Criminal Application No.3478 of 2009

29th January, 2010

Petitioner Counsel: Mr. O. A. SIDDHIQUI,Mr. AVINASH KAMKHEDKAR
Respondent Counsel: Mr. J. P. KHARGE
Other Counsel: Mr. U. V. WARUNJIKAR,Mr. NITESH BHUTEKAR ,SACHIN BHOSALE

Cases Cited:
Ramesh Patil Vs. State of Maharashtra, 1997(VI) LJ 93 [Para 5,9]

JUDGMENT

JUDGMENT :- Heard learned counsel for the parties.

2. The applicant is seeking bail in C.R. No.381 of 2008 of Dehu Road Police Station, Dist.Pune. The said crime has been registered against the applicant and eight others for having allegedly committed an offence punishable under sections 302 read with 34 and 120-B of IPC.

3. This is the second application for bail. The earlier application of the applicant was rejected by the order dated 12th June, 2009 passed in Criminal Application No.2000 of 2009.

4. Mr. Siddhiqui, learned counsel for the applicant, submitted that he has instructions to press this application for bail mainly on the ground of parity. He submitted that after the earlier application of the present applicant was rejected, this court, on 11.1.2010, has enlarged the co-accused Santosh Mane on bail in Criminal Application No.4160 of 2009. He invited my attention to the said order and submitted that the role attributed to the present applicant and the role allegedly played by Santosh Mane was identical. He then invited my attention to paragraph 5 of the earlier order dated 12.6.2009 and submitted that the earlier application of the applicant was rejected solely on the basis of the mobile details, which were produced before the court when the application was heard. It would be advantageous to reproduce paragraph 5 of the earlier order dated 12.6.2009 for better appreciation of the submissions advanced by learned counsel for the parties.

"5. I have perused the entire record placed before the court very carefully. Insofar as the motive is concerned, undoubtedly, it connects the present applicant with the incident of murder, though, it is true that motive by itself is not sufficient to hold a person guilty. It appears that there was an incident in which the deceased and his associates had assaulted the applicant's father. The criminal case in respect thereof was pending. It is against this backdrop I examined the mobile details produced on record. The prosecution has produced print-outs of the mobile phones belonging to the present applicant, Santosh Mane, Praveen Pradhan and Sunil Pisal. Out of the 9 accused, 4-5 accused actually committed the offence of murder on 6.12.2008 and out of the of 4-5 accused, three accused, namely, Sunil Pisal, Vikas Kale and Praveen Pradhan came to identified by the eye witnesses as assailants in the test identification parade. It is against this backdrop, perusal of the mobile details of the mobile phones of the present applicant (No.97633 38339) and Santosh Mane show that on several occasions, at the relevant time, they had long conversation. During 6.11.2008 and 6.12.2008, on 89 occasions they had conversation on there mobiles. Similarly, mobile details of the mobile phones belonging to Praveen Pradhan, Sunil Pisal, the assailants and Santosh Mane, show that on several occasions they had conversation amongst themselves and also with the applicant. Mr. Mundargi, however, submitted that there is no material on record to show that mobile (No.99225 03760) was belonging to Santosh Mane. In my opinion, this argument is not open to the applicant and/or cannot be examined/entertained at this stage. During investigation the police found that this mobile was being used by Santosh Mane at the relevant time and Santosh Mane at no stage, during the investigation, denied the said fact. That apart, the applicant has not placed on record any explanation as to why did he make calls from or received calls on his mobile phone from the mobile phones of the other accused person at the relevant time. Though the statement of all accused persons under section 27, which clearly implicate the applicant as the main conspirator, cannot be looked into, the conversation between the applicant and the other accused, coupled with the motive and the other material on record, is prima facie, sufficient, at this stage, to connect the present applicant with the alleged incident. It is sufficient to prime facie hold that the applicant was one of the conspirator in committing the alleged offence. In my opinion, the other material on record supports the prosecution case against the applicant. In the circumstances I am not inclined to enlarge the applicant on bail. The application is rejected. However, the trial court shall endeavour to dispose of the trial expeditiously."

5. He then submitted that in view of the order of this court in Ramesh Patil Vs. State of Maharashtra, 1997(VI) LJ 93, the present applicant is entitled for bail since he has also been implicated in the present case with the aid of section 120-B of IPC. The relevant paragraph of the judgment in Ramesh Patil's case (supra) reads thus :

"4. However, the evidence collected during investigation against the petitioner and the circumstances enumerated below entitle him to bail. The said circumstances are :-

(i) the petitioner's implication is with the aid of section 120-B, IPC;

(ii) the statements of the witnesses, have been recorded during investigation;

(iii) there are no chances of the petitioner absconding inasmuch as he is owner of some factories; and

(iv) he has already been in jail for over 8 months and neither any date of his trial has been fixed, nor there appears to be any possibility of the same commencing in the near future."

On the other hand, Mr. Warunjikar, learned counsel for the complainant, submitted that the role played by the present applicant and Santosh Mane are different and that the present applicant cannot seek bail on parity. In support of this contention, he invited my attention to paragraph 7 of the FIR so also to discovery panchanamas under section 27 of the Indian Evidence Act) drawn at the instance of the accused who actually participated in the commission of offence. He also invited my attention to the statement of Ajay Rayakar. He submitted that this material clearly show that the applicant was directly connected with the alleged offence, whereas Santosh Mane, who was released on bail, was only a facilitator. The learned APP also submitted that the present applicant cannot claim parity in view of the fact that he was directly connected with the alleged offence. According to the learned APP, co-accused, who actually participated in the commission of offence, were contract killers and Santosh Mane only helped the present applicant to introduce them to the applicant.

6. I have perused the earlier order dated 12.6.2009 so also the order passed by D. G. Karnik, J. enlarging Santosh Mane on bail on 11.1.2010. From perusal of the order dated 12.6.2009, rejecting the prayer for bail of the present applicant, it appears that the earlier application was rejected only on the basis of the mobile details and the alleged conversation between the applicant and Santosh Mane and the other co-accused. Insofar as the other material, such as motive, statement of other witnesses, panchanamas under section 27 etc. is concerned, that was all brought to the notice of the court even earlier. Insofar as the information received from other accused, as is seen in the panchanamas under section 27 is concerned, it is not legally admissible in evidence. This material was considered while rejecting the earlier application of the applicant.

7. I have also perused the order passed by D. G. Karnik, J. dated 11.1.2010. From perusal of the order, it is clear that co-accused Santosh Mane was released on bail after considering telephone/mobile calls exchanged between him and the present applicant so also the other accused who actively participated in the commission of offence under section 302. The relevant paragraph no.3 from the order of D. G. Karnik, J. dated 11.1.2010 reads thus;

"3. It is the case of the prosecution that Mhetre had engaged one Sunil Anand Pisal for eliminating Vaibhav. It is also the prosecution case that several telephone calls were exchanged between Sunil Anand Pisal and the present applicant between 15th November, 2008 to 14th December, 2008. There was also exchange of telephone calls between the present applicant and Mhetre. On the basis of this, applicant has been arrested and charged. There is no other evidence of involvement of the applicant to the crime as also the contents of the conversations between the applicant and Mr. Pisal or Mr. Mehatre. Nobody has even alleged that the conversation was in connection with the present crime. Merely on the basis of a suspicion that conversation had taken place on telephone between the two accused and the applicant, he has been arrested. In the absence of any other circumstantial evidence connecting the applicant to the crime, I am inclined to grant him bail."

8. It is thus clear that the earlier application of the present applicant was rejected solely on the basis of mobile record placed before the court and not on the basis of the material placed and relied upon by the learned counsel for the complainant and the State. As observed earlier, the discovery panchanama under section 27 would not help the prosecution to connect the applicant with the alleged incident since the portion of the panchanama relied upon by the complainant is not legally admissible in evidence. Similarly, the statement of Ajay Rayakar makes reference to Santosh Mane also. In the circumstances, the applicant is entitled for bail on parity.

9. Even the judgment relied upon by Mr. Siddhiqui in Ramesh Patil's case (supra) also would help the applicant to seek bail in view of the fact that the applicant has been implicated in the case only with the aid of section 120-B of IPC. There are no allegations made either by the complainant or by the State that the applicant is likely to abscond, if released on bail. The applicant is in jail for more than 13 months. In the circumstances, I am inclined to enlarge the applicant on bail. Hence, I pass the following order.

Application allowed.