Balasaheb Jagannath Bothe Patil v. State of Maharashtra
Case Details
- 1 - ba1354.21.odt IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD BAIL APPLICATION NO. 1354 OF 2021 Bal @ Balasaheb Jagannath Bothe Patil Applicant Versus State of Maharashtra Respondent Mr. Mukesh Modi, Advocate holding for Mr. S. N. Karpe , Advocate for the applicant. Mr. D. R. Kale, PP for respondent/State. Mr. N. B. Narwade, Advocate for the informant. WITH BAIL APPLICATION NO. 1640 OF 2021 Rushikesh Vasant Pawar Applicant Versus State of Maharashtra Respondents Mrs. S. G. Sonawane, Advocate for the applicant. Mr. D. R. Kale, PP for the respondent/State. Mr. N. B. Narwade, Advocate for the informant. CORAM : M.G. Sewlikar, J. RESERVED ON : 7th March, 2022. PRONOUNCED ON : 7th April, 2022. ORDER : 1. Both these applications are being disposed of by common order as they arise out of the same crime. - 2 - ba1354.21.odt 2. Informant is the mother of Rekha Bhausaheb Jare (since deceased) (hereinafter referred to as “Rekha”). Rekha has two sons by the name of Runal and Kunal. Informant’s mother had knee ailment on account of which Rekha had fied an appointment on 30 th November, 2020 with Dr. Sachin Tapaswi at Pune. On 30 th November, 2020, at 7.15 am, informant, Rekha, her son Kunal and one Viaymala Ramesh left for Pune in Santro Car bearing No. MH 12 EG 9146. Her treatment was over at about 3.45 pm. Rekha, informant, Kunal, Viaymala Ramesh and Akanksha, wife of Runal, started return journey in Santro Car. They were followed by Runal, his friend Pushkar in another car. At about 7.45 pm to 8.00 pm, while the car of Rekha was at Jategaon Ghat, Supa, a black coloured motorcycle bearing No. MH 17 2380 overtook the car of Rekha. While overtaking, the rider hoodwinked the Santro car. The rider signaled to stop the car. The rider was wearing a leather jacket of dark brown colour, jeans and sports shoes. The pillion rider was wearing a black shirt, jeans and sports shoes. The rider started arguing with Rekha. He asked Rekha her name. She told her full name and also told that she was the Chairman of Yashaswi Mahila Brigade. The pillion rider called up someone and asked “budk D;k djuk gS“ meaning thereby “what should be done with this lady i.e. Rekha”. A little - 3 - ba1354.21.odt while later, he took snap of the car of Rekha. Soon thereafter, the rider fshed out a sharp weapon and slit the throat of Rekha and fed on the motorcycle. Rekha was shifted to hospital in an ambulance.
Facts
She was declared dead in the hospital. On these allegations, First Information Report came to be lodged against unknown person vide Crime No. 478/2020, under Sections 302, 120-B, 201 read with Section 34 of the Indian Penal Code. 3. During investigation, it transpired that applicant in Bail Application No. 1354/2021 (hereinafter referred to as “applicant Bal Bothe”) was in love with Rekha. Their relationship turned sour. Therefore, to kill Rekha, he hatched a conspiracy with accused No. 5 Sagar Bhingardive and remained in contact with him personally on phone and gave contract to kill Rekha. Accordingly, accused No. 5 gave contract to accused No. 2 Aditya Cholke for the murder of Rekha. Accused No. 2 gave contract to Dnyaneshwar @ Gudda Shivaji Shinde, accused Firoz, Raju Shaikh, and Rushikesh Pawar. They had attempted murder of Rekha on 24th November, 2020. However, the plan could not be eiecuted as the car of Rekha was followed by the car of the witnesses. Accused No. 2 Aditya Cholke had ordered knife online and it was received on 30th November, 2020. - 4 - ba1354.21.odt Applicant Bal Bothe referred Rekha to Dr. Tapaswi at Pune. Applicant Bal Bothe was in continuous touch with Rekha and was giving location to accused No. 5 Sagar Bhingardive through phone
Legal Reasoning
prima facie stage that applicant Bal Bothe and deceased Rekha were madly in love with each other. Applicant Bal Bothe is a married man and deceased Rekha was a married woman. Transcript of mobile conversation between them is placed on record. From this transcript, it can be seen that they were in love with each other. It appears that applicant Bal Bothe was suspecting that Rekha had relations with some other persons than applicant Bal Bothe. In this conversation, at one stage, applicant Bal Bothe had said that he would kill her and then he would also die. This clearly shows that they were in love - 10 - ba1354.21.odt and their relations turned sour as applicant Bal bothe was suspecting that Rekha had relations with other persons. 10. Prosecution has recorded statement of Rajesh Gosawi. His statement shows that deceased Rekha had confded with him that applicant Bal Bothe was harassing her. Transcript of mobile conversation between witness Swati Kshisagar and Rekha shows that the relations between applicant Bal Bothe and Rekha were strained. Statement of Viaymala under Section 164 of the Code of Criminal Procedure shows that applicant Bal Bothe did not like Rekha even talking to other men. She has stated that applicant Bal Bothe had called deceased Rekha and asked her whether a male person was with her and whether that male person was sitting beside her. Her statement further shows that deceased Rekha had said to her that she was in relationship with Bal Bothe and she was fed up with him and she had decided to gradually go away from him. 11. Prosecution has seized a letter written by Rekha to the Superintendent of Police, Ahmednagar, in which, she had eipressed that applicant Bal Bothe had tried to kill her by hatching a conspiracy. This evidence collected by the prosecution shows that all - 11 - ba1354.21.odt was not well between applicant Bal Bothe and Rekha. Therefore, there appears to be motive of the applicant Bal Bothe behind eliminating Rekha. 12. Statement of witness Viay Makasare shows that Rekha had gone for picnic with him. Applicant Bal Bothe came to know about it and on this count, applicant Bal Bothe was harassing her and was abusing her. His statement further shows that accused Sagar Bhingardive and applicant Bal Bothe were sharing a good chemistry now a days. 13. There are Call Detail Record showing that on 24th November, 2020 and 30th November, 2020, applicant Bal Bothe was in constant touch with accused Sagar Bhingardive. According to the prosecution, Mobile No. of Rekha was 7083018177, Mobile No. of applicant Bal Bothe is 7814141414, accused Sagar Bhingardive is 9552497777, Aditya Cholke is 9975678980, Dnyaneshwar Shinde 7666179621, Firoz Shaikh 7620487971 and Mobile No. of applicant Rishi is 9156831061. If the Call Records are checked, it shows that applicant Bal Bothe was in constant touch with deceased Rekha from 6.46 am till 7.30 pm. It further shows that deceased Rekha had - 12 - ba1354.21.odt called at 7.33.06 hrs. and her location was shown as Shirur Dist. Pune. This clearly shows that applicant Bal Bothe was in constant touch with Rekha. It further shows that accused Sagar Bhingardive, Aditya Cholke, Dnyaneshwar Shinde, Firoz Shaikh were in contact with each other. Therefore, it appears that there is substance in the prosecution case that applicant Bal Bothe was getting location of Rekha on phone. Call Detail Record further shows that accused Aditya and Sagar Bhingardive were also in touch with applicant Bal Bothe. This pattern has been seen only on 24th November, 2020 and 30th November, 2020. Therefore, there appears substance in the prosecution case that applicant Bal Bothe was taking location of Rekha and was passing it on to accused Sagar Bhingardive and Sagar Bhingardive in turn was forwarding it to accused Aditya, Firoz Shaikh, Rishikesh and Dnyaneshwar. 14. In the case of Arjun Kotkar (supra) the Honourable Supreme Court has held thus :- “59. We may reiterate, therefore, that the certifcate required under Section 65B(4) is a condition precedent to the admissibility of evidence by way of electronic record, as correctly held in Anvar P.V. (surpa), and incorrectly “clarifed” in Shafhi Mohammed (supra). Oral evidence in the place of such certifcate cannot - 13 - ba1354.21.odt possibly suffce as Section 65B(4) is a mandatory requirement of the law. Indeed, the hallowed principle in Taylor vs. Taylor (1876) 1 Ch.D. 426, which has been followed in a number of the judgments of this Court, can also be applied. Section 65(B)4 of the Evidence Act clearly states that secondary evidence is admissible only if lead in the manner stated and not otherwise. To hold otherwise would render Section 65B(4) otiose. 60. In view of the above, the decision of the Madras High Court in K. Ramajyam (surpa), which states that evidence aliunde can be given through a person who was in-charge of a computer device in the place of the requisite certifcate under Section 65B(4) of the Evidence Act is also an incorrect statement of the law and is, accordingly, overruled. 61. While on the subject, it is relevant to note that the Department of Telecommunication’s license conditions [i.e. under the ‘License for Provision of Unifed Access Services’ framed in 2007, as also the subsequent ‘License Agreement for Unifed License’ and the ‘License Agreement for provision of internet service’] generally oblige internet service providers and providers of mobile telephony to preserve and maintain electronic call records and records of logs of internet users for a limited duration of one year. Therefore, if the police of other individuals (interested, or party to any form of litigation) fail to secure those records or secure the records but fail to secure the certifcate – within that period, the production of a post-dated certifcate (i.e. one issued after commencement of the trial) would in all probability render the date unverifable. This places the accused in a perilous position, as, in the event the accused wishes to challenge the genuineness of this certifcate by seeking the opinion of the Eiaminer of Electronic Evidence - 14 - ba1354.21.odt under Section 45A of the Evidence Act, the electronic record (i.e. the data as to call logs in the computer of the service provider) may be missing. 15. Learned counsel Shri Modi submitted that the Honourable Supreme Court has fied an outer limit of one year for preservation of data. Therefore, if Section 65B certifcate is produced after a period of one year, in that case, it will be otiose. However, this submission cannot be accepted. What the Honourable Supreme Court has held is that if police fail to secure the records and fail to secure certifcate within a period of one year, production of post dated certifcate would in all probabilities render the data unverifable. This places the applicant in a prelious position. It is not necessary that the Service Provider will destroy the data immediately after one year. During trial only, it will be clear whether data was preserved or not. In this view of the matter, at this prima facie stage, it cannot be said that the data will not be available during trial. 16. Post event conduct of the applicant also needs to be considered. Runal Jare is the son of Rekha. His statement under Section 164 of the Code of Criminal Procedure has been recorded. It - 15 - ba1354.21.odt shows that till the last rites of deceased Rekha, applicant Bal Bothe was with Runal. On the neit day in the evening, Runal received a phone call from applicant Bal Bothe that there were many calls between deceased Rekha and him and therefore, applicant could be arrested by the police. Runal has further stated that applicant Bal Bothe said that in case police interrogates Runal, he should say that applicant Bal Bothe is a friend of Jare family. On the neit day, Runal received a call from unknown number. It was the call of applicant Bal Bothe and he said that Sagar Bhingardive had given contract of killing Rekha and Sagar Bhingardive had been arrested and to settle the scores with applicant, Sagar Bhingardive would involve the applicant falsely and Runal should tell the police that applicant Bal Bothe had no concern with this incident. 17. As indicated earlier, there were so many calls between applicant Bal Bothe and accused Sagar Bhingardive. Statement of witness Viay Makasare shows that the relations between Sagar Bhingardive and Bal Bothe were good. On this background, there was no reason for applicant Bal Bothe to tell Runal that applicant would be falsely implicated by Sagar Bhingardive. This conduct itself shows that there is something more to it than meets the eye. - 16 - ba1354.21.odt Otherwise, if he had no hand in killing Rekha, there was no reason for him to entertain suspicion that Sagar Bhingardive would implicate him falsely. 18. CCTV footage shows that on 30th November, 2020, at 20.10.07 hrs. Bal Bothe came out of the cabin, he closed the door of cabin, he was holding a bag of yellow colour and he started climbing down the staircase. At 20.12.08 hrs., applicant Bal Bothe went to Patrakar Chowk with yellow colour bag. At 20.25.10 hrs., Bal Bothe was seen going empty handed from Patrakar Chowk. CCTV footage of 30th November, 2020, shows that accused Sagar Bhingardive was seen at 20.14.16 hrs., alighting from a car holding yellow colour bag. Statement of Vitthal Wange shows that there was a transaction of sale of shop by applicant Bal Bothe to him and he had paid Rs.12,00,000/- to the applicant. It is the prosecution case that this amount was used by applicant Bal Bothe for paying to accused Sagar Bhingardive. Having considered this, it cannot be said that there is no prima facie case against the applicant. 19. It is true that mere abscondance cannot be a circumstance adverse to the applicant. But if viewed on this - 17 - ba1354.21.odt background, there is a scope to say that applicant Bal Bothe absconded to avoid the arrest. 20. Having regard to all this, it cannot be said that there is no evidence against the applicants. Therefore, this is not a case where discretion can be eiercised in favour of both the applicants. Hence the following order :-
Arguments
calls or SMS. Accused No. 5 Sagar Bhingardive was providing these details of location to accused No. 2 Aditya. Accused No. 4 i.e. applicant in Bail Application No. 1640/2021 was in continuous touch with accused Nos. 1 to 3. Accordingly, the plan was eiecuted on 30th November, 2020. 4. Heard Shri Mukesh Modi, learned counsel holding for Mr. Sunil Karpe, learned counsel for the applicant in Bail Application No. 1354/2021, Mrs. Sonawane, learned counsel for applicant in Bail Application No. 1640/2021, Shri D. R. Kale, learned PP for the State and Shri Narwade, learned counsel for informant in both the applications. 5. Learned counsel Shri Modi submitted that prosecution has relied upon panchanama dated 3rd December 2020 to show that there was conversation between applicant Bal Bothe and Rekha and accused Sagar Bhingardive. Prosecution has seized Screen Shots of chatting i.e. Whatsapp chats, Teit messages, Calls logs and Call - 5 - ba1354.21.odt recordings from mobile phone of deceased Rekha. Mobile number of applicant Bal Bothe was saved in the handset of Rekha as “BB” and his mobile number was 7814141414. Those Screen Shots are to the effect (i) Nighalo (ii) Nashta Jhala Raigad la (iii) Dr. alet, 15 mintane aat ghenar (iv) OK (BB replied) (v) Zhale ki mala sanga (sent by Rekha). The Call Logs from the mobile of Rekha do not show that these calls were made by or received by the deceased. Thus, there were no calls between deceased Rekha and applicant Bal Bothe. He submitted that these Screen Shots and Call Logs are not admissible in evidence. He further submitted that the Honourable Supreme Court has held that certifcate under Section 65-B of the Indian Evidence Act should be produced within one year from the date of arrest. Since the Section 65-B certifcate is not produced within one year, no reliance can be placed on such evidence. Prosecution has produced Inter-call summary dated 24th November, 2020 and 30th November, 2020. This Inter-call summary is prepared by the prosecution and, therefore, it cannot be considered. He, further submitted that prosecution has not produced any proof as regards conversation between applicant Bal Bothe and accused No. 5 Sagar Bhingardive. He submitted that there is no evidence to show that on 30th November, 2020, applicant Bal Bothe and accused Sagar - 6 - ba1354.21.odt Bhingardive were in touch with each other and applicant Bal Bothe was in touch with deceased Rekha on 30th November, 2020. 6. Another circumstance on which prosecution has placed reliance is handing over cash of Rs. 12,00,000/-. Prosecution has alleged that there is CCTV footage of applicant Bal Bothe handing over a yellow bag to accused Sagar Bhingardive. Despite making demand of CCTV footage, the same was not provided. He submitted that applicant Bal Bothe had absconded from his usual place of residence and was traced at Hyderabad on 13th March, 2021. Thereafter, he stayed with P. Satishkumar at Hyderabad. He was staying there as he had fear that he would be falsely implicated in the present matter. He surrendered on 13th March, 2021 at Hyderabad. Mere abscondance is not a circumstance against the accused. For this purpose, he placed reliance in the case of Matru @ Girish Chandra vs. State of U.P. reported in 1971 Cr.L.J. 913. He further submitted that applicant Bal Bothe had no motive at all in the murder of Rekha. Applicant Bal Bothe and deceased Rekha were in love with each other. Applicant Bal Bothe was not only madly in love with Rekha but was also helping the family. Applicant Bal Bothe had made payment of Rs. 8,300/- to Dr. Tapaswi for Rekha’s mother’s - 7 - ba1354.21.odt ailment. Applicant Bal Bothe is married and has two children. If the applicant wanted to get rid of Rekha, he could have broken off the relationship with Rekha. Applicant is Eiecutive Editor of Sakal Media Group at Ahmednagar. Apart from Eiecutive Editor, he is a lawyer and Ph.D holder. Therefore, he had no motive to kill the deceased. He has placed reliance on the following cases : i) ii) iii) iv) v) vi) Sakha Ram vs. State of M.P. 1992 Cr.L.J. 861 Rishi Pal vs. State of Uttarakhand, AIR 2013 SC 3641, Bhagirathsinh Judeja vs. State of Gujarat 1984 Cr.L.J. 160 Kalyan Chandra Sarkar vs. Rajesh Rajan @ Pappu Yadav (2005) 2 SCC 46, Vasanthi vs. State of Andhra Pradesh 2005 Cr.L.J. 3075 Anwar P.V. vs. P.K. Basheer & others (2015) 1 SCC (Cri) 24 vii) Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal (2020) 2 SCC (Cri) 34 viii) Matru @ Girish Chandra vs. State of U.P. 1971 Cr.L.J. 913 ii) Rahman vs. State of U.P. 1972 Cr.L.J. 23 - 8 - ba1354.21.odt 7. Learned counsel Smt. Sonawane submitted that there is no evidence against the applicant in Bail Application No. 1640/2021. She submitted that the Call Detail Records are not admissible in evidence as certifcate under Section 65B is produced after two years. 8. Shri Kale, learned PP for the State submitted that name of applicant Bal Bothe was disclosed in the interrogation of accused No. 5 Sagar Bhingardive. Call Detail Records show continuous communication between applicant Bal Bothe and deceased Rekha, applicant Bal Bothe and accused No. 5 Sagar Bhingardive, accused Sagar Bhingardive and accused Aditya, accused Aditya and accused No. 1, 3 and 4 only on 24th November, 2020 and 30th November, 2020. Section 65B certifcate has also been produced to that effect. CCTV footage seized from the offce of applicant shows that applicant Bal Bothe was carrying a yellow colour bag and the CCTV footage seized from the offce of Sagar Bhingardive shows accused Sagar Bhingardive carrying the same bag with him to his house. He submitted that transcript of conversation between deceased Rekha and applicant Bal Bothe, deceased Rekha and other witnesses clearly shows that applicant Bal bothe and Rekha were in love with each other, their relations turned sour and therefore, applicant Bal Bothe - 9 - ba1354.21.odt wanted to eliminate deceased Rekha. He submitted that a letter written by deceased Rekha to the Superintendent of Police, Ahmednagar which was seized from her house shows that she had threat from applicant Bal Bothe. He further submits that applicant had demanded amount of Rs. 12,00,000/- from Vitthal Bhausaheb Wange with whom applicant Bal Bothe had entered into an agreement for sale of a shop. He paid Rs. 12,00,000/- on 24th November, 2020 to applicant Bal Bothe. 9. I have carefully considered the submissions made by learned counsel for both the sides. It is not in dispute even at this
Decision
ORDER i) Both the applications are dismissed. ii) It is clarifed that the observations made in the above order are restricted to the decision of these applications only and the trial Court shall not get infuenced by the same and can come to its independent conclusion during trial. ( M. G. SEWLIKAR ) Judge dyb - 18 - ba1354.21.odt IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 3268 OF 2021 IN BAIL APPLICATION NO. 1354 OF 2021 Sindhubai w/o Sukhdeo Waykar Applicant Versus Bal @ Balasaheb Jagannath Bothe Patil & another Respondents Mr. N. B. Narwade, Advocate for the applicant. Mr. D. R. Kale, PP for respondent/State. Mr. Mukesh Modi, Advocate for respondent No. 1. WITH CRIMINAL APPLICATION NO. 596 OF 2021 IN BAIL APPLICATION NO. 1640 OF 2021 Sindhubai w/o Sukhdeo Waykar Applicant Versus Rushikesh Vasant Pawar & another Respondents Mr. N. B. Narwade, Advocate for the applicant. Mr. D. R. Kale, PP for respondent/State. Mrs. S. G. Sonawane, Advocate for respondent No. 1. PER COURT : CORAM : M.G. Sewlikar, J. DATE :7th March, 2022. Both the applications are allowed and disposed of accordingly. dyb ( M. G. SEWLIKAR ) Judge