Deepak Vijay Dolas vs The State Of Maharashtra
2023 Latest Caselaw 1140 Bom

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      IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                               BENCH AT AURANGABAD


                    CRIMINAL APPEAL NO.247 OF 2022


 Deepak Vijay Dolas,
 Age-21 years, Occu:Labour,
 R/o-Rahuri Khurd, Tal-Rahuri,
 Dist-Ahmednagar.
                                                      ...APPELLANT
        VERSUS

 1) The State of Maharashtra,
    Police Station Officer,
    Loni Police Station, Loni,
    Tal-Rahata, Dist-Ahmednagar,

 2) Gorakh Ashok Barde,
    Age-31 years, Occu:Labour,
    R/o-Rahuri Khurd, Bhillahati,
    Tal-Rahuri, Dist-Ahmednagar.
                                                      ...RESPONDENTS

                 ...
    Mr. Shaikh Mazhar A. Jahagirdar Advocate for Applicant.
    Mrs. P.V. Diggikar, A.P.P. for Respondent No.1 - State.
    Mr. Sanket N. Suaryawanshi Advocate appointed for
    Respondent No.2.
                 ...

                CORAM: SMT. VIBHA KANKANWADI AND
                       ABHAY S. WAGHWASE, JJ.

DATE OF RESERVING JUDGMENT : 18 th JANUARY 2023

DATE OF PRONOUNCING JUDGMENT : 3rd FEBRUARY 2023

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JUDGMENT [PER SMT. VIBHA KANKANWADI, J.] :

1. Admit.

2. Present Appeal has been filed under Section 14-A(2) of the

Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)

Act, 1989 (hereinafter referred to as "the Atrocities Act"),

challenging the order of rejection of bail of the appellant -

original accused No.2 under Section 439 of the Code of Criminal

Procedure by the learned Special Judge under the Atrocities Act,

Kopargaon in Special Case No.28 of 2021 on 19 th November

2021.

3. On the basis of the First Information Report (for short

"FIR") lodged by present respondent No.2 vide Crime No.100 of

2021 with Loni Police Station, District-Ahmednagar, offence

under Sections 302, 120-B read with Section 34 of the Indian

Penal Code and Section 3(2)(5) of the Atrocities Act has been

registered against the present appellant and one Bhiva @ Vitthal

Kailas Kawale, alleging that the accused persons have committed

murder of his brother-in-law Arjun Pawar at about 7.30 p.m. on

16th March 2021.

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4. Heard learned Advocate Mr. Jahagirdar Advocate appearing

for applicant, learned APP Mrs. Diggikar appearing for

respondent No.1 - State and learned Advocate Mr. Suaryawanshi

appointed for respondent No.2.

5. It has been vehemently submitted on behalf of the

appellant that perusal of the entire charge-sheet would show

that the case of the prosecution is based on circumstantial

evidence. The said circumstantial evidence is in the nature of

'last seen together', recovery and discovery under Section 27 of

the Indian Evidence Act. The statements of certain witnesses

under Section 161 of the Code of Criminal Procedure would

disclose that there was love affair between deceased and a girl

from the same village. However, the FIR also discloses that

accused No.1 was also loving the same girl and used to visit her

house. There was dispute between the accused persons and

deceased about eight days prior to the date of FIR i.e. 17 th March

2021 and the said dispute was settled due to the intervention of

one Ajay Lahanu Mali and Vikas Barde. The statements of

witnesses also show, as well as supported by the contents of the

FIR, that deceased had given phone call around 4.30 p.m. on

16th March 2021 to Ajay Lahanu Mali stating that the accused

persons were assaulting him. When Ajay informed the said fact

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to the informant, informant gave phone call to deceased.

Deceased at that time disclosed that he would be proceeding

along with accused persons to drink the liquor. Still, the

informant went to the house of the accused persons, however,

they were not present. From the neighbour of present appellant

the mobile number of the appellant was taken by the informant

and a phone call was given. Thereupon the present appellant

disclosed that he is at Gavanwadi. Later on the informant came

to know that a dead body of a boy between the age group of 25

to 30 years has been found at Loni. Therefore, the informant and

his relatives went to Loni Police Station and thereafter they went

to Pravara Hospital, Loni where they identified the dead body of

deceased. Thus, it is clear from the contents of the FIR that at

one place it is stated that it was informed by the deceased to

witness that he is being assaulted by the accused and at another

breath after some time it is told by the deceased that he is

proceeding to drink liquor. Both such things cannot go together.

Further, now the investigation is over and charge-sheet is filed,

which would disclose that articles have been seized and those

have been sent for chemical analysis but report of the chemical

analysis is not yet received. Whatever discovery has been made,

is by accused No.1 and not by this appellant. The prosecution

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also intends to rely on the statement of the shop owner who sold

liquor bottle to the accused persons and also the CCTV footage,

which showed dispute between the accused persons and

deceased, however, the timings do not match. With this

evidence, it is not necessary to keep the appellant behind bars

as it will take much time for his trial to stand. The learned trial

Court has considered only the apparent evidence but has not

considered that further physical custody of the appellant is not

required for the purpose of investigation and therefore, the said

order deserves to be set aside.

6. Per contra, the learned APP appearing for the State and

learned appointed Advocate for respondent No.2 strongly

opposed the appeal. They supported the reasons given by the

learned trial Judge. Though both of them have admitted that

case is based on circumstantial evidence, yet they both

submitted that perusal of the entire charge-sheet would show

that a link has been established. The discovery is not only of the

weapon used in the commission of crime but also the motorcycle

of the deceased which was concealed in the bushes. The strong

evidence is in the nature of batch number, bar code number on

the whiskey bottle, which was purchased from Sunil Wines,

Rahuri. The bar code number matches and the CCTV footage

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also reveals that there was dispute between deceased and the

accused persons. The dispute was in respect of the alleged love

affair with the same girl by deceased and accused No.1 and the

present appellant was helping accused No.1 in achieving his

object. Statement of one Rohit Mali would show that he was

near Ayub Mutton Shop around 4.00 to 4.30 p.m. on 16 th March

2021. The accused persons came there on their motorcycle and

present appellant was driving the motorcycle. They told

deceased that they want to enjoy party and therefore he should

accompany them. Thereafter deceased went on the motorcycle.

The postmortem report would show that there were seven

surface wounds. The internal examination showed fractured skull

and therefore, the probable cause of death is head injury, which

is homicidal death. The statements of other witnesses also

supports the prosecution story and therefore, this cannot be a fit

case where discretion of releasing an accused on bail should be

exercised in favour of the appellant.

7. At the outset, here admittedly the case is based on

circumstantial evidence. The prosecution appears to have come

with the story that deceased was in love with the girl from the

same village and the girl in her statement under Section 161 of

the Code of Criminal Procedure appears to have accepted it. She

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also states that there was dispute between accused No.1 and

deceased on the count of the love affair between her and

deceased. However, she does not claim anything more than that.

Thereby, the prosecution intends to bring the motive on record,

which is subjected to be proved at the time of trial. Now, the

evidence that is on record is in the nature of postmortem report,

which shows head injury as the cause of death and it is tried to

be linked to the discovery by accused No.1. The discovery is in

respect of Hero Honda Splendor bearing No. MH-17-BK-2349. It

is not on record as to who is the owner of the said vehicle. But,

then it is stated in the memorandum and the panchnama that

present appellant as well as accused No.1, who had made the

said disclosure, had concealed the vehicle behind the bushes. As

per the statement of person last seen together, the said vehicle

was being driven by the appellant, yet the discovery is by

accused No.1. How it will bind the present appellant would be

considered by the trial Court on the basis of evidence.

8. As regards the 'last seen together' is concerned, witness

has stated that he had seen both the accused coming near Ayub

Mutton shop around 4.00 to 4.30 p.m. At this stage, if we

consider the transcription of CCTV footage, then it states that

the accused persons and deceased were seen around 3.22 to

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3.33 p.m. i.e. 15.22 to 15.33 Hours. It is mentioned in the

transcription panchnama itself that the clock in the CCTV is

behind by 1 hour 30 minutes. Now, how this will have to be

interpreted, would be a question before the trial Court because

some of the adjoining shop owners to the liquor shop have

stated that the dispute had taken place at about 5.35 p.m. The

boy who had last seen deceased along with accused, has been

examined under Section 164 of the Code of Criminal Procedure,

however, the said statement does not contain the date as well as

time. Another aspect is, when there was earlier dispute and even

quarrel had taken place between the accused and deceased

eight days prior to the incident but the said dispute was settled,

as well as the fact that deceased was knowing the reason for the

dispute, then whether he would have gone along with the

accused persons for drinking liquor, would also be a question.

9. Taking into consideration all these aspects, we find that

case was made out for grant of bail, however, the learned trial

Judge has not considered all the aspects in proper perspective.

Further, physical custody of the applicant was not required and

there was also no bar for grant of regular bail under any of the

Acts. The appellant has permanent place of abode and therefore,

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the Appeal deserves to be allowed, however, strict conditions are

required to be imposed. Hence the following order:

ORDER

(I) The Appeal stands allowed.

(II) The order passed by the learned Special Judge under the Atrocities Act, Kopargaon in Special Case No.28 of 2021 dated 19th November 2021 stands set aside. The application stands allowed.

(III) Appellant - Deepak Vijay Dolas, who has been arrested in connection with Crime No.100 of 2021 registered with Loni Police Station, District-Ahmednagar, for the offence punishable under Sections 302, 120-B read with Section 34 of the Indian Penal Code and Section 3(2)(5) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, be released on bail on P.R. Bond of Rs.50,000/- with two solvent sureties of Rs.25,000/- each.

(IV) The appellant shall not enter the jurisdiction of Rahuri Khurd, Taluka-Rahuri, District-Ahmednagar till the conclusion of the trial. He should reside elsewhere, and before submission of bail papers, the appellant should give complete address of his proposed residence with his Mobile Number to the Trial Court as well as to the Investigating Officer.

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(V) Appellant shall not tamper with the evidence of the prosecution in any manner.

(VI) Appellant shall not indulge in any criminal activity.

(VII) Bail before the Trial Court.

(VIII) Fees of the learned Advocate, who is appointed to represent the cause of respondent No.2, is quantified at Rs.5000/- to be paid by the High Court Legal Services Sub Committee, Aurangabad.

[ABHAY S. WAGHWASE] [SMT. VIBHA KANKANWADI] JUDGE JUDGE

asb/FEB23