Bombay High Court
Karansingh Chandrapalsing Gaherwal vs The State Of Maharashtra on 6 July, 2022
Author: S. G. Mehare
Bench: S. G. Mehare
1 922-BA.464-22.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
922 BAIL APPLICATION NO.464 OF 2022
KARANSINGH CHANDRAPALSING GAHERWAL
VERSUS
THE STATE OF MAHARASHTRA
...
Advocate for Applicants : Mr. Ostwal Abhaykumar Dilip
APP for Respondent-State : Mr. S. B. Narwade.
...
CORAM : S. G. MEHARE, J.
DATE : 06.07.2022
PER COURT :-
1. Heard the learned counsel for the applicant and learned
APP for the respondent-State.
2. Learned counsel for the applicant would submit that
there is no evidence at all against the applicant that he has
plotted the conspiracy to commit the murder. The C.D.R.
evidence is the weakest piece of evidence. Referring to the
various statements of the witnesses, he has argued that none
of the witnesses has stated that any time the present applicant
sent his brother to threaten the witnesses from the family of
the complainant that if they did not take the murder case back,
their life would be in danger. He has vehemently argued that
most of the accused against whom the serious allegations have
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been made, particularly the main conspirator, are also released
on bail. He would point out that initially, when the report was
lodged, it was informed to police that it was an accidental case.
The record supports his contention. He has vehemently argued
that whatsoever the C.D.R. details have been collected by the
Investigating Officer do not reveal that there was a
communication between the applicant and his brother.
Whatsoever the C.D.R. record is collected, it pertains to the
three months before the incident. The investigation is based on
suspicion that Pooja, the alleged main conspirator, has sold her
ornaments to pay the money to the contract killer. The amount
of Rs.1,50,000/- has been recovered from one of the co-
accused, and he has also been released on bail. Whether the
death is homicidal or not is a question of fact that can be
ascertained by appreciating the prosecution evidence. The
prosecution has no evidence that the main conspirator Pooja
met the co-accused in jail at any point in time. The jail visit
register reveals that she either met his brother or father, who
was behind bars for the offence of murder. In the absence of
direct evidence, at least sending his brother to threaten the
complainant's witnesses to take the murder case back against
the family of Pooja, the applicant may be released on bail. The
memorandum statement under Section 27 is not evidence
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except for the discovery at the instance of the person making
such statement. The witnesses have made a bare allegation
that the applicant is the conspirator.
3. It has also been argued that the applicant has been behind
bars since 16.01.2020. The prosecution has discharged a few of
the accused after registering the crime on the statement of the
witnesses. This shows that the first informant and witnesses
were not sure who was actually involved in the crime. The
statement might have been made on hearsay or surmises.
Howsoever the suspicion is strong. It cannot take the place of
proof. He also added that the charge sheet is filed. There is no
substantial evidence to link the applicant to the alleged
conspiracy. Therefore, he may be released on bail.
4. Learned APP referred to the affidavit-in-reply filed by
State and would vehemently argue that Pooja had arranged the
money to pay to the contract killer. She had sold her golden
ornaments, and there is evidence that the money was paid to
one of the co-accused. There are witnesses stating that the
applicant was in jail, and his brother Govind threatened them
to take the case of murder back; otherwise, their life may be in
danger. He has strongly relied on the C.D.R. and argued that
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there was consistent communication on the phone. This strong
circumstance is sufficient to prima facie hold that the applicant
was one of the conspirators committing the murder of the
deceased. Admitting the factum of the release of most of the
accused, he prayed that the role played by the applicant was
different from the role played by them. Therefore, the
applicant shall not be released on bail.
5. The papers attached in the charge sheet revealed that at
the very first stage after the incident, a report was lodged that
it was an accidental case. Subsequent there to a case was
developed that the co-accused were threatening the deceased
to take the case back. Therefore, to disappear the evidence,
the murder has been committed. Statement of witnesses barely
reveals that the applicant was in jail, and his brother Govind
went to the house of witnesses and threatened them to take
the murder case back against the co-accused else their life
would be in danger.
6. Learned counsel for the applicant has referred to the
various bail orders passed by this Court and the Court of
learned Sessions Judge in the same crime. In each case, the
Courts have recorded the findings regarding the role played by
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each accused. Admittedly, the jail visit register relied upon by
the prosecution does not disclose that co-accused Pooja met the
applicant at any time. It has been alleged that one Constable,
Mr. More facilitated Pooja to contact the contract killer through
the applicant. But, it would be difficult to comment at this
juncture that at any time, the present applicant contacted the
contract killer and has plotted the conspiracy in jail, where the
accused are under surveillance for 24 hours.
7. Be that as it may, the main charge against the accused is
'plotting the conspiracy'. The prosecution has remote evidence
of C.D.R. The other co-accused, who have allegedly played
serious roles in the offence, have been released on bail. This
Court would not find it appropriate to go through the
ingredients of criminal conspiracy. However, does not believe
the prosecution case at this juncture that there was an
agreement between all accused in jail for doing an unlawful
act. No doubt, it is difficult to establish a conspiracy by direct
evidence, but the circumstances should be strong enough to
believe that the persons involved in the conspiracy were in
agreement to commit the crime or unlawful act.
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8. After having gone through the charge sheet and the
papers submitted by the learned APP, this Court is of the view
that the investigation is completed. The co-accused have also
been released on bail. Therefore, there would be no propriety
in keeping the applicant behind bars. The application deserves
to be allowed. Hence, the following order :
ORDER
(a) The application is allowed.
(b) The applicant Karansingh S/o Chandrapalsing Gaherwal, be released on bail on furnishing P.B. and S.B. of Rs.50,000/- (Rupees Fifty Thousand only) with one or two solvent sureties of the like amount in Crime No.382 of 2019, registered by Police Station M.I.D.C. Latur, District Latur, for the offences punishable under Sections 302, 120-B of the I.P.C. on the following conditions :
(i) He shall not involve in similar offencesS.
(ii) He shall not tamper with the prosecution witnesses.
(iii) He shall attend the trial on each and every effective date of hearing.
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(iv) He shall attend the Police Station as and when called by the Investigating Officer on written notice for material investigation.
(v) The applicant shall not enter Latur City except for the purpose of the present trial till conclusion of the trial.
(vi) Bail before the learned Sessions Court.
(vii) Needless to state that these observations are restricted to this bail application only.
(viii) Humdast allowed.
(S. G. MEHARE, J.) ...
vmk/-
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