KANCHAN GOPAL KABRA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) . 1. Both these applications have been filed by the original informant for cancellation of bail, under Section 439 (2) of Code of Criminal Procedure, granted to respondent No.2 in both the cases by learned Sessions Judge, Dhule. Respondent No.2 in ACB No.5 of 2020 is accused No.1 and respondent No.2 in ACB No.6 of 2020 is accused No.2 (for the sake of convenience hereinafter they are referred to as 'Accused Nos.1 and 2'). Both of them have been arrested in connection with Crime No.77 of 2019 registered with Songir Police Station, Dist. Dhule for the offences punishable under Sections 302, 201, 120(B) read with Section 34 of Indian Penal Code. Both of them were arrested on 03-06-2019. Accused No.1 had filed application at Exhibit-4 after the committal of the case to the Sessions Court, which has been now numbered as Sessions Case No.217 of 2019, whereas accused No.2 had filed application at Exhibit-14/D in the said Sessions case for his release on bail. Thus, both the accused persons had filed the said applications under Section 439 of the Code of Criminal Procedure. Both the applications came to be allowed and they have been released on bail by order dated 22-10-2019 and 12-11-2019 respectively.

(2.) Heard learned Advocate Mr. K. C. Sant for applicant in both the cases, learned APP Mr. A. M. Phule for respondent No.1 - State in both the cases, learned Advocate Mr. N. L. Chudhary for respondent No.2 in ACB No.5 of 2020 and learned Advocate Mr. P. M. Lakhani and Mr. R. N Chavan for respondent No.2 in ACB No.6 of 2020.

(3.) The learned Advocate appearing for the applicant - original informant submitted that the learned Sessions Judge committed gross error in granting bail to both the accused persons. In fact, accused No.2 is behind the murder of deceased Gopal Kabra, who was the husband of the informant. Accused No. 2 had hatched up the criminal conspiracy with accused No.1 and others. Accused No.2 is the husband of maternal aunt of deceased. By hatching up the conspiracy, they had called deceased to Shirdi and, thereafter, while returning, the murder has been committed at a place on Songir to Dondaicha road, within the jurisdiction of Songir Police Station, Dist. Dhule. The prosecution had not produced the criminal antecedents of accused No.2. He is involved in Crime No.146 of 2019 registered with Gotri Police Station, Baroda, Gujarat for the offences punishable under Sections 406 , 420 , 386 , 123 of Indian Penal Code . Though presently accused No.2 is acquitted in appeal by Hon'ble High Court of Gujarat, yet, accused No.2 was convicted in the year 1997 by the Sessions Court, Baroda for the offences punishable under Sections 302 , 120-B , 201 of Indian Penal Code. He was directed to suffer imprisonment for life. Another case is filed against him in the year 2004, which was lodged by Bank of Baroda for defrauding the bank to the extent of Rs.2.95 Crores. Accused No.2 was declared as wanted by Madhya Pradesh Police in connection with the offence of committing gang rape in the year 2009. A bounty of Rs.15,000/- was declared by the police against accused No.2. Accused No.2 is also facing trial for the offence punishable under the N.D.P.S. Act at Baroda. The things are crystal clear that when accused No.2 is practically in judicial custody, though he is released on bail in Crime No.146 of 2019 registered with Gotri Police Station, yet while so in custody, he has hatched up a conspiracy. Under such circumstance, he ought not to have been released on bail. As regards the evidence that has been collected against accused No.2, he has been identified in the identification parade that was arranged in connection with this case. Taking into consideration the close relation between the informant and accused No.2, possibility of pressurizing the witnesses cannot be ruled out. Definitely there is fear to the life of witnesses, when he has already committed cold blooded murder. As regards accused No.1 is concerned, he is actively involved in a murder case. He, as a part of conspiracy hatched up by him with accused No.2, had called the deceased to Shirdi under the pretext of giving money. He made the deceased to leave hotel in Dhule and further asked him to proceed in the night itself. The CCTV footage collected from various points in Shirdi as well as the hotel would clearly show that he is involved and the same has not been considered by the learned Sessions Judge. A very cryptic order has been passed taking into consideration the fact that case is based on circumstantial evidence. Though the case is based on circumstantial evidence, the circumstances and the material collected in respect of each of the accused ought to have been considered. Learned Advocate for applicant prayed for cancellation of bail.