Madhya Pradesh High Court
Akshay Okhte vs The State Of Madhya Pradesh on 5 July, 2018
THE HIGH COURT OF MADHYA PRADESH, JABALPUR M.Cr.C. Nos.23/18, 11688/2018 & 12602/2018 Jabalpur, Dated 05.07.2018 Mr. Manish Datt, learned Senior counsel with Mr. Pradeep Hazari, learned counsels for the applicant in M.Cr.C No.23/2018.
Mr. Abhijeet Awasthy, learned counsel for the applicants in M.Cr.C Nos.11688/2018 and 12602/2018.
Mr. Sourabh Shrivastava, learned counsel for the State. Mr. Ahadullah Usmani, learned counsel for the Objector. Since, all the applications arise from the same crime number, they are being disposed of by a common order. These applications have been filed U/s.439 Cr.P.C. on behalf of applicants Monish Raghuvanshi, Sumit @ Abhishek Sahu and Akshay Okhte, in connection with Crime No.484/2017 registered at Police Station City Kotwali, Chhindwara, District-Chhindwara (M.P) for offences U/s.302, 307, 332, 353, 186, 212, 394, 120-B, 201 read with Section 34 of the Indian Penal Code and also under section 25/27 of the Arms Act, 1959.
2. The case pertains to the murder of one Iqlaq Qureshi on 04.08.2017 at about 13:55 hours by three assailants. The F.I.R is registered on 05.08.2017 against named persons by Sheikh Tausiff, the informer. As regards, the applicant Monish in M.Cr.C No.23/2018, he was arrested on 25.08.2017 by the police. Prior to his arrest, the 161 statement of 12 witnesses had been recorded between 04.08.2017 and 20.08.2017. None of these witnesses speak about the involvment of the applicant Monish. The applicant Monish has not been named in the F.I.R
3. Learned senior counsel for the applicant Monish submits that on the date of his arrest there was no evidence against the applicant and that subsequently the statement of witness Santosh Jain was recorded under Section 161 of Cr.P.C on 18.09.2017 i.e. almost a month after the arrest of the applicant Monish. In the statement of Santosh Jain, he states that he runs a small tea shop and the applicant Monish alongwith the two shooters had come to his shop at around 12:30 pm on 04.08.2012 asking him to pack eight samosas. The witness Santosh says that the applicant was also there alongwith the two shooters sitting in the car.
4. Learned senior counsel for the applicant has stated that the 164 statement of Santosh which is recorded on 07.10.2017, the presence of the applicant alongwith the shooters on 04.08.2012 is conspicuous by its absence.
5. Learned counsels for the Objector and the State submit that the arrest of the applicant Monish on 25.08.2017, far from being arbitrary was based upon evidence that was collected during the course of the investigation. Learned counsel for the objector and the State have submitted that the police during the course of investigation uncovered that the applicant Monish was in direct contact with the principal accused Narendra and the shooter Raja Kahar. These phone calls were made on the date of the incident, a short while before the shooting.
6. Learned counsels for the Objector and the State have also submitted that the applicant Monish, in his 27 memorandum has disclosed that he was a part of the larger conspiracy and has got a mobile phone and a map of the Court premises recovered.
7. On the basis of the evidence collected by the police, learned counsel for the Objector submits that the applicant Monish was in the larger conspiracy resulting into the death of Iqlaq Qureshi.
8. Learned senior counsel for the applicant has submitted that on the date on which the applicant was arrested, but for the details of the phone calls between the applicant and the principal accused Narendra and the shooter Raja, there is nothing to show that the applicant was involved in the said offence. He further states that there is no presumption that merely because the applicant herein was had telephonic conversation with accused Narendra Patel and the shooter Raja, that he was complicit alongwith them.
9. Learned counsel for the applicant also submits that the main accused and the shooter were all known to each other and they are all residents of Chhindwara. That by itself cannot raise an inference that the applicant was a part of the larger conspiracy.
10. Learned counsel for the Objector has also tried to explain the ommission of the applicant's name in the 164 statement of the witness Santosh Jain which was recorded on 07.10.2017, as the witness had been won over by the applicant on account of whose influence the witness Santosh Jain has ommitted the name of the applicant in his 164 statement.
11. As regards applicant Sumit @ Abhishek, applicant in M.Cr.C No.11688/2018 was arrested on 19.08.2017 like applicant Monish before his arrest 11 witnesses were examined under Section 161 and none of them had taken the name of the applicant Sumit. He sought to be made an accused only on the basis of the call details which have been taken out by the police which show that he spoke to Narendra Patel and the shooter Raja on the date of the incident.
12. Learned counsels for the State and the Objector have stated that the applicant Sumit was placed there to intimate Narendra Patel and Raja when the deceased was taken from the jail towards the Court.
13. Per contra, learned counsel for the applicant submits that the flow chart prepared by the police itself go to show that the applicant Sumit Sahu is stated to have spoken to Narendra Patel at eighteen minutes past eleven a.m on the date of the incident. Thus, the only evidence against the applicant Sumit Sahu is of having made a call to Narendra Patel at 11:18 am on the date of the incident. Besides that, a map relating to the lay out of the District Court and a mobile phone have been recovered from the applicant Sumit.
14. Looking at the facts and circumstances of the case and that no witness has stated anything or even taken the name of the applicant Sumit and that the only piece of evidence against him is of having made one call to the one of the main accused Narendra Patel at 11:18 am on the date of the incident and the recovery of a mobile phone and the map of the Court, there is no other evidence. The applicant is in judicial custody since 19.08.2017.
15. As regards the application of applicant Akshay Okhte in M.Cr.C No.12602/2018, this accused was also arrested on 19.08.2017. The evidence against him is also circumstantial of having spoken to the main accused Narendra Patel and also having received a call from Narendra patel at about 13:38 hours on the date of the incident i.e. just a few minutes before the murder.
16. Learned counsels for the State and the Objector while opposing the application for bail have also submitted that a CCTV footage shows that this applicant near the jail premises between 10:37 am to 10:45 am on the date of the incident.
17. Learned counsels for the Objector and the State have submitted that the applicant was a look-out who was to convey the information to Narendra Patel as soon as the deceased was taken out from the jail towards the Court.
18. Per contra, learned counsel for the applicant submits that it is the case of the prosecution itself that the duration of the presence of the applicant was only for ten minutes outside the jail from 10:37 am to 10:45 am. Whereas, the call that he has made to Narendra Patel as per the flow chart of the prosecution is at 1:38 p.m.. Thus, the presence of the applicant outside the jail for ten minutes only goes to show that after 10:45 am he had moved away from the proximity of the jail.
19. Learned counsel for the applicant Akshay says therefore, it is improbable that the applicant was a look-out who was supposed to give the information to Narendra Patel, the moment the deceased was taken away from the jail. He further states that, if that was the case, then the applicant Akshay would have informed Narendra Patel immediately after the deceased was taken from jail and not at 1:38 p.m. Learned counsels for the State and the Objector submitted that a mobile phone was seized from the applicant Akshay.
20. Looking at the facts and circumstances and on the basis of the discussions which have been stated hereinbove, the applications are allowed. The applicants Monish Raghuvanshi, Sumit @ Abhishek Sahu and Akshay Okhte shall be enlarged on bail upon their furnishing a personal bond in the sum of Rs.50,000/- (Rs. Fifty Thousand) each with one solvent surety each in the like amount to the satisfaction of the trial Court.
Certified copy as per rules.
(Atul Sreedharan)
julie Judge
Digitally signed by JULIE SINGH
Date: 2018.07.06 17:23:54 +05'30'