Motiram Ramchandra Kot vs The State Of Maharashtra
2021 Latest Caselaw 2186 Bom

                                                                                                        4-BA-1613-2020.doc




                                                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                                             CRIMINAL APPELLATE JURISDICTION

                                                            CRIMINAL BAIL APPLICATION NO.1613 OF 2020

                                         Motiram Ramchandra Kot                                 ... Applicant

                                                   Versus

                                         The State of Maharashtra                               ... Respondent
                                                                          .....
                                         Mr. B. D. Joshi a/w Mr. Virendra Pethe, Advocate for the Applicant.
                                         Ms. M. R. Tidke, APP for the Respondent - State.
                                                                          .....

                                                                        CORAM       : PRAKASH D. NAIK, J.

                                                                        DATE        : 3rd FEBRUARY, 2021.
                                         PER COURT:

1. This is an application for bail in C.R. No. I-84 of 2018

registered with Khadakpada Police Station, Kalyan, Dist. Thane.

Initially missing complaint was filed by the wife of deceased

Dnyneshwar Kot on 16th February, 2018. FIR was lodged on 7th

March, 2018 for offence under Section 364 of Indian Penal Code. On

9th March, 2018, offences punishable under Sections 302, 201, 34 of

Indian Penal Code (for short "IPC") r/w Sections 4 & 27 of Arms Act

were registered. The applicant was arrested on 11th March, 2018.

2. The complainant stated that on 13 th February, 2018 her

husband left house at about 3.30 p.m. and did not return home.

Manish S.   Digitally signed by Manish
            S. Thatte

Thatte      Date: 2021.02.08 14:31:11
            +0530

Complainant lodged missing complaint. Subsequently, complainant

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learnt that, on 13th February, 2018 her husband and cousin

(applicant) along with Padgha were drinking liquor. Hence, she

suspects involvement of applicant and his friend Padgha. Statement

of Vinod Sable was recorded on 7 th March, 2018. According to him

on 8th February, 2018 he saw Dnyaneshwar (deceased) and his friend

Padgha. Dnyaneshwar demanded money for drinking liquor. On 10 th

February, 2018 he made call to him and demanded money for

drinking liquor. Nikhil Balu Jadhav @ Padgha was arrested on

8th March, 2018. During investigation Nikhil Padgha made statement

that, he would show the place and where body was thrown and

stone used in assaulting deceased. The accused then allegedly shown

the place. Body of deceased was found. Stone was recovered.

3. Learned counsel for the applicant submitted that there is

no direct evidence against the applicant. The case is based on

circumstantial evidence. However, the circumstances are not so

strong enough to show the complicity of the applicant in the crime.

The prosecution is relying on the alleged extra-judicial confession.

The said statements were recorded belatedly and they are in the

nature of improvement. Recovery of weapon cannot be connected

with the crime. The post-mortem report does not indicate any injury

by sickle. It is submitted that the prosecution relying upon the

antecedents against the applicant. These are old cases. The offence

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registered under Section 363 of Indian Penal Code in C.R. No.403 of

2007, has resulted in acquittal.

4. Learned APP submitted that there are strong

circumstances against the applicant. The applicant has made extra-

judicial confession to witness Varsha Lokesh Korane. The co-accused

has also made extra-judicial confession to Bharat Babu Shelar which

also implicates the applicant. There is recovery of sickle from the

applicant.

5. On perusal of the documents on record it is apparent

that, victim was missing from 13 th February, 2018. Initially missing

complaint was filed on 16th February, 2018, stating that complainants

husband is missing from 13th February, 2018. The FIR was lodged on

7th March, 2018. Complainant suspected involvement of applicant

and co-accused Padgha. Sickle was recovered from the applicant on

12th March, 2018. The prosecution case proceeds on the basis that

the deceased was assaulted by throwing stone on his head. On

recovery of sickle it is alleged that deceased was assaulted by sickle.

There is no eye witness to the incident. The prosecution is relying

upon the statement of Varsha Korane. She is the friend of applicant.

The statement bears date of recording as 05 th February, 2018.

Apparently date is not correct as deceased was missing from 13 th

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February, 2018 and missing complaint was filed on 16 th February,

2018 and thereafter FIR was lodged on 7th March, 2018. Learned

APP submitted that the said statement is recorded on 11 th March,

2018. According to this witness on 13 th February, 2018 applicant

made calls to her. They also spoke at 11.30 p.m. While talking to

applicant he was found normal. On 14th February, 2018 applicant met

her at Titwala while she was returning home. He told her that they

had fight and she should not call him. On 18 th February, 2018

applicant called her and told her to meet him. She met him. He was

found in frightened condition. He told that there was fight. From the

said statement it can be seen that it was recorded belatedly. There is

no confession of killing deceased. After lodging missing complaint

during enquiry statement of applicant was recorded on 27 th February,

2018. In that statement he had stated that on 13th February, 2018 he

had seen Dnyaneshwar (deceased) and Padgha @ Nikhil going

together on motorcycle. On 15th February, 2018 wife of deceased met

him and he had disclosed about above fact to her. Wife of deceased

for the first time suspected involvement of applicant on 7 th March,

2018. Statement of Bharat Babu Shelar was recorded. The statement

provided to applicant in charge-sheet do not mention date of

recording. According to prosecution it was recorded on 10 th March,

2018. According to him, Nikhil @ Padgha told him on 15 th February,

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2018 that he and applicant had killed Dnyaneshwar Kot and Motiram

(applicant) has advised him to switch off phone. The alleged extra-

judicial confession was made on 15th February, 2018. Statement was

recorded after 20 days. One more statement of Varsha Korane was

recorded. There is no date mentioned on the statement. In this

statement she stated that on 13th February, 2018 applicant had called

her. He gave 5 to 6 calls to her. When he made call at 11.30 p.m. he

was found frightened. He told her that he has assaulted one person.

Thereafter, he met her on the next day at Titwala. He told her that

there was fight with Dnyaneshwar and he along with Nikhil Jadhav

has killed Dnyaneshwar. She met applicant on 17 th February, 2018

and at that time applicant made the confession. This statement is

contrary to the other statement made by her. Statement of Varsha

Korane was recorded under Section 164 of Cr.P.C. on 13 th March,

2018. In the said statement she stated that applicant had given call

to her on 13th February, 2018. On next day he met her and told her

that there was fight. Three days thereafter applicant met her and told

her that he has assaulted one person. There is no confession that

applicant has killed the deceased. Statement of Bharat Shelar was

also recorded under Section 164 of Cr.P.C. on 13 th March, 2018. He

stated that Nikhil told him that they had assaulted one person. He

has not named applicant. According to prosecution "Marle" would

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man killed. However, it is noticed that all these statements are

contradictory and recorded belatedly. Prosecution is relying on

statement of Babasaheb Waghmare. There is no date on statements.

According to prosecution it was recorded on 20 th March, 2018.

According to him on 12th February, 2018 he saw Dnyaneshwar Kot

and two other persons. They were drunk. They went towards NMC

gate. Thereafter, he did not see Dnyaneshwar. Learned APP

submitted that the witness has identified the applicant. The parade

memo is not included in charge-sheet. The circumstance cannot be

considered against the applicant. It is pertinent to note that they

were allegedly last seen on 12th February, 2018. According to

complainant deceased was at home on 13 th February, 2018. He left

home on that day. There is delay in recording this statement.

Statement of Kailas Kot was recorded. Date of recording is not

mentioned. According to prosecution it was recorded on 30 th March,

2018. According to him on 14th February, 2018 he met applicant. He

was with another person whose name was disclosed as Nikhil Jadhav

@ Padgha. They consumed liquor. Applicant had some conversation

with Nikhil which was overheard by him. Applicant told Nikhil that

he should not disclose anything to anyone and he should leave. This

cannot be considered as strong circumstance to show involvement of

applicant. Learned counsel for applicant submitted that post-mortem

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report do not refers to any injury by sickle. The cause of death

certificate mentions provisional cause of death as head injury. Post-

mortem report refers to opinion of cause of death as head injury in

decomposed body. The charge-sheet refers to two other cases

registered against applicant. C.C. No. 19 of 2007 is pending. The

offences were registered under Sections 143, 147, 149 & 325 of IPC.

The other case under Sections 363, 324, 506 r/w Section 34 of IPC

registered vide C.R. No. I-403 of 2007 has resulted in acquittal by

Judgment dated 14th July, 2014. Considering the above aspects, on

stringent condition bail can be granted to applicant. Hence, I pass the

following order:

ORDER

(i) Bail Application No. 1613 of 2020 is allowed;

(ii) The applicant is directed to be released on bail in connection with C.R. No. I-84 of 2018 registered with Khadakpada Police Station, Kalyan, Dist. Thane, on executing P.R. Bond in the sum of Rs.30,000/- with one or more sureties in the like amount;

(iii) The applicant shall not tamper with the evidence.

(iv) The applicant shall stay out of jurisdiction of Khadakpada Police Station till conclusion of trial.

(v) The applicant shall furnish the details of his residence after he is released on bail to the Investigating Officer.

           (vi)    The applicant shall attend Trial Court regularly on the


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date of hearing of the case unless exempted by the Court for some reason.

(vii) Application stands disposed of accordingly.

6. This order will be digitally signed by the Private

Secretary/Personal Assistant of this Court. All concerned will act on

production by fax or email of a digitally signed copy of this order.

                                               (PRAKASH D. NAIK, J.)




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