Bombay High Court
Khushal S/O. Girwarlal Uprade vs The State Of Mah. Thr. Pso, Ps ... on 2 May, 2023
Bench: Vinay Joshi, Bharat Pandurang Deshpande
1 cri appeal 233.23
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO. 233/2023
Khushal s/o Girwarlal Uprade,
Aged about 22 years, Occ. Education,
R/o Nimba, Tah. Salekasa,
District Gondia
(Presently at District Prison at Bhandara) ... Appellant.
- Versus -
1. The State of Maharashtra
Through Police Station officer,
Police Station Salekasa,
District Gondia.
2. Prashant @ Karan s/o Charandas Karwade,
R/o Amgaon Khurd, Salekasa,
District Gondia ... Respondents
-----------------
Mr. R.M. Daga, Advocate for the appellant.
Mr. A.M. Kadukar, APP for respondent no.1.
None for respondent no.2.
----------------
CORAM : VINAY JOSHI AND
BHARAT P. DESHPANDE, JJ.
DATE : 02.05.2023.
ORAL JUDGMENT (Per VINAY JOSHI, J.)
2 cri appeal 233.23
Heard. Admit. Heard finally by consent of learned
counsel for the respective parties. The informant (respondent
no.2) is served but he chooses to remain absent. This is an appeal
challenging the order of rejection of regular bail passed by the
Trial Court below Exhibit 100 dated 20th March, 2023.
2. The appellant Khushal was arrested in Crime
No.5/2022 dated 8.1.2022 registered with Salekasa Police
Station, District Gondia for offences punishable under Section
302 read with Section 34of the Indian Penal Code and Section 3
(2) (v), 3(2) (5-a) of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 along with four others. The
accusation is that deceased Sandip had relationship with the
daughter of co-accused Girvarlal Uprade, which was not liked by
the family of the girl. According to the prosecution case, on
7.1.2022 Sandip was assaulted by the accused with sticks and he
succumbed to injuries suffered, particularly the injury on the
kidney. The investigation is complete and chargesheet has been
filed.
3. On account of false implication, inadequacy of
evidence and parity, bail is claimed. It is pointed out that rest of
the four accused are already released on bail. Though, other
3 cri appeal 233.23
accused are released on bail, however, the applicant primly
claimed bail on merits. It is argued that as per the version of two
eye witnesses role assigned to all accused is one and the same,
and rest have been released on bail. The learned counsel would
submit that the injuries sustained by deceased were on arms, legs
and of simple nature. The cause of death is said to be
haemorrhage shock and as a result of injuries to right kidney. It is
argued that no dangerous weapon are used. Moreover, there is no
recovery at the instance of applicant.
4. The learned APP resisted bail by contending that the
offences are of serious nature . The applicant took prime role and
the rule of parity would not apply.
5. There are two eye witnesses to the occurrence namely
Narendra and Jayendra. Statements of both eye witnesses are
identical. Both of them have stated that all named five assailants
including the appellant have beated deceased by sticks, kicks and
fists blows. We do not see any specific role to either of the
assailants. The police have recorded dying declaration of deceased
on the date of incident. In the said statement, deceased stated
that the applicant Khushal, co-accused Girwarlal and one another
co-accused initially beated him by means of sticks and then fourth
accused joined them in beating by sticks. Our attention has been
4 cri appeal 233.23
invited to the oral dying declaration made by deceased to his
mother. This time deceased discloses that all five accused
assaulted him by means of sticks. Prima facie, we see that the role
assigned to all accused is one and the same. Already all other
accused are released on bail. Admittedly, there is no recovery at
the instance of the appellant. No sharp aged weapon has been
used nor injuries on vital part of the body. Investigation is
complete and chargesheet is filed. Taking into consideration all
aspects of the matter, we are inclined to use our discretion in
granting bail to the appellant.
6. In view of above, the appeal is allowed.
7. The impugned order dated 20.3.20223 passed below
Exhibit 100 by the District Judge-1 and Additional Sessions
Judge, Gondia in Special (Atrocity) Case No.21/2022 is quashed
and set aside.
8. The appellant shall be released on bail on such
conditions as the learned Special Judge may deem fit to impose.
9. In addition to strict compliance with the condition
which may be imposed by the learned Special Judge, it is made
abundantly clear that if any attempt is made by the appellant to
5 cri appeal 233.23
contact, influence or threaten any witness, that ipso facto may
give rise to the prosecution to seek for cancellation of bail.
10. The appeal is allowed in the aforestated terms.
(BHARAT P. DESHPANDE, J.) (VINAY JOSHI, J.)
ambulkar.
