Manoj Fulsing Rathod vs The State Of Mah. Thr. Pso Ps Arni ...
2022 Latest Caselaw 3653 Bom

Judgment

                                                             apeal73.22 36

                                     1

       IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  NAGPUR BENCH, NAGPUR
                   CRIMINAL APPEAL NO.73 OF 2022
Manoj Fulsing Rathod,
Aged about 30 years, occupation labour,
R/o Vithala, Digras, taluka Digras, District Yavatmal. ..... Appellant.

                             :: V E R S U S ::

1. The State of Maharashtra,
Through Police Station Officer, Police
Station-Arni, taluka Arni, district Yavatmal.

2. Datta Digambar Dhoke,
Age about 29 years, occupation labor,
R/o Pandhara, taluka Ner, District Yavatmal.  ..... Respondents.
=====================================
Shri S.G.Varshani, Counsel for the Appellant.
Shri Shahrukh Shah, Counsel for Respondent No.2.
Mrs.M.A.Barabde, Additional Public Prosecutor for Respondent
No.1/State.
=====================================
CORAM       : V.M.DESHPANDE & AMIT B.BORKAR, JJ.
DATE        : APRIL 05, 2022

ORAL JUDGMENT (Per : V.M.Deshpande, J.)

1.           Heard learned counsel Shri S.G.Varshani for the appellant,

learned counsel Shri Shahrukh Shah for respondent No.2, and learned

Additional Public Prosecutor Mrs.M.A.Barabde for the State.        Admit.

Heard finally by consent of learned counsel appearing for respective

parties.


2.           By the present appeal, under Section 14-A of the

Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities)



                                                                   .....2/-
 Judgment

                                                            apeal73.22 36

                                   2

Act, 1989, the appellant is challenging order dated 21.1.2022 passed by

learned Additional Sessions Judge, Darwha in Criminal Bail Application

No.15/2022 whereby learned Judge rejected application under Section

439 of the Code of Criminal Procedure.


3.           Learned counsel for the appellant submitted that there is a

delay in lodging of First Information Report. He also submitted that

statements of eyewitnesses were recorded belatedly. He also submitted

that Postmortem Report clearly absolves the appellant. He relied on a

decision of the Honourable Apex Court in the case of Dinubhai

Boghabhai Solanki vs. State of Gujarat and ors, reported at 2014 ALL

MR (Cri) 1132 (S.C.) and submitted that the present appeal be allowed.


4.           Per contra, learned Additional Public Prosecutor for the

State vehemently argued that the appellant is seen assaulting

Purushottam Digambar Dhoke and, therefore, at this stage, there is a

sufficient material to reject the appeal in view of fact that the offence

committed is very serious one.


5.           Learned counsel Shri Shahrukh Shah for respondent No.2

supported learned Additional Public Prosecutor for the State.


6.           On 15.11.2021, the appellant came to be arrested in

connection with Crime No.901/2021 registered with Arni Police Station,


                                                                  .....3/-
 Judgment

                                                               apeal73.22 36

                                     3

Yavatmal for offences punishable under Sections 302, 201, and 506 read

with Section 34 of the Indian Penal Code and under Section 3(2)(v) and

3(2)(va) of the Scheduled Castes and the Scheduled Tribes (Prevention

of Atrocities) Act, 1989.


7.            Deceased is one Purushottam Digambar Dhoke. Incident in

question occurred on 12.9.2021 and the First Information Report was

lodged on 28.10.2021. Taking a thread of the same, it is a submission of

learned counsel for the appellant that in view of the delay occurred in

lodging of the First Information Report, the appellant needs to be

released on bail. The First Information Report is lodged by Police Head

Constable Arun Sitaram Pawar. From the First Information Report itself,

it is clear that initially a merg was registered with Arni Police Station,

Yavatmal and during enquiry of the merg, it was revealed to

Investigating Officer a role of the present appellant and, therefore, an

offence was registered at the behest of the State.


              It is worth to note that initially a missing report was lodged

by wife of the deceased.


8.            Be that as it may, delay in lodging of First Information

Report by itself is not a reason to discard the prosecution case. There

will be an opportunity on the part of the prosecution to explain delay

properly during trial. It is altogether a different aspect as to whether

                                                                     .....4/-
 Judgment

                                                              apeal73.22 36

                                     4

explanation will be accepted or not. However, an opportunity cannot be

denied to the prosecution to explain delay.


              In this view of the matter, the first submission of learned

counsel for the appellant that the appellant is entitled to be released on

bail due to delay in lodging of the First Information Report is rejected.


9.            Insofar as recording of statements of eyewitnesses

belatedly is concerned, law is now well settled that an opportunity has

to be given to Investigating Officer investing the crime while is in

witness box to explain the delay.        At the threshold, merely because

statements of eyewitnesses are recorded belatedly that cannot be a

reason to grant the bail.


              In this view of the matter, the second submission is also

rejected.


10.           We have perused statements of eyewitnesses and they are

one Santosh Vithoba Pardhi and Rameshwar Prem Rathod. These two

persons along with the appellant and Purushottam, the deceased, and

Santosh Rathod, were having not only fish party in an agricultural field

but also liquor party. Here, worth noting that eyewitness Rameshwar

specifically sated that he was neither part and parcel of fish party nor of

liquor party because he did not eat non-veg and also is not a drinker.


                                                                    .....5/-
 Judgment

                                                                 apeal73.22 36

                                       5

His statement shows that he along with Santosh Pardhi went towards a

dam and while returning, he noticed a quarrel between Santosh Rathod,

Manoj, the appellant, and Purushottam. In the said quarrel, according to

the said eyewitness, the present appellant gave a blow on back of

Purushottam and, thereafter, he along with other co-accused threw him

inside a well.


                 Similar is a statement of another eyewitness.


11.              Looking to a specific role attributed by these two

eyewitnesses against the appellant, we are of view that the case cited

supra is not at all applicable to the present case. Resultantly, we pass

following order:-


                                      ORDER

(1) The criminal appeal is dismissed and disposed.

(2) Order dated 21.1.2022 passed by learned Additional Sessions Judge,

Darwha in Criminal Bail Application No.15/2022 stands confirmed.

                 JUDGE                                  JUDGE

!! BRW !!          Digitally signed
                   by BHUSHAN
BHUSHAN            RANA
RANA               WANKHEDE
WANKHEDE           Date:                                                ...../-
                   2022.04.06
                   17:13:18 +0530