Bombay High Court

Sanket Vitthal Somwanshi vs The State Of Maharashtra on 20 February, 2023

Bench: V. V. Kankanwadi, Abhay S. Waghwase

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      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

                    CRIMINAL APPEAL NO.919 OF 2022

 Amol s/o Babasaheb Sonawne
 @ Sonu Fitter,
 Age-34 years, Occu:Labourer,
 Resident of: Rokade Mala, Wadgaon,
 Gupta Road, Taluka and Dist-Ahmednagar
                                                   ...APPELLANT
        VERSUS

 1) The State of Maharashtra,
    Through Deputy Superintendent of Police/
    The Police Inspector/ Investigating Officer
    in Crime No. I-289/2022,
    MIDC Police Station, Ahmednagar,
    Taluka and Dist-Ahmednagar,

 2) Mrs. Shobha Ramesh Kamble,
    Age-55 years, Occu:Labour,
    Resident of: Near Datta Mandir,
    Balikashram Road, Borude Mala,
    Ahmednagar.
                                                   ...RESPONDENTS

                ...
    Mr.Abhaykumar D. Ostwal Advocate for Appellant.
    Ms. V.S. Choudhari, A.P.P. for Respondent No.1 - State.
    Mr.Rajesh H. Mewara Advocate for Respondent No.2
    appointed through Legal Aid.
                ...

                  AND

                  CRIMINAL APPEAL NO.913 OF 2022

 Sanket Vitthal Somwanshi,
 Age-30 years, Occu:Labour,
 R/o-Navnagapur,
 Taluka and Dist-Ahmednagar
                                                   ...APPELLANT

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        VERSUS

 1) The State of Maharashtra,
    Through MIDC Police Station, Ahmednagar,
    District-Ahmednagar,

 2) Shobha Ramesh Kamble,
    Age-55 years, Occu:Labour,
    Resident of: Near Datta Temple,
    Balikashram Road, Borude Mala,
    Ahmednagar, Tq and District-Ahmednagar.
                                                   ...RESPONDENTS

                 ...
    Mr.S.V. Sudrik Advocate with Mr. Santosh S. Jadhavar
    Advocate for Appellant.
    Ms. V.S. Choudhari, A.P.P. for Respondent No.1 - State.
    Mr.Rajesh H. Mewara Advocate for Respondent No.2
    appointed through Legal Aid.
                 ...

                  AND

                  CRIMINAL APPEAL NO.880 OF 2022


 Arun Narad Saha,
 Age-45 years, Occu:Labour,
 R/o-Gajanan Colony, Navnagapur,
 Ahmednagar, Taluka and Dist-Ahmednagar
                                                   ...APPELLANT
        VERSUS

 1) The State of Maharashtra,
    Through the Superintendent of Police,
    Ahmednagar, Taluka and Dist-Ahmednagar,

 2) Shobha Ramesh Kamble,
    Age-55 years, Occu:Labourer,
    R/o-Near Datta Mandir,
    Balikashram Road, Borude Mala,
    Ahmednagar, Taluka and Dist-Ahmednagar.
                                                   ...RESPONDENTS



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                  ...
      Mr.Amol S. Sawant Advocate with Mr. Shrikant S. Dubepatil
      Advocate for Appellant.
      Ms. V.S. Choudhari, A.P.P. for Respondent No.1 - State.
      Mr.Rajesh H. Mewara Advocate for Respondent No.2
      appointed through Legal Aid.
                  ...


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

DATE OF RESERVING JUDGMENT : 17th January 2023 & 23 rd JANUARY 2023

DATE OF PRONOUNCING JUDGMENT : 20th FEBRUARY 2023

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

1. All these Appeals have been filed by the original accused

Nos.1, 5 and 4 as arrayed in the First Information Report (for

short "FIR"), under Section 14-A(2) of the Scheduled Castes and

Scheduled Tribes (Prevention of Atrocities) Act (for short

"Atrocities Act"), to challenge the order of rejecting their

applications under Section 439 of the Code of Criminal Procedure

by learned Special Judge/ Additional Sessions Judge No.3,

Ahmednagar. Accused No.1 Amol Babasaheb Sonawne filed

application Exhibit-18 in Special Case No.141 of 2022, which

came to be rejected on 15th November 2022 by the learned

Special Judge. Accused No.5 - Sanket Vitthal Somwanshi filed

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application Exhibit-3 in Special Case No.141 of 2022, which

came to be rejected on 29th August 2022 and accused No.4 -

Arun Narad Saha filed application Exhibit-13 in Special Case

No.141 of 2022, which came to be rejected on 14 th September

2022.

2. Heard learned Advocates appearing for the appellants in

respective Appeals, learned APP appearing for the State and

learned counsel appearing for respondent No.2, appointed

through Legal Aid.

3. Learned Advocates appearing for the appellants have

vehemently submitted that perusal of the FIR, which is lodged by

present respondent No.2, who is the mother of the deceased

Pravin, would show that she is not the eye witness to the

incident, however, she depended upon the information supplied

by one Amol Borde, who was stated to be along with the

deceased at the relevant time. There was nothing to indicate

that the incident took place merely because the deceased was

the member of scheduled caste. Even the tenor used in the FIR

does not attract any of the offences described in Section 3 of the

Atrocities Act. The FIR is lodged after delay of about a day and

three hours from the occurrence. The said delay is inordinate,

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unnatural and unexplained. Now the entire investigation is over

and charge-sheet is also filed. All the accused have been

arrested on 28th April 2022 and since then they are in jail. As the

entire investigation is over, their further custody is not required.

They have permanent place of abode and they are ready to

abide by the terms of the bail. The appellants have cooperated in

the investigation.

4. All the learned Advocates appearing for the appellants

have submitted that from the charge-sheet it can be seen that

there was only one eye witness i.e. Amol Borde. He was not

attacked at all by any of the accused persons. He was close

friend of the deceased and therefore, possibility of giving

interested version cannot be ruled out. Even though Amol Borde

is claiming that he has tried to intervene and even to snatch the

axe, it does not show that it has caused any injury to him.

According to his statement under Section 161 of the Code of

Criminal Procedure, there was a single blow to the head of the

deceased with iron rod, which has caused oozing of blood and

the said rod has been discovered under Section 27 of the Indian

Evidence Act. The description does not say that blood stains

were found on the iron rod. The medical officer does not say that

there was any such injury which can be said to have caused by

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iron rod. The allegations will also not attract the ingredients for

the offence punishable under Section 302 of the Indian Penal

Code, as the intention or motive is missing. It has been stated

that in the afternoon when the deceased and his friend Amol

Borde had gone to the shop of accused N.4 - Arun for

purchasing Vada-pav, there was altercation between deceased

and accused No.4. At that time, it is stated that accused No.1

along with 4 to 5 others gathered there. They had assaulted

deceased with kicks and fist blows as well as wooden log. At that

time Amol Borde had intervened and thereafter deceased and

Amol purchased four plates of Bhaje and ten Pav (bread). It is

then stated that cost of the same was Rs.100/- but in the scuffle

the cooking oil spilled from the vessel and therefore, accused

No.4 had charged Rs.100/- more. At that time deceased had

abused accused No.4 and threatened that he would see accused

No.4, and then the deceased as well as Amol Borde left that

place. This indicates that the dispute was over at that point of

time. But then Amol discloses that when they started going from

the premises of the godown of closed company, they were

caught by accused No.1, accused Amol Salve, servant of accused

No.4 and other two persons, who were holding axe, iron rod,

wooden log with them. It is then stated that accused No.1 had

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assaulted deceased with iron rod on his head, as a result of

which deceased fell down and blood started oozing out of his

nose and head. It is then stated that Amol Borde was asking

them as to why they were assaulting him. At that time friend of

accused No.1 started to assault deceased with the help of axe, at

that time he was obstructed by Amol Borde but still accused

Amol Salve assaulted deceased with iron rod on the head as well

as legs of the deceased. It is submitted that these facts would

disclose that it had happened in a spur of moment and there was

no intention to eliminate deceased.

5. Learned Advocate appearing for original accused No.4 has

further submitted that accused No.4 was not even present at the

place of incident where the other accused alleged to have

assaulted deceased. Whatever dispute had taken place in the

shop of accused No.4 - appellant in Criminal Appeal No.880 of

2022, it was treated by them that the quarrel is over. There was

nothing for accused No.4 to drag the matter further. He has been

falsely implicated.

6. Learned Advocate appearing for original accused No.5 has

further submitted that no specific role is attributed to accused

No.5 and nothing has been recovered from him. The name of

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accused No.5 has been taken by the other witnesses who were

alleged to have been there in the shop of accused No.4.

7. Learned Advocates appearing for all the appellants further

submitted that under such circumstance, the allegations do not

require further custody of the appellants. All these facts were not

considered by the learned trial Judge while rejecting the

applications filed by the appellants and therefore, the impugned

orders deserve to be set aside.

8. Learned APP as well as learned Advocate for respondent

No.2 - informant, appointed through Legal Aid, have strongly

objected the Appeals. It is submitted that since the member of

scheduled caste is murdered, the seriousness in the case has to

be considered. Learned Advocate appearing for respondent No.2

placed reliance on Prathvi Raj Chauhan vs. Union of India

and others, (2020) 4 SCC 727 and submitted that the Hon'ble

Supreme Court has held that seriousness in such offences has to

be given prime consideration as the Special Enactment is

enacted to protect the persons who belong to the scheduled

castes and scheduled tribes. Learned Advocate also points out

the decision in State of Madhya Pradesh vs. Chunnilal Alias

Chunni Singh, (2009) 12 SCC 649. He also points out the

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decision in Hariram Bhambhi vs. Satyanarayan and

another, 2021 SCC OnLine 1010, wherein it has been

observed that Sub-section (3) of Section 15A of the Act confers a

statutory right on the victim or their dependents to reasonable,

accurate, and timely notice of any court proceeding including a

bail proceeding. It has been further observed that, atrocities

against members of the scheduled castes and scheduled tribes

are not a thing of the past. They continue to be a reality in our

society even today. Hence the statutory provisions which have

been enacted by Parliament as a measure of protecting the

constitutional rights of persons belonging to the scheduled

castes and scheduled tribes must be complied with and enforced

conscientiously. Learned Advocate points out that no notice in

respect of the bail application by accused No.4 was given to the

informant. The learned Advocate appearing for respondent No.2

has relied on Nitu Kumar vs. Gulveer and another, (2022) 9

SCC 222, Prashant Kumar Sarkar vs. Ashis Chaterjee and

another, (2010) 14 SCC 496, Panchanan Mishra vs.

Digambar Mishra and others, (2005) 3 SCC 143, Ram

Govind Upadhyay vs. Sudarshan Singh and other, (2002)

3 SCC 598 and Shahzad Hasan Khan vs. Ishtiaq Hasan

Khan and others, (1987) 2 SCC 684, in order to canvass his

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submissions that the gravity of the offence, nature of allegations,

prima facie reasonable ground or facts against the accused will

have to be considered by the Courts. Those factors have been

considered by the trial Court and therefore, there is no necessity

to interfere.

9. Before we consider the merits of the Appeals, certain facts

are required to be mentioned. When the FIR was lodged on 27 th

April 2022, at that time the offences under the Atrocities Act

were not invoked. The offence was registered only under

Sections 302, 341, 323, 504, 506 read with Section 34 of the

Indian Penal Code. The sections under the Atrocities came to be

added on 9th June 2022. General diary details about the same

have been produced. It appear that after adding those sections,

the District Superintendent of Police has issued order regarding

handing over of the investigation to the police officer of the rank

of Deputy Superintendent of Police on the same day and

thereafter report of the same appears to have been given on 14 th

June 2022 to the learned Judicial Magistrate First Class as well

as Special Judge under the Atrocities Act, Ahmednagar. The

investigation from 27th April 2022 to 9th June 2022 has been

carried out by Assistant Police Inspector, MIDC Police Station,

Ahmednagar. The charge-sheet has been presented before the

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Special Judge on 15th July 2022. When this fact was noted, the

investigating officer, Deputy Superintendent of Police was called,

because what was transpiring was that he has not started the

investigation since beginning or has not reiterated the

investigation that was made but he started from the point when

the said sections under the Atrocities Act got added. We could

not get a proper explanation from him. Learned Advocate Mr.

Ostwal has then pointed out the decision of the Hon'ble Apex

Court in State of Madhya Pradesh vs. Chunnilal Alias

Chunni Singh, (2009) 12 SCC 649. In this case also offences

were under the Indian Penal Code as well as under the Atrocities

Act. It was found that the investigation has been carried out by

the investigating officer in absence of authorization by

competent authority and after considering all the facts, the

Hon'ble Supreme Court held that:-

" The provisions in Section 9 of the Act, Rule 7 of the Rules and Section 4 of the Code when jointly read lead to an irresistible conclusion that the investigation of an offence under Section 3 of the Act by an officer not appointed in terms of Rule 7 is illegal and invalid. But when the offence complained are both under IPC and any of the offence enumerated in Section 3 of the Act the investigation which is being made by a competent police officer in accordance with the provisions of the Code cannot be quashed for non- investigation of the offence under Section 3 of the Act by a competent police officer. In such a situation the proceedings shall proceed in an appropriate court for the offences

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punishable under the IPC notwithstanding investigation and the charge-sheet being not liable to be accepted only in respect of offence under Section 3 of the Act for taking cognizance of that offence. "

10. No doubt, in the present case the facts are slightly

different. Here, at the fag end of the investigation it is realized

that the offences under the Atrocities Act are made out and

therefore, the above course was undertaken and therefore the

charge-sheet is filed by the police officer of the rank of Deputy

Superintendent of Police which is as per Rule 7 of the Act. In

regard to this situation, we would like to say that the

investigating officer ought to have been more vigilant. It is not a

case that he should start the investigation from the point it was

left by the earlier investigating officer. The tenor, scope and

purpose of Rule 7 to the Atrocities Act should have been

considered by the investigating officer. The intention of the

legislature in making such provision was to give investigation of

the offences under Section 3 of the Act to senior police officers

taking into consideration the principle to protect the rights of the

oppressed section of the society. Under such situation, it would

be the endeavour of the investigating officer not to leave any

kind of lacuna in the investigation as well as the procedure that

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is undertaken. The benefit of such faulty investigation should not

go to the accused.

11. Here in this case, since beginning when the FIR was

lodged, it was for the police officer to consider the caste of the

informant and to see whether it is giving rise to any offence

under such Special Enactment. That exercise appears to have

not been done in this case. In catena of Judgments the Hon'ble

Supreme Court has held that the accused cannot take benefit of

lacunas in the investigation. We are at a primary stage and

therefore, though this glaring point has cropped up, yet the

advantage of the same cannot be given to the appellants in view

of the decision in State of Madhya Pradesh vs. Chunnilal

Alias Chunni Singh (supra), because here the case is also

under Section 302 and other sections under the Indian Penal

Code. Therefore, from both the angles it is required to be seen,

as to whether the learned Special Judge was justified in rejecting

the bail applications filed by the appellants.

12. Further, before going to consider the merits another

situation has arisen which is of wide importance, as this Court is

coming across various such orders by Special Judges under the

Atrocities Act that they are not following / observing the

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mandatory requirement under Section 15-A of the Atrocities Act.

Section 15-A of the Atrocities Act gives statutory right to the

victim to get the knowledge about the proceedings before the

Court including bail application.

13. In Hariram Bhambhi vs. Satyanarayan and another

(supra), it has been observed that victims are often relegated to

the role of being a spectator in the criminal justice system. The

victims of crime often face hurdles in accessing justice from the

stage of filing the complaint to the conclusion of the trial and

therefore, those rights of the victims have been acknowledged

by the Hon'ble Supreme Court as well as those are incorporated

under Section 15-A of the Atrocities Act. In connection with the

said provision, in the aforesaid decision, it has been held in

Paragraph Nos. 13, 14, 15 and 18 as under:-

" 13. Section 15A of the SC/ST Act contains important provisions that safeguard the rights of the victims of caste-based atrocities and witnesses. Sub-sections (3) and (5) of Section 15A specifically make the victim or their dependent an active stakeholder in the criminal proceedings. These provisions enable a member of the marginalized caste to effectively pursue a case and counteract the effects of defective investigations. Sub- sections (1) to (5) of Section 15A are extracted below:

"15A(1) It shall be the duty and responsibility of the State to make arrangements for the protection of victims, their dependents, and witnesses against any kind of intimidation or coercion or inducement or violence or threats of violence.

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(2) A victim shall be treated with fairness, respect and dignity and with due regard to any special need that arises because of the victims age or gender or educational disadvantage or poverty.

(3) A victim or his dependent shall have the right to reasonable, accurate, and timely notice of any Court proceeding including any bail proceeding and the Special Public Prosecutor or the State Government shall inform the victim about any proceedings under this Act.

(4) A victim or his dependent shall have the right to apply to the Special Court or the Exclusive Special Court, as the case may be, to summon parties for production of any documents or material, witnesses or examine the persons present.

(5) A victim or his dependent shall be entitled to be heard at any proceeding under this Act in respect of bail, discharge, release, parole, conviction or sentence of an accused or any connected proceedings or arguments and file written submission on conviction, acquittal or sentencing."

(emphasis added)

14. Sub-section (3) of Section 15A confers a statutory right on the victim or their dependents to reasonable, accurate, and timely notice of any court proceeding including a bail proceeding. In addition, sub-section (3) requires a Special Public Prosecutor or the State Government to inform the victim about any proceeding under the Act. Sub-section (3) confers a right to a prior notice, this being evident from the use of the expression "reasonable, accurate, and timely notice of any court proceeding including any bail proceeding". Sub-section (5) provides for a right to be heard to the victim or to a dependent. The expression "dependent" is defined in Section 2(bb) thus:

"2(bb) "dependent" means the spouse, children, parents, brother and sister of the victim, who are dependent wholly or mainly on such victim for his support and maintenance;"

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15. The provisions of sub-section (3) which stipulate the requirement of notice and of sub-section (5) which confers a right to be heard must be construed harmoniously. The requirement of issuing a notice facilitates the right to be heard."

" 18. The finding of the Gujarat High Court that the requirement of issuing notice of a court proceeding to a victim or a dependent under Section 15A(3), in order to provide them an opportunity of being heard, is mandatory, finds echo in multiple High Court decisions 13 including a decision of the Rajasthan High Court 14. We find ourselves in agreement with the proposition and hold that sub-sections (3) and (5) of Section 15A are mandatory in nature."

14. Further, it has been observed in Paragraph No.22 in the

aforesaid decision of Hariram Bhambhi vs. Satyanarayan

and another (supra), that:-

" 22. We also emphasize that sub-section (3) of Section 15A provides that a reasonable and timely notice must be issued to the victim or their dependent. This would entail that the notice is served upon victims or their dependents at the first or earliest possible instance. If undue delay is caused in the issuance of notice, the victim, or as the case may be, their dependents, would remain uninformed of the progress made in the case and it would prejudice their rights to effectively oppose the defense of the accused. It would also ultimately delay the bail proceedings or the trial, affecting the rights of the accused as well."

15. We are constrained to observe that, many Courts/ Special

Judges are not following the said procedure which is in fact in

derogation to the mandate of the law. Secondly, even if the

notice is given, the order that is passed on the bail application is

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many times silent about the submissions/ say put forth by the

victim. When the statutory right is given of being heard to the

victim, then the natural corollary would be that those

submissions which have been put forth by the victim should be

reflected in the order by the learned Special Judge. We had,

therefore, called the copy of relevant Roznama of the Special

Case No.141 of 2022, which reflects that as regards the bail

application Exhibit 18 which was filed by accused No.1, notice

was issued to the informant. She appeared before the Court.

However, it appears that adjournment was sought to file say on

behalf of the prosecution, as well as the informant on the

adjourned date i.e. 12th October 2022. On 19th October 2022,

Presiding Officer was on leave. The matter was taken up on 21 st

October 2022, on which date the prosecution filed say but

informant sought adjournment. Thereafter it appears that till the

application was decided, the informant - victim did not appear

and she was not heard at all. The impugned order below

Exhibit-18 also does not say that the Special Judge had heard

the victim - informant. Same is the case as regards the other

two appellants. As regards accused No.5 is concerned, he has

given application for bail at Exhibit-3. Notice was issued to the

informant and on the day of appearance she filed application for

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adjournment and in the meantime bail application was moved by

accused No.6. Notice in respect of that application was also

issued to the informant but it appears that she never filed say.

Again, in the meantime accused No.4 i.e. one of the appellant

here, made application for bail and there is no endorsement that

notice in respect of application Exhibit-13 was ever issued to the

informant. The impugned orders in other two Appeals are also

silent on this aspect of issuing notice to the informant and giving

an opportunity to her to make submissions. Certainly, in these

cases the applications have been rejected and no prejudice can

be said to have been caused to the informant. But the fact

remains is that the learned Special Judge has not adhered to the

procedure that is contemplated in bail applications in which the

offence under the Atrocities Act is involved. Note also can be

taken of the decision of Three Judge Bench of the Hon'ble

Supreme Court in Jagjeet Singh and others vs. Ashish

Mishra Alias Monu, (2022) 9 SCC 321. In fact in this case

there was no question of offences under the Atrocities Act, yet,

the Hon'ble Supreme Court has upheld the rights of the victim to

be heard and to participate in the proceedings before the Courts.

Note has been taken in respect of the provisions under the

Atrocities Act which make the legal obligation to hear the victim

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and then it has been reiterated that the rights of the victim are

totally independent, incomparable, and not accessory or auxiliary

to those of the State under the Code of Criminal Procedure and

therefore, the presence of 'State' in the proceedings, would not

tantamount to according a hearing to a victim of the crime.

Under such circumstance, when such wide rights are given to the

informant / victim and those are acknowledged, it is mandatory

on the part of the Special Judges to issue notice to the victims /

informants, as the case may be in view of Section 15-A(3) of the

Atrocities Act and then to proceed to hear them under Section

15-A(5) of the Atrocities Act.

16. Now, turning towards the facts of the case, the FIR lodged

by respondent No.2 is based on the information supplied to her

by Amol Borde who was with the deceased at that time. The

statement of said witness would disclose that the incident has

taken place at two places, one is the shop / Wada-pav center of

accused No.4 and the other is near the godown of company.

Amol has stated that since he as well as deceased had not

brought tiffin, they had gone to the Wada-pav center of accused

No.4 at about 12.00 noon on 26 th April 2022. They made inquiry

about the rates of Bhaje plate. It was told by accused No.4 that

one plate is for Rs.20/-. Deceased objected stating that Bhaje

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plate is for Rs.15/- and why accused No.4 is charging Rs.20/-.

Thereafter accused No.4 abused him and there was heat

exchange of words as well as abuses. Accused No.4 then raised

his hand to assault deceased and at that time in his hand there

was perforated ladle (Zara). Deceased tried to snatch perforated

ladle from the hands of accused No.4 and at that point of time

accused Nos.1, 5, one Amol Salve, Babdya and the servant of

accused No.4 gathered there and they started assaulting

deceased by kicks and fist blows as well as stick. Amol Borde

rescued the deceased and in the said process the cooking oil

from the vessel spilled from it. Deceased and Amol Borde

purchased four plates of Bhaje and 10 bread (Pav). Accused

No.4 charged him Rs.200/- which was inclusive of the damage of

the cooking oil. Deceased got annoyed and therefore, by abusing

him said that he would see accused No.4. They both had taken

the parcel. That means they had intention to eat it at a different

place and therefore, they started on the motorcycle. This part of

of the facts does not disclose prima facie that the deceased was

assaulted only because he was the member of the scheduled

caste. Though witness Amol Borde says that accused Nos.4, 5

and others knew deceased as well as Amol himself, he does not

say that they had the knowledge about the caste of the

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deceased. The said incident at the Wada-pav center, at the most

would disclose the offence under Section 323, 504, 506 of the

Indian Penal Code.

17. From the statement of Amol Borde, it can be gathered that

around 12.20 p.m. they both, i.e. deceased and Amol were

proceeding from the internal road in MIDC and they were

intercepted by accused Nos.1, 5, Amol Salve, Gupta - servant of

accused No.4 and Babdya. They were holding axe, iron rod and

wooden stick. Amol Borde says that after he himself and

deceased got down from the vehicle, accused No.1 gave blow of

iron rod on the head of the deceased, as a result of which

deceased fell down and blood started oozing from his nose and

head. Though Amol has tried to intervene, it is stated that

accused Gupta was about to give blow of axe to the deceased

but that was held by Amol Borde, still by giving jerk to him,

Gupta managed to assault deceased. Amol Salve assaulted by

iron rod, accused No.5 - Sanket and Babdya had assaulted

deceased by wooden sticks. All of them were giving threat to kill

deceased at that time. Thereafter all of them left the place. Amol

Borde states that he went to the godown where the work was

going on and informed the incident to his friends. The ambulance

was called and deceased was taken to hospital. However,

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deceased was declared dead around 7.00 a.m. on 27 th April 2022

i.e. on the next day. It is to be noted that his statement has

been recorded on 27th April 2022. No doubt as regards the

second incident is concerned, there is no statement about the

presence of accused No.4, however, at this stage the prosecution

story is that since the earlier incident had taken place with

accused No.4, that common intention was hatched up at his

place and all these persons had then gone to the place of second

incident for execution of the plan. Statement of witness Nilesh

Pund, Sushan Zaware are on the same line in respect of the

incident that had taken place in front of Wada-pav center.

18. The next evidence in line is the postmortem report which

shows the probable cause of death, fracture of skull and internal

injury to brain due to chop wound over the head by sharp edged

heavy object. It would be clarification that would be given by the

medical officer as to whether the said injury is possible by blow

of iron rod and then of the axe at the same place.

19. While considering the bail application the decisions those

have been relied by the learned Advocate for respondent No.2

are definitely required to be considered. But at the same time,

we are also required to consider the role attributed to each one

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of the accused persons. Here, whatever evidence has been

gathered would show prima facie case against accused No.1 i.e.

Sonu fitter - appellant in Criminal Appeal No.919 of 2022.

20. As regards accused No.5 - Sanket Somwanshi, appellant in

Criminal Appeal No.913 of 2022 is concerned, his presence has

been shown but even Amol Borde has stated that he used iron

rod to assault deceased. He has not stated the portion of the

body of the deceased which received the assault. In this case,

axe, two iron rods, two wooden logs have been seized under

Section 27 of the Indian Evidence Act from accused Nos.1 to 3.

Nothing has been recovered from accused No.5 - Sanket

Somwanshi.

21. Next is the case as regards accused No.4 - Arun Narad

Saha, appellant in Criminal Appeal No.880 of 2022, and as

aforesaid his role ended to the incident in front of his shop. At

this stage there is nothing on record to show that any conspiracy

was hatched up between the accused persons inter-se and then

all other accused left the said place and followed the deceased.

22. It would take long time to stand trial and therefore, case

was made out to consider the bail applications filed by accused

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Nos.4 and 5. However, as regards accused No.1 is concerned,

there is evidence and therefore for him no case is made out for

releasing him on bail. Hence, Criminal Appeal No.999 of 2022

deserves to be rejected, whereas Criminal Appeal Nos.913 of

2022 and Criminal Appeal No.880 of 2022 deserve to be allowed.

Hence the following order:-

ORDER

(I) Criminal Appeal No.919 of 2022 stands dismissed.

(II) Criminal Appeal No.913 of 2022 and Criminal Appeal No.880 of 2022 stand allowed.

(III) The order passed below application Exhibit-3 in Special Case No.141 of 2022 dated 29 th August 2022 and order passed below application Exhibit-13 in Special Case No.141 of 2022 dated 14th September 2022 by the learned Special Judge under the Atrocities Act and Additional Sessions Judge No.3, Ahmednagar, stand set aside. Both the said applications stand allowed.

(IV) The appellant in Criminal Appeal No.913 of 2022 - Sanket Vitthal Somwanshi and the appellant in Criminal Appeal No.880 of 2022 - Arun Narad Saha, who have been arrested in connection with

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Crime No.289 of 2022 registered with MIDC Police Station, Ahmednagar for the offence punishable under Sections 302, 341, 323, 504, 506, 143, 147, 148, 149 read with Section 34 of the Indian Penal Code and under Sections 3(1)(r), 3(1)(s) and 3(2) (v-a) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, be released on bail on P.R. Bond of Rs.50,000/- each with two solvent sureties of Rs.25,000/- each.