Mahendra Shivshankar Thakur vs The State Of Maharashtra And Anr
2021 Latest Caselaw 13050 Bom

                                                                                     apeal-1410-2019.doc

                                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                          CRIMINAL APPELLATE JURISDICTION

                                             CRIMINAL APPEAL (ST.) NO.1410 OF 2019
                                                            WITH
                                              INTERIM APPLICATION NO.857 OF 2019

                      Mahendra Shivshankar Thakur                              ...Appellant
                                 vs.
                      The State of Maharashtra                                 ...Respondent
VISHAL
SUBHASH               Mr. Vinod Kashid, for the Appellant.
PAREKAR               Mr. Prakash Vare, for Respondent No. 2.
Digitally signed by   Mr. V.B. Konde-Deshmukh, APP for the Respondent-State.
VISHAL SUBHASH
PAREKAR
Date: 2021.09.21
14:43:28 +0530                                            CORAM :   S.S. SHINDE &
                                                                    N.J. JAMADAR, JJ.

JUDGMENT RESERVED ON : 14th SEPTEMBER, 2021 JUDGMENT PRONOUNCED ON: 21st SEPTEMBER, 2021

---------------

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

1. This appeal under section 14A of the Scheduled Castes and

Scheduled Tribes (Prevention of Atrocities) Act, 1989 (SC and ST

Act, 1989), is directed against an order dated 22 nd April, 2019

passed by the learned Additional Sessions Judge-1, Vasai whereby

the application preferred by the appellant/accused to enlarge him on

bail, primarily on medical grounds, came to be rejected.

2. The background facts leading to this appeal can be stated in

brief as under:

The indictment against the appellant/accused is that, the

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appellant and Baban Mahadu Mali (the deceased), were dealing in

construction business in partnership. A building was being

constructed over Survey No. 12, at Mouje Shilottar. After the demise

of father of the deceased in the year 2014, it transpired that the said

land was actually the ancestral property of the father of the

deceased. In the wake of the dispute, the deceased instituted a suit

bearing Suit No. 106 of 2016. Thus, the relations between the

appellant and the deceased were strained.

3. The prosecution alleges that on 2nd February, 2018 at about

9.00 am while the appellant was passing from in front of the house

of the deceased an altercation ensued between the appellant and the

deceased. The frst informant Ravindra and his brother Jagdish

went to the said spot and attempted to pacify the appellant and the

deceased. The appellant went to the house of his sister Sushila. The

appellant and the co-accused again reached the spot in front of the

house of the deceased and started to abuse the deceased and the frst

informant with reference to their cast. Few of the co-accused were

armed with weapons. One of the co-accused assaulted the frst

informant. Jagdish was also assaulted by means of sticks. Rest of the

co-accused also charged on the informant party. The appellant took

out the revolver, which he had concealed near his waist, and fred at

the chest of the deceased. The deceased collapsed. Hearing the sound

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of the gun shot, persons gathered and the appellant and the co-

accused fed away from the spot. Accused came to be arrested. Post

completion of investigation, chargesheet has been lodged for the

offences punishable under sections 302, 323,324, 143, 147, 148 read

with 149 of Indian Penal Code, 1860, section 25 read with section 3

of Indian Arms Act, 1959 and section 3(1)(x) of the SC and ST Act,

1989.

4. The appellant had preferred Criminal Bail Application No. 265

of 2018 before the learned Additional Sessions Judge, which came to

be rejected. After the fling of the charge sheet the appellant

preferred another application (Exhibit -2) in Sessions Case No. 49 of

2018. The later application was also rejected by the learned

Additional Sessions Judge. The appellant preferred Criminal Appeal

No. 941 of 2018 before this Court. By order dated 29 th January,

2019, this Court dismissed the appeal holding, inter alia, that the

appellant did not deserve to be released on bail during the pendency

of trial.

5. The appellant again preferred application for bail before the

learned Sessions Judge (Exhibit 23) asserting that the appellant

has been suffering from the complications of the head injury

sustained by the appellant. There were no facilities in the prison to

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treat the appellant. Hence, the appellant be released on bail.

6. The learned Sessions Judge was not persuaded to exercise the

discretion in favour of the appellant. It was noted that requisite

medical treatment was being provided to the appellant. In the

backdrop of the nature of the accusation, learned Sessions Judge

was of the view that the appellant did not deserve to be released on

bail as the possibility of tampering with the evidence and

threatening the witnesses was imminent. Thus, the application came

to be rejected by giving directions to the authorities to provide

requisite medical treatment to the appellant. Being aggrieved by and

dissatisfed with the order dated 24th April, 2019, the appellant is in

appeal.

7. Admit. Taken up for fnal disposal.

8. At the outset, it is necessary to note that this Court released

the appellant on interim bail. The appellant subsequently

surrendered after expiry of the period of temporary bail.

9. We have heard Mr. Vinod Kashid, learned counsel for the

appellant and Mr. Konde-Deshmukh, the learned APP for the State

and Mr. Prakash Vare, the learned counsel for Respondent No. 2-

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frst informant.

10. With the assistance of the learned counsel for the parties, we

have perused the material on record including the impugned order

as well as the order passed by this Court in Criminal Appeal No. 941

of 2018 dated 29th January, 2019.

11. Mr. Kashid, the learned counsel for the appellant submitted

that in view of the dismissal of Criminal Appeal No. 941 of 2018 by

order dated 29th January, 2019, the appellant does not profess to

pursue the relief of bail on merits. Mr. Kashid submitted that there

has been a signifcant change in the circumstances which entitles

the appellant to be enlarged on bail. Three circumstances are

pressed into service. One, the timely surrender of the appellant to

prison when the appellant was released on interim bail. Second,

while seeking bail on the previous occasions, before the learned

Additional Sessions Judge and this Court as well, the fact that a

cross case was registered against the members of the informant

party for grave offences including an offence punishable under

section 436 of the Penal Code, was not agitated. Third, the delay in

the commencement of the trial.

12. As against this, Mr. Konde-Deshmukh, the learned APP

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submitted that this Court has dismissed the Appeal No. 941 of 2018

preferred by the appellant, by ascribing elaborate reasons. It has, in

terms, been observed that the appellant is not entitled to be released

on bail during the trial. Thus, the appellant can not be permitted to

re-agitate the prayer for bail, on the count that one of the grounds

for bail was not urged before this Court.

13. To start with, it is imperative to note that the gravamen of the

indictment against the appellant is that of shooting the deceased

from a close range. The deceased was allegedly shot at, on the chest.

Weapon of assault has allegedly been recovered pursuant to the

discovery made by the appellant. There are number of eye witnesses

including the wife of the deceased and other immediate family

members.

14. In the aforesaid backdrop, it may be apposite to extract the

observations in paragraph Nos. 12 to 15 of the order passed by this

Court in Criminal Appeal No. 941 of 2018 (Coram: Indrajit Mahanty

& Sarang Kotwal, JJ.) dated 29th January, 2019.

....12] Having heard both the sides, we fnd that in this case, the Appellant could not be released on bail. There are eyewitnesses to the incident and they have consistently given statements showing direct involvement of the Appellant in the Crime. The main role is ascribed to this Appellant who had fred at the deceased from the close range. The statements of the frst informant and his brother show that the Appellant

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had gone to the house of his sister Sushila and had come back. Therefore prima facie it cannot be said that Appellant acted on a spur of moment.

13] At this stage of consideration of bail, it is not possible to accept the submission of Mr.Mundargi that, the offence of murder was not made out and that it could be a much lesser offence. We are also unable to agree with Mr.Mundargi on his submissions that since the Appellant was returning from a temple, he had no intention to commit the murder. The material on record shows that after the quarrel had started, the Appellant had gone to his sisters house and had come back. Thereafter he had fred at the deceased.

14] There is recovery of the frearm at the instance of the present Appellant. Learned Trial Judge has dealt with these aspects while rejecting the application for bail.

15] In the light of this discussion, we are of the considered view that the Appellant does not deserve to be released on bail during pendency of the trial. Hence the Appeal is dismissed and the prayer for bail is rejected.

15. In the backdrop of the aforesaid observations, we fnd it rather

diffcult to accede to the submissions of Mr. Kashid that, at this

stage, the appellant can be permitted to submit that failure to urge

the ground of registration of a cross case constitutes a change in

circumstance. Even if maximum latitude is provided to the case of

the appellant and it is assumed that cross-case has been registered

against the members of the informant party in respect of the very

same occurrence, yet the fact remains that there is clear material to

show that the appellant had allegedly fred at the deceased from a

close range. What accentuates the situation is the fact that after the

altercation broke out, the appellant allegedly went to his sister's

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house and returned to the spot and thereafter took out the revolver

from his waist and shot the deceased.

16. The rest of the grounds sought to be urged on behalf of the

appellant, in our view, do not constitute a material change in the

circumstances. The appellant can not draw mileage from the fact

that he surrendered on time, after being released on interim bail. It

was simply in compliance with the condition on which the interim

bail was granted. The submission on behalf of the appellant of the

delay in the commencement of trial and the time required for

completion of the trial is required to be appreciated in the backdrop

of the developments which occurred in the intervening period. In

our view, in the peculiar facts of the case, the said factor can not be

pressed into service to seek enlargement on bail, at this stage.

17. We are thus not inclined to exercise the discretion in favour of

the appellant. We, however, deem it appropriate to request the

learned Additional Sessions Judge, Vasai to make an endevour to

expeditiously complete the trial.

18. The conspectus of aforesaid consideration is that the appeal

deserves to be dismissed. Hence, the following order.

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                                 ORDER

1]       The Criminal Appeal stands dismissed.

2]       The learned Additional Sessions Judge, Vasai on whose fle

Sessions Case No. 49 of 2018 is pending, is requested to make an

endevour to complete the trial in Sessions Case No. 49 of 2018 as

expeditiously as possible.

3] In view of the disposal of the Appeal, the Interim Application

does not survive and also stands disposed of.

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




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