Gopichand S/O Lokchand Katangkar vs State Of Mha. Thr. Pso Ps ...
2022 Latest Caselaw 7149 Bom

                                                    1       924-J-APPEAL-514-21.odt

         IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                   NAGPUR BENCH, NAGPUR.
               CRIMINAL APPEAL NO. 514 OF 2021
APPELLANT :                   Gopichand S/o Lokchand Katangkar,
                              Aged about 21 years, Occ. Agriculturist,
                              R/o Lohara, Tal. & Dist. Gondia.

                              VERSUS

RESPONDENTS :                 1.    State of Maharashtra,
                                    through Police Station Officer,
                                    Police Station, Davaniwada,
                                    Dist. Gondia.

                              2.     Sau. Sevangan Wd/o Rajesh Kirsan,
                                     Age - 30 years, Occ - Household,
                                     R/o. Lohara, Tal. & Dist Gondia.
---------------------------------------------------------------------------------------------
Shri R. M. Daga, Advocate for appellant.
Shri M. J. Khan, Additional Public Prosecutor for respondent No.1-State.
Dr. Renuka S. Sirpurkar, Advocate for respondent No.2.
---------------------------------------------------------------------------------------------
                               CORAM:- MANISH PITALE AND
                                              VALMIKI SA MENEZES, JJ.

DATED :- 26/07/2022.

ORAL JUDGMENT : (PER MANISH PITALE, J.) :

1. Heard. Admit. Heard learned counsel for the parties.

2. At the outset, Shri R. M. Daga, learned counsel

appearing for the appellant sought permission to amend the

prayer clause so as to state the details of order passed by District

Judge-2 and Additional Sessions Judge, Gondia, whereby

application for bail filed on behalf of the appellant was rejected.

2 924-J-APPEAL-514-21.odt

3. Leave to amend the prayer clause a) is granted in the

above terms. Amendment be carried out forthwith.

4. By this appeal, appellant - one of the accused persons,

has challenged order dated 17/11/2021 passed by the aforesaid

Court, whereby his bail application has been rejected. The

appellant is one of the accused persons in Crime No.134/2021

registered at Police Station, Davaniwada, Dist. Gondia for offences

punishable under Sections 302, 364, 324, 504, 506, 143, 144, 201

of the Indian Penal Code (IPC) and Sections 3(2)(5), 3(1)(r)(s),

3(2)(5)(a) of the Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act, 1989. Pursuant to investigation, on

01/10/2021, the charge-sheet came to be filed.

5. The appellant had approached the aforesaid Court

seeking bail on the ground that the material on record pursuant to

the investigation and along with the charge-sheet, did not ascribe

specific role to the appellant and being a person with no criminal

antecedents, he deserves to be enlarged on bail. But, the aforesaid

Court rejected the application.

6. Shri R. M. Daga, learned counsel appearing for the

appellant submitted that in the present case, the alleged incident 3 924-J-APPEAL-514-21.odt

took place on 23/06/2021 and the FIR was registered after delay

of 11 days on 04/07/2021. In the FIR, appellant was not named as

one of the accused persons and only 12 persons were specifically

named in respect of whom, specific role was attributed by the

complainant i.e. respondent No.2 herein, who happens to be

widow of the deceased victim. It is further submitted that on

06/07/2021, the appellant was arrested, while the statements of

the witnesses filed along with the charge-sheet would show that it

was for the first time that on 08/07/2021, respondent No.2

(informant - complainant) named the appellant and attributed

some role to him in respect of the said incident. It is submitted

that the said role ascribed to the appellant did not match with the

alleged role ascribed to the appellant in the statements of other

witnesses, which are recorded much later in July, 2021.

7. It is submitted that even if the statements of the

witnesses filed along with the charge-sheet were to be taken at

their face value, no role was attributed to the appellant and that

he appeared to be roped in, after registration of FIR. According to

the learned counsel appearing for the appellant, neither

respondent No.2 (informant - complainant) nor her mother-in-

law, who claims to be eye-witness to the incident, named the 4 924-J-APPEAL-514-21.odt

appellant in their initial statements. On this basis, it was submitted

that as per statements on record, the allegations made against

other accused persons were clearly distinct from the role

attributed to the appellant, thereby indicating that the appellant

did not deserve further continuance in custody, having been

arrested more than a year earlier.

8. On the other hand, Dr. Renuka Sirpurkar, learned

counsel appearing for respondent No.2 (informant - complainant)

submitted that the presence of the appellant was clearly

established as per the statements of respondent No.2 and other

eye-witnesses. Since Section 149 of the IPC was invoked in the

present case, material indicating presence of the appellant at the

spot of incident, was sufficient to show his active involvement in

the crime and his liability as regards the said incident. It is

submitted that delay in registration of FIR was not fatal, for the

reason that immediately after the incident, which took place on

23/06/2021, respondent No.2 pursued the matter with the police.

It is only because of the attitude of the police in not co-operating

with the respondent No.2 and the victim that the offences were

eventually registered on 04/07/2021.

5 924-J-APPEAL-514-21.odt

9. It is submitted that the role of the Police was

commented upon by the Division Bench of this Court in the

Judgment and order dated 06/04/2022 in Criminal Appeal

No.54/2022 filed by co-accused person challenging the order of

the Court below rejecting his application for bail. The Division

Bench of this Court found that the police officers of the said Police

Station were responsible for the manner in which they handled

the situation on 23/06/2021. The victim was brought to the Police

Station in seriously injured condition. It is further seen that, while

dismissing the appeal, Division Bench of this Court directed that

the investigation would stand transferred to the State CID. On this

basis, it is submitted that the present appeal deserves to be

dismissed.

10. Shri M. J. Khan, learned Additional Public Prosecutor

appeared on behalf of the Respondent-State and opposed the

present appeal.

11. We have considered the contents of the FIR dated

04/07/2021, oral report leading to the registration of FIR, as also

statements filed along with the charge-sheet.

6 924-J-APPEAL-514-21.odt

12. Perusal of the aforesaid material shows that in the oral

report submitted by respondent No.2, there is no reference to the

appellant and only 12 accused persons were specifically named

and their specific acts were described in detail. Even, while

describing the manner in which the injured victim was transported

from the place of incident to the Police Station, there is no

reference in the oral report, either to the presence of the appellant

or any role attributed to him.

13. The material on record shows that the body of victim

was recovered on 06/07/2021 and the appellant was also arrested

on the same day. It is, thereafter, on 08/07/2021, when the

supplementary statement of the respondent No.2 was recorded

that she named the appellant for the first time, alleging that he

was also one of the persons, who had surrounded her husband

when the assault was carried out. The mother-in-law of

respondent No.2, also claimed to be an eye-witness to the

incident, but she did not name the appellant, while describing the

incident.

14. Apart from respondent No.2 and her mother-in-law,

the appellant appears to have been named by Dipak Patle, 7 924-J-APPEAL-514-21.odt

Kamlesh Kirsan and Kewal Lilhare. Perusal of statements of these

witnesses indicates that while Dipak Patle claimed that after the

assault, when the injured victim was being transported from the

place of incident to the Police Station, the said witness and the

appellant along with others accompanied the injured victim in the

vehicle in question. The statement of witness Kamlesh Kirsan also

indicates that the aforesaid role is attributed to the appellant. Both

these witnesses, after describing the specific role attributed to the

appellant, towards the end of their statements, have stated that

the name of the appellant along with others as being involved in

the assault on the victim. The witness Kewal Lilhare claimed to

have seen the appellant along with others after the assault had

taken place.

15. It is on the basis of the aforesaid material that the

appellant has been in custody since 06/07/2021. It is also an

admitted position that the bail applications of the other co-accused

persons were rejected and appeal filed by one co-accused Dinesh

Nagpure, referred to above, was dismissed by the Division Bench

of this Court on 06/04/2022 (Criminal Appeal No.54/2022).

8 924-J-APPEAL-514-21.odt

16. Perusal of the aforesaid material shows that from the

beginning in the oral statement leading to the registration of FIR,

specific act of assault was attributed to the said co-accused Dinesh

Nagpure and therefore, the case of the appellant is

distinguishable. In the initial statement made by respondent No.2,

her mother-in-law and other alleged eye-witnesses, the appellant

was not even named as being present at the spot of the incident.

In subsequent supplementary statement, the name of the

appellant has surfaced and the role attributed to him was that he

was sitting in the car in which the injured victim was transported

to the Police Station. Specific acts of assault have not been

attributed to the appellant. Therefore, we are of the opinion that

the case of the appellant for grant of bail is distinguishable from

the other co-accused persons.

17. There is no material placed before us to contradict the

statement made on behalf of the appellant that there are no

criminal antecedents, insofar as he is concerned. The appellant is

21 years old young man. Learned counsel appearing for the

appellant, on instructions, made a statement that the appellant

would undertake not to contact respondent No.2 or any of the

eye-witnesses in any manner during the trial. He would reside in a 9 924-J-APPEAL-514-21.odt

place away from the place of residence of the respondent No.2

and her mother-in-law.

18. In view of the above, we are convinced that the present

appeal deserves to be allowed in the following terms :-

i] The impugned order passed by the Court below dated 17/11/2021, rejecting the bail is quashed and set aside.

ii] It is directed that the appellant be released on bail in connection with FIR No.134/2021 registered with the Police Station, Davaniwada, Dist. Gondia for offences punishable under Sections 302, 364, 324, 504, 506, 143, 144, 201 of the Indian Penal Code (IPC) and Sections 3(2)(5), 3(1)(r)(s), 3(2)(5)(a) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 on executing P.R. Bond in the sum of Rs.50,000/- with one solvent surety in the like amount.

iii] The appellant shall not enter the jurisdiction of Police Station, Davaniwada, during the pendency of the trial.

iv] The appellant shall not in any manner contact respondent No.2 or other witnesses, during the pendency of the trial.

                                                           10     924-J-APPEAL-514-21.odt

                    v]            The appellant shall not undertake any steps

which may have the effect of tampering with the evidence or influencing the witnesses.

vi] The appellant shall attend each and every date before the trial Court.

vii] Needless to say, failure to comply with the aforesaid conditions would make the appellant liable for cancellation of bail.

viii] It is made clear that the observations made in this order are only for the purpose of consideration of grant of bail to the appellant and the trial Court shall not in any manner be influenced by the same during the trial.

19. The appeal is allowed in the above terms.

       [VALMIKI SA MENEZES, J.]                                    [MANISH PITALE, J.]




       Choulwar




           Digitally signed by
VITHAL     VITHAL MAROTRAO
MAROTRAO   CHOULWAR
           Date: 2022.07.27
CHOULWAR   19:14:48 +0530