Dattatraya Tatoba Pandhare vs The State Of Maharashtra And Anr
2017 Latest Caselaw 6001 Bom

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      IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                 CRIMINAL APPELL ATE JURISDICTION

                    CRIMINAL APPLICATION NO.643 OF 2015


      Dattatraya Tatoba Pandhare                         ..Applicant.
                  V/s.
      State of Maharashtra & Anr.                        ..Respondents.


      Mr.Manoh Patil i/b. Mrs.Suman Y. Lengare for the Applicant.

      Mr.S.S.Hulke, APP for the Respondent-State.

      Mr.Machhindra Patil for Respondent No.2.


                                      CORAM : T.V.NAL AWADE, J.

DATED : 16 AUGUST 2017

P.C.:-

This application is filed under section 439(2) of the

Criminal Procedure Code for cancellation of bail granted to

Respondent No.2 Bira Namdev Pandhare by the learned Additional

Sessions Judge, Pandharpur, District Solapur in C.R. No.232/2014

for the offence punishable under section 302, 307, 143, 147, 148

and 149 of the IPC and section 3 read with section 25 of the Arms

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Act registered with Sangola police station, District Solapur. Heard

both the sides. Submission was made that the charge-sheet is already

filed but hearing is not yet started. The papers of investigation were

made available for perusal.

2. Learned judge of the Sessions Court has granted relief of

bail in favour of Respondent No.2 Bira Namdev Pandhare by giving

reasons which can be found in para 5 of the order as under :-

"The Applicant is in jail since 1/3/2015 till today. The charge sheet bearing S.C. No.57/2014 is filed in the case. The Hon'ble High Court released the other accused on bail vide order passed by the Hon'ble High Court in Bail Application No.759/2015 with Criminal Application No. 534/2015 in B.A. No.759/2015, dated 10th July, 2015, in the same Crime No.232/2014. The Ld. Advocate of the applicant claimed bail on the ground of parity. "

3. Learned counsel for the Applicant / original complainant

submitted that the learned Judge of the Sessions Court has

committed grave error in not discussing the material which is

available against Respondent-accused. Learned counsel submitted

that as there was more than sufficient material against Respondent-

accused which is to the effect that he fired three shots by using a gun

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and for a shot, he was required to load the gun and thus, these

circumstances would definitely distinguish case against Respondent

-accused from the case against the other accused to whom bail was

granted by the High court. Learned counsel submitted that looking

to the nature of the offence committed by Respondent-accused, the

possibility of tampering with the prosecution witnesses is not

considered and so the order of the learned Judge is perverse and it

needs to be set aside for cancellation of bail granted in favour of

Respondent-accused. The learned APP supported the application.

Applicant's counsel and APP placed reliance on the observations

made by the Apex Court in this regard in 1Puran V/s. Rambilas &

Anr. and 2Lokesh Singh V/s. State of UP & Anr. Reliance is also

placed on the citations in 3Kanwar Singh Meena V/s. State of

Rajasthan & Anr., 4State V/s. Jagjit Singh and 5Ashok Kumar V/s.

State of Uttar Pradesh and another. Learned counsel for Respondent-

accused submitted on the basis of the observations made by the Apex

Court in the case of Ashok Kumar (supra) that in the present matter

1 (2001) 6 Supreme Court Cases 338 2 A.I.R. 2009 Supreme Court 94 3 2012 DGLS (SC) 562 4 1961 DGLS (SC) 300 5 (2009) 11 Supreme Court Cases 392

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the allegations that Respondent-accused had fired three shots from

the firearm cannot be believed as there is no ballistic report in that

regard. He placed reliance on the case report in 6Shiv Mohan

Kapoor V/s. State of Uttar Pradesh & Anr. and submitted that after

getting bail, the Respondent-accused has not tampered with the

witnesses and so cancellation of bail is not possible and that will be a

harsh step.

4. Learned Sessions Judge has not mentioned the material

collected by police during investigation. The material shows that

F.I.R. was given on the day of the incident, 19 July, 2014 i.e.

immediately. It shows that there was dispute between the two sides

over agricultural land. The incident took place at about 11.00 a.m. in

the field. The allegations are made that all the accused came together

in the field and the present Respondent-accused was holding a gun.

The allegations are made that the male persons were holding iron

pipes but the ladies were not having any weapons.

5. There are allegations against the accused persons that

they entered the field to prevent the complainant's side from 6 (2012) 11 Supreme Court Cases 632

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carrying out agricultural process. The complainant had purchased

the land. The complainant's side refused to stop the agricultural

operations. The accused side then said that they will finish the

persons on complainant's side. In the F.I.R., the allegations are made

that the assault was made on Bhagwan Pandhare by using iron pipe.

Specific allegations are made that accused Kakasaheb Pandhare used

iron pipe and assaulted Dattatraya Pandhare. Allegations against

accused Vishnu Pandhare is that he assaulted Jaywant by using iron

pipe. Allegations are made against Namdeo Pandhare that he

assaulted Arjun by using iron pipe. Allegations are made against

Bhau Daigude that he assaulted Bhimrao by using iron pipe. In the

F.I.R. there is specific allegation against Respondent-accused that he

took aim of the gun at male persons and fired a shot at Jaywant. It is

contended that both Jaywant and Arjun sustained injuries.

Allegations are made that Respondent-accused then loaded the gun

and fired a shot at a lady member from the side of the complainant,

namely, Ujwala and this time the pellets hit Ujwala and she died on

the spot. There are allegations against others that they pelted stones

at the complainant side.

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6. The spot panchanama shows that three fired cartridges

were found on the spot showing that three bullets were successfully

fired. There were stones and other articles like sticks, broken bottles

and clothes, sim-card, driving licence, showing that many persons

were involved in the incident.

7. The post mortem report of the dead body of Ujwala

shows that post mortem was conducted on 20 July, 2014. Doctor

first examined the clothes of the deceased and he found many holes

due to pellets of gun on blouse, petticoat (parkar) and saree. There

were stains of blood in the holes created by the pellets of the bullet.

The doctor found following injuries on the dead body :-

(i) Puncture lacerated wound circular in shape, diameter 01 cm, cavity deep present on left side of chest wall 15 cm from midline and 12 cm on supero lateral from left nipple. Abrasion collar present around the wound. Margins are inverted. Distance from heel is 127 cm.

(ii) Puncture lacerated wound, circular in shape, diameter 01 cm, cavity deep present on left side of chest wall 0.7 cm laterally from midline, 8 cm supero medially from left nipple. Abrasion collar present around the wound. Margins are inverted.

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Distance from heel is 126 cm.

(iii) Puncture lacerated wound, circular in shape, diameter 01 cm, present on left side of chest, cavity deep, 16 cm laterally from midline and 8 cm supero laterally from left nipple. Margins are inverted. Distance from heels 119 cm.

(iv) Puncture lacerated would, circular in shape, diameter 01 cm, present on ventral aspect of left arm, 6 cm supero-laterally to left elbow. Wound is muscle deep and margins are inverted.

(v) Puncture lacerated wound, circular in shape, diameter 01 cm, present on ventral aspect of left forearm, muscle deep, 23 cm superior to tip of middle fingers of left hand. Abrasion collar present around the wound. Margins are inverted.

(vi) Puncture lacerated wound, circular in shape, diameter 01 cm, present on dorsal aspect of left arm, muscle deep, 4 cm above left elbow. Abrasion collar present around the wound. Margins are inverted.

(vii) Puncture lacerated wound, circular in shape, diameter 01 cm, present on abdomen 16 cm laterally on left side from midline and 18 cm inferio-lateral from umbilicus on left side, muscle deep. Abrasion collar present around the wound. Margins are inverted. Distance from heel is 88 cm.

(viii) Puncture lacerated wound, circular in shape, diameter 01 cm,

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present on right side of abdomen, 2 cm laterally from midline and 8 cm inferio-laterally from umbilicus. Muscle deep. Abrasion around the neck. Margins are inverted. Distance from heels 93 cm.

(ix) Punctured lacerated wound, circular in shape, diameter 01 cm, present on anterior of right thigh, diameter 01 cm. Muscle deep. It is 14 cm supero-lateral to right knee. Abrasion collar present around the wound. Margins are inverted. Distance from heels 58 cm.

(x) Puncture lacerated wound, circular in shape, diameter 01 cm, present on anterior of left thigh, 31 cm above left knee. Abrasion collar present around the wound. It is muscle deep Margins are inverted. Distance from heel is.

(xi) Puncture lacerated wound, circular in shape, diameter 01 cm, present on left thigh, muscle deep. It is 39 cm above left knee. Abrasion collar present around the wound. Margin inverted. Distance from heel is 81 cm.

(xii) Puncture lacerated wound, circular in shape, diameter 01 cm, muscle deep present on anterior of left thigh, 17 cm supero- laterally from left knee. Abrasion collar present around the wound. Margins are inverted. Distance from heels 58 cm.

(xiii) Puncture lacerated wound, circular in shape, diameter 01 cm, muscle present on anterior of left thigh, 13 cm above the left

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knee. Abrasion collar present around the wound. Margins are inverted. Distance from heels 54 cm.

(xiv) Lacerated wound present on lateral aspect of left arm, measuring 2 cm x 1 cm. Muscle deep, present 16 cm supero- laterally from the elbow.

(xv) Lacerated wound present on left upper eyelid, measuring 1 cm x 0 skin deep. Distance from heel is 135 cm.

(xvi) Lacerated wound present on left upper eyelid measuring 1 cm x skin deep. Distance from heel is 134.6 cm.

(xvii) Lacerated wound present on left upper eyelid measuring 0.1 cm x 0.4 and is skin deep. Distance from heel is 134 cm.

(xviii) Puncture lacerated wound, circular in shape, diameter 01 cm, cavity deep, present on left tempero-parietal region, 8 cm superio from left traigus and 3 cm supero posteriorly from lateral and left eye brow Distance from heels 136 cm.

There were injuries on the head portion also showing that there was perforation of skull due to injury suffered by aforesaid firing. The cause of death is given as firearm injury to chest and head. However, viscera is preserved for chemical analysis.

8. The aforesaid material of the post mortem examination shows

that bullets were fired from close range. There are specific

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allegations against the Respondent-accused and all the eye witnesses

have made similar allegations against the Respondent-accused. He

was working in Army at the relevant time. Learned counsel for

Respondent-accused submitted that firearm is not recovered and this

circumstance needs to be considered in favour of Respondent-

accused. This circumstance cannot be considered in favour of

Respondent-accused for any reason in the present matter. There are

more than one eye witnesses, who are also injured eye witnesses and

their versions are consistent with the aforesaid allegations made

against Respondent-accused. In such a case, non recovery of weapon

can never go to the root of the matter and the accused cannot get

benefit from such circumstance, if the Court is convinced that

sufficient material is available against him and eye witnesses need to

be believed. There are injury certificates of injured like Kusum,

Dattatraya, Arjun and Suman who are available as eye witnesses to

the prosecution.

9. Learned counsel for the Respondent-accused submitted

that there is no consistency in the versions given by the eye

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witnesses. He submitted that though there is specific allegations that

Respondent-accused fired the first short at two male persons, no

bullet injuries were found on their person and so it can be inferred

that false allegations are made. It is already observed that that F.I.R.

was immediately given. The injured witnesses like Jaywant and

Arjun have given statements that bullet did not hit them. In cases

when many accused persons are involved more importance needs to

be given to the versions of the injured witnesses in respect of the

allegations. Thus, not much can be made out of the circumstances

that bullet injuries were not found on the persons of Jaywant and

Arjun. This Court has already observed that material available as

against Respondent-accused is not separately considered by the

Sessions Court. The material which is available before this Court

shows that the case of Respondent-accused could not have been

treated on the same footing on which the other accused were treated

by the High Court. Thus, parity principle was not available in

favour of Respondent-accused.

11. In the aforesaid situation and particularly in the

circumstances that Respondent-accused had fired gun shots at the

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lady members from close distance and caused aforesaid injuries, bail

ought not to have been granted in his favour by using the discretion.

The circumstances that Respondent-accused would have lost his job

from military, should not have been considered in such a case. The

said circumstance was argued in the present case by learned counsel

for Respondent-accused. Such orders of bail creates a bad image of

the judicial system. This Court has no hesitation to observe that the

order of the Sessions Court is perverse and bail granted in favour of

Respondent-accused needs to be cancelled. In the result, the

following order:-

(i)     The application is allowed;

(ii)    The order passed by the learned Sessions Judge granting bail to

Respondent No.2 Bira Namdev Pandhare is hereby set aside.

The bail granted to him is cancelled. The accused be taken into

custody forthwith. Request to stay the order for some period is

rejected.

(T.V.NAL AWADE, J.)