Shyam Manohar Kundwani vs State Of Mah. Thr. Pso Ps Tumsar ...
2022 Latest Caselaw 11231 Bom

                             1



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


           CRIMINAL APPEAL NO. 600 OF 2022

1.   Shyam Manohar Kundwani, age : 20
     years, Occ. R/o Shivaji Nagar, Tumsar,
     Tah. - Tumsar and District - Bhandara.
                                               ... APPELLANT

                         VERSUS
1.   The State of Maharashtra, through
     the Police Station Officer, Police
     Station, Tumsar, Dist. Bhandara.

2.   Sangita Veenu Gedam, Aged about
     47 years, Occupation : Housewife,
     R/o Ambedkar Ward, Tq. Tumsar,
     District Bhandara.

                                           ... RESPONDENTS

                         WITH

           CRIMINAL APPEAL NO. 610 OF 2022

     Ghanshyam @ Roshan s/o Ramesh
     Bhajne, aged about 20 years, Occupation
     Labour, R/o Makde Nagar, Tumsar, Distt.
     Bhandara.
                                               ... APPELLANTS

                         VERSUS


1.   The State of Maharashtra, through
     the Police Station Officer, Police
                                     2

          Station, Tumsar, Dist. Bhandara.

     2.   Sangita Veenu Gedam, Aged about
          47 years, Occupation : Housewife,
          R/o Ambedkar Ward, Tq. Tumsar,
          District Bhandara.

_____________________________________________________________
       Criminal Appeal No. 600 of 2022
       Shri S.V. Sirpurkar, Advocate for the appellant.
       Smt. Mayuri Deshmukh, A.P.P. for the respondent no.1/State.
       Smt. N.G. Choubey, (appointed) advocate for respondent no. 2.

       Criminal Appeal No. 610 of 2022
       Shri K.S. Motwani, Advocate for the appellant.
       Smt. Mayuri Deshmukh, A.P.P. for the respondent no.1/State.
 _____________________________________________________________


            CORAM:VINAY JOSHI AND MRS. VRUSHALI V. JOSHI, JJ.

            RESERVED ON      :   19/10/2022.
            PRONOUNCED ON :      21/10/2022



ORAL JUDGMENT :


           Heard. ADMIT.

2. The matter is taken up for final hearing by consent of

learned Counsel appearing for the respective parties.

3. Both appeals are under Section 14-A of the Scheduled Caste

and Scheduled Tribe (Prevention of Atrocities) Act 1989 (for short 'the

SC and ST Act'), raising a challenge to the rejection of the regular bail

by the Trial Court. Since both appellants (accused) are arrested in the

same crime, for the sake of convenience both appeals are taken

together for disposal. Both accused namely Shyam Kundwani and

Ghanshyam @ Roshan Bhanje were arrested in the Crime No. 138 of

2022 registered with Police Station Tumsar, District Bhandara for the

offence punishable under Sections 302, 143, 147, 148, 149, 135 and

Section 3(2)(5) of the SC and ST Act. Both have applied for regular

bail, however the Trial Court has rejected both applications vide order

dated 08.08.2022 and 19.07.2022.

4. Both learned Counsel appearing for the accused have made

exhaustive submissions to contend that the Trial Court erred in

declining to exercise discretion in releasing accused on bail. It is argued

that there are no eye-witnesses to the incident except one, who was not

knowing the assailants. The Investigating Agency has not taken prior

T.I. parade and therefore, evidence of sole eye-witness is of no use. It is

submitted that the prosecution case is solely resting upon extra judicial

confessions, which is a weak type of evidence. It is argued that there

are several discrepancies and therefore, it is a fit case for grant of bail.

5. Per contra, learned A.P.P. has resisted both appeals by

contending that the accused along with two others (juvenile in conflict

with law) have committed brutal murder at public place by using sharp

edged weapons. The informant has lodged report within few hours

from the occurrence with specific names of appellants/accused. It is

submitted that there are two consistent extra judicial confessions which

are sufficient to disclose the complicity of the accused. Further, it is

submitted that the alleged incident took place out of a group rivalry,

therefore, there is every possibility of tampering and pressurizing the

witnesses, if the accused are release on bail.

6. The informant is the mother of the deceased namely Monu

Gedam. She has stated that on 12.04.2022 deceased Mone left the

house at 10.30 am for his shop. In the evening, around 5.00 pm she

learnt that Mone has been murdered on the road in the area known as

Makde Ward. She rushed to the place and found Monue lying dead in

the pool of blood. She stated that few days earlier there was a quarrel

between Monu and accused Roshan at the instance of one girl. The

informant stated that both accused Roshan and Shyam along with two

to three others named boys (JCL) have killed Monu by means of sharp

edged weapons and therefore she filed report in the late hourse i.e. on

13.04.2022 around 00.45 am. The Police have carried investigation and

on completion filed the charge-sheet. The provisions under the SC and

ST Act have also been invoked since the deceased belongs to the

member of Scheduled Caste or Scheduled Tribe community.

7. The prosecution has mainly relied on the statement of

witness Kishor Gupta who is the eye-witness to the incident. He stated

that, at the relevant time, 4 to 5 boys started to assault deceased Monu

by means of sharp edged weapon. Monu tried to run away, however the

assailants followed him. After some time, he saw that Monu was killed

by cutting his neck. The learned Counsel for the appellants would

submit that since the prosecution has not conducted prior T.I. parade,

his evidence carries no value. As a matter of fact, the identification in

Court is substantial evidence, therefore, merely on the basis of non-

holding of T.I. parade, the statement of eye-witness cannot be rejected.

It depends upon the facts and circumstanced of the case, which is a

matter of trial.

8. The prosecution further relied on two extra judicial

confessions. In this regard, the Police have recorded the statement of

Sanket Vaidya on 15.04.2022. He stated that on the date of incident,

around 5.30 to 6.00 pm both accused Shyam, Roshan and one Gaurav

Jibhkate came to his Dhaba by riding on Motorcycle. T-shirt of accused

Shyam was having blood staines hence he has changed T-shirt by

keeping blood stained T-shirt at said place. He further stated that

accused Shyam had sustained some sort of injury at his right hand. On

inquiry, both Shyam and Roshan stated that they have "done the work

of Monu" and left the place. Precisely, soon-after the occurrence both

accused hurriedly came to the Dhaba, Shaym changed his blood stained

T-shirt and both have confessed that they have eliminated Monu.

Learned Counsel appearing for the appellants would submit that the

statement of witness Sanket Vaidya is not reliable since he has stated

differently in his statement recorded by the Magistrate in terms of

Section 164 of the Code of Criminal Procedure. We have gone through

the said statement wherein the witness has stated similarly that Shyam

has changed T-shirt and confessed that he had done the work of

someone, whose name he did not remember. Prima facie by and large,

we do not find any inconsistency on core issue.

9. Learned Counsel appearing for the accused Shyam would

submit that though this witness has stated that Shyam had sustained

injury at his hand, however as per medical certificate, there was no

injury on his person. We may refer the statement of witness namely

Aryan Motghare who has stated that soon-after the occurrence, he saw

Shyam and Roshan proceeding on motorcycle and saw that there were

blood stains at the hands of Shyam. Probably, blood stains might have

been construed by witness Sanket Vaidya as an injury and therefore, on

prima facie basis the said submission deserves no consideration.

10. The prosecution further relied on the extra judicial

confession made by accused to witness Gaurav Jibhkate. He stated that

soon-after the occurrence around 6.00 pm, both Shyam and Roshan

came to his place and hurriedly took him on their motorcycle. He saw

that there were blood stains on the cloths of Roshan. On inquiry,

Roshan discloses that he has eliminated Monu by means of knife. We

have also gone through his statement recorded under Section 164 of

the Code of Criminal Procedure, wherein he equally stated that both

came to him on motorcycle and Roshan confessed about killing Monu.

11. Prima facie, it reveals that the alleged incident took place

around 5.00 pm and immediately around 6.00 pm, both Shyam and

Roshan by riding on motorcycle went to the place of witness Gaurav

Jibhkate. They took witness Gaurav Jibhkate on their motorcycle and

confessed about the crime. Pertinent to note that witness Sanket Vaidya

stated that Shyam and Roshan came to his Dhaba along with Gaurav

Jibhkate which is consistent in sequence of events.

12. The Police have recorded the statement of Aryan Motghare,

who has seen both Shyam and Roshan proceeding together around 5.30

pm on the date of occurrence. He has seen that there were blood stains

at the hands of Shyam to which Shyam explained differently. However,

the fact remains that soon-after the occurrence, both accused were

proceeding on motorcycle and particularly, there were blood stains at

the hands of Shyam. We have also gone through the statement of one

Ankit Jibhkate, who stated that after the incident, around 6.30 pm,

Shyam came to his video parlour in frighten condition and kept his

mobile phone.

13. It is the prosecution case that both accused along with 2 to

3 boys (JCL) have brutally murdered Monu by means of sharp edged

weapon. It reveals from the Postmortem report that there were total 22

deep incised wounds at the person of the deceased. Most of the incised

wounds are on vital parts of the body. The cause of death was as

'Hemorrhagic shock due to injuries to vital vessels of Neck'. Apparently,

it was a brutal murder committed on the road in broad day-light. The

number of multiple injuries itself indicates that it was an act of more

than one person. There is one eye-witness to the occurrence. During

investigation, the Police have seized blood stained small size swords

from appellant Roshan. It reveals that on flimsy ground of talking with

a girl, Monu was eliminated by a group of people. There are statements

to indicate that there was earlier quarrel between deceased Monu and

Roshan.

14. The prosecution is resting on various circumstances apart

from the sole eye-witness. Since the case is largely based on

circumstantial evidence, the prosecution has to prove all circumstances

firmly to exclude the hypothesis of innocence of accused. A group of

young boys in broad day-light eliminated Monu on open public place

itself indicates a strong possibility of pressurizing the prosecution

witnesses. If the accused are released on bail, there is strong possibility

that they may tamper the prosecution evidence. If they succeed to

break either of the link of circumstantial evidence, then it would be

fatal for prosecution. The offence is of serious nature, which attracts

punishment of death or life imprisonment. The manner of committing

crime is barbaric, as 22 incised wounds were found on the dead body.

Having regard to the seriousness of the crime, both appellants

(accused) does not deserve for enlargement of bail.

15. In view of that, we are not inclined to grant bail, hence

both appeals are hereby rejected. No order as to costs.

16. Fees of appointed learned Counsel be paid as per Rules.

TRUPTI SANTOSHJI AGRAWAL
                             (MRS. VRUSHALI V. JOSHI, J.)               (VINAY JOSHI, J.)
21.10.2022 19:26

              Trupti