Ritesh Ramchandra Gavand vs The State Of Maharashtra And Ors
2021 Latest Caselaw 9703 Bom

                                                 1/8                            5-APEAL-97-2021.doc




            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  CRIMINAL APPELLATE JURISDICTION

                         CRIMINAL APPEAL NO. 97 OF 2021

Vishal Sadhuram Ridhlan                                        ...Appellant

         Versus

The State of Maharashtra & Ors.                                ...Respondents

                                  ALONG WITH
                        CRIMINAL APPEAL NO. 582 OF 2021

Ritesh Ramchandra Gavand                                       ...Appellant

         Versus

The State of Maharashtra & Ors.                                ...Respondents
                                 ...
Mr. Raviraj Parmane for appellant in both.
Mr. Ganesh Bhujbai appointed for Respondent No. 2 and 3 in both.
Mrs. S.D. Shinde, APP for State.
                                 ...

                                        CORAM : S. S. SHINDE &
                                                N. J. JAMADAR, JJ.

DATE : 26th JULY, 2021.

ORAL JUDGMENT (Per N.J. Jamadar, J.):

1. These appeals under Section 14A of the Scheduled

Castes and Scheduled Tribes (Prevention of Atrocities) Act, 2015,

are directed against the orders passed by the learned Special Judge

on 09.09.2020 in Atrocity Special Case No. 204/2019, whereby

respective applications of appellants for bail came to be rejected.

Bhagyawant Punde





                                         2/8                         5-APEAL-97-2021.doc

2. Heard, Mr. Parmane, the learned counsel appearing for

the appellants, Mrs. S.D. Shinde, the learned APP appearing for

Respondent-State and Mr. Ganesh Bhujbai, the learned counsel

who has been appointed to espouse the cause of Respondent No. 2

and 3.

3. Initially, both the appellants had filed a single appeal,

bearing Appeal no. 97/2021. Subsequently, the appellant Mr.

Ritesh Gavand filed separate appeal bearing no. 582/2021. Since,

Mr. Ganesh Bhujbal was appointed to represent the Respondent No.

2 and 3 in Criminal Appeal No. 97/2021, we have appointed Mr.

Bhujbal in Criminal Appeal No. 582/2021 as well.

4. Admit.

5. With the consent of learned counsel appearing for the

parties, heard finally.

6. The appellants have been arraigned for the offences

punishable under Section 302, 307, 143, 146, 148, 148 and 149 of

IPC and Section 37(1)(3) read with 135 of Bombay Police Act and

Section 3(1)(r), 3(2)(v), 3(2)(va), of the Scheduled Castes and

Scheduled Tribes (Prevention of Atrocities) Act, 2015.

Bhagyawant Punde





                                         3/8                       5-APEAL-97-2021.doc

7. The gravamen of indictment against the appellants is

that on 8th March, 2021, in between 9.30 to 10.15 p.m. at Sector-

18, Nerul, the appellants and others formed an unlawful assembly

and in prosecution of the common object of unlawful assembly

committed murder of Rajesh Ingle and attempted to commit murder

of Vaibhav Sadavar, the injured. The co-accused Avinash allegedly

assaulted deceased Rajesh by means of knife and also caused

grievous life threatening injuries on the person of Vaibhav, the

injured.

8. Mr. Parmane, learned counsel for the appellants urged

that the report under Section 173 of the Code of Criminal Procedure

and the documents annexed with it, including statement of injured

Vaibhav and the report lodged by Mr. Hemant Mehar, the first

informant, do not indicate that the appellants had played an active

role in the alleged occurrence. On the contrary, in the First

Information Report dated 9th March, 2019, the appellants were not

at all named as the persons who allegedly assaulted the deceased

and injured Vaibhav. Even in the statement of injured Vaibhav,

recorded on 9th March, 2019 at D.Y. Patil Hospital, the appellants

were not named. An omnibus statement was made therein that

there were 8 to 9 other persons apart from the three named

Bhagyawant Punde

4/8 5-APEAL-97-2021.doc

assailants. The names of the appellants along with Mr. Rohit Singh

and Amit Ridhlan surfaced, for the first time, in the supplementary

statement of the injured Vaibhav Sadavat recorded on 12 th March,

2019. In the said statement also, the only role attributed to the

appellants was that of having assaulted the deceased and injured

by fist and kick blows.

9. In the aforesaid circumstances, this Court was

persuaded to release the co-accused Rohit Singh (in Criminal

Appeal No. 1094 of 2019), on bail. The role attributed to the

appellants is identical. Thus, the appellants deserve to be enlarged

on bail, on the ground of parity as well, submitted Mr. Parmane, the

learned counsel for the appellants.

10. The learned APP, resisted the prayer for releasing the

appellants on bail on the ground that the appellants have been

arraigned for serious offences of committing murder and attempt to

commit a murder. In the event of release of appellants on bail, there

is a genuine apprehension of tempering with evidence and

threatening the witnesses.

11. Mr. Ganesh Bhujbal, the learned counsel appointed to

espouse the cause of the private respondents, also resisted the

Bhagyawant Punde

5/8 5-APEAL-97-2021.doc

prayer of the appellants to enlarge them on bail. It was submitted

that there is material to show that the appellants were members of

the unlawful assembly and, thus, the appellants cannot be absolved

of the liability, though no role of assault by means of weapons is

attributed to appellants.

12. We have perused the report under Section 173 of

Cr.P.C., and the documents annexed with it. We have also perused

the judgment of this Court in Criminal Appeal No.1094 of 2019

(Coram: B.P. Dharmadhikar, A.CJ. & N.R. Borkar, J.) dated 28 th

February, 2020.

13. From the perusal of first information report, which was

lodged by Hemant Mehar, a friend of the injured Vaibhav Sadavat, it

becomes abundantly clear that the injured Vaibhav had named only

three assailants namely Avinash Jadhav, Omkar Rathod and Amid

alias Hamid Shaikh. The statement of injured Vaibhav dated 9 th

March, 2019, which came to be recorded at D.Y. Patil Hospital,

reveals that even Vaibhav had identified the above named persons

as the assailants. A specific role of assault by means of knife was

attributed to co-accused Avinash Jadhav. The submission on behalf

of appellants that the name of the appellants came in the frame for

the first time on 12th March, 2019 , when the supplementary

Bhagyawant Punde

6/8 5-APEAL-97-2021.doc

statement of the injured Vaibhav came to be recorded, appears well

founded. In the supplementary statement, injured Vaibhav stated

that apart from the named assailants, appellants herein, Rohit

Singh and Vishal Ridhlan were also present and they assaulted him

and the deceased by means of fist and kick blows. On the one hand,

the appellants were not intially named as the assailants as

members of the unalwful assembly. On the other hand, a minor role

is attributed to the appellants. Thus a prima facie case to exercise

the discretion in favour of the appellants is made out. In the

aforesaid backdrop, the aspect of parity assumes significance. Rohit

Singh, who was released by this Court, was attributed the very

same role, which is attributed to the appellants. We do not find any

material which distinguishes the role attributed to the appellants

from that of Rohit Singh. A case for grant of bail on the ground of

parity is also made out.

14. The apprehension on the part of the prosecution can be

taken care of by imposing appropriate conditions. We are thus

inclined to allow the appeals. Thus, following order:-

ORDER

I) The appellant in Criminal Appeal No. 97/2021 i.e. Vishal Sadhuram Ridhlan and appellant in Criminal Appeal No. 582/2021 i.e. Ritesh Ramchandra Gavand, be released on bail on

Bhagyawant Punde

7/8 5-APEAL-97-2021.doc

furnishing a PR bond of Rs. 20,000/- each and one or two solvent sureties in the like amount to the satisfaction of the learned Special Judge.

II) The appellants shall furnish the address at which they would be available during the pendency of trial, along with contact numbers.

III) The appellants shall not give threat or inducement to any of the prosecution witnesses and shall not tamper with prosecution evidence in any manner whatsoever.

IV) The appellants shall attend the proceedings before the learned Special Judge, regularly and co-operate in expeditious conclusion of the trial.

V) In the event of default on the part of the appellants to abide by any of the aforesaid conditions, the State shall be at liberty to move for cancellation of bail.

VI) The observations made herein above are for the limited purpose of determining the entitlement for bail. The learned Special Judge shall decide the guilt or otherwise of the accused in Special Case No. 204/2019, uninfluenced by the aforesaid observations.

Bhagyawant Punde





                                            8/8                         5-APEAL-97-2021.doc




VII)                We further record that Mr. Ganesh Bhujbal has

rendered able assistance to this Court in deciding both these appeals. We quantify his fees at Rs. 10,000/- in each appeal, and direct that the fees be disbursed expeditiously and preferably within one month from receipt of copy of this order.

VIII) Both the appeals stands disposed of.

IX) Parties to act upon an authenticated copy of this order.

        ( N. J. JAMADAR, J.)                               (S. S. SHINDE, J.)




 Bhagyawant Punde