Satish Baban Shinde vs The State Of Maharashtra
2021 Latest Caselaw 4806 Bom

Rane                           1/12             BA-3225-2019
                                               March 17, 2021.


IN THE HIGH COURT OF JUDICATURE AT BOMBAY
        CRIMINAL APPELLATE JURISDICTION

          BAIL APPLICATION NO. 3225 / 2019

                     ALONGWITH
          INTERIM APPLICATION NO. 76 OF 2020



Satish Baban Shinde
Age : 35 years, Occ: Service
Residing at : Room No.3,
Shewantabai Chawl,
Nerurkar Road, Dattanagar
Dombivali (East)
At present in custody of
Adharwadi Prison, Kalyan               .....Applicant

       :VERSUS:

The State of Maharashtra
(At the instance of Senior Police
Inspector, Dombivali Police Station)   ....Respondent

                         ****

Mr. Rajiv Patil, Senior Advocate a/w. Ms. Sangeeta Salvi
i/by. Hasan Patel, Advocate for the Applicant.

Mr. M.S. Kocharekar a/w. Mr. Shailesh       D. Chavan,
Advocate for the Intervenor.

Ms. Sharmila Kaushik, APP for State.

API, Ajit Jadhav and PN S.H. Pichad, from Dombivli
Police Station present.
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               CORAM : SANDEEP K. SHINDE, J.

RESD ON : 4th MARCH, 2021.

PRON ON : 17th MARCH, 2021.

P.C. :

1. Heard learned Counsel for the applicant,

Intervenor and learned APP for State.

2. The applicant, seeks his enlargement on bail in

connection, with Crime No.I-114/2017 registered with

Dombivali Police Station for the offences punishable under

Sections 302, 307, 364, 452, 120(B), 201, 143, 144, 146, 147,

148, 149, 323, 504, 506, 506(2) of the Indian Penal Code

and under Sections 3(25), 27 and 30 of the Arms Act.

3. Briefly, the allegations are that, the members of

the unlawful assembly in prosecution of the common object

shot dead, Kishor Chaudhari by pumping 20 bullets into

him and severely injured, Nitin Joshi by bullet injuries.

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                                                 March 17, 2021.

While leaving the scene of offence, members of assembly,

abducted, Mahima Wilson, co-worker of Kishor Chaudhari

in a Scorpio/Innova Car. His body was traced and found at

Mahabaleshwar in mutilated condition, at the instance of

one of the accused. Deceased, Kishor Chaudhari was a

small-time Interior Decorator/Contractor. Nitin Joshi and

Mahima Wilson were assisting him in his business. Bhoir

family was also in the same business. Bhoirs' had

threatened, Kishor Chaudhari to discontinue the business

in/or around Thakurli-Dombivli area. At the material time

i.e. in May, 2017, Chaudhari was doing interior work in a

flat in Shivamrut Society at Thakurli. He was warned by

accused, Dilip Bhoir to abandon the work. However,

Chaudhari did not budge. Infuriated Dilip Bhoir and his

brothers hatched a conspiracy to eliminate Kishore

Chaudhari. On 9th May, 2017, Shankar Bhoir, Dilip Bhoir,

Suraj Bhoir, Sagar Bhoir, Vishal Bhoir ("Bhoirs" for short)

and other 10 to 15 persons reached Shivamrut Society in

two cars. It appears, Bhoirs' entered the Flat, where Rane 4/12 BA-3225-2019 March 17, 2021.

Kishor Chaudhari and his workers were doing the civil

work. All were armed with revolvers. Twenty bullets were

fired, at Kishor Chaudhari to which he succumbed on the

spot. Bullets were shot at, assistant, Nitin Joshi but he

survived; whereas, Mahima Wilson, co-worker of Kishor

Chaudhari was abducted by the members of unlawful

assembly in a car, whereafter his body was found at

Mahabaleshwar. The incident was reported. Following

that, the subject crime came to be registered. Applicant is

accused no.10.

4. Mr. Patil, learned Senior Counsel for the

applicant submits that, investigation is over and final

report has been filed, but till date, the trial has not

commenced. He submits that, applicant was arrested in

May, 2017 and for trial, his presence can be secured by

imposing conditions. It is submitted, that there is no

evidence to connect the applicant to the alleged offences.

He further submits that, the applicant had not entered in Rane 5/12 BA-3225-2019 March 17, 2021.

the, flat where Kishor Chaudhari was shot dead. Mr. Patil,

submits, assuming the applicant was found present in the

nearby vicinity but this, itself is not sufficient to rope the

applicant in the crime. It is submitted that, since co-

accused (Ajay Walimiki) against whom similar allegations

were made, has been released by this Court (Coram :

Hon'ble Justice Shri. A.S. Gadkari), applicant may also be

released.

5. Per-contra, the learned APP, vehemently

opposes the application. It is submitted that applicant's

presence on the spot was captured in the CCTV cameras.

The panchanama of the CCTV footage, clearly shows, the

presence of the applicant with the assailants Bhoir's on the

day of the incident, throughout, right from their house to

the spot of the incident. It is submitted that, FSL report of

the CCTV footage was made available on 28 th May, 2020

i.e. post grant of bail to Ajay Walmiki. It is submitted

that, the applicant was the Bodyguard of co-accused, Sagar Rane 6/12 BA-3225-2019 March 17, 2021.

Bhoir. It is also submitted that, whereabouts of a labour,

who was present at the scene of offence are not known.

Apprehension is, that if the applicant is released on bail, he

may tamper the evidence.

6. Reasons:

. In the case of Gurbaksh Singh Sibbia and

Ors. V/s. State of Punjab, reported in 1980 (2) SCC

page 565 (para-30), the Constitutional Bench of the

Hon'ble Supreme Court has held, bail decision must enter

the cumulative effect of the variety of circumstances

justifying the grant or refusal of bail.

7. In the case at hand, two persons have been

murdered i.e. Kishor Chaudhari and Mahima Wilson and

one Joshi, sustained the fire arm injury. The statement of

Nitin Joshi (injured) recorded on 17th May, 2017 reveals

that, at the material time, Bhoirs' and one unknown

person entered the room. He revealed, Dilip opened fire on Rane 7/12 BA-3225-2019 March 17, 2021.

Kishor Chaudhari and when he fell down, Dilip, Shankar,

Sagar and Vishal opened fire and shot about 22 to 25

bullets on Kishor Chaudhari. Thus, the statement of Nitin

Joshi, prima-facie, may not show the presence of applicant

in the room/flat, where incident had taken place. However,

the CCTV panchanama supported by Certificate under

Section 65-B of the Evidence Act, not just shows presence

of the applicant at the Society premises but his association

with the accused Bhoirs' at their office since morning. The

footage-folder of Camera-B shows applicant's presence at

11:32 a.m. near the house/office of the accused, Bhoirs',

wherefrom accused proceeded in two vehicles to the spot.

At 11:40 a.m., applicant's presence was captured in Folder

of Camera No.8 near Shivamrut Society with co-accused

Aakash K. Waghera. Folder in Camera No.7, shows that

around 12:00 to 00:36 hrs, applicant was found present in

the compound of Shivamrut Society with Shankar Bhoir,

Sagar Bhoir, Vishal Bhoir and Ashok Kalicharan Valmiki.

Thus, the CCTV footage shows, not only the presence of Rane 8/12 BA-3225-2019 March 17, 2021.

the applicant as onlooker or by-stander, but, shows his

association with the assailants. It appears from the

evidence, the office/residence of the Bhoirs' was near the

spot of the incident. The 62nd folder of Camera-17 shows,

applicant was coming out of the premises of the Shivamrut

Society with the assailants and proceeding to Innova and

Scorpio Car wherein Mahima Wilson (deceased) was

abducted. In view of this evidence, the statement of Rana,

a Peon working in the office of Bhoirs' is relevant. He

stated, the applicant was a Bodyguard of Sagar Bhoir

(accused no.2). Thus, the evidence, prima-facie suggests,

he had knowledge, that Bhoirs' hatched the conspiracy to

murder Kishor Chaudhari. Admittedly, in Test

Identification Parade, held on 11th July, 2019, applicant

was identified by witnesses whose statement was recorded

on 9th May, 2017. Inspite of it, he chose to remain in the

company and associated with Bhoirs' since morning.

Therefore his, presence, before, after and during the

incident, prima-facie, suggest he was sharing the common Rane 9/12 BA-3225-2019 March 17, 2021.

object of unlawful assembly. In the light of this evidence,

reliance placed on the judgment of the Apex Court by the

prosecution, in the case of Kattukulangara Madhavan

(Dead) through Legal Representatives Versus.

Majeed and Others, (2017) 5 Supreme Court Cases

568 is appropriate, wherein, Hon'ble Apex Court in para-

23 has observed thus :-

"23. In the first place, the presence of an accused as part of an unlawful assembly, when not as a curious onlooker or a bystander, suggests his participation in the object of the assembly. When the prosecution establishes such presence, then it is the conduct of the accused that would determine whether he continued to participate in the unlawful assembly with the intention to fulfill the object of the assembly, or not. It could well be that an accused had no intention to participate in the object of the assembly. For example, if the object of the assembly is to murder someone, it is possible that the accused as a particular member of the assembly had no knowledge of the intention Rane 10/12 BA-3225-2019 March 17, 2021.

of the other members whose object was to murder, unless of course the evidence to the contrary shows such knowledge. But having participated and gone along with the others, an inference whether inculpatory or exculpatory can be drawn from the conduct of such an accused. The following questions arise with regard to the conduct of such an accused:-

1. What was the point of time at which he discovered that the assembly intended to kill the victim?

2. Having discovered that, did he make any attempt to stop the assembly from pursuing the object?

3. If he did, and failed, did he dissociate himself from the assembly by getting away?

The answer to these questions would determine whether an accused shared the common object in the assembly. Without evidence that the accused had no knowledge of the unlawful object of the assembly or without evidence that after having gained knowledge, he attempted to prevent the assembly from accomplishing the unlawful object, and without evidence that after having failed to do so, the accused Rane 11/12 BA-3225-2019 March 17, 2021.

disassociated himself from the assembly, the mere participation of an accused in such an assembly would be inculpatory".

8. Thus, to be stated that the conduct of the

applicant would be a relevant factor to ascertain whether

he was a curious onlooker or had participated in the object

of the assembly. The evidence clearly suggest that the

accused Bhoirs' were armed with revolvers. Prima-facie,

this fact was within the knowledge of the accused because

he was the Bodyguard of one of the accused. The applicant

was present near the house of Bhoirs' before the incident

and in his presence, accused Bhoirs' proceeded in two cars

at the spot. At the material time, the applicant-accused

was present in the compound of the Society. Therefore, it

is to be inferred that, he had knowledge and participated in

common object of assembly i.e. to murder, Kishor

Chaudhari. Yet, there is no evidence to suggest that, he

attempted to stop the assembly from pursuing the object.

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                                                                           March 17, 2021.

Similarly, no efforts were made by the applicant to

disassociate himself from the assembly by getting away.

9. In consideration of the facts of the case, material

on record, gravity of offence, the manner in which Kishor

Chaudhari was murdered, a co-worker was injured and

another was abducted and killed, in my view, it is not a fit

case to enlarge the applicant on bail. Application is rejected

and dismissed accordingly.

10. With dismissal of the application, the Interim

Application No. 76/2020 becomes infructous and does not

survive. The same is disposed of.

11. It is made clear that, observations made

hereinabove, shall be construed as expression of opinion for

the purpose of rejecting bail only and the same shall not, in

any way, influence the trial in other proceedings.

         Digitally
         signed by
Neeta    Neeta S.
         Sawant
S.       Date:
Sawant   2021.03.17
         18:24:40

                                                (SANDEEP K. SHINDE, J.)
         +0530