Cri.B.A.Nos.1687/2020, 1697/2020 & 1698/2020 Criminal Bail Application No.1687/2020
CNR No. MHNS010046032020
[Yadav Bhaskar Bodake V s. State]
Criminal Bail Application No.1697/2020 CNR No. MHNS010046592020
[ Nilesh Dilip Lahane V s. State]
Criminal Bail Application No.1698/2020 CNR No. MHNS010046602020
[Sharad Ramdas Bodake V s. State]
Common order below Exh.1.
These are second bail applications for regular bail U/s. 439 of Cr.P.C. in Cr.No. I105/2019 of Ghoti P. S., for offences punishable under Sections 302, 307, 201, 120[b], 379, 304A, 337, 338, 427 of I.P.C., and Sec.184, 134/177 of Motor Vehicles Act.
2.Yadav Bhaskar Bodake initially lodged FIR i.e. CR No.105/2019 for the offences punishable under Sec.304A, 337, 338, 427 of IPC and under Sec.184, 134/177 of Motor Vehicles Act in which he contended that Nilesh Dilip Lahane is real brother of his wife and he was married to Priyanka. On 31.7.2019, Nilesh asked for Bolero vehicle No.MH15GR1683 owned by present applicant to go to SMBT hospital, Dhamangaon where motherinlaw of Nilesh was admitted. It is his further case that driver of truck No.RJ14GG1876 drive the truck in his possession in rash and negligent manner and dashed his Bolero vehicle resulting in death of Priyanka. Subsequently, it was revealed that all the accused i.e. Nilesh Lahane, Sharad Bodke and Yadav Bodke hatched conspiracy to murder Priyanka. Even insurance policy was taken out and after her death, the accused have claimed insurance and enjoyed the proceed thereof.
3.Bail applicants are filed on the ground that the applicants are innocent and falsely implicated in the case. That they have no nexus with death of Priyanka. That the applicants are falsely implicated in the case merely on the statement of coaccused.
That there was no dispute of any nature between Nilesh and Priyanka and they were not the part of conspiracy. There is delay in lodging FIR. That no ingredient are made out under Sec.302 of IPC
against applicants. They are permanent resident of Nashik. They have no criminal antecedents. They be released on bail.
4.Notice was issued to State. State appeared through Ld. APP Mr.Gaikwad and filed say resisting for grant of application on the grounds that statement of the applicantaccused is recorded under Sec.164 of Cr.P.C. and further investigation was carried out under the provisions of Sec.173(8) of Cr.P.C. That all the three accused namely Nilesh, Sharad and Yadav hatched conspiracy to eliminate Priyanka by taking her to SMBT hospital and during travelling itself, she was murdered by Sharad by assaulting her on her head by hammer. That statement of witnesses are to be recorded. Hence, has prayed for rejection of the bail applications.
5.Heard Ld. Advocate Mr.Kasaliwal and Mr.Avhad for applicants. Perused bail application. Heard Ld. APP Mr.Kotwal. Perused police papers and say filed by Ghoti police station.
6.Mr.Kasaliwal reiterated all the grounds mentioned in the bail application. He stressed his arguments that the applicants have no nexus with the murder of Priyanka. Furthermore he argued that already chargesheet with respect to accidental death has been filed before the Ld. JMFC Court. There is statement of witness Mohammad who is eye witness to the accident. After the accident, Nilesh Lahane who is husband of deceased became unconscious and he was taken to Wockhardt Hospital. There is material discrepancy between the confessional statement and injuries mentioned in the PM notes. According to the Ld. Advocate, if the confession is to be believed, the injuries will sustain on the back of the head and not the forehead. This aspect shows that it was genuine case of accident. The confession given to the police by coaccused Yadav Bhaskar Bodake is not admissible. He relied upon Kashmira Singh vs. State of Madhya Pradesh reported in 1952 AIR 159. The alleged recovery of hammer is after 1 ½ years and it is planted recovery. Even subsequent to the death of Priyanka, Nilesh got married to her younger sister. Even, the insurance policies are taken jointly in the name of Priyanka and Nilesh way back in the year 2016. Therefore there is no substance in the alleged motive forwarded by the prosecution. He further submitted that the incident at Saptashrungi Gad is also after thought. If the allegations were true, Priyanka would have definitely given complaint to the police or even to her parents which is not done. Out of received amount, Rs.20 lacs is already given to father of Priyanka as is reflected from the account. As far as Sharad Bodake is concerned, he was not in the vehicle. If he had been so in the vehicle, his presence would have been reflected in the chargesheet filed while
investigating the offence under Sec.304A of IPC. Ld.Adv.Mr.Avhad submitted that the role assigned to the applicant Yadav Bhaskar Bodake will not extend to the offence of murder. If his role is taken as it is, it will be under Sec.201 of IPC which is bailable one. Thus, have contended that no offence under Sec.302 of IPC is made out.
Thus, has prayed for bail on certain terms and conditions.
7.Per contra Mr.Kotwal relied upon the say filed by Investigating Officer and also the case papers which are produced.
Mr.Kotwal submitted that the offence is under Sec.302 of IPC and is a serious one. He submitted that the role of Yadav can not be restricted to offence under Sec.201 of IPC. He is part of the conspiracy. There is recovery of hammer from Sharad Bodake. Thus, he prayed for rejection of bail applications.
8.Perused the bail applications, say filed by the police and chargesheet.
9.It is not in dispute that initially coaccused namely Yadav Bodake lodged FIR with respect to incident dated 31.07.2019 about rash and negligent driving by driver of the truck No.RJ 14 GG1876 causing death of Priyanka. In this connection, investigation was carried out and even chargesheet was filed for the offence under Sec.279, 304A, 337, 338, 427 of IPC and under Sec.184, 134/177 of The Motor Vehicle Act.
10.On 28.8.2020, Yadav Bodake gave complaint to the police stating therein that he came to know that Nilesh was suspecting his wife Priyanka was having illicit relations with Rahul Bodake and therefore, with the help of Sharad Bodake, by assaulting Priyanka on her head with hammer has committed her
murder and there should be inquiry about the same. Accordingly, the police machinery have subsequently taken down detail statement of Yadav Bhaskar Bodake on 28.8.2020 wherein he has
disclosed earlier attempt made by Nilesh to eliminate his wife when she fell down from Bullet motorcycle. His statement further reveals that on 31.07.2019, on the date of the collusion between Bolero vehicle and the truck when Yadav was proceeding in Innova, he saw Sharad Bodake whose clothes and hammer were having bloodstained and he gave extrajudicial confession about eliminating Priyanka. His further statement speaks about collusion between Bolero vehicle and the truck MH15GR1683 and thereafter one Ambulance over taking when he was proceeding to Nashik Civil Hospital and that he having lodged FIR as he did not know about the details.
11.Even his statement under Sec.164 of Cr.P.C. was recorded on 29.8.2020 wherein he has almost reiterated all the contentions in his statement to the police dated 28.8.2020. He was subsequently arrested on 01.09.2020. Now his status is of an accused. It is fact that Priyanka has not given any complaint, which was expected after the alleged incident at Saptashrungi Gad. This information is given by Sharad after a span of 1 ½ years.
12.From the statement dated 28.8.2020 and statement recorded by the Magistrate, if the prosecution story is taken as it is, the role assigned to Yadav Bhaskar Bodake will not travel for committing offence under Sec.302 of IPC. Even if his contentions are believed that before lodging FIR, he knew about incriminating material against Nilesh and Sharad and he lodged FIR for the offence punishable under Sec.304A of IPC, the offence that is charged against him will be Sec.201 of IPC. The said section 201 of IPC states causing disappearance of evidence or giving false information to screen offender from legal punishment or with that intention gives any information respecting the offence which he knows or believes to be false. If the offence which he knows or believes to have been committed is punishable with death as is the case in hands. The punishment prescribed is with imprisonment for either description for a term which may extend to seven years and shall also be liable to fine. The classification of offence given below Sec.201 of IPC states about punishment for para No.1 as imprisonment for seven years and fine. Whether the offence is cognizable or non cognizable in nature will depend upon the offence in relation of which disappearance of evidence is caused. In the instance case, if the offence is under Sec.302 of IPC, the classification of the offence will be cognizable. However, the offence under Sec.201 of IPC is bailable in nature. He is also facing charge under Sec.120B of IPC. Needless to say that there can not be any direct material as far as conspiracy is concerned. However, after perusal of chargesheet, the only material for conspiracy is coming from the mouth of coaccused when the memorandum under Sec.27 of Indian Evidence Act was recorded. Thus, the applicant Yadav Bhaskar Bodake deserves to be released on bail. In Kashmira’s case, the Hon’ble Supreme Court has followed the observations of Sir Lawrence Jenkins in Emporer vs. Lalit Mohan Chuckerbutty (2) where he said that such a confession can only be used to “lend assurance to other evidence against a coaccused” or, to put it in another way, as Reilly J. did in In re Periyas Wami Moopan (3) “the provision goes no further than this where there is evidence against the coaccused sufficient, if believed, to support his conviction, then the kind of confession described in section 30 may be thrown into the scale as an additional reason for believing that evidence.”
13. Thus, material other than the confession requires to be taken into consideration. Admittedly, alleged information about murder of Priyanka was received by the police after period of almost 1 ½ years. The PM notes disclosed mainly two injuries to Priyanka one is on the right fronto temporoparietal region of scalp and the other is over right frontal regions from midline above eyebrows.
Considering the injuries and the allegations that the assault was by hammer from back seat, whether this amounts to contradiction can be considered at the time of trial. So also, weightage to be given to eye witnesses namely Mohammad compared to that of statement of Yadav Bhaskar Bodake recorded under Sec.164 of Cr.P.C. can also be seen at the time of trial. Even the recovery of the hammer is after a span of 1 ½ years. This delay also needs to be appreciated at the time of trial.
14. It is settled principle that motive however strong it may be, will not take place of proof. The chargesheet shows that amount of Rs.50 lacs has been given by the Insurance company to Nilesh.
Ld. Adv. Mr.Kasaliwal has produced on record the policy of Rs.4,00,000/ issued by Star Health And Allied Insurance Company Limited which shows joint policy of Nilesh and Priyanka taken in the year 2016 and also produced statement of Axis Bank disclosing amount of Rs.5,10,000/ and Rs.20 lacs being transferred to Santosh Sangle i.e. father of Priyanka on 15.7.2020 and 24.8.2020
much before the giving of written complaint by Yadav. The Investigating officer has collected policies of the year 2019.
15.Considering the above factors, though the offence is under Sec.302 of IPC, the offence of murder is alleged after a span of almost 1 ½ years. Already, chargesheet under Sec.304A of IPC
was filed before Ld. JMFC Court. There are no antecedents against any of the applicants. They are permanent residents of Nashik. Also considering prevailing Covid19 pandemic situation, the trial of these accused persons is not going to commence at the earliest.
Thus, taking into consideration the above discussion, discretion can be exercised in favour of the applicants on certain terms and conditions. Hence, I proceed to pass following order.
ORDER
(1). Cri.Bail Application Nos.1687/2020, 1697/2020 & 1698/2020 are allowed.
(2). The applicant Yadav Bhaskar Bodake in Cri.Bail Application No.1687/2020, applicant Nilesh Dilip Lahane in Cri.Bail Application No.1697/2020 and applicant Sharad Ramdas Bodake in Cri.Bail
Application No.1698/2020 be released on bail in Cr.No. I105/2019 of Ghoti P. S., for offences punishable under Sections 302, 307, 201, Cri.B.A.Nos.1687/2020, 1697/2020 & 1698/2020 120[b], 379, 304A, 337, 338, 427 of I.P.C., and Sec.184, 134/177 of Motor Vehicles Act on furnishing a PR and SB of Rs.50,000/each with one solvent surety of like amount on following conditions.
(a). They should furnish two documents about his identity proof and two documents in respect of identity proof of his relatives.
(b). They shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case, so as to dissuade them from disclosing such facts to the Court or to any police officer.
(c). Violation of any of the above mentioned condition, would result in cancellation of bail.
(3). Inform concerned police station accordingly.
(4). Bail before JMFC Court
Digitally signed by Vardhan Vardhan Prataprao Prataprao Desai Desai Date: 2021.01.14 12:24:04 +0530 Nashik. (V.P.Desai) Date : 12.01.2021 Additional Sessions Judge, Nashik.