Vyankatesh Nanasaheb More vs The State Of Maharashtra
2021 Latest Caselaw 17644 Bom

                                                                   J-BA-1371-2020.DOC



         Digitally
         signed by
         TRUPTI
         SADANAND
TRUPTI
SADANAND BAMNE                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BAMNE    Date:
         2021.12.20                  CRIMINAL APPELLATE JURISDICTION
         20:13:11
         +0530
                                    BAIL APPLICATION NO. 1371 OF 2020

                      Vyankatesh Nanasaheb More                     ...Applicant

                               Versus

                      The State of Maharashtra                      ...Respondent

                                                    ......
                      Mr. Aniket U. Nikam a/w. Mr. Ashish Satpute, Mr. Amit Icham
                      and Mr. Piyush Toshnival for the Applicant.
                      Mrs. P.P.Shinde, APP for the Respondent -State.
                      Mr.Vishal Shukla a/w. Mr. Sanjay Singh and Mr.Ghanshyam
                      Upadhyay i/b. Law Juris for the Intervenor.
                                                    ......
                                          CORAM     :   V.G.BISHT, J.

                                   RESERVED ON      :   8TH DECEMBER, 2021
                                   PRONOUNCED ON :      20TH DECEMBER, 2021
                      PC:-

1. The present application has been moved by the

applicant under Section 439 of the Code of Criminal

Procedure in Crime No. 263 of 2018 registered with

Panchavati Police Station, Nashik for the offences punishable

under Sections 302, 120B read with 34 of the Indian Penal

Code (the IPC), Sections 3, 4 and 25 of the Arms Act and

Section 135 of the Maharashtra Police Act.

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2. Informant is brother of Kishor Ramesh Nagare (since

deceased). On 10th July, 2018 at about 11.00 pm, he found

deceased crying loudly in his name "Sachin Sachin" and

therefore, informant rushed towards the ground. He saw some

unknown persons assaulting deceased by means of sharp

weapons. By the time, he reached the assailants had started

fleeing away armed with sharp weapons on a motor cycle. He

found deceased in a pool of blood. Deceased was rushed to

the hospital but was declared dead. Informant accordingly

lodged the First Information Report (FIR).

3. It further appears from the record that during

investigation, his supplementary statement came to be

recorded on 2nd August, 2018 wherein he stated that in test

identification parade, he had identified accused Makrand

Sunil Deshmukh @ Makya, Avinash Raosaheb Vani and

Shubham Nivrutti Pandhare as assailants, who had assaulted

deceased on the day of incident.

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4. Mr. Nikam, learned Counsel for the applicant, submits

that there is no evidence on record to show that applicant was

one of the assailant. Learned counsel invited my attention to

the statements of prosecution witnesses, namely, Arun

Digambar Bidgar, Hemant @ Sonu Vishnu Sathe and Gayatri

Vaibhav Misal. Although, there is extra-judicial confession

given to prosecution witness Gayatri Vaibhav Misal by other

accused but there is no reference of his name in the episode.

According to learned Counsel, although, the prosecution has

claimed antecedents against the applicant but since in the

present case, there is no direct or indirect evidence against

him. The only ground of antecedents would not disentitle the

applicant from bail if otherwise he is liable to be released on

bail. Learned counsel also placed reliance in case of Maulana

Mohammed Amir Rashadi Versus State of Uttar Pradesh and

Another1 and, more particularly, paragraph 10 of the said

judgment. For all these reasons, the applicant deserves to be

enlarged on bail, argued learned APP.

1        (2012) 2 Supreme Court Cases 382




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5. Mrs.Shinde, learned APP, assisted by learned Counsel for

the intervenor, vehemently opposes the submissions by

contending that applicant was the main conspirator and it is

apparent from the statement of prosecution witness, namely,

Hemant @ Sonu Vishnu Sathe. Learned APP invited my

attention to the statement of prosecution witness, namely,

Chetan Popat Leve in order to substantiate her submission.

Moreover, there are antecedents. Having regard to the gravity

of the offence, the applicant is not liable to be released on

bail, argued learned APP.

6. Perused investigation papers. I have also gone through

the statements of witnesses referred to by either side.

Admittedly, the FIR was lodged against unknown persons.

Thereafter, the informant's supplementary statement came to

be recorded on 2nd August, 2018. While giving the

supplementary statement, informant referred the role in test

identification parade and identified all accused. Makrand

Sunil Deshmukh @ Makya, Avinash Raosaheb Vani and

Shubham Nivrutti Pandhare as the accused persons to whom

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he had identified. In the backdrop of test identification

parade, he sought to give his supplementary statement. The

fact remains that even in test identification parade, he was

able to identify the above named accused but then there is no

reference to the role of applicant.

7. The statement of Arun Digambar Bidgar, which is relied

on by learned Counsel for the applicant, shows that on 10 th

July, 2018, accused Avinash @ Wamnya had called this

witness but this witness avoided to go. The said accused

enquired with this witness as to whether the deceased had

reached home or not. This witness then verified whether

deceased had reached home or not and after verifying the

fact, informed said accused that deceased had not reached

home. The said accused again asked this witness to reach in

the open ground. Accordingly, he went there. He found in

the darkness the said accused and other accused, namely,

Makrand Deshmukh and Shubham Pandhare. Both were

armed with sickles. When he enquired as to what is the

matter, the said accused allegedly replied that they are going

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to kill the deceased. Again, there is no reference or presence

of applicant at the relevant time.

8. Then next statement is that of Gayatri Vaibhav Misal.

According to her, accused Avinash Wani was known to her

husband. On 10th July, 2018 at about 1.00 am in the night,

the said accused along with Makrand Deshmukh visited their

house and requested to allow them to sleep. When her

husband enquired what is the matter, they replied that they

had killed deceased by means of sickle.

9. According to this witness, her husband then asked them

to leave the house. Even accused Makrand asked them to

keep with them a pistol and cartridges for some days but they

refused and asked them to leave the house. On the next day,

this witness came to know about the death of deceased.

10. This is a sort of extra-judicial confession. But then again

extra-judicial confession nowhere shows that the accused

Avinash and Makrand had also told them that they had killed

the deceased at the instance of applicant.

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11. Then comes the material statement of Hemant @ Sonu

Vishnu Sathe, which has been pressed into service by learned

Counsel for the applicant and learned APP as well.

12. According to this witness, the applicant is a famous

goonda and was in jail at the time of recording of his

statement and also at the time of incident. Accused Makrand

is his close friend. Whenever the applicant used to be taken to

the Court, accused Makrand used to go to the Court to see

him. According to him, in last week of June, he along with

Makrand had been to the Court. At that time, the applicant

and accused Makrand only had conversation and after

conversation was over, this witness enquired with accused

Makrand as to what was the subject of conversation. Accused

Makrand then said that the applicant had asked him to do

work for him and has also given a signal. When this witness

further asked what was the nature of work, the said accused

Makrand told that the applicant had asked him to take a

wicket meaning thereby that somebody has to be killed and

that he would come to know within few days.

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13. The statement of this witness further shows that on 10 th

July, 2018, he was summoned by accused Makrand near

Darga. Accordingly, he went there and found that accused

Makrand, Avinash and Shubham going on a motorcycle. When

this witness asked them, they told that they are going for the

work of applicant. On the next day, this witness came to

know about the death of deceased.

14. From the statement of this witness, it appears that at the

relevant time, applicant was behind the bars. It seems that

the prosecution is drawing inferences from the statement of

this witness without any supporting evidence. There is no

inculpatory evidence to establish that this witness had

accompanied accused Makrand to the Court where accused

Makrand and applicant had conversation which was not done

in his very presence. According to him, later on, he came to

know from accused Makrand that the applicant had asked him

to take a wicket of someone. His statement is in nature of

hearsay without any cogent supporting material.

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15. From the above discussion, it appears that the

prosecution is gathering strength only on the basis of

inferences drawn from the statement of prosecution witness,

namely, Hemant @ Sonu Vishnu Sathe which is not supported

by any other cogent and convincing evidence. As far as

criminal antecedents are concerned, in case of Maulana

Mohammed Amir Rashadi, the Hon'ble Apex Court made the

following observations :

"10. It is not in dispute and highlighted that the second respondent is a sitting Member of Parliament facing several criminal cases. It is also not in dispute that most of the cases ended in acquittal for want of proper witnesses or pending trial. As observed by the High Court, merely on the basis of criminal antecedents, the claim of the second respondent cannot be rejected. In other words, it is the duty of the court to find out the role of the accused in the case in which he has been charged and other circumstances such as possibility of fleeing away from the jurisdiction of the court, etc".

16. In the instant case also, except criminal antecedents,

nothing is brought on record. I am concerned with the role of

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accused in the present case and if prima facie satisfactory

evidence is lacking then, in my considered view, the ground of

antecedents alone will not disentitle the applicant from being

released on bail, if otherwise on merits, he deserves to be

released on bail.

17. For the aforesaid reasons, I hold that the applicant has

made out a case for bail. Hence, the following order :

ORDER

(i) Applicant- Vyankatesh Nanasaheb More shall be

released on bail in C.R. No. 263 of 2018 registered

with Panchavati Police Station, Nashik on his

executing P.R. Bond in the sum of Rs. 20,000/-

with one or two surety/ sureties in like amount.

(ii)The applicant shall not tamper with prosecution

evidence.

(iii) The applicant shall attend the trial Court

proceedings regularly.

(iv) Bail before the trial Court.

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(v) It is made clear that the observations made

herein are prima facie and the trial Court shall

decide the case on its own merit, in accordance

with law, uninfluenced by the observations made

in this order.

(vi) Parties to act on copy of this order duly

authenticated by the Sheristedar of this Court.

(vii) The application is allowed in the aforesaid

terms and stands disposed of accordingly.

                                         (V.G.BISHT, J. )




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