Bombay High Court
Abhimanyu Arjun Dudhe vs State Of Maharashtra, Thr. Police ... on 24 January, 2024
2024:BHC-NAG:1213
32.ba.333.23.odt 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (BA) NO.333 OF 2023
(Abhimanyu Arjun Dudhe Vs. State of Maharashtra)
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Office Notes, Office Memoranda of Court's or Judge's Order
Coram, appearances, Court's Orders
or directions and Registrar's order
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Mr. R.M. Daga, Advocate for the applicant.
Mr. A.S. Mardikar, Sr. Advocate a/b Mr. D.I.Jain, Advocate for Assist to prosecution.
Mr. N.H. Joshi, APP for the State.
CORAM:- URMILA JOSHI-PHALKE, J.
DATED :- JANUARY 24, 2024
By preferring this application, the applicant is
seeking bail under Section 439 of the Code of Criminal
Procedure.
2. The applicant came to be arrested on
02/10/2022 in connection with Crime No.858/2022
registered at police station Darwha, District Yavatmal for
the offence punishable under Sections 302, 307, 323, 336,
201, 120-B read with Section 34 of the Indian Penal Code,
1860 along with Sections 3, 25 and 27 of the Arms Act,
1959 and Section 135 of the Maharashtra Police Act,
1951.
3. The crime is registered on the basis of report
lodged by Sau. Nanda Sudhakar Tote - mother of the
deceased on an allegation that on 30/09/2022 at about
9.00 a.m. they went at Darwha from Murtizapur to attend
the court proceeding. At about 11.00 a.m. they reached at
Darwha and when they were proceeding towards Court,
one person by name Om Subhash Dudhe along with two
unknown persons came in front of them and co-accused
Om Subhash Dudhe pointed out the Gun towards her son
and fired one shot towards her son. Said shot hit her son
and he sustained grievous injury. She attempted to rescue
her son but she could not. As her son sustained grievous
injuries and taken to the hospital but he reported to be
dead by Medical Officer. On basis of said report, the crime
is registered against the said Om Dudhe and two unknown
persons. During investigation, the role of the present
applicant according to the prosecution is revealed as he
was a member to the criminal conspiracy hatched to
eliminate the deceased and therefore, he is implicated in
the alleged crime.
4. Learned Counsel for the applicant submitted
that as far as the present applicant is concerned, the role
attributed to him is similar to the Amol Devidas Nimkar
and Akshay Dipak Lande who are already released on bail
by this Court. He further submitted that the circumstances
on which the prosecution are relied upon that is the
statement of the co-accused which is not admissible. He
submitted that the another circumstance on which the
prosecution relied upon is the CDR report which is not
sufficient to connect the present applicant with the alleged
offence. He also invited my attention towards the
observation made by this Court while considering the bail
application of the co-accused Akshay Dipak Lande in
Criminal Application (BA) No.73/2023 wherein this Court
has held that the Investigating Officer has collected CDR
details to show that the applicant and accused No.1 were
in contact with each other. The evidence will be hardly of
any assistance. The call data record will only indicate that
there were phone calls between the two mobile numbers.
He further submitted that if the statement of one Nikhil
Uttamrao Dudhe even if taken into considerations which
only shows that he has assisted the co-accused to elope
from the place of incident and no other role is attributed
to the present applicant. In view of that, on the ground of
parity, present applicant deserves to be released on bail.
In support of his contention he placed reliance on the
order of the Honourable Apex Court in Maniklal Mehta Vs.
The State of Bihar in Special Leave to Appeal (Crl.)
No.3490/2023 dated 16/05/2023 wherein the
Honourable Apex Court held that the record shows that
the charge sheet has been filed. The role attributed to the
petitioner is that he is one of the conspirators and was in
constant communication with one Vikram Mehta. The
charge sheet relies primarily upon telephonic conversation
and some quarrel which took place prior to the incident.
Besides. The charge sheet has been filed and the trial is
under way. Considering all these aspects and taking into
account totality of the allegations against him, this court is
of the opinion that the petitioner deserves to be enlarged
on bail.
5. On the basis of the above submissions he
submitted that the similar of the facts of the present case
only CDR report will not be helpful to the prosecution to
connect the present applicant with the alleged offence and
prays for releasing the present applicant on bail.
6. Learned Additional Public Prosecutor strongly
opposed the application on the ground that the
investigation papers reveals that the present applicant was
a party to the conspiracy since inception and his role
revealed during the investigation carried out by the
Investigation Officer. The another circumstance on which
the prosecution is relied upon is the statement of the
Nikhil Uttamrao Dudhe shows the involvement of the
present applicant as well as memorandum statement of
Dnyaneshwar from whom the amount of Rs.1,50,000/- is
seized. He submitted that before the present applicant
who has paid said amount to the co-accused who has
eliminated the deceased. In view of that the application
deserves to be rejected.
7. Learned Senior Counsel for the original
complainant opposed the application and pointed out
from the summary of the charge-sheet that the role of the
present applicant reveals from the summary of the charge-
sheet wherein it is specifically mentioned that the
applicant has not only assisted the co-accused but he was
from inception involved in the plan of eliminating the
deceased. Accordingly, he has paid Rs.1,50,000/- to the
co-accused Dnyaneshwar @ Nana Mohture. He further
pointed out from the account statement that the amount
of Rs.2,00,000/- was transferred in the account of the
present applicant through the account of M/s. Dudhe and
Company. The joint holder of the said account was Om
Dudhe. He submitted that the amount was paid to the
co-accused by the present applicant. There is constant
communication between the present applicant and other
co-accused. He pointed out towards the CDR report which
shows that mobile No.8888662522 is of present applicant
Abhimanyu Dudhe. From the CDR report it reveals that
there was a first call from the mobile phone of the present
applicant to the mobile phone of Shailesh on 30/09/2022
i.e. accused No.2 at about 04:04:20 and second call to Om
Dudhe i.e. co-accused at about 06:02:58, third call on
30/09/2022 again to co-accused Om and another call
again to Shailesh on 11:19:42 and the last call is on
30/09/2022 to the Nikhil at about 12:17:50. Thus, the
CDR report shows that there was a constant
communication between the present applicant with the co-
accused. The alleged incident has taken place when the
deceased was proceeding for the Court proceeding at
about 11 a.m. and the present applicant has made a phone
call to the co-accused Om after the incident immediately.
Thus, the material which is collected during the
investigation to show the involvement of the present
applicant is sufficient at this stage. Now the trial is already
commenced, if the applicant/accused is released on bail
there is apprehension of tampering of the witnesses. He
further pointed out that on 24/12/2018 i.e. previous to
this incident also the applicant has attempted to eliminate
the family members of the deceased and the complaint
was lodged at Darwha police station against the present
applicant and other co-accused. Considering the previous
enmity between the present applicant and the deceased,
the circumstances showing his connection with the other
accused, prima facie case is made out. In view of that, the
application deserves to be rejected.
8. Having heard learned Counsel for the parties.
Perused the investigation papers. From the investigation
papers it reveals that the statement of one Nikhil Dudhe
was recorded which shows that he has received the phone
call of Shailesh Vinod Badukule who is the accused No.2.
He has handed over the said phone to the present
applicant for communication with Shailesh. The present
applicant asked said Nikhil to bring the co-accused
Shailesh Badukale at Yavatmal but he denied for the same.
To show the involvement of the present applicant, the
prosecution further relied upon on the panchnama which
shows that from the co-accused Dnyaneshwar the amount
of Rs.1,50,000/- is recovered on the basis of his
memorandum statement. The account statement also
shows that prior to the incident on 04/08/2022 i.e. one
month prior to the incident the amount of Rs.2,00,000/-
was transferred to the account of the present applicant
from the account of M/s. Dudhe and Dudhe Company and
co-accused Om Dudhe is one of the joint holder of the said
account. The CDR report shows there was a constant
contact from the mobile phone of the present applicant to
the other co-accused i.e. since early morning till 12
O'clock in the afternoon. The alleged incident has
occurred at about 11.00 a.m. Thus, considering the
material collected during the investigation by the
prosecution shows that the present applicant who is also
relative of the co-accused is involved and prima facie case
is made out against him to show his involvement in the
conspiracy. If there would have been only record of the
telephonic call then it would have been a different thing.
Besides the telephonic call, the material that the statement
of one Shailesh showing that the present applicant was in
contact with the co-accused i.e. Shailesh. The CDR report
also shows that on time to time on the day of incident he
has communicated with the other co-accused. The amount
transferred to his account are sufficient to attract the
prima facie case against him. Admittedly, direct evidence
would not be available to show the involvement of the
present applicant in the conspiracy. The essential
ingredients of Criminal Conspiracy are (i) an agreement
between two or more persons; (ii) agreement must relate
to doing or causing to be done either (a) an illegal act; or
(b) an act which is not illegal in itself but is done by illegal
means. What is, therefore, necessary is to show meeting of
minds of two or more persons for doing or causing to be
done an illegal act or an act by illegal means. Mere
knowledge or discussion or generation of a crime in the
mind of the accused, is not sufficient to constitute an
offence. The offence takes place with the meeting of
minds even if nothing further is done. It is an offence
independent of other offences and punishable separately.
Thus, the prosecution is required to establish the offence
by applying the same legal principles which are otherwise
applicable for the purpose of proving criminal misconduct
on the part of an accused. Honourable Apex Court in the
case of Gulam Sarbar Vs. State of Bihar [2014 (3) SCC
401] observed that criminal conspiracy is generally
hatched in secrecy thus direct evidence is difficult to
obtain or access. The offence can be proved by adducing
circumstantial evidence or by necessary implication.
Meeting of minds to form a criminal conspiracy has to be
proved by adducing substantive evidence in cases where
circumstantial evidence is incomplete or vague. The gist of
the offence of conspiracy then lies, not in doing the act, or
effecting the purpose for which the conspiracy is formed,
nor in attempting to do them between the parties. By
referring the judgment of Mohmed Amin @ Amin Choteli
Rahim Miyan Shaikh & Anr. Vs CBI, [(2008) 15 SCC 49] ,
it is held that in order to come under this provision it is
not necessary for the accused to know the detailed stages
of conspiracy; mere knowledge of main object/ purpose of
the conspiracy would suffice for this Section. In Vikram
Singh & Ors. Vs. State of Punjab, [AIR 2010 SC 1007], the
Apex Court has dealt with a case where the accused had
purchased fortwin injection and chloroform. Thus, it was
held that since the purchase of these materials was an
initial step towards commission of offence, the presence of
co-accused though not referred to by the witnesses at the
time of actual kidnapping would not imply that she was
not privy to conspiracy and conviction of the accused
under Section 120-B IPC was upheld.
9. In the light of the above well settled principles
laid down by the Honourable Apex Court, considering the
various circumstances pointed out by the learned
Additional Public Prosecutor and learned Senior Counsel,
prima facie case is made out against the present applicant
and now trial is already commenced and fix for recording
the evidence. It is not a fit case wherein the discretion can
be used in favour of the present applicant. It is well settled
that by considering the application for grant of bail the
parameters which Court has to consider are the gravity of
the offence and the nature of the accusation made against
the accused, the punishment provided and apprehension
of fleeing away from the justice. If these parameters are
applied to the present case, admittedly it is not a fit case
to grant bail by using the discretion. In view of that, the
application deserves to be rejected.
10. Hence, the application is rejected accordingly.
(URMILA JOSHI-PHALKE, J.)
*Divya
