Bombay High Court
Vikrant @ Chotya Shankar Babar vs The State Of Maharashtra on 3 August, 2021
Author: Revati Mohite Dere
Bench: Revati Mohite Dere
4. APEAL 1333-2019.doc
Digitally
signed by
RUPALI
RUPALI RAJESH
RAJESH WAKODIKAR
WAKODIKAR Date:
2021.08.07
17:28:27
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
+0530
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1333 OF 2019
Vikrant @ Chotya Shankar Babar ...Appellant
Versus
The State of Maharashtra ...Respondent
Mr. Umesh R. Mankapure for the Appellant.
Ms. P.P.Shinde, A.P.P for the Respondent-State.
CORAM : REVATI MOHITE DERE, J.
DATE : 3rd AUGUST, 2021
P.C. :
1. Heard learned Counsel for the parties.
2. By this appeal, the Appellant seeks his enlargement on bail in
connection with C.R. No. 292 of 2017 registered with the Sangli police
station, District Sangli, for the alleged offences punishable under Sections
307, 143, 147, 148 149, 504 506, 427 and 120(B) of the Indian Penal Code;
under sections 3(1)(r), 3(1)(s), 3(2)(v), 3(2)(va) of the Scheduled Caste and
Scheduled Tribes Act (Prevention of Atrocities) Act, 1989; under Sections
4, 25 and 27 of the Arms Act and under Sections 3(1)(ii), 3(2) and 3(4) of
the Maharashtra Control of Organised Crime Act, 1999.
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3. Learned Counsel for the Appellant submits that the allegations
as against the Appellant are false and baseless. He submits that admittedly
the Appellant's name does not find place in the FIR lodged by Kiran
Bhandare. He submits that even Section 307 will not apply having regard
to the fact that the injuries sustained by the two injured i.e. Vicky Kamble
and Kiran Bhandare were simple in nature. He further submitted that the
Appellant was admittedly not present at the spot at the relevant time and
that the name of the Appellant was added after more than 15 days of the
incident. Learned Counsel submits that the statements of the two alleged
eye-witnesses i.e. Kapil Shinde and Nihal Khalifa, vis-a-vis conspiracy
were recorded belatedly, to show that the Appellant was heard telling the
other co-accused at a paan shop, to eliminate the injured - Kiran Bhandare.
He further submitted that all the accused in the said case except the
Appellant have been released on bail. He submits that in the facts, the bar
of Section 21 will not apply. He further submitted that as far as the
Appellant's antecedents are concerned, the Appellant has been acquitted in
almost all the cases.
4. Learned APP opposes the application. Learned APP has filed
an affidavit of Krishnat Mahadev Pingale, Sub-Divisional Police Officer,
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Islampur, Sangli to oppose the application. Learned Counsel for the
Respondent/complainant also opposes the application.
5. Perused the papers. According to the complainant - Kiran
Bhandare, the incident took place on 4th December, 2017. He has stated
that they had gathered on 4th December, 2017 to celebrate the birthday of
his brother at about 3:30 p.m. He has stated that his brother Rahul, Vicky
Kamble, Raju Sonawane were standing near Pakija masjid when two
motorcycles and one four wheeler came there. The complainant has alleged
that Rohit Babar was armed with a Koyata; Rahul Babar with a stick;
Shekhar with a Koyata; and Barkya with a stick. Dhana Bhosale and
Omkar Jadhav are also stated to have came to the spot. According to the
complainant, when the said persons came near the spot, he started running,
pursuant to which, Rohit Babbar hurled castiest abuses at him and Vinu
Nikam held his shirt and again abused him and also assaulted him with a
Koyata, on his head. The complainant has further stated that he pushed the
said accused and tried to escape and that in the process the koyata hit him
on his right knee; that due to the assault on the knee, the complainant sat
down, pursuant to which, Rohit Babar assaulted him with a Koyata on his
head. It is further stated that one Raju Sonawane tried to rescue him,
however, the accused also assaulted him and that, accused Omkar Jadhav
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assaulted the complainant's uncle and brother with fist blows. It is further
stated that whilst leaving the spot, the accused caused damage to the
complainant's rickshaw. After the incident of assault, the complainant and
his uncle - Vicky Kamble were admitted in the Civil Hospital, after which
the FIR was lodged.
6. Admittedly, the Appellant has not been named in the FIR and
as such no overt act has been attributed to him. It appears that
subsequently, after two weeks of the incident i.e. on 21st December 2017,
the police recorded the statement of two witnesses i.e. Kapil Sunil Shinde
and Nihal Khalifa. The said witnesses, in their statement dated 21 st
December, 2017 stated that all the accused were standing at a paan shop,
when they heard the Appellant telling Rahul Babar, Rohit Babar, Vinayak
Nikam, and others that the complainant should be eliminated. Both the
said witnesses have stated that after hearing the said conversation on 4th
December, 2017 at 12.00 noon, they left the said spot. It appears that the
said witnesses visited the hospital where the complainant was admitted i.e.
the Civil Hospital on the very same day i.e. on 4th December 2017, soon
after the incident of assault, however, did not make any disclosure of what
they had heard, either to the complainant or any other person. Although,
both the witnesses in their statement have stated that they did not make the
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disclosure as they were scared and that, they made the said disclosure only
after all the accused were arrested including the Appellant, prima facie,
does not appear to be correct, inasmuch as, the Appellant was arrested on
26th December, 2017, after the statements of the said two witnesses i.e.
Kapil Shinde and Nihal Khalifa were recorded.
7. A perusal of the injury certificate shows that both the injured
have sustained simple injuries, though they were allegedly assaulted with
sharp edged weapons and sticks by so many accused. As far as Kiran
Bhandare is concerned, he has sustained two incised injuries, one on the
left parietal occipital region and other on the left knee. Both the said
injuries are stated to be simple injuries. As far as Vicky Kamble is
concerned, he has sustained four incised injuries i.e. one on his chest and
three on his back. All the said four injuries are stated to be simple in
nature.
8. As far as the Scheduled Caste and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 is concerned, there is no allegation
against the Appellant that he hurled any castiest abuses on the complainant
or any other persons. As far as antecedents are concerned, in most of the
cases the Appellant has been acquitted and some of the cases against him
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are pending. The Appellant is in custody since 26th December, 2017. All
other 8-9 co-accused are released on bail. Even the prospect of the trial
commencing in the immediate near future appears to be bleak. Considering
the alleged role of the Appellant and the belated statements recorded of the
witnesses, after almost two weeks and having regard to the fact, that
admittedly the Appellant was not present at the spot at the time of the
assault, the bar of Section 21 would not apply. Accordingly, the appeal is
allowed and the Appellant is enlarged on bail on the following terms and
conditions;
ORDER
(i) The Appellant be enlarged on bail in C.R.No.292 of 2017 registered with the Sangli Police Station, District Sangli, on executing P.R. Bond in the sum of Rs.50,000/- with one or two local solvent sureties in the like amount;
(ii) The Appellant shall report to the Sangli Police Station the 2 nd and 4th Saturday of every month from 10.00 a.m. to 12.00 noon, till the conclusion of the trial;
(iii) The Appellant shall not enter the jurisdiction of Sangli Police Station for a period of three months from the date of his release, except for the purpose of attendance as directed vide clause (ii) above. Wakodikar 6/7
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(iv) The Appellant shall inform his latest place of residence and mobile contact number immediately after being released and/or change of residence or mobile details, if any, from time to time to the Court seized of the matter and to the Investigating Officer of the concerned Police Station;
(v) The Appellant to cooperate with the conduct of the trial;
(vi) The Appellant shall not tamper or attempt to influence the complainant, witnesses or any person concerned with the case;
(vii) The Appellant shall file an undertaking with regard to clauses
(ii) to (vi) in the trial Court, within two weeks of his release.
9. The Appeal is accordingly allowed and disposed of on the aforesaid terms and conditions.
10. All concerned to act on the authenticated copy of this order.
REVATI MOHITE DERE, J.
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