Bombay High Court
Nikhil @ Golu S/O Lalsingh Maliye vs State Of Mah. Thr. Pso Ps ... on 23 March, 2021
Bench: V. G. Joshi
1 28 ba 1315.2020
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL BAIL APPLICATION (BA) NO. 1315 OF 2020
Nikhil @ Golu s/o Lalsingh Maliye
..vs..
State of Maharashtra, thr. P.S.O.
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Shri Adwait S. Manohar, Advocate for Applicant.
Mrs. S.S. Jachak, A.P.P. for Non-applicant/State.
CORAM : VINAY JOSHI, J.
CLOSED FOR ORDER : 19.03.2021
DATE OF PRONOUNCEMENT : 23.03.2021
Hearing was conducted through Video
Conferencing and the learned Counsel agreed that the
audio and visual quality was proper.
2. The Applicant/accused Nikhil alias Golu Lalsingh
Maliye was arrested by Police Station, Kalmeshwar,
District Nagpur in Crime No.469 of 2020 registered for the
offence punishable under Sections 307, 452, 143, 144,
147, 148, 149, 120-B of the Indian Penal Code and Section
3 read with 25 of the Arms Act, 1959. This is first bail
application in this Court after filing of charge-sheet, since
learned Sessions Judge has rejected bail application vide
it's order dated 23.10.2020.
3. The said crime arises out of First Information
Report lodged by Nitin alias Nitesh Krushnaji Bagde dated
20.07.2020. The first informant was the friend of injured
Ganesh Meshram. It is stated that on 20.07.2020, around
11.20 am, informant received phone call of Priyanka
2 28 ba 1315.2020
Meshram (wife of Ganesh Meshram) informing that she
herself and her husband Ganesh Meshram sustained bullet
injuries. Immediately, informant rushed to the house of
injured Ganesh Meshram at Kalmeshwar who was found
sitting injured in front of his house. Informant enquired
with Ganesh Meshram about the things, on which the later
disclosed that three to four assailants came from Nagpur
and fired bullets on him as well as at his wife namely
Priyanka. Immediately, injured Ganesh Meshram was
shifted to the Hospital whilst by the time Priyanka was
already shifted to the Hospital. The Informant learnt in the
Hospital from near-by people that at the instance of
Applicant Nikhil @ Golu and one Faruqe Jabiullaha Khan,
three to four assailants went to the house of injured
Ganesh Meshram and had fired bullets from country made
revolver.
4. Besides usual grounds like innocence, false
implication, inadequacy of evidence, learned Advocate
A.S. Manohar has canvassed some additional grounds in
support of his claim for bail. It is his submission that, at
the time of occurrence, Applicant Nikhil @ Golu was not
present at the house of injured Ganesh Meshram at village
Kalmeshwar. On the contrary, at the time of occurrence,
Applicant Nikhil @ Golu had been on a tour to the place
namely Khawasa in Madhya Pradesh. He would submit
that the prosecution case as it stands is totally interse
inconsistent. He mean to submit that as per first
information, Applicant Nikhil @ Golu hatched conspiracy
and deputed assailants on the job. He has also pointed out
supporting police papers wherein similar story has been
stated regarding deputing assailants on the mission. As
3 28 ba 1315.2020
against this, Advocate A.S. Manohar took me through the
statement of injured Ganesh Meshram who differently
stated the incident. Injured in his statement dated
02.08.2020, has disclosed that at the relevant time
Applicant Nikhil @ Golu came to his house with his two
companion. Applicant was holding knife whilst his one of
the associate fired bullets from country made revolver and
third assailant was arm less. Thus, it is vehemently argued
that First Information Report dated 20.07.2020, no where
discloses presence of Applicant Nikhil @ Golu on the spot
and the same story was reflected in the remand
application dated 17.08.2020 (page 353) and in
prosecution reply to the bail application filed in the
Sessions Court dated 23.09.2020. On that basis, it is
canvassed that the statement of injured shown to be
recorded on 02.08.2020, has changed the initial story and
therefore, according to him, it was to falsely implicate the
Applicant.
5. In response, learned A.P.P. has nothing much to
explain the inconsistency. It is only submitted that on the
date of occurrence, when the informant met to the injured
Ganesh Meshram, he was in badly injured condition and
therefore, it is not expected from him to narrate the
incident in detail. Certainly, at relevant time Ganesh
Meshram had sustained two bullets injuries, one at his
thigh and another at his back and therefore, there is
possibility of giving brief information about the
occurrence. However, prima facie the submission made by
Advocate A.S. Manohar carries substance since Applicant
was well acquainted with injured Ganesh Meshram. Since I
am dealing with bail application, it is not advisalbe to
4 28 ba 1315.2020
express any opinion on this aspect, but this aspect will be
taken into account.
6. Learned advocate A.S. Manohar took me through
the C.D.R. location report (page 399) to strengthen his
submission that Applicant was not at all present at
Kalmeshwar at the relevant time. The said report shows
location of other co-accused at Kalmeshwar, however, the
report does not show Applicant's location at Kalmeshwar
during crucial period. Learned A.P.P. responded the
submission by stating that the Applicant was seasoned
criminal and therefore, there is possibility that he had not
carried his cell phone to conceal his presence. I do not
wish to make any comment on this aspect, but it would
suffice to say that C.D.R. location chart primarily supports
the Applicant's contention.
7. Learned advocate A.S. Manohar submitted that at
relevant time, the Applicant was at Khawasa with his
friends and for that purpose he has produced some
documents to show that he was in the Hotel at Khawasa.
Precisely, he endeavored to establish plea of alibi. Learned
Sessions Judge has devoted few paragraphs to discard the
plea of alibi while rejecting bail application vide order
dated 23.10.2020. The ground of alibi does not impress
much since the matter is looked from the limited angle
and yet full fledged trial has to begin. Needless to say that
onus lies on accused to establish plea of alibi which is
matter of trial.
8. Injured Ganesh Meshram stated that at relevant
time, applicant came to his house by holding knife whilst
another assailant fired at him with country made revolver.
5 28 ba 1315.2020
The statement of injured Ganesh Meshram at the most has
assigned the role to the Applicant of accompanying
assailants on the spot. In other words, as per the case of
injured, the Applicant had not assaulted or fired bullets on
him. Already, it is expressed above that, the initial story as
emerges from First Informant Report is quite distinct than
what has been stated by injured. First Information Report
clearly excludes the presence of Applicant on the spot
rather the first information was on the line that the
Applicant hatched conspiracy and deputed few hired
goons for eliminating injured Ganesh Meshram. Moreover,
the police papers as referred above, runs on similar line.
Certainly, said aspect requires consideration while dealing
with bail application
9. The State while resisting bail by affidavit-in-
reply, has narrated the prosecution case and stated about
the strong motive for Applicant to commit a crime. It is the
prosecution case that in past, the Applicant had committed
murder of one Sumit Chavhan who was the friend of
injured Ganesh Meshram. One Ajinkya Naware who was
also friend of injured Ganesh Meshram was the crucial
witness in the murder case of Sumit Chavhan in which the
Applicant was accused. According to the prosecution, the
Applicant was pressurizing the injured Ganesh Meshram
that he should insist Ajinkya Naware to withdraw his case.
In other words, Applicant was suggesting that informant's
friend namely Ajinkya Naware should not support the
prosecution case in Sumit Chavhan murder case. At said
instance, there was dispute between the Applicant and the
injured Ganesh Meshram, and as he did not listen, the
Applicant hatched conspiracy and tried to eliminate
6 28 ba 1315.2020
Genesh Meshram. Precisely, it was the motive for the
Applicant to make deadly assault on injured Ganesh
Meshram and at his wife Priyanka Meshram. True, always
motive is one of the relevant factor in criminal trial.
However, the motive in isolation cannot be termed as
decisive factor to either decide the fate of trial on bail
application. The entire episode discloses that there were
criminal cases against the Applicant as well as against the
injured Ganesh Meshram who appears to be indulging into
anti social activities.
10. Apart from that, the State strongly resisted bail
by pointing towards antecedents of the Applicant. In
paragraph 9 of the affidavit-in-reply, a crime chart has
been given to show that several criminal cases were
registered against the Applicant and therefore, it is not
safe to enlarge him on bail. In response, learned Counsel
for the Applicant has filed rejoinder along with the copies
of judgments to show that in most of the cases, the
Applicant came to be acquitted. Particularly, the Applicant
was acquitted from the charges of murder and attempt to
murder by the then Courts. It is submitted that till date the
Applicant is not convicted in any case. Moreover, learned
Counsel for the Applicant submits that in present case,
some co-accused against whom several cases are pending,
were released on bail. To be specific, he would submit that
there were 13 cases against the co-accused Abhishek s/o
Mangesh Giri, 8 cases against the co-accused Himanshu
s/o Ravishankar @ Ravi Chandrakar, however, they are
released on bail. Moreover, learned Counsel for the
Applicant by placing reliance on the order of this Court in
case of Rakesh Tukaram Koshti vs. The State of
7 28 ba 1315.2020
Maharashtra passed in Bail Application No. 1723 of 2018
dated 05.09.2018 , has submitted that the Rule of parity
would squarely apply if, the co-accused having similar
antecedent was released on bail.
11. Learned A.P.P. submitted that the Applicant has
secured the acquittals in earlier cases by pressurizing the
witnesses. The Applicant if release on bail, he would
pressurize the prosecution witnesses, therefore, his
detention is necessary. Moreover, learned A.P.P. added
that while the Applicant is in jail in existing case, he had
hatched conspiracy to commit murder of one Nilesh Naidu.
In that regard, learned A.P.P. has filed a fresh report dated
26.02.2021 submitted by Kalmeshwar Police. Perusal of
said report indicates that in Nilesh Naidu murder case, the
Police suspected involvement of Applicant, however, the
did not find any material against him. Thus, in absence of
any cogent material, submission in that regard cannot be
accepted.
12. Prima facie, it reveals that the applicant's
direct role has not been disclosed in initial report, though
he was well acquainted with injured. During the course of
investigation, nothing has been recovered at the instance
of applicant. Already investigation is complete and
charge-sheet has been filed. Several co-accused namely
Faruqu Jabiullaha Khan, Shovin s/o Arvind Makode,
Himanshu s/o Ravishankar @ Ravi Chandrakar, Abhishek
s/o Mangesh Giri, Ankit @ Yashwant s/o Tulshiram Nimje,
Gaurav s/o Ajay Pillay, Sandip Deogir Giri were already
released on bail. Having overall view of the matter,
particularly nature of accusation, supporting evidence and
8 28 ba 1315.2020
release of co-accused on bail, the applicant has made out a
case for grant of bail.
13. The matter never ends here but one has to give
due regard to the antecedents of applicant. Though he
was acquitted in most of the criminal cases, the fact
remained that he was consistently involved in series of
criminal cases relating to bodily offence including
homicidal death. Certainly, in such peculiar fact, the
Court must give due regard to the antecedents of the
accused while releasing him on bail. As per prosecution
case, the very motive for the existing crime was a bid to
pressurize the witness of another murder trial. Thus, long
list of antecedents, pursued me to put him on stringent
conditions so as to eliminate the chances of tampering
with. In view of that, following order:
(a) The Applicant/accused namely Nikhil @ Golu s/o
Lalsingh Maliye is released on bail on his
furnishing P.R. bond of Rs.50,000/- with solvent
surety in the like amount.
(b) The Applicant/accused shall not directly or
indirectly make any inducement, threat or promise
to any person acquainted with the facts of the
case, as also shall not tamper with the prosecution
witness or evidence.
(c) The Applicant/accused shall not enter into the
limits of Nagpur district except attending the
Court proceedings pending against him, till
conclusion of trial.
9 28 ba 1315.2020
(d) The Applicant/accused shall provide his residential
address where he intent to stay out side Nagpur
district, and his cell phone number to concerned
Investigating Officer.
(e) The Applicant shall not change his residential
address without prior intimation to the
Investigating Officer.
JUDGE
Trupti
