Bombay High Court
YOGESH KALYAN NAGEversusTHE STATE OF MAHARASHTRA AND ANOTHER
- Disposal
- APPLICATION ALLOWED
Holding
The court held that the prima facie material was insufficient to justify continued detention and therefore granted bail to the applicant.
Summary
The applicant, Yogesh Kalyan Nage, was charged under Section 103(1) read with Section 3(5) of the Bombay Narcotic and Psychotropic Substances Act (BNS) and Sections 3 and 27 of the Arms Act for the alleged murder of Rahul, who was shot after a quarrel with an accomplice who later absconded. The prosecution relied on CCTV footage showing the three men drinking together and eyewitnesses who saw the applicant fleeing the scene after gunshots, but offered no direct evidence linking the applicant to the firearm or a common intention to kill. The defence argued that the evidence was purely circumstantial, that no weapon or incriminating material was recovered from the applicant, and that the charge‑sheet did not specify any act of assistance by him. The court examined whether the material on record satisfied the prima facie requirement for continued detention under Section 483 of the BNSS and whether the applicant's presence and flight could be equated with participation in the murder. Concluding that the prosecution had not established a sufficient link between the applicant and the firearm or a shared intent, the court held that his further custodial detention was unwarranted and granted bail with conditions. The bail order was issued, releasing the applicant on personal bond and surety.
Issues considered
- Whether the evidence on record establishes a prima facie case against the applicant sufficient to deny bail under Section 483 of the BNSS.
- Whether the applicant's presence at the scene and subsequent flight can be attributed to a common intention under Section 3(5) of the BNS.
- Whether the absence of direct evidence linking the applicant to the firearm warrants his continued detention.
- Whether the applicant's prior criminal antecedents outweigh the presumption of innocence at the bail stage.
Legislation cited
- Arms Act — s. 27, 3
- Bombay Narcotic and Psychotropic Substances Act — s. 103(1), 3(5), 483
Subjects
- bail
- prima facie evidence
- common intention
- firearm homicide
- Section 3(5) BNS
- Arms Act
- circumstantial evidence
- absconding accused
Judgment
2026:BHC-AUG:42611
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53-BA-1356-2026
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
BAIL APPLICATION NO. 1356 OF 2026
YOGESH KALYAN NAGE
VERSUS
THE STATE OF MAHARASHTRA AND ANOTHER
.....
Advocate for Applicant : Mr. Sudarshan J. Salunke
APP for Respondent - State : Mr. D. J. Patil
.....
CORAM : HITEN S. VENEGAVKAR, J.
DATED : 15th SEPTEMBER 2026
PER COURT :
1. The present applicant seeks his release on bail under
Section 483 of the BNSS, in connection with C.R. No. 378 of 2025
registered with Gangapur Police Station, Dist. Chhatrapati
Sambhajinagar, for the offences punishable under Section 103(1)
read with Section 3(5) of the BNS and Sections 3 and 27 of the
Arms Act.
2. His earlier application for bail was rejected by the
learned Additional Sessions Judge, Gangapur on 27th April, 2026.
3. The incident is alleged to have occurred on 16 th
September, 2025, between 3:00 p.m. and 4:00 p.m. The FIR was
registered on the following day, i.e. 17th September 2025, and the
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applicant was arrested on the same day. There were two accused
persons, out of whom accused No. 1, Kanifnath, who was alleged to
have possessed and used the firearm, is still absconding.
4. The prosecution case, in brief, is that the deceased
Rahul was addicted to liquor and was a friend of accused No.1. He
was allegedly induced in the illegal sale of liquor. The deceased was
repeatedly advised by his family members not to remain in the
company of accused No.1. On 16th September 2025, the deceased
joined the company of accused No.1 and the present applicant. The
CCTV footage collected from Niyati Beer Bar shows that the
deceased and both the accused were consuming liquor and
spending time together. It is alleged that they thereafter went to an
agricultural field and continued consuming liquor. The quarrel
allegedly took place between accused No.1 and deceased,
whereupon accused No.1 fired upon the deceased from a country-
made firearm. Certain persons who were nearby heard the sounds
of gunshots, and thereafter allegedly saw accused No.1 and the
present applicant running away from the scene. The deceased was
found lying in the field with firearm injuries.
5. Learned Advocate for the applicant submitted that, the
FIR is based on circumstantial evidence and there is no eye-witness
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to the occurrence. The CCTV footage merely shows that three
persons were drinking together. It does not disclose any quarrel,
animosity, conspiracy or preparation to commit the offence. The
prosecution has not attributed the use or possession of the firearm
to the applicant. The firearm is alleged to have been purchased and
used by accused No.1, who thereafter absconded.
6. Learned Advocate further submitted that no weapon,
bloodstained articles or other incriminating material was
recovered from the applicant despite his police custody. No motive
of previous enmity between the applicant and the deceased is
alleged. The charge-sheet merely states that the applicant assisted
accused No.1, without specifying the nature of such assistance.
Witnesses also only claim to have seen the applicant running from
the vicinity after hearing the sounds of the firearm being fired.
Such conduct, in the absence of any other connecting material, is
merely equivocal and cannot prima facie establish that the
applicant shared the intention of accused No.1. The investigation
is complete and the charge-sheet has been filed, and the applicant
has remained in custody since 17th September, 2025. His further
detention is therefore unnecessary.
7. The learned APP opposed the application and submitted
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that the applicant does not dispute that he was in the company of
the deceased and accused No.1. The CCTV footage shows them
consuming liquor together. The statements of the witnesses
indicate that all three were subsequently seen drinking in the
agricultural field. After sounds resembling gunshots were heard,
the applicant and accused No.1 were seen running away from the
field. The deceased was thereafter found at the same place with
firearm injuries to his abdomen, chest and leg. These
circumstances, taken cumulatively, constitute sufficient prima
facie material against the applicant. It was also pointed out that
accused No.1 and the firearm used in the offence are yet to be
traced.
8. I have considered the above submissions and perused
the charge-sheet. At the stage of considering the bail application, a
meticulous evaluation of the evidence or final determination
regarding the existence of common intention is neither permissible
nor necessary. Nevertheless, some material must be disclosed on a
prima facie basis for attributing the alleged offence to a particular
accused. The gravity of the offence is an important consideration,
but the gravity of the accusation cannot substitute the requirement
of examining the individual role attributed to the applicant.
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9. The homicidal death of deceased Rahul due to firearm is
not in dispute by the present applicant. The post-mortem report
records multiple firearm injuries and attributes the death to
haemorrhage and shock resulting therefrom. The specific
allegation of possessing the firearm and firing upon the deceased is
however, exclusively against accused No.1. No witness has stated
that the applicant possessed or used any firearm. No firearm,
ammunition, bloodstained clothes, or other incriminating articles
were recovered from him.
10. The important piece of evidence pertaining to the CCTV
footage establishes that the applicant, accused No.1, and the
deceased were together and consumed liquor at the beer bar.
However, the footage does not disclose any quarrel, threat or
conduct suggestive of a pre-arranged plan. The material, on the
contrary, indicates that the three were on friendly terms and were
consuming liquor together. The prosecution has not brought on
record any previous enmity or motive on the part of the applicant
to cause the death of Rahul.
11. The prosecution witness Narayan Chavan, who claims
that he saw all three persons consuming liquor near the field and
that, after hearing sounds resembling gunshots, he saw accused
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No.1 and the present applicant running in different directions.
Other witnesses also claim to have seen the applicant running from
the vicinity. These circumstances may establish the presence of
the applicant near the place of occurrence. The mere presence or
association, however, is not by itself synonymous with
participation or shared intention. The statement of witness
Narayan Chavan was recorded on 28th November, 2025 more than
three months after the occurrence. Evidently, the delay and lapse
of time in recording his statement will have to be tested during the
trial.
12. The charge-sheet further alleges that the applicant
assisted accused No.1 in committing the murder, but it does not
state what act of assistance was rendered by him. There is no
allegation that the applicant procured the firearm, killed the
deceased, exhorted accused No.1, facilitated the firing, removed
the weapon, destroyed any evidence, or assisted accused No.1 in
absconding. There is no material presently indicating any prior
making of plans. Common intention may develop at the stage, at
the spot, and need not always be proved by direct evidence. There
must still be circumstances from which such intention can prima
facie be inferred. Mere presence in the company of the principal
accused and departure from the place after an unexpected firing
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took place would not, without something further, necessarily
attract Section 3(5) of the BNS.
13. The circumstance that the applicant was seen running
from the vicinity cannot be ignored, but its interpretation must
await evidence. In an appropriate case, such conduct may
constitute an incriminating circumstance because it is capable of
more than one explanation. Particularly, when a firearm is
allegedly discharged by another person. At the bail stage, this
circumstance cannot be taken as conclusive proof that the
applicant shared the intention to commit murder.
14. The principal accused continues to abscond, and the
firearm has also not been recovered. Thus circumstance justifies
continuation of the efforts to arrest accused No.1, but the applicant
cannot be detained indefinitely merely because the principal
accused has evaded arrest, unless some material shows that the
applicant is assisting him or obstructing the investigation. No such
material has been placed on record.
15. Learned Advocate for the applicant submitted that
there are two criminal antecedents against the present applicant.
All the offences which are registered against him are serious in
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nature. No doubt, criminal antecedents are one of the
considerations to be taken into account while deciding the bail
application. However, in the absence of material showing
conviction or misuse of liberty, the same cannot, by itself, outweigh
the nature of the prima facie material in the present crime.
Appropriate conditions can address the apprehension of
interference with the witnesses.
16. The investigation qua the applicant is complete and the
charge-sheet has already been filed. He has been in custody since
17th September, 2025. His further custodial detention is now
unwarranted for the purpose of investigation. Even if the principal
accused is arrested and taken up for investigation, an appropriate
condition can be imposed upon the present applicant to cooperate
with the investigation at that stage.
17. In the totality of the circumstances, without expressing
any final opinion on the merits, the material presently available is
insufficient to justify the applicant's continued incarceration
pending trial. The applicant, therefore, deserves to be released on
bail. Hence, the following order :-
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ORDER
(i) The Bail Application is allowed.
(ii) The applicant shall be released on bail in C.R. No. 378 of 2025
registered with Gangapur Police Station, Dist. Chhatrapati
Sambhajinagar, for the offences punishable under Section
103(1) read with Section 3(5) of the BNS and Sections 3 and
27 of the Arms Act, on furnishing personal bond of Rs.
50,000/- (Rupees Fifty Thousand only) with one solvent
surety in the like amount, subject to the following conditions :
a) The applicant shall attend the concerned police station
on the first Monday and the last Monday of every
month between 10:00 a.m. and 02:00 p.m. till framing
of charge and thereafter shall regularly attend each
and every effective date before the trial court.
b) The applicant shall not, directly or indirectly, contact,
threaten, induce or influence the informant or any
prosecution witness and shall not tamper with the
prosecution evidence.
c) The applicant shall furnish their current residential
address and mobile number to the Investigating Officer
and the Trial Court within seven days of release,
intimate any change forthwith, and attend the
Investigating Officer upon prior written notice if further
investigation is required.
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d) The applicant shall not leave India without prior
permission of the trial Court and, if he posses passport,
shall deposit the same with the Trial Court within seven
days of their release.
e) The applicant shall not involve himself in any offence of
a similar nature while on bail.
f) Breach of any of the above conditions shall entitle the
prosecution to apply for cancellation of bail.
g) All observations in this order are prima facie and
confined to the decision of this bail application. The trial
Court shall decide the case independently on the
evidence led before it.
(iii) The Bail Application is disposed of in the above terms.
(HITEN S. VENEGAVKAR)
JUDGE
Tandale
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