Atul S/O Roopraoji Shingan vs The State Of Mah. Thr. Pso Tiwsa ...
2022 Latest Caselaw 4810 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       NAGPUR BENCH, NAGPUR

                       CRIMINAL APPEAL NO. 119 OF 2022

Atul S/o. Roopraoji Shingan,
Aged 38 years, Occ. Agriculturist,
R/o. Mahatma Fuley Square, Belore,
Tahsil Chandur Bazar, District Amravati,
(Presently at Central Prison, Amravati).                                   . . . APPELLANT

                       ...V E R S U S..

1. The State of Maharashtra through
   PSO Tiwsa, District Amravati.

2. Mrs. Vandana S/o. Babarao Dalal,
   Aged 45 years, Occ. Household,
   R/o. Shivaji Square, Tiwsa,
   District Amravati.                                                . . . RESPONDENTS

------------------------------------------------------------------------------------------------
Shri R. M. Daga, Advocate for appellant.
Mrs. M. A. Barabde, APP for respondent no. 1/State.
Shri N. M. Kolhe, Advocate for respondent no. 2.
-----------------------------------------------------------------------------------------------
                 CORAM :- V. M. DESHPANDE AND
                          AMIT B. BORKAR, JJ.

DATED :- 05.05.2022

ORAL JUDGMENT (PER : V. M. DESHPANDE, J.) :-

1. Heard Shri R. M. Daga, learned Advocate for the

appellant, Smt. M. A. Barabde, learned APP for respondent/State and

Shri N. M. Kolhe, learned Advocate appointed to represent the

respondent no. 2.

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2.          Admit.    Taken up for final hearing by consent of the

parties.

3. The reason for filing of this appeal by the appellant under

Section 14A of the Scheduled Castes and Scheduled Tribes (Prevention

of Atrocities) Act, 1989 is that when the appellant filed an application

under Section 439 of the Code of Criminal Procedure before the

learned Additional Sessions Judge-2, Amravati bearing Criminal Bail

Application No. 498/2021 was rejected by the learned Special Judge

vide order dated 28.05.2021.

4. The investigation in this prosecution case is complete. The

challan is already presented by the Investigating Agency.

5. In this prosecution case there are total 13 accused persons

and except the appellant all other 12 accused persons are already

released on bail by Trial Court or by this Court. This submission made

on behalf of the learned Advocate for the appellant was not countered

by learned APP for State and learned Advocate for the respondent

no. 2.

6. In this prosecution case, the incident occurred on

09.08.2020 in between 3.30 to 3.45 p.m. in the courtyard of the house 3 4-apeal-119-22.odt

of the deceased. The incident in question was reported by Sou.

Vandana Dalal, mother of deceased- Ajaj Dalal on the very same day. In

view of her report, a crime was registered against the appellant and

other accused persons bearing Crime No. 196/2020 for the offence

punishable under Sections 302, 365, 120B, 148, 149, 504, 34, 269,

270, 271 of the Indian Penal Code and under Section 3, 4 read with 25

of the Arms Act and under Sections 3(2)(5), 3(2)(v-a) of the

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

1989 and Section 135 of the Maharashtra Police Act.

7. Form the First Information Report (FIR), it is clear that the

first informant does not disclose that her son was assaulted by the

appellant or the other accused persons only because he belongs to

Scheduled Caste. In that view of the matter, at least prima facie, at this

stage the offence in that context will have to be evaluated only after

the evidence.

8. On the preceding day of the actual assault was birthday of

one Arif Saha, the friend of the deceased. This Arif Saha is also

examined by the prosecuting agency during the investigation and his

statement is part and parcel of the charge-sheet.

4 4-apeal-119-22.odt

9. In the FIR, the presence of other accused persons is also

mentioned however in the FIR it is stated by the first informant that

her son was assaulted on thigh by the appellant. During the

investigation, the Investigating Officer has also recorded further

statement of the first informant, it is dated 12.08.2020. Importantly, in

her statement recorded during investigation she did state very

specifically that her son was assaulted on thigh not only by the present

appellant but co-accused- Nitin. Similar is the statement of Puja- sister

of deceased and Babarao- father of the deceased and Arif Saha-

independent witness, who also attribute role that the deceased was

assaulted not only by the present appellant but by Nitin on his thigh.

10. The post-mortem report is available on record. It show

that there are injuries and all are on thigh alone and one incised

wound on ring finger and one on forearm. In this backdrop, it is the

submission of learned Advocate for the appellant that co-accused- Nitin

is also released on bail by Trial Court. He submitted that therefore the

learned Judge of the Trial Court ought to have applied yardstick of

parity qua present appellant also. He submitted that another accused

by name Surendra is released on bail by this Court. However, learned

APP for the State is absolutely right in her submission that the case of

the said accused has no parity with the present appellant in as much as 5 4-apeal-119-22.odt

against the said accused the role attributed is that he assaulted by fist

blows.

11. Learned APP invited our attention to the statement of one

Anita Makeshwar, who reached to the spot immediately after the

assault. Her statement would show that when she reached to the

house of the deceased-Ajay that time she noticed deceased-Ajay was

lying in pool of blood and one knife was found to be struck to the thigh

of the deceased-Ajay. After the incident, the injured was immediately

referred by the Police authority to Rural Hospital, Tiwsa. The

requisition sent alongwith injured does not show that the Police found

knife struck in thigh of deceased-Ajay.

12. From the appellant no knife is seized. What is seized from

his is a gun, which was not at all used in the assault even according to

the prosecution. Two knives are recovered during the course of

investigation on memorandum statement of the co-accused, one is at

behest of co-accused- Amar Kalmegh and another is by co-accused-

Nitin, who is already released on bail by the Trial Court. Thus, at least

at this stage, the weapon by which the assault was made is not found

to be concealed by the present appellant.

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13. The appellant is in jail from 10.08.2020. Considering the

statement recorded during the investigation, immediately after the

incident, of all eye-witnesses including the first informant show that

the deceased was not assaulted alone by the appellant but also by

Nitin, who stand released on bail by the Trial Court.

14. The reply filed on behalf of the prosecuting agency is

conspicuous by its absence about the past criminal record of the

appellant. Considering the aforesaid, we are of the view that further

custodial presence of the appellant is not warranted. Resultantly, we

pass the following order:-

i) The order passed by learned Additional Sessions Judge-2,

Amravati in Criminal Bail Application No. 498/2021, dated 28.05.2021

is hereby quashed and set aside.

ii) The appellant- Atul S/o. Roopraoji Shingan be released on bail in

connection with Crime No. 196/2020 registered at Police Station

Tiwsa, Dist. Amravati for offence punishable under Sections 302, 365,

120B, 148, 149, 504, 34, 269, 270, 271 of the Indian Penal Code and

under Section 3, 4 read with 25 of the Arms Act also under Sections

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

(Prevention of Atrocities) Act, 1989 and Section 135 of the 7 4-apeal-119-22.odt

Maharashtra Police Act on he executing a P.R. bond of ₹10,000/- (Rs.10,000/- (Rs.

Ten Thousand) with one solvent surety in the like amount.

iii) The appellant is directed not to enter city of Tiwsa until trial is

over.

iv) The appellant shall furnish his residential address where he shall

be residing after release on bail to the learned Judge before whom he

will be executing bail bond.

v) The learned Judge before whom the bail bond is executed is

directed to ensure that condition is imposed on the appellant that the

appellant shall attend Police Station twice in a month i.e. on Friday

and Tuesday and shall remain in Police Station from 11.00 am. to 3.00

p.m. The Police Station shall be nearest to the Police Station of the

address where the appellant will be residing.

vi) The appellant is also directed to attend each and every date of

the Court case. Any two consecutive default on his part will entail

cancellation of this bail.

15. Shri N. M. Kolhe, learned Advocate is entitled for his

professional fees for arguing this appeal on behalf of the respondent 8 4-apeal-119-22.odt

no. 2, which is to be paid by Legal Aid Committee and quantified to

₹10,000/- (Rs.4000/- (Rs. Four Thousand).

16. With this the appeal is allowed and disposed of.

                               (AMIT B. BORKAR, J.)                     (V. M. DESHPANDE, J.)




  RR Jaiswal

          Digitally signed
          by JAISWAL
JAISWAL   RAJNESH
RAJNESH   RAMESH
          Date:
RAMESH    2022.05.05
          15:46:04 +0530