Zulferkar @ Chotu S/O Jabbar Gani vs State Of Mah. Thr. Pso Ps Ramnagar Gondia ...
2023 Latest Caselaw 13365 Bom

Bombay High Court

Zulferkar @ Chotu S/O Jabbar Gani vs State Of Mah. Thr. Pso Ps Ramnagar Gondia ... on 22 December, 2023

2023:BHC-NAG:17590




              Judgment

                                                             154 apeal500.23.odt

                                            1

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

                           CRIMINAL APPEAL NO.500 OF 2023

              Zulferkar @ Chotu s/o Jabbar Gani,
              aged about 32 years, occupation:
              business, r/o new Laxmi Nagar,
              Gondia.
              (presently in jail).               ..... Appellant.
                                     :: V E R S U S ::
              1. State of Maharashtra,
              through Police Station Officer, PS
              Ramnagar, Gondia, district Gondia.

              2. Vishal s/o Murlidhar Gajbhiye,
              aged about 18 years, r/o Marartoli,
              Gondia, district Gondia.          ..... Respondents.
              ======================================
              Shri Anil S.Mardikar, Senior Counsel assisted by Shri
              R.M.Daga, Advocate for the Appellant.
              Shri Akash A.Gupta, Counsel appointed for Respondent No.2.
              Shri Harshal Futane, Additional Public Prosecutor for
              Respondent No.1/State.
              ======================================

              CORAM : URMILA JOSHI-PHALKE, J.
              CLOSED ON : 19/12/2023
              PRONOUNCED ON : 22/12/2023


              JUDGMENT

1. Heard learned Senior Counsel Shri Anil S.Mardikar

for the appellant; learned counsel Shri Akash A.Gupta for

respondent No.2, and learned Additional Public Prosecutor Shri

Harshal Futane for respondent No.1/State.

.....1/-

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154 apeal500.23.odt

2. ADMIT.

3. By this appeal, order dated 19.6.2023 passed by

learned Ad-hoc Additional Sessions Judge-1, Gondia below

Exhibit-413 in Sessions Trial 48/2013 is under challenge

whereby learned Judge below rejected application for grant of

bail.

4. Initially, the appellant is arrested on 4.12.2012

and rearrested on 9.9.2020 in connection with Crime

No.88/2012 registered with respondent No.1/police station for

offences punishable under Sections 109, 120B, 147, 148,

302, and 307 r.w 149 of the Indian Penal Code and 3, 4, 25,

and 27 of the Arms Act and 3(2)(5) of the Scheduled Castes

and the Scheduled Tribes (Prevention of Atrocity) Act, 1989

(for short, the SC and SC Act). Since 9.9.2020 the

appellant is behind bars.

5. As per report lodged against the appellant by

respondent No.2 Vishal Murlidhar Gajbhiye with the police

station, the complainant was acquainted with one Dharam

Dawane as well as Rajendra Dawane. On 9.10.2012, at about .....2/-

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154 apeal500.23.odt

11:00 pm, he had been to petrol pump at Jaistambha Chowk

for filling petrol in his motorcycle and was passing from over

bridge towards his house. At the relevant time, he saw

Dharam Dawane aged about 30 years underneath the bridge

at Shakti Square communicating somebody and, therefore, he

stopped there and was making enquiry with him. At the

relevant time, one white colour Tata Sumo sumo came from

Gondia side and gave a dash to him as well as Dharam

Dawane. The car driver stopped the vehicle and from the said

vehicle the appellant along with other co-accused got down.

The appellant fired two rounds from his country made pistol

and the other co-accused, who were along with him, assaulted

Dharam Dawane by iron rods, sticks, and swords and lifted

him and put him in the car. At the same time, the

complainant was also assaulted by sticks and iron rods, due to

which he sustained injuries on his person. Subsequently, he

came to know that due to the previous dispute on account of

money, Dharam Dawane was taken by the appellant and the

co-accused and committed his murder and also caused injuries

to the complainant.

.....3/-

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154 apeal500.23.odt

6. After registration of the crime, the investigating

officer filed chargesheet on 6.1.2013. After completion of

investigation, the appellant who was arrested on 4.12.2012,

preferred an application for bail bearing Criminal Application

(BA) No.598/2015 which was allowed by this court on

30.9.2015 and the appellant was released on bail on condition

that he shall attend the police station on every Monday and

Saturday between 3:00 pm and 6:00 pm, till culmination of

the trial. As the appellant contravened the terms and

conditions of the bail, his bail was cancelled by order dated

1.7.2017 passed by this court in Criminal Application (APPLN)

No.27/2016. The police station officer of the said police

station directed to arrest the appellant. The appellant

challenged the said order before the Honourable Apex Court

by preferring special leave petition which was registered as

Petition for Special Leave to Appeal (Cri.) No.5882/2017 which

was withdrawn. Thereafter, the appellant filed another

application bearing Criminal Application (APL) No.605/2017 for

restoration of the bail. The same was also rejected and the

appellant was rearrested on 9.9.2020.

.....4/-

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154 apeal500.23.odt

7. Learned Senior Counsel Shri Anil S.Mardikar for

the appellant, submitted that as far as allegation against the

appellant is concerned, it is only to the extent that he has fired

shots in air. He has not caused any injuries to the complainant

or the deceased. The persons, who are responsible for giving

deadly blows by means of deadly weapons like swords and

iron rods, are already released on bail. This court observed

that from postmortem report prima facie death cannot be

attributed to injuries caused by the country made pistol.

Merely because a country made pistol is used, that cannot be

a ground to reject the application of the appellant and

released him on bail. The bail granted to the appellant was

cancelled only because he has not attended the police station,

as per directions, and contravened conditions.

He further submitted that co-accused Rohit @ Golu

Hariprasad Tiwari was also released on bail by this court by

order dated 18.7.2014 and his bail was also cancelled by order

of this court on 1.7.2017. Again, bail application of said Rohit

was considered by this court and he was released on bail on

20.9.2019. The allegations against said Rohit are also of the

.....5/-

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154 apeal500.23.odt

similar nature as he has also not caused any injuries to the

complainant or deceased.

Thus, on the ground of parity also, the appellant is

entitled to be released on bail. Since last six years, he is

behind bars and in view of Section 10 of the MCOC Act, the

present trial is stayed as the appellant is also prosecuted for

the offence punishable under the provisions of the MCOC Act

in Crime No.159/2016.

He further submitted that co-accused Rohit, who is

already released on bail, was also an accused in the said crime

No.159/2016. Considering all these aspects, the appellant be

released on bail.

8. The appeal is strongly opposed by the State on the

ground that while cancelling the bail granted to the appellant,

this court had considered that in crime, in which the court

granted bail in favour of the appellant, the appellant used

pistol which he fired on the deceased. This court further

observed that the appellant has misused the liberty granted to

him by indulging into the other serious crime. Thus, as the .....6/-

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154 apeal500.23.odt

appellant not only contravened conditions of bail but also

committed serious offence,therefore his bail was cancelled.

The ground of parity is not available to the appellant as the

case of the co-accused is completely on different footing as no

weapon was assigned to the co-accused and there was no

allegation that he assaulted either the deceased or

complainant and prays for rejection of the application.

9. Learned counsel Shri Akash Gupta for respondent

No.2, endorsed the same contentions and submitted that after

releasing the appellant on bail, he committed three offences

bearing Crime Nos.159/2016; 531/2017, and 309/2018. The

allegations in all these crimes were that he used the fire arm

while committing these crimes. Moreover, since the date of

rejection of his application for restoration of bail, he is

absconding and rearrested on 9.9.2020. If he is released on

bail, he would involve in the similar type of offence and

apprehension raised that he would cause e endanger to the life

of the complainant and prays for rejection of the application.

10. Perusal of the record shows that there is no

dispute as to fact that the appellant was arraigned as an .....7/-

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154 apeal500.23.odt

accused in the present crime in question. The allegations

against him were that he fired two bullets in air, as per recital

of the FIR. However, statements of relevant witnesses show

that due to firing of bullets, the deceased sustained injuries

having entry wound on the walls, ribs, and cartilage in left

side. The death is due to excessive loss of blood of brain part.

The bail application of the appellant bearing Criminal

Application (BA) No.598/2015 was considered by this court

and the court observed that the death of the person was not

caused due to injury of fire arm. However, co-accused are

held responsible for giving deadly blows by means of deadly

weapons like swords and iron rods etc on the head and he was

released on bail on condition that he shall attend the police

station on every Monday and Saturday between 3:00 pm and

6:00 pm, till culmination of the trial. As the appellant

contravened terms and conditions, the bail was cancelled by

observing that this court granted bail to the appellant, but he

has scant respect to the order passed by this court and he is

not law abiding citizen in whose favour any discretion should

be exercise. It is further observed that after releasing him on

bail, he had committed offences under Sections 307 and 395

vide Crime No.159/2016. He also preferred an application for .....8/-

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154 apeal500.23.odt

restoration of the bail order which was also rejected by this

court. The appellant claimed parity on the ground that co-

accused Rohit @ Golu Hariprasad Tiwari also contravened the

conditions imposed by this court and his bail was also

cancelled by the order of this court. However, subsequently,

his bail application bearing No.1147/2018 was considered and

he was released on bail.

11. The role attributed to the appellant and the role

attributed to co-accused are not similar to each other.

Insofar as allegations against co-accused Rohit are

concerned, the role attributed to him is that he caused injuries

which are simple in nature and an offence of minor nature is

attracted against him. He had not caused death of victim

Dharam, whereas, the appellant has used fire arm and caused

injuries to the deceased. The other discriminating factor is

that after the appellant is released on bail, he had committed

three offences bearing Crime Nos.159/2016; 531/2017, and

309/2018. Thus, he has misused the liberty.

.....9/-

Judgment

154 apeal500.23.odt

12. Learned Senior Counsel Shri Anil S.Mardikar for

the appellant, submitted that the appellant is entitled to be

released on bail on the ground of parity. The principle of

parity is not applicable to the present case as the role of the

appellant is completely different.

13. The Honourable Apex Court in the case of Ramesh

Bhavan Rathod vs. Vishanbhai Hirabhai Makwana (Koli) and

anr, reported in (2021)6 SCC 230 has observed that grant of

bail under Section 439 of the CrPC is a matter involving the

exercise of judicial discretion. While considering the bail,

factors need to be considered are, gravity of offence, nature of

allegation and role attributed to accused. While applying the

principle of parity, merely observing that another accused who

was granted bail was armed with a similar weapon is not

sufficient to determine whether bail can be granted on the

basis of parity. In deciding aspect of parity, role attached to

accused, their position, in relation to victim, are of utmost

importance.

14. Considering the role of the appellant,

circumstances, under which the bail granted to the accused is .....10/-

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154 apeal500.23.odt

cancelled, and criminal antecedents against the appellant after

he is released on bail, discretion cannot be used in his favour.

15. In the light of the above, the appeal is devoid of

merits and the same is liable to be dismissed and the same is

dismissed.

The appeal stands disposed of.

16. Fees of learned counsel Shri Akash A.Gupta

appointed for respondent No.2 are quantified and the same be

paid to him as per Rules.

(URMILA JOSHI-PHALKE, J.)

!! BrWankhede !!

Signed by: Mr. B. R. Wankhede Designation: PS To Honourable Judge .....11/- Date: 22/12/2023 17:06:58