Bombay High Court
Rajendra Alias Kabhu Alias Karbhari S/O ... vs The State Of Maharashtra on 6 October, 2020
Equivalent citations: AIRONLINE 2020 BOM 1299
Author: V.K.Jadhav
Bench: V.K.Jadhav
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
BAIL APPLICATION NO.846 OF 2020
Rajendra alias Kabhu alias Karbhari
s/o Kanhoji Magare Applicant
Versus
The State of Maharashtra Respondent
Mr.R.S.Deshmukh, Senior Counsel i/by Mr.D.R.Deshmukh,
advocate for applicants.
Mr.V.S.Badakh, APP for the Respondent.
CORAM : V.K.JADHAV, J.
DATE : 06th October, 2020. PC : 1 The applicant is seeking bail in connection with Crime
No.0300/2019, registered with M.I.D.C. Waluj Police Station, District Aurangabad, for the ofences punishable under Section 302 of the Indian Penal Code.
2 Heard both sides.
3 The learned Senior Counsel appearing for the applicant submits that the prosecution case entirely rests upon the circumstantial evidence and there is no direct evidence in this case. The learned Senior Counsel submits that except the ::: Uploaded on - 07/10/2020 ::: Downloaded on - 08/10/2020 03:30:46 ::: {2} ba84620.odt motive and the so called identifcation parade wherein this applicant was identifed by two persons, there is no further connecting evidence against the applicant. The learned Senior Counsel submits that even the motive is also weak. Witness Karuna, who happened to be the wife of deceased Dhammapal, has stated in her statement, recorded belatedly, that she was having illicit sexual relations with the present applicant and even after the marriage of the applicant, they used to meet each other. Witness Karuna has stated in her supplementary statement that because the applicant got married, she has avoided to meet him frequently and, therefore, the applicant used to get annoyed. The learned Senior Counsel submits that even accepting the supplementary statement of witness Karuna as it is, this hardly provides any motive for the applicant to commit murder of husband of witness Karuna. 4 The learned Senior Counsel submits that witness Mahesh Dnyaneshwar Shinde had been to the petrol pump to fll petrol in his personal motorcycle on 14 th April, 2019, at about 11.30 p.m. and at that time, he had seen three persons on one motorcycle. Those three persons were under the infuence of liquor and they were quarreling amongst each other. The learned Senior Counsel submits that witness Anil Hiralal Bedwal, ::: Uploaded on - 07/10/2020 ::: Downloaded on - 08/10/2020 03:30:46 ::: {3} ba84620.odt who happened to be a pump-boy has also stated on the similar lines. However, the dead body of deceased Dhammapal was found on the next day at about 09.10 a.m. and about the period between 12.00 midnight to 09.10 a.m., there is no connecting evidence against the applicant.
5 The learned Senior Counsel submits that though the clothes of the applicant are shown to be recovered at his instance, however, there are no blood stains on them. Furthermore the stones, having blood stains, were found near the dead body lying in front of one Sharp Industries, MIDC Waluj, Ahmednagar Road, and as such there is no recovery of anything at the instance of the applicant. The learned Senior Counsel submits that the applicant has a fxed place of residence. The applicant is available for trial. The applicant is ready to furnish surety. The applicant may be released on bail. 6 The learned A.P.P. has strongly resisted the application on the ground that though the prosecution case rests upon circumstantial evidence, there is chain of circumstantial evidence against the applicant. The learned A.P.P. submits that there is evidence about the motive. Witness Karuna, who happened to be the wife of deceased Dhammapal, has admitted ::: Uploaded on - 07/10/2020 ::: Downloaded on - 08/10/2020 03:30:46 ::: {4} ba84620.odt in her statement about her illicit sexual relations with the present applicant. The learned A.P.P. submits that witness Anil Hiralal Bedwal and witness Mahesh Dnyaneshwar Shinde, who had seen lastly the deceased alive in the company of the applicant and other co-accused at the said petrol pump, further identifed this applicant and the co-accused in the identifcation parade. The learned A.P.P. submits that even the applicant has shown the spot where the mobile handset belonging to deceased Dhammapal was thrown after the alleged incident. The learned A.P.P. submits that prima facie, there is strong circumstantial evidence against the applicant. The applicant may not be released on bail. 7 On going through the allegations in the complaint and on perusal of the charge sheet, it appears that the prosecution case entirely rests upon circumstantial evidence and there is no direct evidence in this case. Even assuming that those two witnesses - Anil Hiralal Bedwal and Mahesh Dnyaneshwar Shinde had seen the applicant along with the deceased and co-accused on a motorcycle, at the said petrol pump and even assuming that the presence of deceased, applicant and co-accused on one motor cycle was recorded in the CCTV footage, however, there is no further connecting evidence against the applicant. Those witnesses and even the CCTV ::: Uploaded on - 07/10/2020 ::: Downloaded on - 08/10/2020 03:30:46 ::: {5} ba84620.odt footage indicate their presence at the petrol pump in between 11.30 p.m. to 12.00 midnight. On 15.04.2019, at about 09.10 a.m., the PSO of the concerned Police Station has received the information on phone that one person in unconscious state of mind and in injured condition is lying in front of Sharp Industries, MIDC Waluj. It does appear that there is no connecting evidence as against the applicant till the deceased found in injured condition at the spot of the incidence.
8 It further appears from the statement of the wife of deceased Dhammapal, namely Karuna that she was along with her husband in the procession arranged in the honour of Dr.Babasaheb Ambedkar on 14th April, 2019, till 10.00 p.m. and thereafter she returned back to home and her deceased husband left that place. Even assuming that the deceased thereafter consumed liquor along with the applicant and the co-accused and they were seen by the witnesses and their presence was recorded in the CCTV footage at the petrol pump, however, there is no further connecting evidence against the applicant. It is also not clear that deceased Dhammapal was lastly seen alive at the petrol pump in the company of the applicant. ::: Uploaded on - 07/10/2020 ::: Downloaded on - 08/10/2020 03:30:46 :::
{6} ba84620.odt 9 So far as identifcation parade is concerned, the learned Senior Counsel has pointed out that the applicant and the co-accused made to stand only in one row at one and the same time and the prosecution witnesses shown to have identifed them. It is not possible that the applicant and the co- accused - both are having same appearance and, therefore, they were made to stand in only one queue for the identifcation parade. Apart from this defciency, in the given set of allegations, at the most, strong suspicion can be created against the applicant. However, it is for the trial Court to consider the evidence of the prosecution witnesses and the circumstances brought by the prosecution on record in its proper perspective. However, the applicant has made out a case for grant of bail. There is no previous criminal history. The applicant is available for trial. Thus, by imposing certain conditions, I am inclined to release the applicant on bail.
10 Hence, the following order:
(i) Application is hereby allowed.
(ii) The applicant - Rajendra alias Kabhu alias Karbhari
s/o Kanhoji Magare, in connection with Crime No.0300/2019,
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registered with M.I.D.C. Waluj Police Station, District
Aurangabad, for the ofences punishable under Section 302 of the Indian Penal Code, be released on bail on his executing Personal Bond of Rs.20,000/- (Rs.Twenty thousand) with one solvent surety for the like amount, on the following condition:
(a) The applicant shall not tamper with the prosecution evidence, in any manner.
11 Application is accordingly disposed of.
(V.K.JADHAV) JUDGE adb ::: Uploaded on - 07/10/2020 ::: Downloaded on - 08/10/2020 03:30:46 :::