Bombay High Court
Akshay Bimrao Wasnik vs State Of Mah. Thr. Pso, Ps Pachpaoli, ... on 25 January, 2024
2024:BHC-NAG:1102
1 52-J-APPEAL-696-23.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 696 OF 2023
APPELLANT : Akshay Bimrao Wasnik,
Aged about 22 years, Occ - Private,
R/o Lane No.9, Behind Adarsha Nagar,
Buddha Vihar, Adarsha Nagar, Nagpur.
VERSUS
RESPONDENTS : 1. State of Maharashtra
Through PSO, P. S. Pachpaoli,
Nagpur.
2. Vaishali Ravi Ukey,
Age - 40, Occ. - Private,
R/o Indira Mata Nagar,
Besides Patel Kirana Stores,
Yashodhara Nagar, Nagpur.
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Shri Samyak Chahande, Advocate h/f Shri Parag Ukey, Advocate
for appellant.
Ms. M. A. Barabde, A. P. P. for respondent No.1-State.
Shri N. P. Singhaniya Advocate (Appointed) for respondent No.2.
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CORAM: URMILA JOSHI-PHALKE, J.
DATED : 25/01/2024.
ORAL JUDGMENT :
1. Heard. Admit. Heard finally with the consent of learned
counsel appearing for the parties.
2. By preferring this appeal, the appellant has challenged
the order dated 19/08/2023 passed by the Additional Sessions
Judge-10, Nagpur in Special Case No 282/2023 rejecting the
application of the present appellant for bail in connection with
Crime No.249/2023 registered under Sections 302, 143, 147, 148,
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149 of the Indian Penal Code and Sections 3(2)(5) and 3(2)(va) of
the Scheduled Castes and the Schedules Tribes (Prevention of
Atrocities) Act, 1989 (For short, "Atrocities Act").
3. The appellant is arrested on 05/04/2023 and since
then, he is behind bar.
4. The accusation against the present appellant is on the
basis of report lodged by the informant Smt. Vaishali Ravi Ukey on
an allegation that the deceased is his brother and there was a
previous enmity between the present appellant and other
co-accused and on account of previous enmity on 04/04/2023, her
mother disclosed that her brother was assaulted by the present
appellant and other co-accused and also threatened to kill him. On
04/04/2023 at about 11.45 p.m., she received a message from her
sister that her brother Umesh was admitted in hospital. She
immediately rushed to the hospital and found her brother in dead
condition. Her brother had sustained injuries on his abdomen,
chest and other parts of the body. Therefore, she lodged a report
regarding the incident against the present appellant and other co-
accused. The sum and substance of the allegation is that due to
previous enmity between the appellant and other co-accused and
the deceased, deceased was eliminated by the present appellant by
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sharing common object with the co-accused. During investigation,
Investigating Officer has recorded the statements of the eye-
witnesses from which the involvement of the present appellant is
revealed and therefore, he is arrested.
5. Learned counsel for the appellant invited my attention
towards the order passed by the learned Trial Court and pointed
out that learned Trial Court has rejected the application only on
the ground that all the accused assaulted the deceased by means
of knife, fist and kick blows and two wheeler was run over on the
body of the deceased and caused the death of the deceased. Thus,
offence committed by the accused is of a serious nature and by
forming unlawful assembly. He further submitted that if the
statements of the eye-witnesses are considered, only presence of
the present appellant is noted. No overtact is attributed to the
present appellant. Now, investigation is completed and charge
sheet is filed. Further incarceration of the present appellant is not
required. He further submitted that there are no criminal
antecedents against him. In view of that, appeal be allowed and
appellant be released on bail.
6. Learned Additional Public Prosecutor strongly opposed
the appeal on the ground that the appellant and other co-accused
formed unlawful assembly and in furtherance of their common
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object and due to previous dispute, they eliminated the deceased
by brutally assaulting him. There is prima facie material against
the present appellant. The statement of the eye-witness namely;
Priyank Ramteke, who specifically states that deceased was also
assaulted by Akshay Wasnik and Shubham Gajbhiye. Thus, there is
prima facie material to connect the present appellant. It is the
collective act committed by the present appellant and other co-
accused. In view of that, the appeal is devoid of merit and liable to
be dismissed.
7. Learned counsel for the informant endorsed the said
contention and submitted that not only the statements of the eye-
witnesses but also the CCTV Footage also shows the presence of
the present appellant. The role of the present appellant is specific
which reveals from the statements of the eye-witnesses. The
offence committed by the present appellant along with other co-
accused is serious in nature. Considering the gravity of the offence,
application deserves to be rejected by dismissing the appeal.
8. I have heard learned counsel for the appellant and
learned APP for the State and learned counsel for respondent
No.2. Perused the order of the Trial Court. The Trial Court has
observed that the deceased died due to grievous injury sustained
by him which are attributed by the co-accused. The statements
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recorded by the Investigating Officer show that the accused along
with present appellant, assaulted the deceased in furtherance of
their common object by means of sharp weapon and thereby
committed the offence of murder. The circumstance of the incident
has taken place, is to be taken into consideration and mere filing
of the charge sheet does not entitle the accused to release on bail
considering the nature of the offence and rejected the application.
9. I have independently perused the investigation papers.
Admittedly, in the FIR, the role of the present appellant is not
mentioned, as informant is not eye-witness to the incident. During
investigation, five eye-witnesses came forward, out of that, the
statements of Siddharth Umaji Koche, Vrashabh Lakhan Lanjewar,
Ayush Nimgade show the presence of the appellant at the spot of
incidence, but no overtact is attributed to him. The only statement
made by these witnesses is that after the incident, present
appellant and the co-accused Shubham Gajbhiye left the place of
their vehicles. As far as assault by the present appellant is
concerned, they have not whispered about the same. The only eye-
witness Priyank Ramteke stated that present appellant and the co-
accused Shubham Gajbhiye has also assaulted the deceased in his
presence. Thus, general statement appears to be made by the eye-
witness Priyank Ramteke. I have also perused the Post-Mortem
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Report which shows that the injured has sustained the grievous
injuries, total 13 injuries on the person of the deceased. The
deceased has sustained stab wounds and incised wounds, total 7 -
8 wounds. On perusal of the statements show that neither any
weapon is attributed to the present appellant nor it is mentioned
that present appellant has assaulted the deceased by any other
means. Only one eye-witness made general statement that he has
assaulted the deceased. The cause of death is injury to the vital
organs. Now, investigation is already completed and charge sheet
is filed. The learned Trial Court has not considered the role of the
present appellant which is only to the extent of his presence at the
spot of incident. Whether the appellant was sharing common
object or not, is a matter of evidence. At this stage, considering the
role attributed to the appellant, no overtact is attributed to him
and further incarceration of the present appellant is not required.
In view of that, the appeal deserves to be allowed by imposing
certain conditions. Accordingly, I proceed to pass the following
order :-
ORDER
i] The appeal is allowed.
ii] The order dated 19/08/2023 passed by the trial
Court rejecting the bail application in Special Case
No.282/2023 is quashed and set aside.
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iii] The appellant - Akshay Bimrao Wasnik in
connection with Crime No.249/2023 registered under
Sections 302, 143, 147, 148, 149 of the Indian Penal
Code and Sections 3(2)(5) and 3(2)(va) of the
Scheduled Castes and the Schedules Tribes (Prevention
of Atrocities) Act, 1989, be released on bail on
executing P. R. Bond of Rs.25,000/- with one solvent
surety of the like amount.
iv] The appellant shall not enter into the vicinity of
Yashodhara Nagar Police Station, Nagpur.
v] The appellant shall attend the Yashodhara Nagar
Police Station, Nagpur once in a month on first day of
every month and the Investigating Officer shall record
his presence.
vi] The appellant shall attend the proceedings before
the trial Court without seeking any exemption unless
there are exceptional circumstances.
vii] The appellant shall not induce, threat or promise
to any witnesses, who are acquainted with the facts of
the present case.
viii] Fess of learned counsel (Appointed) for
respondent No.2 be quantified, as per the Rules.
10. The appeal is disposed of.
[URMILA JOSHI-PHALKE, J.]
Choulwar
Signed by: V.M. Choulwar (VMC)
Designation: PS To Honourable Judge
Date: 29/01/2024 18:10:43
