prosecution has made out a prima facie case. If it finds that it has, it refuses bail, if not it grants it.

It is from this perspective, that I propose to examine the matter. In my view, the prosecution has made out a prima facie case against the applicant. The FIR of the incident, wherein the applicant is named, was lodged within 2-1/2 hours of the incident and in it, the informant Vijay Jadhav has categorically mentioned that he assaulted the deceased Appa Leve with a sword. Thereafter, in statements recorded under Section 161 Cr.P.C. the Informant and other eye witnesses of the incident have candidly stated that the applicant assaulted the deceased with a sword on his head.

It is pertinent to mention that the post mortem report shows 8 vertical oblique incised wounds and 3 incised wounds. It also shows that the said injuries were situated in the region of the head of the deceased.

In such a factual matrix, the ocular account that the applicant assaulted the deceased with a sword on his head is corroborated by the post mortem report.

7. I make no bones in observing that the submission of the applicant's counsel that the statements of the eye witnesses were recorded at the instance of Abhay Singh Bhosale is not vindicated at this stage. There is nothing to show that they were. This submission can be decided after the evidence has been led in the trial court.

8. So far as the applicant's defence of alibi, in terms that at the time of the incident he was at Hotel Rajtara in Satara, is concerned, it has been averred in para 8 of the affidavit of A.S.P. Gaikwad that the statements of the Manager and the watchman of the hotel have been recorded and they demonstrate that he was not present in the hotel at the relevant time.

9. At any rate, the question of defence of alibi is not gone into by the court at the stage of bail as it would have to be proved by the applicant in terms of Section 106 of the Indian Evidence Act at the time of the trial.

10. I also have no reservations in observing that I find no merit in the submission of the applicant's counsel that since the charge has been framed, it is imperative that the applicant be enlarged on bail so that he can properly defend himself. This may be one of the factors which the court may take into consideration while considering the question of grant of bail. But, nothing beyond that. Apart from the fact whether a prima facie case is made out, some of the factors to be borne in mind by the court in deciding the question of grant of bail are the gravity of the offence and whether there is any imminent likelihood of the accused tampering with the witnesses. In the instant case, both the considerations militate against the applicant. The former because the deceased was murdered on account of his being the worker of the applicant's uncle Abhay Singh Bhosale who was pitted against the applicant in the assembly election and the latter because threats have already been extended to the witnesses on behalf of the applicant. In this connection, the Public Prosecutor invited my attention to para 15 of the affidavit of ASP Gaikwad which shows that three N.C. complaints were lodged on 27-1-2000, 9-3-2000 and 10-3-2000 at Satara Shahar Police Station; the first two by the informant Vijay Jadhav and the third by Kumar Chogle, also an eye witness of the incident. She urged that a perusal of all of them shows that the witnesses were threatened that in case they give evidence against the applicant, their life would be in danger.

The learned Public Prosecutor also urged that since the applicant is former Revenue Minister of Maharashtra and a influential person, in case he is enlarged on bail, he would tamper with the prosecution evidence.

The Public Prosecutor has also vehemently opposed the grant of bail to the applicant on the ground that three C.Rs. namely Cr. No. 46/1995 of Umbraj Police Station under Section 363 r/w 34 IPC, C.R. No. 71/1995 of Karad taluka Police Station under Sections 363, 341, 506 r/w 34 IPC and C.R. No 75/1995 of Satara City Police Station under Sections 188 of IPC and 36 and 34 Cr.P.C. and Bombay Police Act, are pending against the applicant.

11. So far as the medical ground urged by the applicant's counsel is concerned, I find from a perusal of the order dated 27-1-2000 passed by the Additional Sessions Judge, Satara refusing bail to the applicant that a panel of doctors is treating the applicant at Civil Hospital, Satara. It is not the case of the applicant that his cardiac treatment is not possible at the Civil Hospital where he is detained since the last 11 months as an under trial.

12. I have considered the rival submissions and make no bones in observing that this is not a case, wherein the applicant warrants to be released on bail.

13. Before parting with the order, I wish to make it clear that the circumstances that the applicant belongs to a respectable family, was an M.L.A. and Minister of Revenue (State Rank) of the State of Maharashtra would not go in his favour: but against him. As an M.L.A. and a Minister, he was expected to abide by law : act with responsibility and be a model for others to emulate. When a person in the position of the applicant commits a crime, its gravity is compounded. Persons like the applicant deserve no indulgence; on the converse they should be sternly dealt with.

I make no bones in observing that this court is loath to grant bail in offences committed on account of election rivalry. If it becomes soft in granting bail in such offences, there would be a spurt in electoral violence; a phenomena which has already acquired menacing proportions in some states. And to curb it, it would be necessary for courts to be strict in granting bail in such offences. It should not be forgotten that elections, free from fear and violence, are imperative for the survival of the Parliamentary form of Government in our country.

14. For the said reasons, I reject this bail application.

I make it clear that the observations contained in this order are only relevant to the disposal of this application and will not be taken into account by the court when it decides the trial.

Application dismissed.