Bombay High Court
Anil Dattatray Gaikwad vs The State Of Maharashtra on 2 May, 2019
Equivalent citations: AIRONLINE 2019 BOM 496, 2019 (2) ABR(CRI) 915
Author: P.N. Deshmukh
Bench: P.N. Deshmukh
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
BAIL APPLICATION NO.417 OF 2018
Anil Dattatray Gaikwad )
Age 35 years, Occ. Agri./Business )
Residing at Village Wadki, )
Taluka Haveli, District Pune. ) .. Applicant
Versus
State of Maharashtra )
(Through Loni-Kalbhor Police Station) ) .. Respondent
---
Mr.Kuldeep S. Patil I/by Mr.Mandar Goswami for the applicant.
Mr.A.R. Kapadnis, APP for respondent-State.
Mr.Satyavrat Joshi I/by Mr.Nitesh Mohite for intervener.
Mr.V.D. Lagas, Police Naik, Loni-Kalbhor Police Station present.
---
CORAM : P.N. DESHMUKH, J.
RESERVED ON : 24th April 2019
PRONOUNCED ON : 2nd May 2019
Order Judgment :-
. Accused no.2 involved in C.R. No.338 of 2015 registered
with Loni-Kalbhor Police Station for offences punishable under Sections
302, 120B, 34 of IPC and Section 3(25) of Arms Act and Section 3(1)(i)
(ii), 3(4) of MCOC Act, 1999 has filed this application for bail.
2. Applicant is in custody from the date of his arrest from 11 th
September 2015 and charge-sheet in this crime is filed before Special
Court on 5th March 2016.
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3. Learned counsel for applicant submitted that applicant is
falsely involved by complainant after due deliberation with his family
members as relations between them were strained on the issue of
collecting fodder from the field, of which Crime No.55 of 2015 was
registered against co-accused Sagar Gaikwad, Sudam Gaikwad, Ganesh
Gaikwad, Ajikya Shivaji Gaikwad and others on the basis of report of
deceased Hemant Gaikwad on 19th February 2015 with same Police
Station and thus, inspite of applicant having not involved in this crime
in any manner merely because he is distantly related to accused Uttam
Gaikwad, Sagar Gaikwad, Dasrath Gaikwad, he is involved in the present
crime. It is also contended that according to the case of prosecution,
applicant is posed as one of conspirators for commission of murder of
Hemand Gaikwad, however, inspite of such limited involvement of
applicant, there is no material establishing his involvement even on this
count as documents filed with charge-sheet do not disclose that applicant
has got involved in this offence with object of gaining pecuniary benefits
or gaining undue economic or other advantage for himself or other
persons. It is also the case of applicant that case involving applicant as
such, has nothing to do with organised crime. Applicant claiming himself
to be agriculturist having roots in the society prays for his release on
bail by imposing conditions, if any.
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4. It appears to be the case of prosecution that on 9 th
September 2015, report is lodged alleging that on 19th February 2015,
there was quarrel between applicant, other co-accused on one side and
deceased on other side on trivial issue when on that day complainant,
Ramdas Modak along with deceased and one Amol Gaikwad had been
to the house of his brother Vishal Modak and lodged report at Loni-
Kalbhor police station alleging therein that their relations with applicant's
family members are strained since long. There were N.C. complaints
lodged against each other at the police station. That on 9 th September,
2015, in the afternoon at about 12.30 p.m. when he alongwith Amol
Gaikwad and deceased Hemant Gaikwad were sitting and chitchatting at
a tea stall of Bala Zhende and after some time proceeded towards the
house of Vishal Modak where they reached there at about 3.15 p.m., and
when he was climbing the staircase of his brother's house, he heard sound
of firing of gunshot and, therefore, turned back and saw co-accused,
Mangesh Modak and 3 other persons had opened fire on the deceased.
He had given description of clothes on the person of said assailants. As
per report, complainant carried his brother Hemant to Noble Hospital,
where he was declared dead on admission. Hence, on the basis of the
said report, Crime No.338 of 2015 is registered of which investigation is
complete and charge-sheet is filed.
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5. Learned counsel for applicant by referring to contents of
report thus urged that there is no role attributed to applicant as assailant
of deceased except for alleging that he along with other members of his
family and co-accused persons having old enmity with deceased
conspired to commit his murder by hiring co-accused Mangesh Modak
and 3 others. It is submitted that in view of this, limited role attributed
to applicant by complainant. There is nothing to establish that applicant
was in any manner instrumental for causing death of deceased by firing
gun shot. By referring to statements of Navnath Gaikwad and Sachin
Phate, it is established that even from their statements, except for
contents of report as aforesaid, nothing more is brought on record.
6. By referring to statement of Satosh Modak and his additional
statement dated 24th April 2015, it is submitted that though according
to statement of this witness, he claims to have heard some conversations
between applicant and other co-accused persons of their conspiring to
commit murder of Hemant Gaikwad on paying Rs.25 lakh to Mangesh
Modak, Dada Zende as deceased had earlier lodged complaint against
accused persons for which they were taken into custody and also for the
reason that due to complaint made by deceased to revenue authorities
about activities of accused persons involving into illegal mining since
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they were found imposed with heavy penalty by Tahsildar, accused had
conspired to do away deceased Hemant by referring to documents filed
with the charge-sheet, it is submitted that said case as set out by
prosecution is not at all established even prima faciely.
7. In light of statement of Santosh Modak, leaned counsel has
then referred to memorandum statement of co-accused Sudam Gaikwad
to urge that from the window from which Santosh Modak claims to have
heard conversations of applicant with other co-accused persons, thereby
conspiring to kill deceased is a room situated on vacant plot surrounded
in hilly area which thus falsifies the case of prosecution of Santosh
Modak going to such secluded room and hearing conversations as
alleged by him from its window.
8. One of points set out by prosecution to establish motive on
the part of applicant and other co-accused, learned counsel for applicant
referred to documents filed with charge-sheet and by referring to order
passed by Tahsildar, it is pointed out that at that no point of time, any
fine or penalty was imposed on applicant Anil Gaikwad for indulging into
illegal mining. It is therefore, submitted that applicant, thus, cannot be
attributed to have any motive to participate in present crime with co-
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accused, and has therefore, prayed that in view of limited evidence as
discussed above available against applicant, he be released on bail by
imposing conditions.
9. It is further submitted that though according to Say of
prosecution, applicant is shown involved in 4 other crimes being Crime
Nos.140 of 2005, 385 of 2014, 1151 of 2016 and 11 of 2011 all
registered with Loni-Kalbhor Police Station, admittedly applicant is not
accused in Crime Nos.140 of 2005 and 1151 of 2016. With regard to
Crime No.385 of 2014, it is case of applicant that same do not attract any
of the provisions of extortion of money or making pecuniary advantage
in any manner as according to allegation in this crime, issue arose as
complainant in that crime had voted to some political party and was,
therefore, abused and accused in that crime having armed with weapon,
pelted stones on the house of complainant and nothing more, while with
regard to Crime No.11 of 2011, it is submitted that it is registered under
the provisions of Essential Commodities Act, 1955 alleging illegal
storage of diesel by applicant in his house for which it is the case of
applicant that he and his family being into agricultural business, requires
diesel for various purposes and for agricultural operations etc.
Application is therefore, prayed to be allowed on this count also.
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10. Prosecution has opposed this application by filing its
affidavit-in-reply contending that prior to incident involving present
application, Crime No.55 of 2015 was registered against co-accused
Sagar Gaikwad, Sudam Gaikwad, Ganesh Gaikwad, Ajikya Shivaji
Gaikwad and others on the basis of report of deceased Hemant Gaikwad
on 19th February 2015 which fact according to prosecution prima facie
show that there were strained relations between applicant and accused in
this crime. Prosecution has opposed this application also on the count that
on the basis of complaint made by deceased against applicant to Tahsildar
alleging his alleged illegal activities of mining for which applicant was
imposed with heavy penalty, applicant had motive to take revenge of
deceased and thus got committed present offence. It is also case of
prosecution that on the basis of complaint made by deceased to revenue
authorities at Taluka Haveli, applicant was penalised which fact prima
facie shows that applicant and other co-accused had such motive.
11. It is further case of prosecution that from the statement of
wife of deceased, it has come on record that during his life time, deceased
Hemant Gaikwad had expressed her, about the threat to his life at the
hands of applicant and other co-accused, however, admittedly at no point
of time, any complaint or report is lodged against applicant or against any
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of the co-accused either by deceased or by his wife. Prosecution while
opposing application has relied upon statement of Dyneshwar Modak to
show that applicant along with co-accused Sagar Modak, Mangesh
Modak and Dada Zende were meeting at his hotel where they planned to
commit murder of deceased. Thus, it is case of prosecution that available
evidence collected against applicant clearly establish his participation in
this crime.
12. While opposing application, prosecution has also relied
upon order of this Court in Bail Application No.905 of 2016 rejecting
bail application of co-accused Uttam Gaikwad dated 14 th October 2016
and order of the Hon'ble Supreme Court of India dated 27 th April 2017
dismissing SLP preferred by said accused. Accordingly prosecution has
prayed that application be rejected.
13. Learned counsel for intervener supported above submissions
and relied on the case of State of Maharashtra Vs.Vishwanath Maranna
Shetty reported in (2012) 10 SCC 561 and of Division Bench of this
Court in the case of Govind Sakharam Ubhe Vs. State of Maharashtra
in Criminal Appeal No.18 of 2009 dated 11 th June 2009 and submitted
that in view of above legal pronouncements, application be rejected.
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14. Learned counsel for applicant by referring to facts in the
case of Vishwanath Maranna Shetty referred (supra) submitted that it is
having distinguishing facts as accused in that case was found to be
active member of organised crime syndicate by managing funds of
syndicate. Similarly, while referring to judgment in the case of Govind
Sakharam Ubhe Vs. The State of Maharashtra (supra), leaned counsel
has pointed out that observations in this judgment are in an appeal
preferred against rejection of application for discharge. It is also
submitted that order rejecting bail application of co-accused Uttam
Gaikwad relied upon by prosecution since is also having distinguishing
facts against the case of applicant that by itself can be no ground to
reject present application.
15. In the background of submissions advanced by learned
counsels for both the sides and considering case of prosecution,
application in hand is required to be dealt with by keeping in mind
relevant provisions of the special statute, especially having regard to
provisions as contemplated in Sub-section (4) of Section 21 of MCOC
Act, 1999 to consider material collected against accused, during the
course of investigation, if it justifies a judgment of conviction, and also
to bear in mind possibility of applicants committing crime if released
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on bail and from available evidence on record to consider applicant's
involvement in commission of an organised crime either directly or
indirectly and apart from giving an opportunity to prosecution to oppose
the application also to consider that there is reasonable ground for
believing that accused is not guilty of alleged offence and he is not
likely to commit any offence while on bail.
16. Having considered requirements as aforesaid on scrutinizing
evidence against applicant, FIR would reveal two incidents, out of which,
one is of 19th February 2015 when on the issue of carrying fodder in
field quarrel took place between deceased on one side and applicant and
co-accused Uttam Gaikwad, Dasrath Gaikwad, Sagar Gaikwad and others
on other side, of which counter reports were lodged by both the sides.
Another issue put forth in report by Ramdas Modak who is friend of
deceased is of alleged illegal mining by applicant and his family
members of which report is lodged by deceased to concerned Tahsildar
for which they were heavily fined and for this reason, it is stated that
applicant and co-accused had grudge against deceased. Third incident
referred is of 9th September 2015, out of which, present application
arise wherein it is alleged that on that day, at around 12.30 p.m.,
complainant along with deceased and 2-3 others friends were having tea
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in a hotel and were sitting there for 2-3 hrs. Thereafter, complainant
along with deceased proceeded in a car of deceased towards house of
Vishal Modak. At that time, it was about 3.15 p.m., complainant alighted
from car and was proceeding to house of his brother. While deceased
proceeded to photoshop of Somya Tatya, when complainant was on the
staircase of house of his brother, he heard noise of two gunshots and
found co-accused Mangesh Modak and 3 others, out of which, 2 persons
were on their respective two wheelers while co-accused Mangesh Modak
and one unknown person were armed with one pistol. Complainant also
noticed that when deceased was about to enter photoshop of Somya
Tatya, he fell down on staircase having sustained fire arm injury. Report
further reveals that assailant thereafter shouted that ";kps dke reke >kys-
pyk vfuy dkdkyk lkaxw-"
17. In the fag end of report, it is alleged that as relations
between applicant, his co-accused brothers and deceased were strained
due to old enmity, he was done to death by hiring contract killers
Mangesh Modak and 3 unknown persons. Perusal of report as aforesaid
thus would reveal involvement of applicant as aforesaid due to strain
relationship between applicant, his family members and deceased and
documents filed with charge-sheet are therefore, minutely scrutinized to
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satisfy if reason as put forth in complaint satisfactorily establishes
applicant's involvement in this crime, particularly for the reasons
mentioned therein above. For that purpose, perusal of statements of
Navnath Gaikwad and Sachin Phate would reveal that same are similar to
contents of report of strained relations and about these two witnesses,
learning of applicant's involvement in present crime since he and co-
accused had strained relations with deceased.
18. Though prosecution to establish applicant's involvement had
heavily relied upon statement of Santosh Modak, perusal of said
statement would reveal that prior to incident which has occurred on 9 th
September 2015, in the first week of August, when he had visited his
land where he had developed plots, applicant's plot is in existence
having constructed thereon two rooms and when he had visited his site,
he claims to have heard conversations from applicant's room involving
applicant, co-accused persons Dasrath Gaikwad, Uttam Gaikwad, Sudam
Gaikwad, Ganesh Gaikwad, Mangesh Modak and Dada Zende conspiring
to commit murder of Hemant Gaikwad and had offered Rs.25 lakh to
co-accused Mangesh Modak and Dada Zende who demanded Rs.10
lakh in advance. In his statement, Santosh Modak had alleged that at
the same time, co-accused Sudam Gaikwad informed the alleged contract
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killers that because of Hemant Gaikwad, they are involved in false case
and revenue authorities have also imposed heavy penalty upon them
for the alleged illegal mining. Thus, it is case of prosecution that
applicant as aforesaid was instrumental and had hatched conspiracy
with co-accused for causing death of deceased.
19. Before relying upon statement of Santosh Modak, it is
material to note that above conversation is alleged to be heard by him in
the first week of August 2015 and one month thereafter, incident took
place, however, admittedly he had not made any police complaint nor
deceased or his wife who claims to have knowledge of such conversation
from Santosh Modak found it necessary to lodge any complaint to police
which conduct of these witnesses needs to be considered, particularly in
view of case of prosecution of long standing enmity and strained relations
between deceased on one side and applicant, his relations and co-accused
on other side. In that view of matter, this aspect by itself is not sufficient
to be accepted against the applicant.
20. Perusal of memorandum statement of co-accused Sudam
Gaikwad of his pointing out room where conspiracy is alleged to be
hatched would reveal that same is recorded on 16th September 2015 and
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placement of the room stated therein is on open plot having vacant plots
surrounded to it with hilly area on one side and road proceeding to
Zende Vasti to its north side. Having surrounded with open plot on two
sides of said room even raises sufficient doubts in the case of prosecution,
of Santosh Modak going near to the window of said room and of his
hearing conversation as alleged in the statement.
21. Another point canvassed by prosecution is in respect of
complaint lodged by deceased with Tahsildar, Taluka Haveli due to
which applicant was required to pay heavy penalty for indulging into
illegal mining. While considering said case of prosecution, documents on
record in fact would reveal that during the course of investigation,
communication was made by police to Tahsildar, Taluka Haveli, District
Pune for obtaining documents with reference to illegal mining operation
carried out by accused involved in this crime along with documents
imposing penalty upon them, letter addressed to Tahsildar refers to
names of co-accused Uttam Gaikwad, Dasrath Gaikwad, Sudam Gaikwad
and Ganesh Gaikwad and amount of penalty imposed upon them. No
name of applicant is referred in this letter, similarly letter from
Tahsildar, Taluka Haveli, in response to above communication from
police also do not refer to applicant in any manner as according to this
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communication by Tahsildar, there is reference of closure of case filed
against father of applicant on his payment of penalty. In fact, said
communication also reveals of issuance of notice to co-accused Baban
Gaikwad, Sudam Gaikwad and Ganesh Gaikwad, directing them to pay
penalty charges as stated therein within one week. In that view of matter,
since applicant is not involved in illegal mining, there is no reason for
imposing any penalty to him and thus applicant cannot have any
grudge against deceased to commit his murder for lodging complaint
with Tahsildar, Taluka Haveli.
22. In the background of above discussed facts of the case of
prosecution and reasons as aforesaid when the law relied in the case of
State of Maharashtra Vs.Vishwanath Maranna Shetty (supra) is
considered, same cannot be applied in the facts involved in present
application as in that case, involvement of accused was established in
an organised crime syndicate headed by wanted accused who were
operating overseas which syndicate had indulged in various continuous
unlawful activities like extortion and contract killings in Mumbai and
other places through their members and accused in that case was found
to be active member of organised crime syndicate as he had arranged for
funds and also paid part of amount to the shooter and having considering
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available evidence against accused therein, question which arose in
appeal preferred against grant of bail by High Court was if order granting
bail was justified particularly in view of restriction imposed under Sub-
section (4) of Section 21 of MCOC Act, 1999 and considering
involvement of applicant as aforestated, order came to be set aside.
23. Similarly, law relied in the case of Govind Sakharam Ubhe
Vs. The State of Maharashtra (supra) of Division Bench of this Court can
also not be strictly applied to the application in hand as observations
therein are pertaining to rejection of discharge of appellant by special
Court and on considering various laws on that aspect, Court held same
to be not a fit case for discharge.
24. Considering order of this Court rejecting bail application of
co-accused Uttam Gaikwad, it is to be noted that on taking into
consideration facts involved in the present case and criminal antecedents
of said co-accused Uttam Gaikwad, his application is rejected finding
that as relations between complainant and said accused and their family
members are strained, there is possibility of his committing similar
offence if released on bail, however, application in hand, have
distinguishing facts as there is no involvement of applicant found in the
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present crime except for incidents which took place between applicant's
family and complainant's family members long back in February 2015
and further incident as referred in FIR, out of which, present application
arise which is of 9th September 2015 in which no role is attributed to
applicant except for some stray reference to one name as "Anil Kaka"
alleged to be uttered by co-accused Mangesh Modak prima facie do not
find to be sufficient to reject the application as other evidence relied by
prosecution regarding complaint by deceased Hemant Gaikwad of
alleged illegal mining activities by father of applicant and co-accused
when considered with the documents filed with charge-sheet do not
establish applicant's involvement at any point of time nor applicant is
found imposed with any fine or penalty like other co-accused and his
father. Similarly, further involvement as relied by prosecution with
regard to conversation, alleged to be heard by Santosh Modak is also
duly considered and for the reasons mentioned hereinabove said material
does not find to be sufficient to be acted upon against applicant.
25. So far as pendency of criminal cases as mentioned in
affidavit-in-reply, it is already referred in above paragraphs that out of 4
crimes stated in the said chart, applicant is not involved in offences at
Serial Nos.1 and 3 therein, and facts involved in offences at Serial Nos.2
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and 4 are in respect of alleged threats to complainant for casting
votes to the candidate of particular political party and another crime is
involving contravention of Essential Commodities Act wherein applicant
is said to have illegally stored diesel, which according to applicant is
required to perform agricultural operations etc.
26. Similarly, applicant is not charge-sheeted in C.R. No.55 of
2015 registered by Loni-Kalbhor Police Station on the basis of report
by deceased dated 19th February 2015, as on investigation, no evidence
establishing his involvement is revealed. In that view of the matter and
for the reasons above, case of applicant is distinguishable on material
particulars from the case of co-accused Uttam Gaikwad.
27. Applicant is arrested on 11th September 2015 and since then
is in custody. From the nature of criminal antecedents of applicant, it
cannot be said that applicant is connected with organised crime syndicate
nor evidence relied against applicant established that he was instrumental
in keeping watch on the movements of deceased Hemant Gaikwad and
admittedly was not present on spot when his murder is committed.
Considering evidence against applicant, application is thus liable to be
allowed by imposing suitable conditions, as per following order : -
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ORDER
(i) Applicant Anil Gaikwad in C.R. No.338 of 2015 registered by Loni-
Kalbhor Police Station, Pune for offences punishable under Sections 302, 120B, 34 of IPC and Section 3(25) of Arms Act and Section 3(1)(i)(ii), 3(4) of MCOC Act, 1999 shall be released on bail on his executing P.R. Bond in the sum of Rs.1,00,000/- with one surety in the like amount;
(ii) While on bail, applicant shall attend Loni-Kalbhor Police Station on the first and fifteenth day of each month between 10.00 a.m. to 1.00 p.m. initially for a period of 6 months and thereafter on the first day of each month pending trial;
(iii) Observations made hereinabove are prima facie and are confined to this application only. Learned trial Judge thus to independently evaluate evidence at the time of trial;
(iv) Applicant shall not enter into territorial jurisdiction of Loni-Kalbhor Police Station except for marking his presence as aforesaid and shall not tamper with evidence or to influence any witnesses or any person concerned with the case;
(v) Application is disposed of as allowed in above terms.
P.N. DESHMUKH, J.
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28. Learned counsel for intervener prays to keep order in abeyance for a period of six weeks, however, considering the nature of evidence against applicant as has been discussed in the order, prayer is rejected.
P.N. DESHMUKH, J.
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