Mr. Dinesh @ Omprakash S/O Yadorao ... vs State Of Mah. Thr. Pso Ps ...
2023 Latest Caselaw 10909 Bom

2023:BHC-NAG:15510



                                                                                3.apeal.496.2023 judge.odt
                                                          1



                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                            NAGPUR BENCH, NAGPUR.

                                     CRIMINAL APPEAL NO. 496 OF 2023

                         Mr Dinesh       @ Omprakash S/o. Yadorao
                         Nagpure (In Jail),
                         Aged : 45 Yrs., Occu.: Business,
                         R/o. Lohra, Tq. & Distt. Gondia                                    .... APPELLANT

                                                      // V E R S U S //

                 1.      State of Maharashtra,
                         Through Police Station Officer,
                         Police Station Dawaniwada, District Gondia

                 2.      State of Maharashtra,
                         Through State Criminal Investigation
                         Department at Nagpur

                 3.      Sevangan Wd/o. Rajesh Kirsan
                         Aged: 30 Yrs., Occ.: Household,
                         R/o. Lohra, Tq. and Distt. Gondia.                             ... RESPONDENTS
                 --------------------------------------------------------------------------------------------------
                         Mr Rajnish Vyas, Advocate for the appellant
                         Mr Alap Palshikar, APP for the State
                         Ms C. S. Bhute, Advocate (appointed) for the respondent No.3
                 --------------------------------------------------------------------------------------------------
                                            CORAM : G. A. SANAP, J.

DATE : 20/10/2023

ORAL JUDGMENT :

                 1                 Heard.

                 2                 ADMIT. Heard finally with the consent of learned

                 Advocates for the parties.
                                           3.apeal.496.2023 judge.odt




3           In this appeal, filed under Section 14-A of the

Scheduled Castes and the Scheduled Tribes (Prevention of the

Atrocities) Act, 1989 (herein after referred to as 'the Atrocity

Act') challenge is to the order dated 23.06.2023 passed by the

learned District Judge-1 and Additional Sessions Judge,

Gondia, whereby the application for grant of bail made by the

applicant/ accused No. 6 Dinesh @ Omprakash S/o. Yadorao

Nagpure was rejected.

4 I have heard learned Advocate Mr Rajnish Vyas for

the appellant, learned APP Mr Alap Palshikar for the State and

Ms C. S. Bhute learned appointed Advocate for respondent

No.3. Perused the record and proceedings.

5 Learned Advocate for the appellant submitted that

in this case accused -Gitabai Kirnapure and Sandip Kirnapure

have been released on bail. Learned Advocate submitted that

accused No. 6, on the ground of parity is entitled to get bail in

3.apeal.496.2023 judge.odt

this case, inasmuch as, the role attributed to accused- Gitabai

Kirnapure and Sandip Kirnapure is, by and large, identical.

Learned Advocate submitted that the charge-sheet has been

filed, but the trial Court has not yet framed the charge.

Learned Advocate submitted that on account of delay in the

trial the accused has a right to make grievance about his

unnecessary incarceration in the case. Learned Advocate

submitted that considering the role attributed to accused No.

6 and the fact that the charge-sheet is filed, he is entitled to get

bail. Learned Advocate submitted that accused No.6 is ready

to abide by the conditions that may be imposed by the Court.

6 Learned APP submitted that this is second

successive application made by the accused for bail. His first

application was rejected. It is pointed out that the appeal filed

against the said order was rejected by the Division Bench of

this Court vide order dated 06.04.2022 in Criminal Appeal

No. 54 of 2022. Learned APP submitted that the ground of

3.apeal.496.2023 judge.odt

parity is not available to this accused because the role of the

accused -Gitabai Kirnapure and Sandip Kirnapure is totally

different. Learned APP pointed out that this fact has been

appropriately dealt with by the learned Additional Sessions

Judge. Learned APP submitted that specific role has been

attributed to accused No. 6 by the informant as well as by the

eye witnesses and therefore, the accused No. 6, being a prime

accused in this crime, cannot be enlarged on bail. Learned

APP took me through the order passed by the Division Bench

dated 06.04.2022 and submitted that in view of the

lackadaisical approach of the police officers, attached to the

police Station Dawaniwada, District Gondia, the investigation

was handed over to State CID and the State CID after putting

sincere efforts unearthed the crime and traced out all the

perpetrators of the crime. Learned APP submitted that the

informant belongs to Scheduled Tribe community. It is

pointed out that the accused persons have majority and as

3.apeal.496.2023 judge.odt

such, dominant position in the village and locality and

therefore, there is every likelihood of tampering with the

prosecution evidence, at the behest of the accused. Learned

APP submitted that there is no merit in the application,

inasmuch as, not a single changed circumstance has been

pleaded to grant him bail in a successive bail application.

7 Learned appointed Advocate for the informant

submitted that considering the pathetic condition and plight of

the victim/ respondent No.2 the release of applicant/accused

No. 6 would further aggravate her difficulties. As far as other

aspects are concerned, learned appointed Advocate has

adopted the submissions made by the learned APP.

8 Perusal of the record would show that specific role

has been attributed to accused No. 6 Dinesh Nagpure. Perusal

of the FIR as well as the statements of the eye witnesses would

show that the prominent role was played by accused No. 6 in

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assaulting the deceased. It is seen on perusal of the record that

accused No. 6 had given kick blows on private parts of the

deceased. Similarly, he inflicted the blows on the deceased

with wooden stick. Accused -Gitabai Kirnapure and Sandip

Kirnapure have been granted bail. On going through the

available material on record, it is seen that the role played by

accused and the role played by these two accused in the

commission of crime is different. Role played by the appellant/

accused No. 6 is prominent and higher in degree than the role

of these two accused. Therefore, in my view, on the ground of

parity, this bail application cannot be granted.

9 It is seen that when the deceased was taken to the

police station after merciless beating by the accused persons,

the police did not take any action. It is further seen that when

all these accused took the deceased, in an inured condition, to

the police station, on inquiry by the police, the accused

informed the police that the deceased had fallen from the

3.apeal.496.2023 judge.odt

motor cycle and sustained the injuries. The police, therefore,

directed them to take the deceased to KTS Hospital at Gondia.

The accused carried the deceased from police station to

hospital. The investigation revealed that the accused persons

instead of taking the deceased to the hospital buried him on

the way. It is pertinent to mention at this stage that when the

deceased was carried to the hospital from police station he was

alive. The accused persons came with the contention that

again the deceased fell from the motor cycle and sustained

injuries and died due to injuries. The Division Bench of this

Court considering the size of the pit, from which the dead

body was exhumed on 06.07.2021, observed that after the

death of the deceased he was buried in this pit by the accused

persons. It is seen that the accused persons are occupying

dominant position in the village and therefore, on the trifle

ground of theft of motor cycle by the deceased, he was brutally

assaulted and killed. It needs to be stated that this crime, at the

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behest of the accused, by applying any standard suggest

brutality of highest degree. The informant is the unfortunate

widow of the deceased. It is seen that the mother of the

deceased and other villagers tried to rescue the deceased from

the clutches of the accused however, the accused did not allow

them to intervene. It is further seen that when the mother of

the deceased offered water to the deceased, on his demand in

an injured condition, the accused No.6/appellant threw away

the water.

10 In my view, considering the above facts the learned

trial judge was right in rejecting the bail application. In this

case, I fully agree with the submissions advanced by the

learned APP that in case the accused No. 6/appellant, who has

played prominent role in commission of crime, is released on

bail then it would have adverse effect on the prosecution case

and the prosecution witnesses. The apprehension put forth by

the learned APP that after the release of the accused on bail, he

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will pressurize and threaten the witnesses is well founded.

Accordingly, I do not see any substance in the appeal. The

appeal is accordingly dismissed.

11 The learned appointed Advocate for respondent

No.3 is entitled for professional fees, as per rules.

12 Accordingly, the criminal appeal stands, disposed

of. No order as to costs.

13 In view of disposal of the appeal, pending

applications, if any, shall stand disposed of.

(G. A. SANAP, J.)

Namrata

Signed by: Miss Namrata Suryawanshi Designation: PA To Honourable Judge Date: 21/10/2023 15:59:47