Bombay High Court
Sandip S/O Maniram Kirnapure vs State Of Mah. Thr. Pso Ps ... on 18 January, 2023
Bench: Vinay Joshi, Valmiki Sa Menezes
1 1apeal713.22.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPEAL NO. 713/2022
Sandip S/o. Maniram Kirnapure,
aged about 28 years, Occ. Agri,
R/o. Lohara, Tal. & Dist. Gondia.
APPELLANT
VERSUS
1. State of Maharashtra,
through Police Station Officer,
Police Station Dawaniwada,
Dist. Gondia.
2. Sau. Sevangana wd/o. Rajesh Kirsan,
Age 30 years, Occ. Household,
R/o. Lohara, Tal. & Dist. Gondia.
RESPONDENT
---------------------------------------------------------------------------------------------------
Mr. N. R. Tekade, Advocate for appellant.
Mrs. M. Deshmukh, Additional Public Prosecutor for respondent
No.1/State.
Mrs. S. Giratkar, Advocate for respondent No. 2. (appointed)
CORAM : VINAY JOSHI AND
VALMIKI SA MENEZES JJ.
DATE OF JUDGMENT : 18.01.2023
ORAL JUDGMENT (PER VINAY JOSHI, J.)
Heard.
2. This is an appeal under Section 14-A of the Scheduled
Castes and Scheduled Tribes (Prevention of Atrocities) Act ('Atrocities
2 1apeal713.22.odt
Act') raising a challenge to the order of rejection of bail dated
29.09.2022 (Exh. 99) passed by the Court of Additional Sessions Judge,
Gondia. The appellant (accused) has been arrested on 06.07.2021 in
Crime No. 134/2021 by the Police, Dawaniwada Police Station, District
Gondia for the offence punishable under Sections 364, 324, 504, 506,
143, 144 of the Indian Penal Code and Sections 3(2)(5), 3(1)(r), 3(1)
(s), 3(2) of the Atrocities Act. The appellant is in judicial custody. The
Police have completed the investigation and filed charge-sheet on
04.07.2021.
3. The accused Sandip Kirnapure has claimed bail on usual
grounds. Besides that, it has been canvassed that the role assigned to
accused is of mere presence and nothing more. According to the
appellant/accused, the material collected against him is totally
inadequate to curtail his liberty. It is pointed that there is considerable
delay in lodging of First Information Report ('FIR'). It has been brought
to the notice that this Court has released one of the co-accused namely
Gopichand Katangkar on bail in Criminal Appeal No. 514/2021 vide
order dated 26.07.2022.
4. The State as well as informant resisted for release of
accused on bail. It has been submitted that the applicant's presence on
the spot has been disclosed in FIR itself. Moreover, our attention has
been invited to the statement of witnesses namely Kewal to contend that
3 1apeal713.22.odt
it discloses active participation of accused in the incident. The learned
APP would submit that since the provisions of Section 143 of the Indian
Penal Code has been invoked, the accused is also responsible for the
acts. There is no dispute about the said legal proposition, however, it is
a matter of trial to establish common object.
5. At the instance of report dated 03.07.2021 lodged by the
wife of deceased Raju, crime has been registered. It is her contention
that on 23.06.2021, initially some of the co-accused met and inquired
about her husband Raju (deceased) by saying that Raju has stolen their
motor-cycle. She stated that on that day around 01.00 p.m. she heard
shouts on the road, therefore she along with her mother-in-law rushed
to the place. They saw that deceased Raju was lying on the road whilst
total 12 named persons have cordoned him. She has also stated the
name of accused Sandip as one amongst them. It is her contention that
the co-accused beat Raju by means of wooden stick, chappal and caused
him severe injury. Thereafter, some other co-accused put deceased into
four wheeler and left the place.
6. On inquiry with the Police, informant learnt that co-accused
came to the Police Station with deceased Raju. They informed to the
Police that Raju was in drunken position and sustained head injury, on
which Police directed them to extend medical aid. She has also stated
that on the same day in the evening one co-accused Kamlesh came to
4 1apeal713.22.odt
their house and asked some clothes for deceased, which Kamlesh
handed over to applicant/Sandip. Since deceased Raju was untraceable,
informant went to Police Station and lodged report. Initially, the Police
registered offence for abduction and under other provisions of Indian
Penal Code and Atrocities Act.
7. On 06.07.2021, one of the co-accused namely Rahul was
arrested. In pursuance of his discloser statement under Section 27 of
the Indian Evidence Act, the Police came to know about the place where
dead body of Raju was buried. On the same day, the body was exumed
and autopsy was done. There were in all 8 contused wounds and cause
of death is as "head injury'.
8. So far as the role of applicant of Sandip is concerned, the
informant has assigned role of mere presence at the time of occurrence.
Though she stated that accused Sandip accompanied in the after noon
with one Kamlesh, however i.e. separate incident requires evidence to
link it with the occurrence. We have gone through the statement of
another eye-witness i.e. mother of deceased namely Bhagwatabai. She
has equally stated that at the relevant time in all 12 persons were
present including accused Sandip. She has also specifically stated the
names of co-accused who dealt with stick blows to the deceased.
9. The prosecution has stated that one can find the direct role
of accused Sandip in the statement of witness Kewal. On perusal of his
5 1apeal713.22.odt
statement, it reveals that several persons were present on the spot, in
which the accused Sandip also beat by fist blows and kikes. The said
statement has been recorded on 16.07.2021 by the Investigating Officer.
Besides that the prosecution is unable to point out any other material to
show specific overt-act of the applicant - Sandip.
10. The learned counsel appearing for the applicant stated that
one of the co-accused Gopichand was released on bail on the ground
that his name was not mentioned in the FIR and the statement barely
shows his presence on the spot without specific role. True, the name of
Sandip emerges from the FIR itself, however it only conveys about his
presence on the spot. We have gone through other statement of eye-
witnesses who have assigned the role of actual assault to co-accused and
not to applicant-Sandip. During investigation clothes of accused Sandip
have been seized on 09.07.2021, which does not disclose any prima
facie nexus with the crime.
11. Though offence is gruesome, however in order to curtail the
liberty, there should be adequate material. Besides presence of the
applicant, there is nothing against him. Already investigation is
complete and charge-sheet has been filed. Accused Sandip is in Jail
from 06.07.2021. Having regard to the nature of material and his role,
we deem it appropriate to release appellant - Sandip on bail on certain
terms.
6 1apeal713.22.odt
12. In view of above, the applicant has made out a case for
grant of bail. By allowing appeal, we pass the following order:-
I. Impugned order of rejection of bail dated 29.09.2022
is hereby quashed and set aside.
II. The appellant - Sandip S/o. Maniram Kirnapure shall
be released on bail on his furnishing P.R. Bond of
Rs. 50,000/- with one solvent surety in the like amount.
III. The appellant shall not enter in the jurisdiction of
Dawniwada Police Station during the pendency of the Trial
except attendance.
IV. The appellant shall not in any manner try to contact
the prosecution witnesses till conclusion of trial.
V. The appellant shall attend concerned Police Station
on first Monday of each month in between 10.00 a.m. to
12.00 noon for the period of six months from today.
VI. Breach of either of condition would give rise to the
prosecution to seek for cancellation of bail.
13. Fees be paid to the learned counsel appointed for
respondent No.2 as per rule.
(VALMIKI SA MENEZES, J.) (VINAY JOSHI, J.)
Digitally
signed by
JITENDRA
JITENDRA BHARAT
BHARAT GOHANE
GOHANE Date:
2023.01.20
20:00:54 Gohane
+0530
