Bombay High Court
Kundan Vinod Meshram vs The State Of Maha. Thr. Pso, Ps ... on 27 July, 2023
Bench: Vinay Joshi, Valmiki Sa Menezes
Judgment 1 apeal 434.23
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
CRIMINAL APPEAL NO. 434/2023
1. Kundan Vinod Meshram,
Aged about 25 years, Occ. Labour,
R/o. At Durbha, Post-Dhanora,
Tq. Zari-Jamni, Dist. Yavatmal.
... APPELLANT
VERSUS
1. The State of Maharashtra,
through Police Station Officer,
Police Station Awadhutwadi,
Yavatmal.
2. Saurabh s/o. Totiram Kamble,
aged 26 years, Police Constable,
R/o. Police Quarters, Yavatmal
...RESPONDENTS
---------------------------------
Mr.R.M. Daga, Advocate for appellant.
Mr. N.R. Rode, APP for respondent No.1.
Ms. Deepali Sapkal, Advocate (appointed) for respondent No. 2.
Ms. Anushri Pandey, Advocate (Intervener)
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CORAM : VINAY JOSHI AND
VALMIKI SA MENEZES, JJ.
DATE : 27.07.2023.
ORAL JUDGMENT (PER VINAY JOSHI, J.) :
Heard.
2. Admit.
Judgment 1 apeal 434.23
3. This appeal challenges the order of rejection of bail dated
15.04.2023 in Special Case No. 111/2022. The appellant was
arrested in Crime No. 858/2022 registered with Police Station
Awadhutwadi, Yavatmal for the offence punishable under Section
302 read with Section 34 of the Indian Penal Code and Section 3(2)
(v) of the Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act ('SC and ST Act'). The appellant claims bail on the
ground of innocence, false implication, inadequacy of material, lack
of identification and completion of investigation.
4. The State as well as learned counsel appearing for the
complainant and invervener resisted to grant bail by pointing
towards seriousness of the offence. It is submitted that one of the
witness has seen blood stains on the clothes of appellant/accused on
his apprehension. Likewise, some of the witnesses have seen
appellant in the company of co-accused at relevant time that too with
arms. Moreover, it is submitted that in case of appellant releasing on
bail, there is every likelihood of abscondance as he is residing near
the State boarder.
Judgment 1 apeal 434.23
5. Deceased was a Police Constable residing in Police
quarter. Informant too is a police personnel. It is informant's case
that on 14.09.2022 at late midnight, he has seen Nishant Khandse
(deceased) lying at road side in pool of blood with head injury. The
informant stated that on the very day in the afternoon, he had been
telephonically informed by co-accused Abhishek that he had a
quarrel with deceased in the afternoon and therefore, he would kill
the deceased. On the said basis, informant lodged report with the
Police alleging against co-accused Abhishek.
6. Admittedly, there is no eye-witnesses to the occurrence.
The case totally rests on circumstantial evidence. There is no
recovery at the instance of appellant/accused. Though the Police
recorded memorandum statement of appellant, however the place of
throwing weapon allegedly shown by the appellant was already
known to the Police. Several witnesses have stated that at the
relevant time, they have seen co-accused Abhishek proceeding by
riding on motorcycle with a pillion rider boy holding hockey stick
and steel road. However, none of the witnesses has stated that the
appellant was pillion rider. Surprising to note that the Investigating
Judgment 1 apeal 434.23
Officer has not taken pains to conduct prior test identification
parade, though on the day of First Information Report ('FIR) itself
the appellant was arrested.
7. The Police have recorded statement of Police Constable
Rathod wherein he stated that at the time of arrest of appellant he
was present and had seen blood stains on his clothes. However,
clothes seizure panchanama did not show blood stains on the clothes
of appellant. True there may be position that blood cannot be seen
by necked eyes, but it may emerge during chemical examination,
however notably the statement of Police Constable Rathod has been
recorded after one months which assumes significance.
8. The prosecution has pointed out one antecedent of the
appellant i.e. offence registered under Section 324 of the Indian
Penal Code prior to few days of the occurrence. True, antecedent is a
relevant factor, but cannot be termed as a deceive in absence of
convincing material in existing crime. In short, besides speculation,
nothing has been shown against the appellant. In the circumstances,
on the basis of such material, the liberty of individual cannot be
curtailed. The investigation is complete and charge-sheet has been
Judgment 1 apeal 434.23
filed. In view of that, impugned order would not sustain in the eyes
of law. Hence, following order:-
(I) Appeal stands allowed.
(II) We hereby quash and set aside the order dated
15.04.2023 passed by the Additional Sessions Judge,
Yavatmal in Special Case No. 111/2022.
(III) Appellant Kundan Vinod Meshram is released
on bail on his furnishing P.R. Bond of Rs. 50,000/- with
one or two sureties in the like amount.
(IV) Appellant Kundan Vinod Meshram shall attend
concerned Police Station on every first Monday of each
month in between 10.00 a.m. to 01.00 p.m till conclusion
of trial.
(V) Appellant Kundan Vinod Meshram shall not
directly or indirectly make any inducement, threat or
promise to any person acquainted with the facts of the
case, as also shall not tamper with the evidence.
(VI) Appellant Kundan Vinod Meshram shall
provide his residential address and cell number to
concerned Investigating Officer and shall not change his
Judgment 1 apeal 434.23
place of residence without prior intimation to the
concerned Investigating Officer.
9. Appeal stands disposed of in above terms.
10. Fees be paid to the learned appointed counsel for
respondent No. 2 as per Rules.
(VALMIKI SA MENEZES, J.) (VINAY JOSHI, J.)
Gohane
