Arif Ali Abid Ali vs The State Of Mah. Thr. Station ...
2023 Latest Caselaw 7999 Bom

                                          1



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


                          CRIMINAL APPEAL NO.388 OF 2023

                Arif Ali Abid Ali, aged about : 42 years,
                Occupation : Labour, R/o Indira Nagar,
                Yavatmal, Tq. & Dist. Yavatmal
                                                              ... APPELLANT

                                      VERSUS


       1.       The State of Maharashtra, through
                Station House Officer, Yavatmal
                Rural Police Station, Yavatmal, Tq. &
                Dist. Yavatmal.

       2.       Sau. Shobha Banduji Sawadh, Aged
                about : 52 years, Occupation :
                Labour, R/o Indira Ward,
                Hinganghat, Tq. Hinganghat & Dist.
                Wardha.

                                                          ... RESPONDENTS.

  _____________________________________________________________
              Shri V.D. Darne, Advocate for the appellant.
              Shri Rode, A.P.P. for the respondent/State.
              Shri Wathore, Advocate for respondent no.2.
   ______________________________________________________________


                      CORAM : VINAY JOSHI AND VALMIKI SA MENEZES, JJ.

DATED : 08.08.2023.

ORAL JUDGMENT : (Per : Vinay Joshi, J.)

Heard. ADMIT. The matter is taken up for final disposal by

consent of learned Counsel appearing for the parties.

2. This is an appeal under Section 14-A of the Scheduled Caste

and Scheduled Tribe (Prevention of Atrocities) Act, 1989('the SC and

ST Act') raising a challenge to the order dated 18.05.2023 passed by

the Special Judge, Yavatmal in Special Case No.119 of 2022 whereby

regular bail came to be rejected. The appellant/accused Arif Ali Abid Ali

came to be arrested in connection with the Crime No.573 of 2022

registered with the Rural Police Station, Yavatmal for the offeces

punishable under Sections 302 read with Section 34 of the Indian Penal

Code and Section 3(2)(v) of the SC and ST Act.

3. The Police have completed the investigation and filed the

charge-sheet. The appellant applied for the regular bail, which came to

be rejected vide impugned order dated 18.05.2023. The appellant seeks

bail by claiming innocence, false implication, inadequacy of evidence.

The appellant also claimed bail on the ground of parity since this Court

has released the co-accused Sharik @ Shahrukh Sayyad Rauf vide order

dated 25.04.2023 passed in Criminal Appeal No.176 of 2023. The State

as well as learned Counsel for the respondent no.2 resisted the bail by

contending that the offence is of serious nature and there exists prime

role of the appellant.

4. At the instance of the report dated 12.09.2022 lodged by

the mother of deceased Neeta, crime was registered. It is the

prosecution's case that Neeta, a resident of Higanghat, was temporarily

staying at Yavatmal for preparation of competitive examination. Neeta

had disclosed in past to her mother that the appellant Arif Ali was

insisting her for marriage to which she refused. On 04.09.2022, the

informant could not contact Neeta on phone, hence she went to

Yavatmal and on inquiry she learnt that Neeta was missing. Therefore

she filed the missing report. Dead body of Neeta was found on

06.09.2022. Thereafter, the informant recapitulated that the appellant

was continuously harassing Neeta and therefore, he must have been

committed crime, hence the report.

5. It is the prosecution case that at relevant time, the

appellant/accused got annoyed by refusal of marriage proposal by

Neeta hence he has strangulated her by a scarf. Though such case is

made out however the matter is to be viewed from the angle of

availability of admissible material against the appellant. In this regard,

the prosecution has relied on three circumstances i.e. suspicion

expressed by the informant mother, memorandum and seizure

panchnama at the instance of the appellant and continuous telephonic

conversation between the appellant and deceased soon-before her

death. We have examined the said material in context with the

prosecution case. Admittedly, the mother has merely expressed

suspicion against the appellant. So far as the memorandum under

Section 27 is concerned, it is the prosecution case that the accused has

shown the place where the ligature namely scarf was lying. As per the

memorandum statement, the accused while traveling by two wheeler,

the scarf fell on the road. At the instance of the accused, the Police

went to said place after two months from the occurrence and inquired

about the scarf. According to the prosecution case, one of the village

lady came forward, brought the scarf and said that before two months

she got said scarf lying on the road. It is a matter of appreciation during

the trial whether it could be considered as a memorandum and

consequential discovery of the fact.

6. True, the prosecution has brought on record that on the

date of occurrence and prior to that, there were continuous phone calls

between the appellant and the deceased. To our mind, besides

continuous telephonic conversation there is no other material against

the appellant.

7. Learned counsel for the informant though attracted our

attention to the part of the memorandum where the accused confessed

about the crime however we are afraid even at this stage to consider

the same. Besides that the cause of death is still unknown. The Medical

Officer has not seen any surface wounds or internal injuries at the neck

hyoid bone in consonance with the case of death by strangulation. On

query the Doctor has expressed about the possibility of strangulation.

However it is a matter of trial to appreciate whether without any sort of

neck injuries could there be a death by strangulation.

8. Having regard to above circumstances, we are of the view

that on that basis the liberty of individual cannot be curtailed. The

accused is behind the bar for more than ten months. The investigation

is already complete and charge-sheet is filed. In view of that, we are

inclined to exercise our judicial discretion for grant of bail. Hence the

following order :

(a) The Criminal Appeal is allowed.

(b) We hereby quash and set aside impugned order dated 18.05.2023 passed by the Special Judge, Yavatmal in Special Case No.119 of 2022

(c) The appellant/accused Arif Ali Abid Ali in connection with

Crime No. 573 of 2022 registered with the Rural Police Station, Yavatmal for the offeces punishable under Sections 302 read with Section 34 of the Indian Penal Code and Section 3(2)(v) of the SC and ST Act, be released on bail on his furnishing P.R. bond of Rs.50,000/- with one or two sureties in the like amount.

(d) The appellant/accused shall not tamper the evidence of prosecution witnesses.

(e) The appellant/accused shall not enter into the territorial limit of Hinganghat, where the informant resides.

9. The application stands disposed of accordingly.

                         (VALMIKI SA MENEZES, J.)               (VINAY JOSHI, J.)

Trupti