Bombay High Court
Swapnil Shankar Gaikwad vs The State Of Maharashtra on 5 January, 2022
Author: C.V. Bhadang
Bench: C.V. Bhadang
15-ba-1377-2021
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL BAIL APPLICATION NO.1377 OF 2021
Swapnil Shankar Gaikwad ... Applicant
Vs.
The State of Maharashtra ... Respondent
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Mr.Aniket V. Nikam for the Applicant.
Mr.Y.Y. Dabke, APP for the Respondent -State.
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Digitally signed
CORAM : C.V. BHADANG, J.
NILAM by NILAM
SANTOSH
SANTOSH KAMBLE
KAMBLE Date: 2022.01.07
16:34:49 +0530
DATE : 5 JANUARY 2022
(Through Video Conferencing)
P.C.
. The Applicant (Accused No.26) along with co-
accused is facing prosecution for the offence punishable under
Section 302, 307, 323, 324, 326, 142, 147, 148, 149, 504 and
506 of the Indian Penal Code.
2. The prosecution case as disclosed from the complaint
lodged by Ramesh Gaikwad is that on 31 May 2020 at about
9.00 p.m. there was an incident in which one Ajit Lahnu
Gaikwad and Sachin Gaikwad had come on their pulsar motor-
cycle where the children of the cousin brother of the complainant
namely Nitin Gaikwad were playing. The complainant tried to
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persuade Ajit Gaikwad and Sachin Gaikwad to drive slowly where
upon an altercation and incident of abuse and threatening took
place which is the genesis of the incident which happened shortly
thereafter in which one Lahnu Gaikwad and others are alleged to
have formed an unlawful assembly. The complaint dated 31 May
2020 lodged by Ramesh Gaikwad shows that the present
Applicant came on the spot in an Ertiga vehicle of one Pravin S.
Gaikwad. The gravamen of the allegations made in the
complaint dated 31 May 2020 are against Lahanu Gaikwad
having assaulted the deceased Bhimaji Gaikwad by an iron rod on
his head. There are also allegations about other members of the
assembly including Sanket Gaikwad, Rushikesh Gaikwad, Sachin
Gaikwad and Kunal Gaikwad having assaulted other members of
the rival group. The complainant also suffered injury in the
incident.
3. Bhimaji Gaikwad was carried to the hospital and he
died on 6 June 2020 during treatment. Incidentally an offence of
rioting with Section 326 of the Indian Penal Code was initially
registered and on the death of Bhimaji Gaikwad, the offence
under Section 302 of IPC was added and after investigation a
charge-sheet is filed. There are in all 27 accused in the matter
and the present applicant happens to be accused No.26.
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15-ba-1377-2021
4. I have heard the learned counsel for the Applicant
and the learned Additional Public Prosecutor. With the assistance
of the learned counsel for the parties I have gone through the
record.
5. The learned counsel for the Applicant has submitted
that in his complaint recorded on 31 May 2020, the complainant
has not attributed any overt act to the Applicant except that the
Applicant had come on the spot. It is only in his supplementary
statement recorded on 6 June 2020, after the death of Bhimaji
Gaikwad there is an allegation about the deceased, being assulted.
It is pointed out that although it is claimed that there were
multiple persons who had assaulted deceased with different
weapons, the Postmortem report shows only one head injury.
6. The learned counsel pointed out that the co-accused
Pravin Gaikwad was granted anticipatory bail by the learned
Sessions Judge and the co-accused Sanket Gaikwad, Rushikesh
Maruti Gaikwad, Sachin Sailas Gaikwad and Kunal Sharad
Gaikwad have been granted bail by this Court by order dated 7
June 2021 in Criminal Bail Application No.1180 of 2020.
7. The learned Additional Public Prosecutor has
pointed out that apart from complainant there are 7 to 8
witnesses including Akshay Gaikwad, Ramesh Gaikwad and
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Satish Gaikwad who have also stated about assault by the
Applicant on the deceased. He submitted that all the persons
were members of the unlawful assembly with the common object
of assaulting the deceased and therefore the absence of the
individual role, if any, is not material.
8. I have carefully considered the circumstances and the
submissions made. Prima facie, it appears that in the complaint
which is lodged immediately after the incident on 31 May 2020
by Ramesh Gaikwad there is no allegation about any overt act
which is attributed to the Applicant except that the Applicant had
come on the spot in the Ertiga Vehicle of Pravin Gaikwad. It is in
this regard that the contention on behalf of the Applicant that
only allegation of assault by iron rod is made against Lahanu
Gaikwad, has to be appreciated. Deceased died on 6 June 2020
and except the statement of Satish Gaikwad which is recorded on
3 June 2020, the statement of all other witnesses to which
reference is made on behalf of the prosecution are recorded on 6
June 2020 i.e. after death of Bhimaji Gaikwad.
9. At least prima facie it appears that in the context of
the allegation of an assault, by multiple accused, with different
weapons there is only one head injury found on the person of the
deceased. The PM report does not show any other external
injury.
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15-ba-1377-2021
10. Admittedly, there is no recovery of any incriminating
article from the Applicant. There are no criminal antecedents to
his discredit. The co-accused Sanket Gaikwad, Rushikesh
Gaikwad, Sachin Gaikwad and Kunal Gaikwad with the
allegation of assaulting other members of the rival group, have
been released on bail by this Court.
11. Considering the overall circumstances, the following
order is passed.
ORDER
(i) The Applicant shall be released on bail in Cr.No.236 of 2020 registered with Khed Police Station, District-Pune on executing a P.R. bond to the extent of Rs.25,000/- with one or two solvent sureties in the like amount.
(iii) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with facts of case and shall not tamper with prosecution evidence.
(iii) The Application is disposed of in the aforesaid terms.
C.V. BHADANG, J.
N.S. Kamble page 5 of 5