Bombay High Court
Satish Ramesh Bankar vs The State Of Mah. Thr. Pso, Ps Gondia City ... on 5 February, 2024
2024:BHC-NAG:1792
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPLICATION (BA) NO. 802/2023
Satish Ramesh Bankar V/s State of Maharashtra
Office Notes, Office Memoranda of Court's or Judge's Order
Coram, appearances, Court's Orders
or directions and Registrar's order
Mr. A.A. Naik, counsel with Mr. A.S. Manohar, counsel for the applicant.
Mr. V.A. Thakre, APP for the non-applicant/State.
CORAM : URMILA JOSHI-PHALKE, J.
DATED : 05/02/2024.
1. The present application is preferred by the
applicant who is accused No. 1 for grant of bail in
connection with Crime No.607/2021 registered with Police
Station, Gondia (City), District Gondia, for the offences
punishable under Sections 302 of the Indian Penal Code,
1860 and under Sections 3 and 27 of the Arms Act, 1959.
The applicant is arrested on 21.08.2021 and since then he is
behind the bar.
2. The accusation against the present applicant is on
the basis of report lodged by the wife of the deceased, that
on 21/08/2021 at about 7.30 a.m., her husband left the
house for proceeding the Gym. At about 7.55 a.m., one
Shyam Kundnani came to her house and disclosed to her
that he has seen her husband in an injured condition lying
behind the circus ground. He further disclosed that he had
witnessed one person running from the spot. Accordingly,
she informed the police that some unknown persons have
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assaulted her husband by firing a bullet. On the basis of said
report, the police have registered the crime against the
unknown persons. During the investigation, the
Investigating Officer has arrested the accused along with
the other three accused. As per the allegation in the FIR and
during the investigation it was revealed that the present
applicant was hired co-accused Prakash Sharma to kill the
deceased, due to the business rivalry between them as the
said Prakash Sharma is the owner of the Gym and the
deceased was also constructing the gym adjacent to the said
gym. It is further alleged that the present applicant is one of
the conspirators and the executor of the said plan and
accordingly, he eliminated the deceased. On the basis of the
investigation, the applicant is arrested.
3. Learned counsel Mr. A.A.Naik submitted that the
entire case is rested on the circumstantial evidence. During
the investigation, the Investigating Officer has recorded the
statement of Yogesh Dinesh Bankar who is the relative of the
present applicant. As per his statement, this applicant called
him on his mobile phone, and disclosed him to that he has
committed the murder of one person who is unknown to
him by firing a bullet towards him. Thereafter, this Yogesh
Dinesh Bankar suggested him to surrender before the Police
and accordingly, he called one Police Constable- Chagan
Vithole and surrendered before him along with present
applicant and co-accused Deepak Pyrelal Bhute. They were
taken into custody by the police machinery. The another
statements on which the prosecution is relied upon Dinesh
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@ Balu Videsh Ukey, who has also supported the contention
stated by Yogesh Dinkar Bhute and Chaganlal Laxman
Vitthale, who is the Police Constable, and also stated that he
received the phone call of Yogesh, he went there and after
surrendering them they have taken into custody. The
statement of Tejram Jiyalal Khandalkar also shows that he
received the phone call of the present applicant on the day
of incident.
4. Learned counsel submitted that another
circumstance of which prosecution relied upon is the seizure
of clothes of the accused, wherein no blood stains are seen
by the investigating agency. The alleged weapon of the
offence is found at the spot of incident only. He further
submitted that CCTV footage is collected by the
investigating agency to show the connection of the present
applicant with the alleged incident, wherein it is seen that
the applicant and co-accused Deepak Pyrelal Bhute were
proceeding on a motorcycle and present applicant had
covered his face by Saffron Colour Dupatta. The said
Dupatta was alleged to be seized at the instance of the
present applicant.
5. He invited my attention towards the statement of
one Krushna @ Shyam Nandlal Kundanani, from the same it
revealed that he has seen one person running from the spot
of incident who was covering his face by the Saffron Colour
Dupatta. He submitted that, it is pertinent to note that, if
the person has covered his face by the Saffron Colour
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Dupatta, then it is difficult for the said witness to identify
the present applicant. The applicant is arrested on
21/08/2021. On the same night, the hand wash of the
applicant was collected however, the same was forwarded to
the Chemical Analyser on 05/09/2021 i.e. after 15 days.
6. He submitted that the statements of the witnesses
show that after the incident, the applicant travelled upto
Amgaon. Thereafter, he had breakfast and surrendered
himself. This story is difficult to accept, as during this
period, the applicant has touched various articles.
Apparently, statement of witness Tejram Khandalkar shows
that the applicant had breakfast and thereafter, surrendered
himself before the Police. In view of that, the contention of
the prosecution that they have collected the hand wash is
improbable.
7. He further submitted that as far as the extra judicial
confession to witness - Yogesh Dinesh Bankar is concerned,
whose statement is recorded after three months i.e. on
09/11/2021, his statement shows that, he has taken the
present applicant at the police station and one Police
Constable Chagan Vithole was also along with him. So, on
21/08/2021, not only the Yogesh Dinesh Bankar but Dinesh
@ Balu Videsh Uke and the said Vithole were present in the
Police Station. Their statements are not recorded
immediately even not on the second day, but recorded after
three months. Therefore, the evidence regarding the extra
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judicial confession also appears to be fabricated and
prepared after thought.
8. He submitted that considering the nature of
evidence, sufficiently shows that the story is after thought
and there is no material to connect the present applicant
with the alleged offence. The other conspirators are already
released on bail. Now, investigation is completed and
charge-sheet is filed, further custodial interrogation of the
applicant is not required and no purpose will be served by
keeping him behind bar.
9. Learned APP strongly opposed the application on
the ground that, on the day of incident, witness - Krushna
disclosed that he has witnessed one person running from the
spot. His statement was recorded immediately on
21/08/2021. The witnesses namely Yogesh Dinesh Bankar
and Chaganlal Laxman Vithale stated that they have brought
the applicant at the Police Station, and he was arrested.
Immediately on the same day, his hand wash was obtained
after his arrest and it was forwarded to the Chemical
Analyser.
10. He further submitted the C.D.R. report shows the
communication between the present applicant and other co-
accused. The statements recorded during the investigation,
further show that the applicant was in search of weapon and
he has purchased the said weapon. The Chemical Analyser
report shows that the hand wash which was examined by
the Chemical Analyser, the results of which are positive.
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Thus, there is prima-facie material to connect the present
applicant with the alleged offence. In view of that,
application deserves to be rejected.
11. Learned counsel for the complainant also endorsed
the same contention and submitted that the statement of
Krushna @ Shyam Nandlal Kundanani itself is sufficient to
show the involvement of the present applicant in the alleged
offence. Considering the gravity of the offence and the
involvement of the present applicant, the bail application
deserves to be rejected.
12. After hearing learned counsel for the applicant and
after going through the investigation papers, admittedly, the
entire case of the prosecution rested on the circumstantial
evidence. The first general diary entry which is taken by
Police into Police Station at Gondia City on 21/08/2021 at
about 11.12 which shows that the some unknown person
has fired a bullet on the deceased, and the deceased
succumbed to death. During the investigation on
21/08/2021 itself, the applicant was arrested. Immediately,
his clothes were seized by the Police. No foreign material
was found on the clothes of the present applicant, at the
time of seizure. During the investigation, the investigation
officer has also drawn the CCTV Footage Panchanama. As
per the recitals of the said panchanama, the two persons
were seen on the motorcycle, one is the present applicant
covering his face by the Saffron Dupatta. The said Saffron
Dupatta was seized during the investigation, on the basis of
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memorandum statement of the accused- present applicant.
The statements of the various witnesses are also recorded.
As per the prosecution, the applicant has called his relative
Yogesh and made extra judicial confession that he has
committed murder of one person by firing a bullet on him.
The statements of some of the witnesses also show that the
applicant was in search of Firearm and he has purchased the
same.
13. To support the said contention, the prosecution
placed reliance on the statements of Prakash @ Rinku
Dhannalal Bansod, Somesh Dilip Lonarkar and Aatish
Shankar Rahangdale. The statement of Prakash @ Rinku
Dhannalal Bansod shows that the applicant approached to
him in January-2021 and he was in search of one firearm.
The reason stated by this witness for purchasing the firearm
that the present applicant was having some illicit relations
with one lady, and her family members are not allowing her
to meet that lady and therefore, he was intending to
purchase the said firearm. The statement of Aatish Shankar
Rahangdale shows that the applicant has handed over
amount of Rs. 20,000/- to him on 28/12/20019 to purchase
the said firearm. Admittedly, the CDR reports are on record,
which show that there was communication on 21/08/2021
between the present applicant and co-accused Deepak
Pyrelal Bhute. As far as the communication with the other
co-accused is concerned, which is of January-2021 i.e. much
prior to the date of incident. The C.A report admittedly
shows that the hand wash was obtained from the present
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applicant and his results are positive. However, it is
pertinent to note that the said hand wash was collected by
the Medical Officer on 21/08/2021 and it is forwarded to
C.A. on 05/09/2021 i.e. after 15 days of the incident.
14. Learned counsel Mr. A.A. Naik vehemently
submitted that as far as the material in the nature of extra
judicial confession is concerned, is a very weak type of
evidence, therefore, it cannot be accepted, but it is to be
corroborated by some material.
15. In support of his contention, he placed reliance in
the case of Tejinder Singh alias Kaka Vs State of Punjab 1,
wherein the Hon'ble Apex Court dealt with the issue of the
extra judicial confession and held that the extra judicial
confession is a weak form of evidence and based on such
evidence, no conviction and sentence can be imposed upon
the appellants and other accused.
16. Regarding the delay in recording the statement, he
placed reliance on the case of Harbeer Singh Vs Sheeshpal
and others2, wherein the Hon'ble Apex Court by referring
the judgment in the case of Ganesh Bhavan Patel vs State of
Maharashtra3, held that the said judgment is an authority
for proposition that delay in recording of the statements of
the prosecution witnesses under Section 161 Cr.P.C, although
those witnesses were or could be available for
examination when the investigating officer visited the scene
1 2013 CRI. L.J. 3130
2 (2016) 16 SCC 418
3 (1978)4 SCC 371
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of occurrence or soon thereafter, would caste a doubt upon
the prosecution case.
17. On the basis of above submissions and the decisions
relied upon, learned counsel submitted that, the entire story
narrated by the prosecution is improbable and unacceptable,
and the involvement of the present applicant does not reveal
from the said circumstantial evidence. There is incomplete
chain to connect the present applicant with the alleged
offence. Now, the investigation is completed and no purpose
would be served by keeping the present applicant behind
bar.
18. On perusal of the entire investigation papers, it
reveals that the case of the prosecution rested upon the
circumstantial evidence in the nature of extra judicial
confession by the present applicant to one Yogesh Bankar,
seizure of the clothes of the present applicant and a Saffron
Colour Dupatta on the basis of statement under Section 27
of the Indian Evidence Act. The another circumstance on
which the prosecution relied upon is the CCTV Footage
wherein co-accused and present applicant are seen together
proceeding on the motorcycle, and the statements of the
witnesses who deposed regarding attempt to procure the
firearm and the statement of witness Krushna @ Shyam
Nandlal Kundani, who has witnessed the present applicant
running from the spot of incidence.
19. Admittedly, at the stage of bail, the detailed
evaluation of the evidence is not required. However, while
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considering the bail application whether the prima facie case
is made out or not is to be seen and for that purpose, the
reference of the material is required. In the present case,
the prosecution has recorded the statement of Yogesh
Bankar, to whom the extra-judicial confession is made by the
present applicant. As per his statement, the present
applicant made a phone call, and disclosed that he had
committed a murder of one unknown person. This extra-
judicial confession is to be taken into consideration in the
light of the prosecution case that the present applicant and
other co-accused hatched the conspiracy to eliminate the
deceased. If the applicant was a member to the said
conspiracy, then it is difficult to accept that he was not
aware to whom he has eliminated and he was unknown
about the name of the person, to whom he has eliminated.
Moreover, the statements of these witnesses though they
were available on 21/08/2021 recorded after three months
i.e. on 09/11/2021, it is well settled that there is neither any
Rule nor Law that evidence furnished by extra judicial
confession cannot be relied upon unless corroborated by
some other credible evidence. The Court has to consider the
evidence of extra-judicial confession which comes from the
mouth of the witness/witnesses who appeared to be
unbiased, not even remotely inimical to the accused and in
respect of whom, nothing is brought out which may tend to
indicate that he may have a motive for attributing an
untruthful statement to the accused, the words spoken to by
the witnesses are clearly, unambiguous and unmistakably
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convey that the accused is the perpetrator of the crime and
nothing is omitted by the witness which may deleted against
him, then after subjecting the evidence of the witness to a
rigorous test on the touchstone of the credibility, if it passes
the test, the extra-judicial confession can be accepted and
can be the basis of the conviction.
20. The another circumstance on which the prosecution
has relied upon is the seizure of the clothes, wherein no
incriminating material is found. The saffron colour dupatta
was seized at the instance of the present applicant, if this
fact is accepted then the statement of Krushna @ Shyam
Nandlal Kundani is difficult to accept, as he nowhere states
that when he has seen the present applicant running from
the spot of incidence he was wearing any scarf on his face.
21. The fact from the statements of the other witnesses
regarding procuring of the firearm is also difficult to accept
as the applicant was attempting to procure the firearm long
back from the incident i.e. in the month of January 2020,
whereas the dispute between the deceased and the accused
No.3 i.e. Prakash Sharma started in July 2021. So, this
evidence is also difficult to accept to show the connection of
the present applicant to hold that he was procuring the said
firearm to eliminate the deceased. It is pertinent to note
that, no investigation is carried out regarding the source of
information in respect of the present applicant in the alleged
offence, as allegation against the present applicant is that he
was hired to eliminate the deceased by co-accused Prakash
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Sharma. There is no evidence on record to show that either
he has received any amount or there was some association
of him with co-accused Prakash Sharma. The co-accused are
already released on bail, two are also the conspirators.
Considering the material collected during the investigation,
the circumstances which are not in the complete chain of
circumstances, considering the same, at this stage, the
applicant has made out a case to release him on bail. In view
of that, the application deserves to be allowed by imposing
certain conditions. Accordingly, I pass the following order:
a) The criminal application is allowed.
b) The applicant- Satish Ramesh Bankar,
connection with Crime No.607/2021 registered
with Police Station, Gondia (City), District
Gondia, for the offences punishable under
Sections 302 of the Indian Penal Code, 1860 and
under Sections 3 and 27 of the Arms Act, 1959,
shall be released bail, on executing P.R. bond in
the sum of Rs. 50,000/- with one solvent surety
in the like amount.
c) The applicant shall attend the Police Station,
Gondia City twice in a month on 1st and 15th day
of every month between 10.00 a.m. to 01.00
p.m. and the investigating officer shall record his
presence.
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d) The applicant shall furnish his cellphone
number(s) and address with the address proof
along with the two names of his two relatives
and address with address proof.
e) The applicant shall not leave the jurisdiction of
District court Gondia without prior permission of
the court.
f) The applicant shall not induce, threat or promise
to any witnesses who are acquainted with the
facts of the present case.
The criminal application is dispose of.
[URMILA JOSHI-PHALKE, J.]
Signed by: Mr. R.K. NANDURKAR
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Designation: PA To Honourable Judge
Date: 14/02/2024 15:17:50
