Aman Khan Ahemad Khan vs The State Of Mah. Thr. Pso Padoli ...
2024 Latest Caselaw 3183 Bom

Bombay High Court

Aman Khan Ahemad Khan vs The State Of Mah. Thr. Pso Padoli ... on 2 February, 2024

2024:BHC-NAG:1499


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

                               CRIMINAL APPEAL NO.771 OF 2023

                           Aman Khan Ahemad Khan
                           Aged about 20 years,
                           Occupation - Labour
                           R/o Near Dr. Matte Hospital,
                           Naginabag, Chandrapur
                                                                           ...APPELLANT
                                                   VERSUS

               1.          The State of Maharashtra,
                           through P.S.O., Padoli,
                           Chandrapur
               2.          Bhaskar Shankar Nagarkar
                           Aged about 45 years,
                           Occupation - Agriculture,
                           R/o. Juni Padoli,
                           Tah. and District Chandrapur
                                                                       ...RESPONDENTS
               _______________________________________________________
                           Mr. M.N. Ali, Advocate for the appellant.
                           Ms M.A. Barabde, APP for the State.
                           Ms Kirti Deshpande, Advocate for respondent No.2.
               _______________________________________________________

                                              CORAM : URMILA JOSHI-PHALKE, J.
                                              DATED : FEBRUARY 2, 2024.

               ORAL JUDGMENT :

ADMIT. Heard finally with the consent of learned Counsel for

the parties.

J.47.cri.appeal.771.2023.odt 2/7

2. Being aggrieved and dissatisfied with the order passed by the

Special Judge and Additional Sessions Judge, Chandrapur in Criminal

Bail Application No.469 of 2023 by which the application for bail is

rejected. This appeal is preferred by the appellant for grant of bail under

Section 14A of the Scheduled Caste and Scheduled Tribe (Prevention of

Atrocities) Act, 1989.

3. The appellant came to be arrested on 19/06/2023 in

connection with Crime No.187 of 2023 registered at police station Padoli

District Chandrapur for the offence punishable under Sections 302, 201

read with Section 34 of the Indian Penal Code and Section 3(2)(5) of

the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act,

1989 (hereinafter referred as 'the Atrocities Act' for short). The

accusation is on the basis of report lodged by Bhaskar Shankar Nagarkar

on an allegation that on 18th June, 2023 one driver from the brick

furnace namely Raju Kannake came to his house and informed him that

he had seen the dead body lying in the ash, besides the bushes and

towards the road. Therefore, he immediately rushed to the spot of

incident with one Bapu Pise and witnessed that there was a dead body

lying in agriculture land of Atul Chillarwar, near the ash pipeline. He

immediately informed the incident to the Padoli police station, police

came to the spot of incident and examined the dead body and found that

it is the dead body of 20 years old boy who died before one or two days, J.47.cri.appeal.771.2023.odt 3/7

his face was disfigured and body was swollen. The police found one

injury behind his head and they also found a mobile phone in his pocket.

On verifying the mobile phone, the identification of the deceased was

revealed as Vishal Patil. Accordingly, police registered an accidental

death and dead body was sent for the postmortem examination. During

investigation, it revealed that the present appellant was lastly seen with

the deceased and thereafter dead body of the deceased was found. On

the basis of the statements of the witnesses, appellant was arraigned as

an accused and after completion of the investigation charge-sheet was

filed.

4. Learned Counsel for the appellant submitted that except the

statements of the witnesses that the present appellant was found along

with the deceased lastly and thereafter dead body was found. There is

no other material to connect the present appellant with the alleged

offence. He submitted that the evidence as regards to the last seen is a

very weak type of evidence. Moreover, there is a long gap between the

last seen and the finding of the dead body, therefore, there is a no nexus

between the two incidents. Besides the last seen evidence, no other

material to connect the present appellant with the alleged offence. Now,

investigation is completed and charge-sheet is filed, further incarceration

of the present appellant is not required. In view of that, the appellant be

released on bail by setting aside the order of the trial Court.

J.47.cri.appeal.771.2023.odt 4/7

5. Learned Additional Public Prosecutor strongly opposed the

application on the ground that the statements of the witnesses clearly

shows that the deceased and the present appellant and one more co-

accused were lastly seen in the company of the present appellant.

Thereafter the dead body of the appellant was found. The prosecution

case is rested on the circumstantial evidence and besides the

circumstance of last seen, the material which is collected during the

investigation by the Investigating Officer is the seizure of the weapon at

the instance of the present appellant. Thus, the circumstantial evidence

at this stage, is sufficient to show the involvement of the present

appellant, and therefore, the application deserves to be rejected.

6. Learned Counsel for respondent No.2 endorsed the same

contentions and she submitted that at this stage, prima facie material

requires to be looked into which shows the connection of the present

appellant with the alleged incident as the deceased lastly seen alive in

the company of the present appellant and thereafter his dead body was

found. So there is a nexus between the finding of the dead body and the

lastly seen evidence. Though investigation is completed and charge-sheet

is filed, if present appellant is released on bail there is every likelihood of

fleeing away from the justice, and therefore, the application deserves to

be rejected.

J.47.cri.appeal.771.2023.odt 5/7

7. Having heard learned Counsel for the parties. Perused the

investigation papers. Admittedly, the FIR is lodged against the unknown

persons. The identification of the dead body was revealed as mobile

phone was seized from the person of the deceased. During investigation

the Investigating Officer has recorded the statements of two witnesses

namely Mohammad Shoeb Hasham Sheikh from whose statement it

revealed that he has witnessed the present appellant along with the

deceased and thereafter the deceased was found dead. As per his

statement, on 16/06/2023 at about 7:30 p.m. he has seen the deceased

and the present appellant and dead body of the deceased was found on

18/06/2023 at about 12.00 p.m. Thus, the dead body was found after

two days. Besides the last seen material, incriminating article is seized at

the instance of the present appellant. However, no blood stains are

found on the said weapon. It is well settled that when case is based on

the circumstantial evidence motive assumes importance. In the present

case, there is nothing on record to show that there was any type of

enmity between the deceased and the present appellant. Moreover,

except the last seen evidence, there is no material to show that after the

last seen the deceased was seen alive or there was no scope of

intervention in between the period. There is no investigation to find out

as to exactly when the death of the deceased is caused and by means of

what weapons and on which date and time. Admittedly, last seen J.47.cri.appeal.771.2023.odt 6/7

together itself is very weak type of evidence and would not be sufficient

to complete the chain of the circumstances. Considering the fact that

there is a long gap between the last seen and the finding of dead body

and the possibility of intervention of some other person cannot be ruled

out. In view of that and as the investigation is completed, charge-sheet is

filed, further incarceration of the present appellant is not required, the

appeal deserves to be allowed. In view of that, I proceed to pass the

following order :

            (i)          The appeal is allowed.

            (ii)         The order passed by the Additional Sessions

Judge, Chandrapur in Criminal Bail Application No.469/2023

rejecting the bail application of the appellant is hereby

quashed and set aside.

(iii) The appellant - Aman Khan Ahemad Khan in

connection with Crime No.187 of 2023 registered at police

station Padoli District Chandrapur for the offence punishable

under Sections 302, 201 read with Section 34 of the Indian

Penal Code and Section 3(2)(5) of the Scheduled Caste and

Scheduled Tribe (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.

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            (iv)         The appellant shall not leave the jurisdiction of

Chandrapur without prior permission of the Court.

(v) The appellant shall not directly or indirectly make

any inducement, threat or promise to any person acquainted

with the facts of the case and shall not tamper the

prosecution evidence.

(vi) The appellant shall furnish his Cell phone number

and address along with the address proof before the

Investigating Officer.

8. The appeal is disposed of accordingly.

9. The fees of the appointed Counsel be quantified as per rules.

(URMILA JOSHI-PHALKE, J.) *Divya