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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
                                              -1-
                                                                  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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                                                        53-BA-1356-2026

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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                                                         53-BA-1356-2026

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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                                                        53-BA-1356-2026

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
                                 -6-
                                                         53-BA-1356-2026

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
                                   -7-
                                                      53-BA-1356-2026

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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                                                            53-BA-1356-2026

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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                                                             53-BA-1356-2026

                                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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                                                            53-BA-1356-2026

          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




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