Bombay High Court
Firoz Bashir Kagadi (Mistri) vs The State Of Maharashtra on 4 August, 2021
Author: Prakash D. Naik
Bench: Prakash D. Naik
2-Ba-3538-2019.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO. 3538 OF 2019
Firoz Bashir Kagadi (Mistri) ... Applicant
Versus
The State of Maharashtra ... Respondent
.....
Mr. Vinayak Patil, Advocate for the Applicant.
Mr. Y. Y. Dabake, APP for the Respondent - State.
.....
CORAM : PRAKASH D. NAIK, J.
DATE : 4th AUGUST, 2021.
PER COURT:
1. The applicant is arrested on 27th July, 2015 in
connection with C.R. No. 272 of 2015 registered with Karad City
Police Station Dist. Satara on 20th July, 2015 for offence under
Sections 307 of Indian Penal Code (for short "IPC").
2. The incident in question had occurred on 20 th July,
2015. The complaint was lodged by the mother of the deceased.
The case of the prosecution is that the complainant and the
deceased were conducting shop Namrata Traders, situated at
Guruvar Peth, Karad. On 20th July, 2015 at about 8.30 a.m. Babalu
Digitally
signed by
SAJAKALI
was reading newspaper and complainant was cleaning her shop.
SAJAKALI LIYAKAT
LIYAKAT JAMADAR
JAMADAR Date:
2021.08.06
14:17:03
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She heard sound and came out of shop. Babalu was lying on floor.
He was bleeding. One person was standing besides him. He pushed
the complainant and fired two rounds on her knee. She fell down.
She was taken to hospital for treatment. Supplementary statement
of complainant was recorded. She stated that after incident of
firing Babalu had told people gathered at the spot that, the
assailant Babrya is associate of 'Sallya'. Subsequently, she learnt
that, Babalu has expired. The assailant was assaulted by people
with stone, rod, cement pipe and he died. The offence was altered
to Section 302 of IPC. Approval was obtained under Section 23(1)
(a) of Maharashtra Control of Organised Crime Act, 1999 ( for
short "MCOC Act"). Sanction was granted to prosecute under the
provisions of Sections 3(1)(i)(ii), 3(2), 3(4) and 4 of MCOC Act.
During the course of investigation accused were arrested. On
completing investigation, charge-sheet was filed.
3. The applicant preferred an application for bail before
the Special Court, under the MCOC Act. The said application was
rejected by order dated 14th September, 2018.
4. Learned Sr. Advocate Mr. Mundargi representing the
applicant submitted that the applicant is in custody since last
6 years. There is no progress in trial. The applicant is not party to
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conspiracy with the main accused. The provisions of MCOC Act
cannot be applied to applicant. The applicant is not member of
crime syndicate headed by the main accused Salim Shaikh. The
applicant has no enmity with the deceased. The confessional
statement does not lead to any inference that the applicant was a
member of crime syndicate. The applicant has no criminal
antecedents. He is not involved in any case with the alleged gang
leader. The accused concerned with procuring the arms were
granted bail. Shakil Golandaj was not implicated as accused in this
case. Accused Nos. 3, 4, 5 & 7 were granted bail. The applicant has
not been named in the First Information Report (for short 'FIR'). He
was not present at the scene of offence at the time of alleged
incident of firing. It is the case of the prosecution that on 8 th or 9th
July, 2015 the applicant along with accused Nos. 4 & 7 approached
Shakil Golandaj to purchase pistol from him. However, no pistol
was procured from him. Co-accused Asif Shaikh, Mohsin Jamadar
were granted bail by this Court. After the occurrence of incident,
name of the applicant and co-accused were published in the print
media which has vitiated the identification. On perusal of the
confessional statement of the applicant, it can be seen that the
pistol was not given to the applicant by Shakil Golandaj. He had
no knowledge regarding activity of accused No.1. There is nothing
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to indicate that the applicant was part of conspiracy to kill the
deceased. After the incident, news was flashed in electronic media.
There is no call transcription on record. The prosecution is relying
upon the alleged extra judicial confession. Statement of the said
witness was recorded on 24th July, 2015. There is no evidence on
record to indicate that the applicant is member of crime syndicate
headed by accused Salim Shaikh. The death of the victim has no
connection with the recovery of applicant's money. Confession in
police custody was retracted.
5. Learned APP submitted that there is sufficient evidence
to show the involvement of the applicant in the offence. The
prosecution is relying upon confessional statement of the applicant
recorded under Section 18 of MCOC Act. The applicant had
accompanied accused No.1 Babar at the scene of offence. Prior to
the incident, the applicant had accompanied accused No.1 to verify
the availability of the victim. The applicant had played vital role.
The prosecution is relying upon extra judicial confession of the
applicant. The case of the co-accused, who has been granted bail
can be distinguished and the applicant is not entitled for parity. The
applicant was acquainted with accused Salim Shaikh. He had
approached Shakil Golandaj for procuring arms. The Investigating
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Officer has filed affidavit opposing the application for bail. C.D.R.
of the location implicates the applicant. Statement of Shakil
Golandaj and Gurusiddh Jadhav refers to the presence of the
applicant at Hotel Ramada. The applicant and co-accused hatched
conspiracy to commit murder of Babalu Mane. The accused No.1
and applicant kept watch on deceased. Witness Shakil Golandaj has
stated that applicant visited hotel Ramada to take fire arms from
Shakil with accused Nos. 4 and 7 Mohsin Jamadar and Asif Shaikh.
Statement of Musib Munir Momin shows that applicant was present
at hotel Ramada and exchanged his shirt with hotel owner. Extra
judicial confession was made to Wahid Kacchi. C.D.R./S.D.R. of
applicant shows location at spot and that accused were in contact
with each other. Confession of applicant recorded under Section 18
of MCOC Act shows his involvement.
6. I have perused the documents on record. The incident
of attacking the deceased Babalu had occurred on account of the
enmity between deceased and accused Salim Shaikh. The case of
the prosecution is that both were involved in the business of sand.
Both of them were trying to hold supremacy over each other.
Accused No.1 Babar was assigned the work of killing deceased
Babalu. The accused No.1 Babar was assaulted by the people, who
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had gathered at the scene of offence which had resulted in his
death. The applicant is not named in the FIR. Apparently after the
incident news was published in the media. The applicant is not
assailant in the offence. Statement of Shashikala Mane was
recorded on 20th July, 2015. She is the eye witness to incident.
Chandrakant Mane is brother of Babalu. He stated that Babalu is in
business of sand. Cases are registered against him with Karad City
Police Station. Offence is registered against him for firing at Salim
Shaikh. Babalu was earning good profits in sand business. Salim
Shaikh was also involved in similar business. Various offences were
registered against him. It is not the case of the prosecution that the
applicant was present at the scene of offence when the victim was
shot at by accused No.1. Statement of Musib Munir Momin dated
24th July, 2015 stated that he is working at hotel of Wahid Kacchi.
On 20th July, 2015 applicant had visited hotel at 8.45 a.m. He wore
shirt of this witness and thereafter he left towards Karad on
motorcycle. Thereafter, he again returned to hotel. Wahid Kacchi
told him to leave the place. Change of shirt does not appears to be
incriminating circumstance against the applicant as the applicant
was not the assailant, nor he was present at the place of firing and
there was no reason to change the shirt. The prosecution is relying
on statement of Wahid Kacchi dated 24 th July, 2015. According to
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him applicant visited his hotel around 9.00 a.m. and he left the
hotel. He again came back within 15 minutes. On enquiry,
applicant told him that Babar khan had called him at vegetable
Mandai. He went there. Babar told him to accompany him to verify
if Bablu is near his house. He accompanied Babar and found that
Babalu was reading newspaper. The applicant dropped Babar near
market. Babar told him that he would fire at Babalu and he should
pick him after firing so that they can flee from place. Babar fired at
Babalu. People started running. Due to fear applicant ran away
from the place of incident. This conversation between applicant
and Wahid Kacchi do not indicate that before verifying availability
of Babalu, Babar had disclosed to applicant that there was plan to
kill Babalu. After recce, Babar had allegedly stated that, he would
fire at Babalu. Wahid Kacchi, further stated that, applicant told him
there was plan to kill Babalu. However, there is no cogent evidence
on record to establish that applicant was part of conspiracy to
liquidate Babalu. Statements of Musib and Wahid were recorded
after incident was reported by media. Statement of Bashir Ali
Pathan was recorded on 25th July, 2015. He stated that Shakil
Golandaj had visited him in June 2015. He told him to call
applicant. Applicant met him and told him that he is in need of
pistol. On enquiry with applicant, he told him that Salim Shaikh is
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in need of pistol for firing at one person. On further enquiry, he
stated that Babalu would be shot. Statement of these witnesses are
contradictory to confessional statement of applicant. Thereafter,
applicant told him that weapon is brought by Mohsin and Javed.
Statement of Shakil Golandaj was recorded on 30 th July, 2015. He
stated that in July, applicant called him at hotel Ramada. He was
accompanied by Suhel Baraskar and Gurusiddh Jadhav. Applicant
met him. He introduced Mohsin Jamadar and Asif Shaikh to Shakil.
Mohsin demanded 9 mm pistol and bullets for killing Babalu. On
next day Shakil told applicant not to bring such persons to him and
he does not do such work. Thus, Shakil or applicant had not
provided any arm to the accused which was used committing
crime. Statement of Hanif Shaikh was recorded on 31 st July, 2015.
He stated that, on 20th July, 2015 applicant and Babar Khan had
visited vending cart of Riyaz for breakfast and they left together.
Statement of Riyaz Diwan dated 31st July, 2015 is similar.
Confessional statement of applicant was recorded under Section 18
of MCOC Act on 29th October, 2015. He stated that he got
acquainted with Salim Shaikh two months ago. The applicant had
invested Rs. two lakhs in sand business. He was not getting returns
from one Faiyaz. He was advised to meet Salim Shaikh. Hence,
applicant met Salim Shaikh and informed him about his dues.
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Thereafter, applicant met Mohsin and Salim at Ashok Chowk. They
enquired with applicant about, nature of talk, he had with Salim
Shaikh. They would visit Shakil for weapon. He met Bashir Pathan.
All of them met Shakil. There was discussion about pistols. On next
day Shakil Golandaj told him that he do not have weapons. This
information was provided to Mohsin and Asif. On 18 th July, 2015,
Babar Khan contacted him and called him at Market Yard. Babar
took him to Karve Naka. He pointed out one house and told him
that it is house of Babalu. He dropped Babar at Gate No.1. On 19 th
July, 2015 Babar called him at Karve Naka. They went towards
house of Babalu and went to hotel for snacks. On 20th July, 2015,
Babar called him. They had breakfast. They went to Mandai. Babar
was dropped near fish market. Babar told him that he is proceeding
to kill Babalu. Applicant heard firing, thereafter applicant tried to
contact others.
7. The confessional statement of the applicant do not
indicate in any manner that applicant was party to any conspiracy
to kill Babalu. The tenor of confessional statement shows that
applicant got acquainted with Salim Shaikh just two months prior
to the incident of murder of Babalu. He had approached Salim
regarding his dues. He has not participated in any violent, criminal
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activities of Salim Shaikh. There was no talk between Salim Shaikh
and applicant to liquidate Babalu. The applicant is not involved in
any offence with Salim Shaikh. There are no criminal antecedents
against applicant. The previous statements are contrary to
confessional statement. There was no discussion with Mohsin and
Asif regarding conspiracy to kill Babalu. These two persons, told
applicant to join them to visit Shakil Golandaj. No weapon was
provided by Shaikh Golandaj. Babar Khan did not disclose to him
that there is plan to kill Babalu before taking him to house of
Babalu. Thus, the confessional statement does not lead to inference
that applicant is conspirator of the crime.
8. Accused Ibrahim sayyed has been granted bail by this
Court vide order dated 4th July, 2018. Mohsin Jamadar has been
granted bail by this Court vide order dated 16th July, 2017. The
allegations against him is that, he went to hotel to meet Shakil
Golandaj to procure pistol. Javed Shaikh was granted bail vide
order dated 12th April, 2019 by this Court. Irfan Inamadar was
granted bail by Sessions Court. Asif Salim Shaikh was granted bail
by this Court vide order dated 23rd January, 2018.
9. There is no material to establish that applicant is
member of crime syndicate headed by Salim Shaikh. Considering
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the nature of evidence and for the reasons discussed herein above,
the embargo under Section 21(4) of MCOC Act would not be
impediment to grant bail to the applicant.
10. Hence, I pass the following order:
ORDER
(i) Criminal Bail Application No.3538 of 2019 is allowed;
(ii) The applicant is directed to be released on bail in connection with C.R. No. 272 of 2015 registered with Karad City Police Station Dist. Satara which is subject matter of MCOC Special Case No.2 of 2016, on executing P.R. Bond in the sum of Rs.50,000/- with one or more sureties in the like amount;
(iii) The applicant shall report concerned Police Station once in three months on first Saturday of the month between 11:00 a.m. to 1:00 p.m. till further order;
(iv) The applicant shall not tamper with the evidence.
(v) Application stands disposed of accordingly.
(PRAKASH D. NAIK, J.)
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