Aniket Ganesh Panire vs The State Of Maharashtra And Anr
2021 Latest Caselaw 14557 Bom

SANTOSH
SUBHASH                                                           CRIAPEAL1624-2019.DOC
KULKARNI
                                                                                  Santosh
Digitally signed by
SANTOSH SUBHASH
KULKARNI
Date: 2021.10.06
14:15:15 +0530
                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   CRIMINAL APPELLATE JURISDICTION


                                    CRIMINAL APPEAL NO. 1624 OF 2019

                           Aniket Ganesh Panire
                           Age : 23 years, Occu.: Agriculturist
                           Residing at - Karve, Tal. Walva, Dist.
                           Sangli, (At present languishing in the
                           custody of Sangli District Prison, Sangli)      ...Appellant

                                          Versus
                      1. The State of Maharashtra
                         Through Islampur Police Station, Sangli
                      2. Snehal Saket Kamble
                         R/at Guruprasad Colony,
                         Rajaramnagar, Kanchan Bunglow,
                         Islampur, Ta. Walva, Dist. Sangli.             ...Respondents


                      Mr. Satyavrat Joshi, i/b Mr. Nitesh J. Mohite, for the
                           Appellant.
                      Mr. Umesh Pawar, for Respondent no.2.
                      Mrs. S. D. Shinde, APP for the State/Respondent no.1.

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

RESERVED ON: 28th SEPTEMBER, 2021.

PRONOUNCED ON: 6th OCTOBER, 2021.

JUDGMENT:- [PER : N. J. JAMADAR, J.]

1. This appeal under Section 14A of the Scheduled Castes

and the Scheduled Tribes (Prevention of Atrocities) Act, 1989

("the SC and ST Act, 1989") is directed against an order dated

4th October, 2019, on an application (Exhibit-7) in Special

(Atrocity) Case No.4 of 2019, passed by the learned Special

CRIAPEAL1624-2019.DOC

Judge, Islampur, whereby the prayer of the appellant - accused

no.2 to release him on bail during the pendency of the trial in

the said special case, came to be rejected.

2. The background facts leading to this appeal can be

summarised as under:

(a) Saket Kamble (the deceased) was the husband of the

first informant - respondent no.2. He was a member of the

Scheduled Caste. On 17th November, 2018, at about 2.00 pm.

the deceased left home. He did not return home. As he could

not be traced at the places where he was expected to be found,

till the afternoon on 18th November, 2018, respondent no.2

lodged a missing report.

(b) Till 24th November, 2018, despite diligent search, the

deceased could not be traced. The first informant suspected

foul play at the hands of Santosh Pawar-Parit (A1) and Aniket

Panire (A2), the appellant, who was working for Santosh (A1).

The suspicion was stoked by the fact that the deceased and

accused were seen at the construction site behind Dutta Hill at

about 7.30 pm. on 17th November, 2018. Nobody had thereafter

met or seen the deceased. There were financial transactions

between the deceased and Santosh (A1). The deceased had

borrowed money from Santosh (A1) on multiple occasions. A

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dispute had arisen over the said financial transactions. The

deceased had apprised the first informant that on 5 th November,

2018, there was a quarrel between the deceased and Santosh

(A1) and the latter had threatened to kill the deceased. Since

the transaction between the deceased and Santosh (A1)

continued, even after the said quarrel, no complaint was lodged

against Santosh (A1). However, since the whereabouts of the

deceased could not be ascertained for over six days, the first

informant lodged report against the Santosh (A1) and Aniket

(A2) to the effect that they might have abducted the deceased.

Initially, crime was registered at CR No.553/2018 for the offence

punishable under Section 364 read with Section 34 of the

Indian Penal Code, 1860 ("the Penal Code") and Section 3(2)(v) of

the SC and ST Act, 1989. The accused were arrested. Santosh

(A1) made a disclosure statement.

(c) The discovery made by Santosh (A1) revealed that on

17th November, 2018, at the hostel construction site, the

deceased was assaulted by means of an iron rod, on head, and,

thereafter, the head and right hand of the deceased were

severed by means of scythe (parali) and headless body, the head

and right hand and the incriminating articles, including

weapons, were thrown into Warana river at various places.

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Pursuant to the discovery made by Santosh (A1), the headless

body of the deceased, the head and right arm, weapons of

assault including the iron rod and scythe (parali) and the mobile

phone handsets of the deceased were recovered. Aniket (A2)

also made discovery leading to recovery of the bloodstained

clothes, which he wore at the time of the occurrence, and the

place where the TATA Sumo vehicle, in which the body of the

deceased was carried, was washed. During the course of

investigation, the said vehicle was seized and bloodstains were

found on the mats and rexine covers laid in the said vehicle.

Statements of witnesses were recorded under Section 164 of the

Code of Criminal Procedure, 1973 ("the Code") as well.

(d) Post completion of investigation, charge-sheet came

to be lodged for the offences punishable under Sections 302,

364, 120B and 201 of the Penal Code and Section 3(2)(v) and

3(2)(va) of the SC and ST Act, 1989.

(e) The appellant filed an application for bail. By the

impugned order, the learned Special Judge was persuaded to

reject the application holding inter alia that it was a case of

brutal murder. The head and right hand of the deceased were

severed from the body. Pursuant to the disclosure statement

made by Aniket (A2) bloodstained clothes and the motorcycle

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were recovered. There was material to show that Aniket (A2)

had purchased a scythe (parali) prior to the occurrence. Thus,

there was sufficient material to show complicity of Aniket (A2) in

the said offence, prima facie. Moreover, there was apprehension

of tampering with the evidence and threatening the first

informant and prosecution witnesses. Thus, the application

came to be rejected.

3. Being aggrieved, accused no.2 is in appeal.

4. Admit. Taken up for final disposal.

5. We have heard Mr. Joshi, the learned Counsel for the

appellant, Mrs. Shinde, the learned APP for the State and

Mr. Pawar, the learned Counsel for respondent no.2 - first

informant. With the assistance of the learned Counsels for the

parties, we have perused the material on record including the

report under Section 173 of the Code and its accompaniments.

6. Mr. Joshi, the learned Counsel for the appellant,

submitted that the learned Special Judge was swayed by the

brutal nature of the offences. In the process, the learned

Special Judge lost sight of the fact that there was no cogent

material to connect Aniket (A2) with the crime. Mr. Joshi

submitted that the circumstances which were arrayed against

the appellant, even if taken at their face value, do not make out

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a case against the appellant. Mr. Joshi submitted that the

discovery leading to the recovery of the bloodstained clothes is

of no assistance to the prosecution. It is unlikely that the

bloodstains would have been found on the clothes, recovered

after an interval of 7 to 8 days of the occurrence. Moreover,

chemical analyst has yet not reported that the bloodstains found

on the clothes of Aniket (A2) were of the same blood group as

that of the deceased. Nor the statement of Mr. Imran Shikalgar,

recorded under Section 164 of the Code, is of assistance to the

prosecution as there was no test identification parade and thus

the claim of the said witness that the appellant had purchased

scythe (parali) from him cannot be pressed into service to

incriminate the appellant. A strong criticism was advanced

against the utility of the statement of Mr. Onkar Undale, a co-

worker of the appellant, before whom the appellant allegedly

made extrajudicial confession. It was urged that if the claim of

the said witness that Santosh (A1) had offered Rs.50,000/- to

him and Aniket (A2) to kill the deceased, was to be believed,

then the said witness should also have been arraigned as an

accused. Apart from the aforesaid circumstances, which are

inherently of weak nature, there is no other material to connect

Aniket (A2) with the crime, submitted Mr. Joshi.

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7. As against this, Mrs. Shinde, the learned APP, stoutly

submitted that there are strong circumstances which squarely

incriminate the appellant. He was named in the first

information report. The extrajudicial confession which was

immediately made by the appellant, to his friend Onkar Undale,

appears voluntary and true and gives a vivid account of the

circumstances in which the deceased was done to death. It was

a case of contract killing. In the backdrop of the brutal nature

of the offence, according to Mrs. Shinde, the appellant does not

deserve to be enlarged on bail.

8. Mr. Pawar, the learned Counsel for respondent no.2

supplemented the submissions of Mrs. Shinde. Laying

emphasis on the fact that the deceased was killed in pursuance

of criminal conspiracy, Mr. Pawar would urge that the

circumstances pressed into service against the appellant

squarely establish the criminal conspiracy. Therefore, according

to Mr. Pawar, the learned Special Judge committed no error in

declining to exercise the discretion in favour of the appellant.

9. We have given anxious consideration to the aforesaid rival

submissions.

10. Indubitably, on 18th November, 2018, the first informant

had lodged a missing report. The non-inclusion of the names of

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the suspect, or for that matter, the fractious relations between

the deceased and Santosh (A1), at that point of time, does not

detract materially from the prosecution case. The missing

report was lodged on the very next day of the deceased not

returning home. However, in the first information report dated

24th November, 2018, the first informant divulged the details

including the financial transactions between the deceased and

Santosh (A1), the dispute over the money borrowed by the

deceased and the alleged intimidation by Santosh (A1).

11. At this stage, there is prima facie material to indicate that

the headless body of the deceased, the head and the right hand

were found at different places in the river. Weapons were also

found in the riverbed at different places. There is material to

indicate that the deceased was found in the company of Santosh

(A1) at the hostel construction site. Apparently, more than one

witnesses have stated that they had seen the deceased and

Santosh (A1) together on the evening of 17th November, 2018.

12. Indubitably, the case rests on circumstantial evidence. The

statement of Mr. Onkar Undale recorded under Section 164 of

the Code sheds light on the alleged role of the appellant. On the

one hand, it indicates that the appellant had informed him that

Santosh (A1) offered to pay Rs.50,000/-, each, to kill the

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deceased. On the other hand, on the morning of 18 th November,

2018, at about 8.00 am. the appellant had came to the house of

the said witness in a TATA Sumo vehicle, and informed him that

the said vehicle was to be washed. Upon opening the rear door

of the said vehicle, bloodstains were found in the rear section

and on the door. Upon being inquired, appellant informed him

that he and Santosh (A1) killed the deceased on the previous

night. The entire incident was allegedly narrated by the

appellant.

13. The aforesaid statement of Mr. Onkar Undale, at this

juncture, cannot be brushed aside on the premise that, being

an extrajudicial confession, it constitutes a weak peace of

evidence. Apart from being an extrajudicial confession, the said

statement may be admissible under Section 10 of the Evidence

Act as a statement made by the appellant when the conspiracy

to kill the deceased was afoot. Mr. Onkar Undale was, in a

sense, a privy to the transaction. Being a co-worker, there was

an element of proximity between the appellant and Onkar

Undale. Element of spontaneity is also evident. From this

stand point, at this stage, the extrajudicial confession allegedly

made by the appellant cannot be thrown overboard.

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14. In addition, there is evidence of discovery leading to the

recovery of the bloodstained clothes of the appellant. Indeed,

there is no material to indicate that Imran Shikalgar had known

the appellant from before. Nor it is the claim of the prosecution

that test identification parade was held. However, at this stage,

only for want of test identification parade the claim of Imran

Shikalgar that the appellant had purchased the scythe (parali)

from him cannot be discarded.

15. In the totality of the circumstances, in our view, there is

adequate material to demonstrate prima facie complicity of the

appellant in the crime. Having regard to the nature of the

offence, in our view, the learned Special Judge was justified in

declining to exercise the discretion in favour of the appellant.

Thus, we do not find any infirmity in the impugned order.

Resultantly, the appeal deserves to be dismissed.

16. Hence, the following order.

:Order:

(i) The appeal stands dismissed.

(ii) It is, however, made clear that the

consideration is confined to the determination

of entitlement of the appellant for bail and the

learned Special Judge shall not be influenced

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by the observations made hereinabove while

deciding Special (Atrocity) Case No.4 of 2019.

[N. J. JAMADAR, J.]             [S. S. SHINDE, J.]