Bombay High Court
Anwar Sheikh Mehboob Sheikh vs State Of Mah. Thr. Pso, Ps, Wardha (City) ... on 14 December, 2023
2023:BHC-NAG:17260
Judgment 1 54-Cri.Appeal 501.2023.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 501 OF 2023
Anwar Sheikh Mehboob Sheikh,
Aged about 26 years, Occu. -Labour,
R/o. Anand Nagar Ward,
District Wardha.
.... APPELLANT
// VERSUS //
1) State of Maharashtra,
Through Police Station Officer,
Police Station Wardha (City),
District Wardha.
2) Siddharth S/o Sheshrao Deotale,
Aged about 40 years,
R/o. Near Sathe Kirana Shop,
Anand Nagar, Wardha.
.... RESPONDENTS
______________________________________________________________
Mr. R.M. Daga, Advocate for Appellant.
Ms. Deepa Charlewar, Additional Public Prosecutor for
Respondent No.1/State.
Ms. Seema Dhotre, Advocate (appointed) for Respondent No.2.
______________________________________________________________
CORAM : URMILA JOSHI-PHALKE, J.
DATED : DECEMBER 14, 2023
ORAL JUDGMENT :
1. Heard. Admit. Heard finally by consent of the learned
counsel appearing for the parties.
Judgment 2 54-Cri.Appeal 501.2023.odt
2. By this appeal, the appellant has challenged the order
passed by the Special Court in Special Case No.111/2021 below
Exh.23 by which, application for grant of bail is rejected on
17.03.2023. The appellant is arrested on 29.07.2021 and since then,
he is behind bar.
3. The accusation against the present appellant is that there
was a love relationship between the accused No.1 i.e. present appellant
and the daughter of accused No.3 - Vandeo Jawade. As per the
allegation, the accused No.3 willing to perform the marriage of his
daughter with one Kishan Deotade and present appellant was against
this marriage and therefore, he in annoyance and by keeping grudge in
his mind, has committed the murder of deceased Kishan. It is
alleged that on 27.07.2021, elder daughter of the accused No.3 Vandeo
called Kishan for bringing water-can, accordingly, Kishan came at their
house along with the water-can and present appellant inquired with
the accused No.3 Vandeo whether Kishan had come there and he
informed that he came and left the place. It is alleged that present
appellant in furtherance of the conspiracy hatched with the other
co-accused, executed the plan and committed the murder of Kishan by
taking him behind the power-house. The dead-body of the deceased
was dumped in a flowing water. On the basis of the said report, police
Judgment 3 54-Cri.Appeal 501.2023.odt
have registered the crime against the present appellant and other
co-accused.
4. Learned Counsel for the appellant Mr. Daga submitted that
the entire case is based upon the circumstantial evidence except the
statement of the daughter of accused No.3 Vandeo. There is no other
material to connect the present appellant with the alleged offence. He
further submitted that prosecution relied upon the recovery of one
mobile phone and weapon of the offence at the instance of the present
appellant, but nothing is on record to show that the said mobile phone
belongs to the deceased, as during the recovery panchnama, the
Investigating Officer has neither mentioned the make of the said
mobile phone nor IMEI number therefore, this part of the evidence is
also not sufficient to connect the present appellant. Even considering
the statement of the daughter of the co-accused, it nowhere reveals
that the co-accused has informed regarding the whereabouts of the
deceased Kishan and thereafter present appellant has executed the
plan. Thus, chain of the circumstances is not completed, the appellant
is behind bar since the date of his arrest. Now, investigation is
completed, there is no progress in the trial and considering the nature
of evidence against the present appellant, the appellant be released on
bail.
Judgment 4 54-Cri.Appeal 501.2023.odt
5. The said appeal is strongly opposed by the State on the
ground that at the instance of the present appellant, weapon of the
offence and mobile phone of the deceased was seized which is
sufficient to show his involvement with the alleged offence and
therefore, the appeal deserves to be rejected.
6. After hearing the learned Counsel for the appellant and
after perusing the investigation papers, admittedly, the entire case is
based on the circumstantial evidence. The only circumstances
appearing against the present appellant are that the statement of the
daughter of co-accused and the recovery at the instance of the present
appellant. On perusal of the statement of the daughter of co-accused,
it only discloses that her father has received a phone call and made
inquiry about the Kishan and her father informed that Kishan had been
to his house and now left. It nowhere shows that the co-accused has
disclosed regarding whereabouts of the Kishan or shared the location
of Kishan with the present appellant.
7. The learned trial Court had considered the material and
held that there are circumstances to connect the present appellant and
rejected the application. After going through the investigation papers,
admittedly, in the recovery panchnama, neither the description nor the
IMEI number of the said mobile phone is mentioned. The learned APP
Judgment 5 54-Cri.Appeal 501.2023.odt
pointed out the statement of witness namely Mayur Adwani, who is
the mobile shop owner and Investigating Agency confirmed the fact
that the deceased has purchased the said mobile phone from his shop.
Even taking into considering this fact, it is difficult to accept that it is
the same mobile which was seized by the police as Investigating
Officer has neither mentioned the make of the mobile phone nor
mentioned the IMEI number. If this material is kept aside, there is
absolutely no material to show that the present appellant was knowing
exact location of the deceased and in furtherance of the conspiracy
hatched, he has eliminated the deceased.
8. Considering the entire material against the present
appellant, it is apparent that learned Special Judge failed to consider
the evidence collected by the prosecution against the appellant in the
manner which he ought to have, in fact, there is absolutely no material
to connect the present appellant at this stage. As far as the
circumstances whether the mobile phone belongs to the deceased or
not is to be established by the prosecution by collecting the necessary
material, which is not reflected from the investigation papers.
9. As far as the offence punishable under Section 3(2)(v) of
the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act, it is nowhere case of the prosecution that the appellant has
Judgment 6 54-Cri.Appeal 501.2023.odt
committed the crime knowing that the deceased belonging to the
Scheduled Castes. The Hon'ble Apex Court in the case of Khuman
Singh Vs. State of Madhya Pradesh, reported in (2020) 18 SCC 763 has
held that in a case of applicability of Section 3(2)(v) of the Atrocity
Act, the deceased belonging to the Schedule Tribe would not be
enough to inflict enhanced punishment. The prosecution has to
establish that the offence has been committed only because the victim
was belonging to Scheduled Castes or Scheduled Tribes, which is not
even the case of the prosecution.
10. Considering the entire material on record, at this stage, the
appellant has made out to release him on bail. Accordingly, I proceed
to pass the following order :
i) The Criminal Appeal is allowed.
ii) The order rejecting the bail application below Exh.23, passed by
the learned Special Judge, Wardha in Special Case No.111/2021
on 17.03.2023 is hereby quashed and set aside.
iii) The appellant/accused - Anwar Sheikh Mehboob Sheikh is
released on bail on executing P.R. bond in the sum of
Rs.25,000/- with one solvent surety in the like amount.
iv) The appellant shall not induce, threat or pressurize any
witnesses who are acquainted with the facts of the present
crime.
Judgment 7 54-Cri.Appeal 501.2023.odt
v) The appellant shall furnish his permanent address and contact
details to the Investigating Officer.
vi) The fees of the appointed Counsel for the respondent No.2 be
quantified as per rules.
The Criminal Appeal is disposed of.
(URMILA JOSHI-PHALKE, J.)
Kirtak
Signed by: Mr. B.J. Kirtak
Designation: PA To Honourable Judge
Date: 16/12/2023 15:40:21
