Bombay High Court
Ajazkhan Shahzadkhan Pathan vs The State Of Mah. Thr. P.S.O. Ps, ... on 7 August, 2024
2024:BHC-NAG:8775
50.appeal.53.2024.Judgment.odt
(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR
CRIMINAL APPEAL NO.53 OF 2024
Ajazkhan Shahzadkhan Pathan,
Aged about 45 Years,
Occupation: Labourer,
R/o Goregaon, Taluka Sindkhed Raja,
District Buldhana. ..... APPELLANT
// VERSUS //
1. State of Maharashtra,
Through Police Station Officer,
Police Station, Sakharkherda,
Taluka Sindkhed Raja and
District Buldhana.
2. Smt. Tulsabai w/o Rooplal Kavhale,
Aged about 65 Years,
R/w. Goregaon,
Taluka, Sindkhed Raja,
District Buldhana. .... RESPONDENTS
----------------------------------------
Mr. Anil Mardikar, Senior Counsel a/b Mr. Digvijay Prakash
Singh, Counsel for the appellant.
Mr. C. A. Lokhande, APP for respondent No.1/State.
Ms. Radha M. Mishra, appointed Advocate for respondent
No.2.
----------------------------------------
CORAM : URMILA JOSHI-PHALKE, J.
DATED : 07.08.2024
ORAL JUDGMENT :
1. Heard.
2. Admit.
50.appeal.53.2024.Judgment.odt
3. Present appeal is preferred by the appellant against
the order dated 30.10.2023 passed by the learned Special
Judge, Mehkar, District Buldhana in Bail Application in
Special Atrocity Case No.26/2022 below Exhibit 28.
4. The appellant came to be arrested on 16.03.2022 in
connection with Crime No.60/2022 registered with Police
Station, Sakharkherda, District Buldhana for the offences
punishable under Sections 302, 120-B of the Indian Penal
Code and under Section 3(2)(v) of the Scheduled Castes
and the Scheduled Tribes (Prevention of Atrocities) Act,
1989.
5. The crime is registered on the basis of report lodged
by mother of the deceased namely Tulsabai Rooplal Kavhale
on an allegation that the deceased was her son and he was
married with one Mira Dattatraya Kavhale. There was illicit
relationship between the wife of the deceased and the
present applicant and thereafter, deceased has sent his wife
at her parents house. However, she was again dropped at
their house and she was given understanding. On
15.03.2022 at about 12.30 to 1.00 p.m. she had been to
the house of her son, at the relevant time, she has seen the
50.appeal.53.2024.Judgment.odt
present applicant running away from the house of her son.
She entered in the house and she saw that her son was
lying on the bed, his legs were tied by the handkerchief and
his face was covered. When she went near to her son, her
daughter-in-law disclosed that as deceased is not well and
therefore, he is sleeping and not to disturb him. Therefore,
she left the house and went to her house thereafter, after
two hours, her daughter-in-law disclosed by telephonic call
that her husband - deceased Dattatraya is no more.
Therefore, she suspected that as her daughter-in-law and
the present applicant were having illicit relations, they both
have committed the murder of the deceased. On the basis
of the said report, police have registered the crime against
the present appellant.
6. After registration of the crime, the appellant was
arrested and he filed bail application before the learned
Special Court. The learned Special Court has considered the
material collected during the investigation and observed
that the report and the statement of the witnesses prima
facie supported the case of the prosecution and observed
that prima facie case is made out against the present
appellant and rejected the bail application.
50.appeal.53.2024.Judgment.odt
7. Being aggrieved and dissatisfied with the same, the
present appeal is preferred by the appellant on the ground
that the entire case is based on the circumstantial evidence.
The learned Special Court has ignored the material aspect
that the entire case is based on the extra judicial confession
of the co-accused which is very weak type of evidence.
There is no other material collected during the investigation
to show the connection of the present appellant with the
alleged crime.
8. Heard learned Senior Counsel Mr. Mardikar for the
appellant. He submitted that initially merg was registered
by the investigating agency. The enquiry was also
conducted in the merg, but the statements which are
recorded during the enquiry of the merg are not placed on
record. He further invited my attention towards the facts
that the FIR is lodged on 16.03.2022 prior to that merg was
registered and enquiry was conducted. At the relevant
time, the informant has not disclosed that she has seen the
present appellant running from the spot of incident.
Subsequently, afterthought on the next day, the FIR was
lodged. If this would have been fact that she had witnessed
the present appellant running from the spot of incident,
50.appeal.53.2024.Judgment.odt
there ought to have the immediate disclosure by the
informant. The delay in lodging the FIR is not explained by
the informant. He further submitted that though the
investigating agency has collected the mobile phone which
was seized from the co-accused Mira Dattatraya Kavhale
and transcription of the communication was placed on
record, but from the said communication, at the most it can
be revealed that there was relationship between both of
them. As far as the elimination of the deceased is
concerned, this evidence is also not sufficient to connect the
present appellant with the alleged offence. He submitted
that now, the investigation is completed and charge-sheet is
filed. The entire case is based on circumstantial evidence
and the chain of the circumstantial evidence is not
completed. Considering that the appellant is behind bar
since 16.03.2022 and there is no progress in the trial. The
appellant be released on bail.
9. The learned APP strongly opposed the said appeal on
the ground that there was illicit relationship between the
wife of the deceased and the present appellant and the
deceased was hurdle in the said relationship therefore, they
both have eliminated him. He submitted that though case
50.appeal.53.2024.Judgment.odt
is based on the circumstantial evidence, but the statement
of the informant and the extra judicial confession sufficiently
shows the involvement of the present appellant. If the
appellant is released on bail, he would tamper with the
prosecution evidence. In view of that, the appeal deserves
to be dismissed by maintaining the order passed by the
learned Special Judge.
10. Learned appointed Counsel for the respondent No.2
also endorsed the same contention and submitted that the
evidence which in the nature of circumstance is sufficient to
connect the present appellant with the alleged offence. In
view of that, appeal is devoid of merits and liable to be
dismissed.
11. After hearing the learned Senior Counsel for the
appellant and learned APP as well as learned appointed
Counsel for the respondent No.2, perused the entire
investigation papers from which it reveals that the alleged
incident has occurred on 15.03.2022 at about 12.30 to 1.00
p.m. At the relevant time, the informant has seen her son
in a condition that his legs were tied by the handkerchief.
As per the statement of the informant, she has also seen
50.appeal.53.2024.Judgment.odt
the present appellant running from the house of the
deceased. Though she was aware that there was illicit
relationship between the present appellant and the wife of
the deceased, she has not made any grievances during the
enquiry of the merg. From the endorsement in the FIR at
Column 8 sufficiently shows that enquiry was conducted in
the merg and therefore, report was lodged belatedly. The
statements which are recorded or the enquiry conducted by
the concerned Inquiry Officer in respect of the merg is not
placed on record. The FIR is lodged on 16.03.2022 at about
1.24 p.m. Thus, delay in lodging FIR is not explained by the
informant. Moreover, there is delay in disclosing the name
of the assailants also. As far as the involvement of the
present appellant is concerned, admittedly there is no direct
evidence to connect him with the alleged offence. Merely
on the basis of the statement of the witnesses that there
was an illicit relationship between both of them and there
was a telephonic communication between the wife of the
deceased and the present appellant. He was shown to be
accused in the alleged incident. The extra judicial confession
admittedly is a weak type of evidence. At this stage,
considering the material collected during the investigation
50.appeal.53.2024.Judgment.odt
and the delay in lodging the FIR, moreover, the appellant is
behind bar since 16.03.2022 and there is no progress in the
trial.
12. In the light of the above facts and circumstances, the
appellant has made out a case for grant of bail. Admittedly
the evaluation of the evidence at this stage is not required
but considering the entire case is rested on the
circumstantial evidence and the apprehension of the State
can be taken care of by imposing certain conditions on the
present appellant. The appeal deserves to be allowed.
Accordingly I proceed to pass following order.
ORDER
(i) The appeal is allowed.
(ii) The order dated 30.10.2023 passed by the
learned Special Judge, Mehkar, District Buldhana in
Bail Application in Special Atrocity Case No.26/2022
below order Exh.28, is hereby quashed and set aside.
(iii) The appellant Ajazkhan Shahzadkhan Pathan
shall be released on bail on executing PR bond of
Rs.25,000/- with one solvent surety in the like
amount, in connection with Crime No.60/2022
registered with Police Station, Sakharkherda, District
Buldhana for the offences punishable under Sections
302, 120-B of the Indian Penal Code and under
Section 3(2)(v) of the Scheduled Castes and the
Scheduled Tribes (Prevention of Atrocities) Act, 1989.
50.appeal.53.2024.Judgment.odt
(iv) The appellant shall not enter into the vicinity of
the village Goregaon, District Buldhana, till
culmination of the trial.
(v) The appellant shall not induce, threat or promise
any witnesses who are acquainted with the facts of
the present case.
(vi) The appellant shall attend the proceeding before
the learned Special Court without seeking any
exemption unless there are exceptional
circumstances.
13. The appeal is disposed of.
14. The fees of the appointed Counsel be quantified as per
rules.
(URMIL A JOSHI-PHALKE, J.)
Sarkate.
Signed by: Mr. A.R. Sarkate
Designation: PA To Honourable Judge
Date: 09/08/2024 18:21:16
