Bombay High Court
Bhushan Vijay Gaikwad vs The State Of Maharashtra on 10 February, 2020
Author: Prakash D. Naik
Bench: Prakash D. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO.1393 OF 2019
Bhushan Vijay Gaikwad Applicant
versus
The State of Maharashtra Respondent
WITH
CRIMINAL BAIL APPLICATION NO.2624 OF 2019
Sunil Dattatraya Kadu Applicant
versus
The State of Maharashtra Respondent
Mr.Prashant P. More with Chandrakant Popat Yadav for appliant in
BA No.1393/2019.
Mr.Abhishek R. Avachat for applicant in BA No.2624/2019
Mrs.A.A.Takalkar, APP for State in BA No.1393/2019
Mr.H.J.Dedhia, APP for State in BA No.2624/2019
Mr.Vinayak Devkar, API (IO), Velha Police Station and M.Y.S.Garud,
PC, Velha Police Station, present.
CORAM : PRAKASH D. NAIK, J.
DATE : 10th February 2020
PC :
1. The applicants in both these applications were arrested in CR
No.63 of 2018 registered with Welhe Police Station for offence u/s
302 r/w 34 of Indian Penal Code. The FIR was registered on 9 th July
2018.
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2. The prosecution case is that complaint was lodged by
Smt.Ashwini Ganesh Balge alleging that on 8 th July 2018 when she
had visited the house of her mother, she did not notice her brother
Yogesh and hence she made inquiries about his whereabouts.
Complainant's mother told her that Yogesh had left the house
informing her that he is meeting Sunil Dattatraya Kadu at Warje
Bridge. However, he did not return home. The complainant called
Yogesh on his cell phone. However, it was found switched off. The
complainant then gave a call to Sunil Kadu. He informed her that he
has come to Pune from Mumbai for the purpose of work. He also
stated that Yogesh met him in the morning at Warje Bridge and
thereafter he has left with his friends. The complainant made
inquiry with friends of Yogesh. However, she could not get the
required information about the whereabouts of Yogesh. On 9 th July
2018, the complainant made inquiry in the company where her
brother Yogesh was working. She inquired with his friends but she
could not get any information. She again gave call to Sunil Kadu.
He informed her that Yogesh was having illicit relationship with his
niece Sujata Shinde. This was informed to him by husband of Sujata
Mr.Mandar Shinde. Hence, on 8 th July 2018, Sujata and Yogesh
were called at Warje Bridge and thereafter Mandar, Sujata, Yogesh
and he himself left together in Alto Car at Khadakwasala. Thereafter
they had a discussion and advice was given to Yogesh and Sujata and
thereafter he went to Mumbai. On 9th July 2018 at about 5 pm,
complainant received information from the Police that one injured
person is found in the area of Warasgaon Dam and he has been
brought to Sasoon Hospital for treatment. The complainant visited
Sasoon Hospital and noticed that her brother Yogesh was brought to
Sasoon Hospital. He was declared dead. She made further inquiries
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and learnt that on 8th July 2018 at about 10 to 10.30 am, Yogesh was
called by Sunil Kadu and thereafter the accused had acted in
connivance with each other and on suspecting that he was in
relationship with Sujata, he was killed by the accused by hitting him
by stone on his head.
3. The statements of witnesses were recorded. The accused were
arrested. On completing investigation charge sheet was filed. The
applicants preferred applications for bail before the Sessions Court.
The said applications were rejected.
4. Learned advocate for applicant in BA No.1393 of 2019
preferred by Bhushan Gaikwad submitted that there is no eye
witness to the incident. The entire case is based on circumstantial
evidence. There is no recovery or discovery from the applicant.
There is no cogent evidence to show the complicity of the applicant
in the crime. The applicant was arrested on the basis of suspicion.
There are contradictions in the statements of witnesses. The
applicant had no enmity or grudge against the deceased. The
applicant had no motive to kill the deceased. There is no evidence to
establish that the applicant and the co-accused were together at the
time of murder of Yogesh Dhone.
5. Learned advocate appearing for the applicant in BA No.2624
of 2019 preferred by Sunil Kadu submitted that there is no evidence
to show the involvement of the applicant in the crime. The case is
based on circumstantial evidence. However, merely on suspicion the
applicant has been arrested in this case. The applicant had no
enmity with the deceased. He is being implicated in this case
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because wife of Mandar was niece of the applicant. There is no
evidence to show that the applicant was present at the place of
crime. There is no eye witness to the incident. Assuming that there
are calls between the accused, they were known to each other and
the call made by them inter-se, cannot be considered to be
circumstance to show the involvement of the applicant in the
offence. There are no criminal antecedents against the applicant. He
is in custody from the date of arrest.
6. Learned APP submitted that there are strong circumstances
showing involvement of the applicants in the crime. The statement
of complainant and the statement of other witnesses discloses the
complicity of the applicants in the crime. The witnesses have stated
that the applicants were together along with the deceased. They
took the deceased in the jungle area and he was killed by hitting him
by stone on his head. After committing the crime the accused
including the applicants returned together. However, the deceased
was not with them. There is evidence in the form of call records
which shows that there were calls between the applicants and there
was a call between the applicant Sunil Kadu and the complainant.
The tower location also shows that prior to incident and after
incident the accused were together. At the place where the actual
murder took place, there is no tower and therefore there was no
trace of tower location. However, before that, the applicants and
other accused were together along with the deceased. The applicant
Sunil Kadu tried to mislead the complainant by telling her that he is
at Pune and that the deceased had left with his friends.
7. The FIR was lodged by sister of the deceased. On 8 th July
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2018, the deceased had left the house by informing his mother that
he has been called by Sunil Kadu (applicant in BA No.2624 of 2019).
Since he did not return, the complainant gave a call to Sunil Kadu.
He informed her that he had come to Pune from Mumbai. He met
Yogesh at Warje Bridge and that he had left along with his friends.
However, in spite of making inquires, the whereabouts of Yogesh
(deceased) could not be traced. On the next day he was found in
injured condition in the area of Warasgaon Dam. He was taken to
hospital and declared dead. The first information therefore discloses
that the deceased had informed his mother that applicant Sunil Kadu
had called him at Warje Bridge and he is going to meet him.
Thereafter he did not return. Statement of Sujata Mandar Shinde
was recorded on 11th July 2018. She has stated that on 8 th July 2018
her uncle Sunil Kadu called her husband Mandar at Chandni Chowk.
Thereafter Mandar went to Chandni Chowk. After some time she
received a call from Mandar and he called her at Warje Malwaddi
Chowk. Hence she went to the said place. Her husband Mandar, her
uncle Sunil Kadu were present. Yogesh gave a call to Sunil Kadu. He
was informed that they are visiting the Police Station to lodge
complaint against him. At that time Yogesh told them not to go to
Police for lodging complaint and they can resolve the dispute. After
some time Yogesh came at that place on motorcycle. He sat along
with them in alto car. All of them proceeded in the car towards
Khadakwasla Purje. Mandar slapped YYogesh. Thereafter Mandar
called his friend Bhushan Gaikwad (applicant in BA No.1393 of
2019) and Ganesh Kavale. Both of the came on motorcycle. She was
dropped in the house of Paigude who is known to Bhushan Gaikwad.
Her husband Mandar Shinde, Sunil Kadu, Bhushan Gaikwad, Ganesh
Kavale and Yogesh Dhone left together in the alto car. They returned
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late in the night. At that time she noticed her husband Mandar,
uncle Sunil Kadu, Bhushan Gaikwad and Ganesh Kavale in the car.
However, Yogesh was not with them. She inquired about him with
them. However, they avoided to answer. Subsequently she learnt
that on suspecting that deceased Yogesh was having illicit
relationship with her, he was taken to secluded place in the mountain
area and was killed by throwing stone on his head.
8. From the statement of Sujata Mandar Shinde it can be seen
that the applicants, the co-accused and the deceased were together.
Her husband has slapped Yogesh Dhone. She was dropped in the
house of relative of Bhushan Gaikwad and all of them left together.
They returned together without Yogesh Dhone. This is a strong
circumstance against the applicants. Statement of Sudhir Ghadge,
Police Sub-Inspector attached to Sinhgad Police Station was recorded
on 11th July 2018. He stated that Ganesh Kawade was taken into
custody and during interrogation he disclosed that the deceased was
killed by accused. He showed the place there the body was thrown.
The dead body of the deceased was recovered. Learned counsel for
the applicant in BA No.2624 of 2019, however, submitted that even
the statement made by the accused Ganesh Kawale as referred to in
the statement of Sudhir Ghadge would indicate that the applicant
Sunil Kadu was not present at the time of murder. Statement of
Swati Maruti Parge discloses that on 8 th July 2018, Bhushan
Gaikwad came with his friend Mandar Shinde and his wife and
relatives. Bhushan Gaikwad told her that wife of his friend Sujata be
kept in her house till they return home after visiting their friend. All
of them left together in alto car. Thereafter she made inquiry with
Sujata but she could not disclose much to her. In the evening
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Bhusnan Gaikwad came and called Sujata. Thereafter Bhushan
Gaikwad, his friend Mandar Shinde, his relative took Sujata
hurriedly and left in alto car. Version of Swati Parge corroborates the
statement of Sujata Shinde. Thus, the fact that the applicants were
together was established by cogent evidence.
9. During investigation the call data record of the accused was
collected by the investigating officer. The details about the cell
phone numbers of the accused were also collected by the
investigating officer. The cell phone number of the complainant and
the deceased were also revealed. The phone number of Mandar,
Bhushan, Ganesh and Sunil Kadu were collected. The document
relating to the sim cards of phone numbers were also collected
during investigation. The investigation revealed that there were calls
between the accused. The investigation also revealed through tower
location that the accused were together before and after the incident.
However, at the place where the dead body was found, there was no
tower and therefore location could not be traced. However, prior to
that, it is disclosed that the accused were together which is evident
from the tower location. The accused were in the area near the
crime which is evident from the tower location. Thus, although the
case is based on circumstantial evidence, there are strong
circumstances to show involvement of the applicants in the crime. It
is pertinent to note that the applicants and the deceased were
together in the alto car and they left in the car. While returning, the
deceased was not amongst them. This fact is corroborated in the
statement of Sujata Shinde. In the circumstances, no case for grant
of bail is made out.
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10. Hence, I pass following order :
ORDER
(i) Criminal Bail Application No.1393 of 2019 and Criminal Bail Application No.2624 of 2019 are rejected.
(PRAKASH D. NAIK, J.) MST ::: Uploaded on - 30/03/2020 ::: Downloaded on - 08/06/2020 14:09:42 :::