Sunday, 6 September 2020

Whether the court can release accused on bail if there is not sufficient evidence that he has conducted a recce of the spot?

I have considered the submissions made before me. The allegation that the Applicant conducted Recce of the spot is not supported by any cogent evidence. The witnesses have not given any description of the persons who had conducted recce. In any case if some unknown person had come to the spot and left the spot that by itself may not amount to conduct of recce. The statement of these witnesses is based on mere suspicion. Therefore subsequent identification of the Applicant in the test identification parade is not of much importance.

In the High Court of Bombay
(Before Sarang V. Kotwal, J.)

Akash R. Lokhande  Vs State of Maharashtra 

Criminal Bail Application No. 3589 of 2019
Decided on August 28, 2020
Citation: 2020 SCC OnLine Bom 887

The Judgment of the Court was delivered by
Sarang V. Kotwal, J.:— The Applicant is seeking his release on bail in connection with C.R. No. I-49/2019 registered with Taluka Police Station, Yeola Dist-Nashik, under sections 396 of the Indian Penal Code.
2. The FIR is lodged on 27/03/2019 by one Govind Tulshiram Surase. He has stated in his FIR that his father Tulshiram Surase was working as a watchman at stone crusher near their village in Taluka Yeola, District Nashik. On 26/03/2019 the informant's father had left to attend to his duty at around 08.30 p.m. He did not return on the next morning. The informant and others took search. Finally the deceased was found dead in the cabin of a dumper parked on the highway. There were many injuries on his person. Therefore this FIR was lodged against unknown persons. The Applicant was arrested on 28/03/2019.
3. Heard Mr. Chetan Damre, learned counsel for the Applicant and Mr. S.H. Yadav, learned APP for the State. With their assistance I have gone through the entire chargeheet.
4. Learned counsel for the Applicant submitted that there is hardly any evidence against the present Applicant. The supplementary statement of the first informant recorded on 27/03/2019 mentions that on 26/03/2019 at about 05.30 to 06.00 p.m. he had seen three persons going to the spot of stone crusher. They just came there and left without communicating with anybody. The first informant had not given any description of these persons except that they were young persons. His statement indicates that there was one more truck/dumper bearing No. MH- 14-BJ-3055 which was taken away in commission of the offence and therefore it was a case of dacoity.
5. Learned counsel for the Applicant submits that the case against the present Applicant appears that he had conducted Recce around the spot and therefore he is sought to be roped in as one of the offenders.
6. Learned counsel for the Applicant invited my attention to the statement of Dnyaneshwar Gulab Surase, Sachin Ratan Ahire and Kunal Sudam Kadam. All these statements are recorded to show that the accused had conducted Recce. Dnyaneshwar has spoken about 4-5 persons coming in a car at about 3 to 4 p.m. in that area. Kunal has spoken about 3 persons coming on motorcycle at about 05.30 to 06.00 p.m. Sachin has stated about dacoity and murder of victim. Test identification parade in respect of the accused was conducted on 29/05/2019. Learned Counsel for the Applicant submitted that there is gross delay in conducting the test identification parade and it is not reliable.
7. Besides this, he also referred to the CDR showing communication between the present Applicant and the main accused No. 1 Ajay. He submitted that besides this circumstance there are absolutely no circumstances against the present Applicant. This circumstance being very weak, the Applicant deserves to be released on bail.
8. Mr. Yadav on the other hand submitted that the Investigating Officer has recorded statement of accused No. 1 u/s 27 of the Evidence Act. However, that statement mentions that he showed the road on which the dumper was driven. That statement has not led to recovery of any article.
9. I have considered the submissions made before me. The allegation that the Applicant conducted Recce of the spot is not supported by any cogent evidence. The witnesses have not given any description of the persons who had conducted recce. In any case if some unknown person had come to the spot and left the spot that by itself may not amount to conduct of recce. The statement of these witnesses is based on mere suspicion. Therefore subsequent identification of the Applicant in the test identification parade is not of much importance.
10. As far as the Applicant and the accused No. 1 is concerned, this communicating needs to be connected with the actual commission of offence. At this stage, I find that the evidence against the present Applicant is very weak and therefore I am inclined to grant bail to the present Applicant.
11. Learned APP submits that there is one criminal antecedent against the present Applicant involving offence u/s 326 of the Indian Penal Code. In this background some conditions need to be imposed on the Applicant.
12. Hence, the following order:
ORDER
(i) In connection with C.R. No. I-49/2019 registered with Taluka Police Station, Yeola Dist-Nashik, the applicant is directed to be released on bail on his furnishing PR bond in the sum of Rs. 25,000/- (Rupees Twenty Five Thousand Only) with one or two sureties in the like amount.
(ii) Considering the prevailing situation, the Applicant is permitted to furnish cash bail in the same amount for a period of three months from today. He shall furnish the sureties within this period.
(iii) The Applicant shall attend the concerned police station once a fortnight till conclusion of the trial.
(iv) Application stands disposed of accordingly.
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