Bombay High Court
Ravindra Badrinath Rathod vs State Of Maharashtra on 8 October, 2024
Author: M.S. Sonak
Bench: M.S. Sonak
2024:BHC-AS:39642-DB 1.IA.462-2023_IN_APEAL-1427-2018.DOCX
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 462 OF 2023
IN
APPEAL NO. 1427 OF 2018
Ravindra Badrinath Rathod
Age: 26 years, Occ. Construction,
R/at: Uttamnagar, Pune.
(at present is in Satara Jail) ...Applicant
(Org. Accused)
AMOL
PREMNATH
JADHAV Versus
Digitally signed by
AMOL PREMNATH The State of Maharashtra
JADHAV
Date: 2024.10.08 (At the instance Bhuinj Police Station,
15:56:46 +0530
Dist: Satara). ...Respondent
(Org. Complainant)
______________________________________________________
Mr Aniket U. Nikam, i/b. Mr Aashish Satpute, for Applicant.
Ms Pallavi Dabholkar, APP, for the Respondent-State.
______________________________________________________
CORAM M.S. Sonak &
Jitendra Jain, JJ.
Reserved on 07 October 2024
Pronounced on 08 October 2027
Judgment (Per MS Sonak J):-
1. Heard Mr Aniket Nikam, instructed by Aashish Satpute,
learned Counsel for the Petitioner and Ms Pallavi Dabholkar,
learned APP for the State.
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2. This is a bail application pending the disposal of
Criminal Appeal No. 1427 of 2018 against the judgment and
order by which the applicant was convicted for an offence
punishable under Section 302 of the Indian Penal Code, 1860,
and sentenced to undergo life imprisonment and pay a fine of
Rs. 5,000/-.
3. On 15 September 2022, this Court made an order listing
the Criminal Appeal for a final hearing in the week
commencing from 3 October 2022 instead of deciding the bail
application. However, till date, the Appeal has not been
disposed of. Considering the pressure on the docket, it is
unlikely that this Appeal would be disposed of early. In the
meantime, the Applicant, arrested on 27 February 2016, has
completed eight years and seven months of incarceration.
4. We have heard the detailed arguments made by Mr
Nikam, learned Counsel for the Applicant and Ms Dabholkar,
the learned APP for the State.
5. Admittedly, the conviction of the Applicant is based on
circumstantial evidence. The learned Sessions Judge, in
paragraph 30 of the impugned judgment and order dated 2
June 2018, has listed the following ten circumstances for
convicting the Applicant:-
"(i) The illicit relationship between the accused and the
wife of the deceased, which is the motive behind the crime.
(ii) The deceased lastly seen in the company of the
accused.
(iii) Homicidal death of the deceased.
(iv) Recovery of stone used in the commission of crime.
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(v) Recovery of car used in the commission of crime and
finding of chappal of the deceased in the car of the accused.
(vi) Seizure of mobile handset of the deceased from the
possession of mother-in-law of the accused.
(vii) Recovery of original number plate of the car used in the
commission of crime.
(viii) CCTV footage of Toll Naka and Petrol Pump showing
initially the presence of the deceased with accused and in the
return journey only the presence of the accused in the car.
(ix) Call Details Record of the Mobile of the deceased and
the accused.
(x) Criminal background of the accused."
6. The evidence on record does establish that this was a
case of homicidal death. Further, at least prima facie, there
does appear to be evidence to suggest that there was an
inappropriate relationship between the Applicant and the wife
of the deceased (PW-2). However, regarding the remaining
circumstances listed by the learned Sessions Judge, the
Applicant has an arguable case as to why such circumstances
may not be taken as proved beyond reasonable doubt and,
further, based upon such circumstances, how the chain of
circumstances would not be completed to exclude every
possible hypothesis, other than the hypothesis leading to the
guilt of the Applicant beyond reasonable doubt. These are
only prima facie observations, but they need to be made
because we propose to enlarge the Applicant on bail subject,
no doubt, certain terms and conditions.
7. In the context of the last seen theory circumstance, the
star witness for the prosecution is the deceased's wife (PW-2).
She and the deceased's brother (PW-1) claim to have lodged a
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missing complaint with the Police Station on the night
intervening 18 February 2016 and 19 February 2016 (date of
the offence). However, there was no reference in this
complaint about the deceased last being seen with the
Applicant. The Investigation Officer claims that he knows
nothing about the missing complaint. The FIR was ultimately
filed after eight days, i.e., 26 February 2016.
8. At least prima facie, there is no explanation about the
non-mentioning of the Applicant and the deceased being
together on the night intervening 18 and 19 February 2016 at
the earliest opportunity. The investigation officer could not
even produce tower location reports in the context of CDR,
which was relied upon by the learned session judge.
9. To support the circumstance of the last-seen theory, the
prosecution tried to rely on the CCTV footage at the Toll Plaza
and at the Petrol Pump. Some prosecution witnesses admitted
that this footage is unclear, and the Applicant cannot be seen
in them. In any event, even the learned Sessions Judge held
that this evidence of CCTV footage was inadmissible for want
of a proper certificate under Section 65B of the Evidence Act.
10. Therefore, based on the oral and electronic evidence on
record, the applicant has an arguable case to urge that this
circumstance is not proved beyond reasonable doubt.
11. The learned APP stressed the circumstance of the
recovery of the stone used to commission the offence. The
DNA report indicates that the hair and blood of the deceased
were on the said stone. Ms Dabholkar contended that
substantial weight must be given to the
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medical/scientific/DNA reports, which, according to her,
clinches the issue.
12. Undoubtedly, considerable weight has to be assigned to
medical/scientific/DNA reports. However, the evidence about
the stone recovery, at least prima facie, may not meet with the
rigours of Section 27 of the Evidence Act. In this case, the
stone was recovered from near the crime site. The Police
authorities were aware of the crime site and had also visited it
earlier. The stone was retrieved from a public place accessible
to all. In any event, even if it is held that the stone was
recovered from some bushes in a public place, still, based only
on this circumstance, it is arguable whether a conviction
might be sustained.
13. The recovery of the Car, allegedly used for the
commission of the offence, also does not prima facie meet
with the rigours of Section 27 of the Evidence Act. The Car
admittedly belonged to the Applicant and was allegedly
'discovered' from where it was parked on the street in front of
the Applicant's house. However, Ms Dabholkar submitted that
a Chappal, identified as belonging to the deceased, was also
found in the Car. She submitted that since this part of the
evidence was not even explained by the Applicant, the same
incriminates the Applicant.
14. The incident date is the night between 18 and 19
February 2016. The FIR was lodged on 26 February 2016. The
Applicant was arrested on 27 February 2016. The so-called
recovery of the vehicle was on 28 February 2016. It is rather
difficult to accept that the Chappal of the deceased remained
in the Car for almost a week. No identification parade was
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carried out, i.e., placing similar Chappals before the
prosecution witnesses. The identification by PW-2, the wife of
the deceased, with whom the Applicant was alleged to have
had an improper relationship, may not be prima facie
sufficient to hold that this was an incriminating circumstance
which was proved beyond a reasonable doubt.
15. There are some problems with the recovery of the
deceased's mobile phone. This mobile phone was allegedly
recovered from the mother-in-law of the deceased. The mobile
phone number was listed in the name of the daughter of the
deceased. There is a discrepancy about the IMEI number
because the Investigation Officer states that the number ends
in 602, whereas the number deposed to by the other witnesses
ends in 600. Mr Nikam relied on Vijay Kumar Vs State of
Rajasthan1 to submit that recovery from the custody of some
other person may not be sufficient for bringing the case within
Section 27 of the Evidence Act.
16. In this case, PW-1 was the complainant who lodged his
complaint on 26 February 2016. However, he turned hostile
and was cross-examined by the prosecution. In the cross-
examination, he tried to support the prosecution case by
retracting what he had stated in his chief. However, in the
further cross on behalf of the Applicant, PW-1 reverted to his
original statement. At least prima facie, not much credence
can be given to the testimony of such witnesses.
17. On cumulative consideration of the above and having
due regard to the law on proof by circumstantial evidence, we
are satisfied that the Applicant should be enlarged on bail
1
2014 3 SCC 412
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pending the disposal of this Appeal since there is no likelihood
of his Appeal being disposed of at an early date. As noted
earlier, the Applicant has suffered incarceration for almost
eight years and seven months up to now.
18. The learned APP, however, placed on record a chart
showing that the Applicant was a habitual offender. The chart
indicates that about eight theft cases were registered against
the Applicant. Out of these, the Applicant has already been
acquitted in four cases. There is also a reference to
externment proceedings and chapter cases. Thus, it does
appear that the Applicant's antecedents are problematic.
19. Still, based upon such antecedents alone, bail should not
be denied to the Applicant in a situation where there is no
likelihood of the Applicant's Appeal being disposed of early.
Some stringent conditions can always be imposed upon the
Applicant. If despite best efforts, speedy resolution of the
appeal seems difficult and the applicant has already suffered
incarceration of about eight years and seven months, a bail is
due given the arguable issues discussed above in brief. If,
while on conditional bail, the applicant breaches any
conditions or indulges in criminal activities, the prosecution
can always apply for cancellation.
20. After considering all the above circumstances
cumulatively, we dispose of this Interim Application by
making the following order.
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ORDER
(i) The Applicant's sentence is suspended and he is
enlarged on bail upon his furnishing the PR Bond for Rs.
50,000/- along with one surety in the like amount to the
satisfaction of the concerned Sessions Court;
(ii) The Applicant must report to the concerned Police
Station, Bhuinj Police Station, on the first Monday of each
month and mark his presence.
(iii) Under no circumstance must the Applicant interfere
with the deceased's family or exert any pressure on them.
(iv) The Applicant must not indulge in criminal activities
while on bail.
(v) The Applicant must file an undertaking in this Court
within seven days of furnishing the PR Bond that he will
attend the Court when the Appeal is taken up for hearing.
21. We clarify that the observations in this order are only in
the Applicant's bail application context. The observations are
only prima facie and, therefore, not intended to affect the
hearing of the Appeal and evaluation of the evidence in detail.
22. This Application is disposed of in the above terms
without any order for cost. All concerned to act on an
authenticated copy of this order.
(Jitendra Jain, J) (M.S. Sonak, J)
