Bombay High Court
Niyaz Khan Adil Rashid Khan vs The State Of Maharashtra Thr. Pso, Ps, ... on 12 August, 2024
2024:BHC-NAG:9094
J.54.cri.appeal.325.24.odt 1/6
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO.325 OF 2024
Niyaz Khan Adil Rashid Khan
Aged about 42 years, Occupation - Labour,
R/o Nawa Nakasha Lashkaribag,
Nagpur
...APPELLANT
VERSUS
1. State of Maharashtra,
through Police Station Officer,
Police Station, Pachpaoli,
Nagpur
2. Sashim Pravin Shambharkar,
Aged 26 years, R/o House No.336,
Oppo Shyam Tambe Building,
Kidwai Maidan, Nawa Nakasha,
Lashkaribagh, Nagpur
...RESPONDENTS
_______________________________________________________
Mr. M.N. Ali, Advocate for the appellant.
Mr. K.R. Lule, APP for the State.
Ms R.M. Mishra, Advocate (appointed) for respondent No.2.
_______________________________________________________
CORAM : URMILA JOSHI-PHALKE, J.
DATED : AUGUST 12, 2024.
ORAL JUDGMENT :
ADMIT. Heard finally with the consent of learned Counsel
for the parties.
J.54.cri.appeal.325.24.odt 2/6
2. This is an appeal under Section 14A of the Scheduled Caste
and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter
referred to as 'the Atrocities Act' for short), the appellant has challenged
the order dated 09.05.2024 whereby the Additional Sessions Judge-8
and Special Judge, SC and ST (Prevention of Atrocities) Act rejected the
bail application of the appellant bearing Special Case No.36/2022.
3. The appellant is arrested on 22.10.2021 in connection with
Crime No.867/2021 registered under Sections 143, 147, 148, 302, 120B
and 201 read with Section 149 of the Indian Penal Code and under
Section 4/25 of the Arms Act and Sections 3(2)(v), 3(2)(va) of the
Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities)
Act, 1989.
4. The accusation against the present appellant is on the basis
of report lodged by Sashim Pravin Shambharkar, who alleged that on
21.10.2021 at about 9.30 p.m. when he was at his house, one Sunna
Khan and auto-rickshaw driver Ashu and one another person came at
this house and called the deceased namely Goldi outside the house.
Thereafter, Goldi went along with them. After some time, he received a
message of one Matinbhai that Sunna and his friends were assaulting the
deceased by means of knife. He immediately rushed to the spot of
incident and saw that the deceased was assaulted by the co-accused. The
J.54.cri.appeal.325.24.odt 3/6
deceased sustained grievous injuries and succumbed to the death. On
the basis of the said report, police have registered the crime against the
present appellant.
5. The present appellant has filed an application below Exhibit
109 for grant of bail but the same was rejected by the Special Court
considering the gravity of the offence and apprehension raised by the
State regarding tampering of the witnesses and the role attributed to the
present appellant.
6. Learned Counsel for the appellant submitted that during the
investigation, the Investigating Officer has recorded the statements of
the eye-witnesses which attributes the role to the present appellant to
the extent of assault by fists and kick blows. He submitted that the name
of the present appellant is neither mentioned in the FIR nor the eye-
witnesses namely Abhishek, @ Charlie Deepak Kawale and Pravin
Murlidhar Shambharkar have attributed any role to the present
appellant. Even considering the allegation as it is, it is only to the extent
of assault by means of fists and kick blows. Since the date of the arrest,
the appellant is behind bar. Now, the investigation is completed and
charge-sheet is filed, further incarceration of the appellant is not
required. Moreover, he has not caused the death of the deceased. As no
J.54.cri.appeal.325.24.odt 4/6
weapon was attributed to him, as far as the statement of the eye
witnesses is concerned.
7. Learned Additional Public Prosecutor and learned Counsel
for respondent No.2 strongly opposed the said application on the ground
that in furtherance of the common object, deceased was assaulted by the
present appellant and other co-accused. Though the investigation is
completed and charge-sheet is filed, there is apprehension of tampering
of the witnesses.
8. Learned Counsel for respondent No.2 further invited my
attention towards the statement of Pramesh Apparao Adhpaka and
submitted that the present appellant is also assigned with the knife as
per the said statement and prays for rejection of the application.
9. I have heard learned Counsel for both the parties. Perused
the investigation papers. The informant has absolutely not attributed any
role to the present appellant and there is no allegation that he was
holding the knife and assaulted the deceased by means of knife at the
relevant time. The eye-witnesses namely Abhishek, @ Charlie Deepak
Kawale and Pravin Murlidhar Shambharkar have also not attributed the
role to the present appellant. Only the statement of Pramesh Apparao
Adhpaka discloses that present appellant was also holding the knife
J.54.cri.appeal.325.24.odt 5/6
which is contradictory to the eye-witnesses. Now, the investigation is
already completed and charge-sheet is filed. The appellant is behind bar
since the date of his arrest. There is no dispute that 62 injuries are found
on the person of the deceased. The most of the injuries are in the nature
stab wounds and chop wounds. Admittedly, the allegations against the
other co-accused are of a serious nature but considering that the name of
the present appellant is not mentioned in the FIR. The two eye-witnesses
have also not attributed any specific role to him. In view of that, his
further incarceration is not required. The role assaulting by knife is
attributed to the other co-accused. Hence, the appeal deserves to be
allowed by imposing certain conditions. Accordingly, I have proceed to
pass following order:
(i) The appeal is allowed.
(ii) The order dated 09.05.2024 passed by the Additional
Sessions Judge-8 and Special Judge, SC and ST (Prevention
of Atrocities) Act in Special Case No.36/2022, is hereby
quashed and set aside.
(iii) The appellant - Niyaz Khan Adil Rashid Khan in
connection with Crime No.867/2021 registered under
Sections 143, 147, 148, 302, 120B and 201 read with
Section 149 of the Indian Penal Code and under Section
J.54.cri.appeal.325.24.odt 6/6
4/25 of the Arms Act and Sections 3(2)(v), 3(2)(va) of the
Scheduled Castes and the Scheduled Tribes (Prevention of
Atrocities) Act, 1989, be released on bail on executing P.R.
Bond in the sum of Rs.25,000/- (Rs. Twenty five thousand)
with one surety in the like amount.
(iv) The appellant shall not enter into the vicinity and
jurisdiction of the Pachpaoli Police Station, Nagpur till the
culmination of the trial.
(v) The appellant shall not induce, threat or promise any
witnesses who are acquainted with the facts of the case.
(vi) The appellant shall attend the proceeding before the
trial Court without seeking any exemption unless there are
exceptional circumstances.
(vii) The contravention of any of the conditions would lead
to cancellation of bail.
10. The appeal is disposed of accordingly.
11. The fees of the appointed Counsel be quantified as per rules.
(URMILA JOSHI-PHALKE, J.)
*Divya
