VAIBHAV Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Present applicant is seeking bail under Section 439 of the Code of Criminal Procedure, 1973.

(2.) Heard learned Advocate Mr. Joydeep Chatterji for the applicant and learned APP Mr. A.M. Phule for respondent-State.

(3.) It has been vehemently submitted on behalf of the applicant that the informant is the father of the deceased. Deceased is by name Vishal Gavli, who used to run auto rickshaw. Vishal and other two persons are involved in a murder case, that had taken place in 2012. The said case in respect of murder of one Sadashiv Arjun Gavli is still pending. Informant says that he was informed by the Vishal about 8-10 days prior to 11.06.2019, that when he was returning from Mumbai he met one Ramesh Bairagi from Dhule. It was informed by Ramesh to Vishal that somebody is going to eliminate him, but when he asked about the name and address of that person, then Ramesh claimed ignorance. Thereafter, on 10.06.2019 Vishal took auto rickshaw at about 9.30 a.m. and went from home but did not return till 9.30 p.m.. His mobile was out of range. The family members were under the impression that he might have gone to some programme, as Vishal used to do work of tying turban in programmes/marriage functions. Inquiry was thereafter made on the next day in the morning, and it was informed that till 9.00 p.m. Vishal was in the queue of auto rickshaw near Bus Stand in Dhule. At about 11.00 a.m. on 11.06.2019 police informed informant that Vishal murdered and his dead body has been kept at Sub District Hospital at Chopda. Informant and his relative went to Chopda and saw the dead body, identified it and it was seen that he had received severe injuries. Police informed the informant that present applicant i.e. nephew of Sadashiv Arjun Gavli has committed the murder of Vishal as a revenge and thereafter the informant has lodged the report. Thus, the said FIR appears to be based on the information supplied by police to the informant. The case is based on circumstantial evidence and one person i.e. rickshaw driver has given statement that the present applicant had made inquiry about Vishal. At about 8.45 p.m. on 10.06.2019 when the said witness, who is also a rickshaw driver, was in the queue of auto rickshaw near Bus Stand. His statement before Magistrate under Section 164 of Cr.P.C. is on the same point and it appears, that he has also been posed as a person who had lastly seen Vishal taking his auto rickshaw towards Nakane road and he had talked with Vishal at about 9.30 p.m., informed him about the person who was making inquiry about him. Thereafter, police have recorded the statement of present applicant, which is not admissible in nature. The probable cause of death is asphyxia due to strangulation. The piece of cloth (gamchha) has been recovered and the other evidence against the present applicant is in the nature of recovery under Section 27 of the Indian Evidence Act, however, it is of the place. Therefore, with such kind of evidence the prosecution intend to go ahead with the prosecution. There is no such prima facie case which will dis-entitle the present applicant from getting bail. He, therefore, prayed for bail.