Bombay High Court
Chandrashekhar @ Shekhar Vijaykumar ... vs The State Of Maharashtra And Another on 3 February, 2023
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
914 CRIMINAL APPEAL NO.15 OF 2023
1 Chandrashekhar @ Shekhar
Vijaykumar Kamble,
Age 27 yrs., Occ. Education,
R/o Shelhal, Tq. Udgir,
Dist. Latur.
2 Shashikant @ Madhav Vijaykumar Kamble,
Age 30 yrs., Occ. Private Service,
R/o Shelhal, Tq. Udgir,
Dist. Latur.
... Appellants
... Versus ...
1 The State of Maharashtra,
Through Police Inspector,
Rural Police Station, Udgir,
Dist. Latur.
2 Pravin @ Shekhar Limbaji Kamble,
Age 23 yrs., Occ. Agri.,
R/o Shelhal, Tq. Udgir,
Dist. Latur.
... Respondents
...
Mr. A.V. Indrale Patil, Advocate for appellants
Mr. R.D. Sanap, APP for respondent No.1
Mr. K.P. Rodge, Advocate for respondent No.2
...
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2 Cri.Appeal_15_2023_Jd
CORAM : SMT. VIBHA KANKANWADI AND
ABHAY S. WAGHWASE, JJ.
DATE : 03th FEBRUARY, 2023
JUDGMENT :[PER : SMT. VIBHA KANKANWADI, J.] 1 Since the arguable points are made appeal is admitted. 2 Present appeal has been filed under Section 14(A) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as "the Atrocities Act") to challenge the order dated 20.12.2022 passed by learned Special Judge/Additional Sessions Judge, Udgir below Exh.18 i.e. the bail application under Section 439 of the Code of Criminal Procedure in Special Case (Atrocity) No.48/2022, thereby rejecting the application filed by the present appellants.
3 Present respondent No.2 is the original informant, who had filed First Information Report vide Crime No.404/2022 with Rural Police Station, Udgir, Dist. Latur contending that the appellants and co-accused have committed offence punishable under Section 143, 147, 148, 149, 307, 323, 336, 506 of the Indian Penal Code, 1860, under Section 3(1)(r)(s), 3(2)(v-a), 3(2)(v) of the Atrocities Act and under Section 135 of the Maharashtra Police Act, 1951. It is contended that the informant was in his house on 04.09.2022 ::: Uploaded on - 13/02/2023 ::: Downloaded on - 02/06/2023 10:26:26 ::: 3 Cri.Appeal_15_2023_Jd at about 07.00 p.m. when the accused persons came in front of his house. They asked him as to why he talked against them, which was on account of old quarrel and thereafter they abused him. The mother and father of the informant tried to convince the accused persons but they were also abused by the accused persons. They all started rushing towards informant for beating. Slaps were given to him and therefore, his mother pushed him inside the house and locked him in one room. In the meantime, deceased, who is the brother of the informant, came at that place. It was asked by the accused persons by catching hold of Arvind that the informant should come out of the house, otherwise his brother would be killed. Accused Shekhar sat on the chest of Arvind and pressed his throat and thereafter given beating. Arvind became unconscious. Accused Kiran had caught hold of the hands of the Arvind. Accused Rajkumar had assaulted Arvind on neck by means of iron rod. Even accused Madhav Kamble had assaulted Arvind with wooden log on back side. The others started pelting stones on the house of the informant. When people started gathering, those persons started to go, however, they gave threat to the informant that he would also be killed like his brother. Accused Rajkumar, Kiran and Bharat abused informant in the name of caste. After they went, informant took his brother to Udaygiri Hospital, where primary treatment was given and then he was shifted to Sahyadri Hospital, Latur. At the time when the First Information Report was lodged on ::: Uploaded on - 13/02/2023 ::: Downloaded on - 02/06/2023 10:26:26 ::: 4 Cri.Appeal_15_2023_Jd 05.09.2022, Arvind was alive and therefore, offence was registered under Section 307 and other sections of the Indian Penal Code, however, it appears that Arvind expired on 12.03.2022 and Section 302 of the Indian Penal Code came to be added.
4 The investigation is complete and charge sheet has been filed on 30.11.2022. The present appellants, who are original accused Nos.1 and 2, came to be arrested on 14.09.2022 and since then they are in jail. They filed the said application below Exh.18 in the said case after the charge sheet was produced, however, as aforesaid, the learned Special Judge has rejected the said application. Hence, this appeal.
5 Heard learned Advocate Mr. A.V. Indrale Patil for appellants, learned APP Mr. R.D. Sanap for respondent No.1 and learned Advocate Mr. K.P. Rodge for respondent No.2.
6 It has been vehemently submitted on behalf of appellants that now the investigation is also over, therefore, physical custody of the appellants is not necessary. Learned Special Judge failed to consider that trial will take long time to stand and till then the appellants need not be asked to remain behind the bars. The present appellants are ready to abide by the terms of the bail. Certain co-accused have been released on bail. The ::: Uploaded on - 13/02/2023 ::: Downloaded on - 02/06/2023 10:26:26 ::: 5 Cri.Appeal_15_2023_Jd appellants have permanent place of abode. It can be seen from the other evidence that has been collected that the present appellants appears to have been falsely involved in the case. Therefore, the appeal deserves to be allowed.
7 Per contra, the learned APP as well as learned Advocate appearing for respondent No.2 - original informant strongly opposed the appeal. Respondent No.2 has also filed affidavit-in-reply, which is nothing but the reiteration of his First Information Report. He has tried to submit that two cases are pending against accused Bharat Puri and Rajkumar Koyle respectively and, therefore, this cannot be taken as a fit case where the bail should be granted. If the bail is granted, then possibility of commission of another crime as against the informant, taking into consideration the rivalry; cannot be ruled out. The life of the informant and his family members is endangered.
8 At the outset, it is to be noted that the informant is stating that he was put in a room by his mother after the accused started quarreling with him and he says that he had seen the incident from the gap of the door. The question arises on the basis of the contents of the spot panchnama, as to whether such incident would have been seen by the informant from the gap ? ::: Uploaded on - 13/02/2023 ::: Downloaded on - 02/06/2023 10:26:26 :::
6 Cri.Appeal_15_2023_Jd It appears that no demonstration was given by the informant to the panchas and the Investigating Officer from the door of the house, thereby showing the gap in the planks of the door and the front side was visible. No doubt, the mother and father of the informant and other persons have stated that they had seen the incident. They clearly say the role of the present appellants. If we consider the Postmortem Notes, column No.17, it says - abrased contusion below left eye laterally placed, left black eye present in signs of treatment in the form. It is stated that there was Tracheotomy wound in the middle on neck, central line on right side of neck, however, the probable cause of death is stated to be cervical spine injury. As per his own story, the informant has stated that the present appellant No.1 had sat on the chest of Arvind and pressed his neck and as regards appellant No.2 is concerned, it is stated that he had assaulted Arvind by means of wooden log on his back. But as regards Rajkumar Koyle is concerned, it is stated that he had assaulted on the neck of deceased by iron rod. Therefore, if those things are co-related, that is, contents of the First Information Report together with the statements of the witnesses under Section 161 of the Code of Criminal Procedure and the probable cause of death given in the Postmortem Report, there is less possibility of present accused being the author of the fatal injury. No doubt, their presence has been told by the informant and witnesses and also some role is attributed, but the fatal blow appears to have been given by another ::: Uploaded on - 13/02/2023 ::: Downloaded on - 02/06/2023 10:26:26 ::: 7 Cri.Appeal_15_2023_Jd person. Informant is not saying what was the old dispute between him and the accused persons, but reference of the same is in the statement of the father of the informant. It is stated that informant had taken loan from the appellant No.1. If that is so, there was no problem in disclosing the said fact. Further, both the appellants appeared to be the brothers and from the documents on record it can be seen that these appellants are also members of Scheduled Caste. Under such circumstance, the offences under the Atrocities Act are not applicable against the present appellants, as against them the offence is still only under Indian Penal Code. Therefore, the said yardstick, which is required to decide an application under Section 439 of the Code of Criminal Procedure Code, is required to be adopted here. Now the investigation is over and charge sheet is also filed. The appellants are aged 27 and 30 respectively and, therefore, taking into consideration the role attributed to them and the other facts, case is made out for release of the appellants on bail. However, at the same time, stringent conditions are required to be imposed, so as to avoid any future altercation. All these aspects ought to have been seen by the learned Special Judge. 9 For the aforesaid reasons appeal deserves to be allowed. Accordingly, it is allowed. Hence, following order. ::: Uploaded on - 13/02/2023 ::: Downloaded on - 02/06/2023 10:26:26 :::
8 Cri.Appeal_15_2023_Jd ORDER 1 The appeal is hereby allowed.
2 The order passed by learned Special Judge, under the Atrocities Act, Udgir, Dist. Latur below Exh.18 i.e. the bail application in Special Case (Atrocity) No.48/2022 dated 20.12.2022, is hereby set aside. Said application stands allowed.
3 The appellants viz. 1) Chandrashekhar @ Shekhar Vijaykumar Kamble and 2) Shashikant @ Madhav Vijaykumar Kamble, who have been arrested, in connection with Crime No.404/2022 dated 05.09.2022 registered with Udgir Rural Police Station, Dist. Latur, for the offence punishable under Sections 302, 143, 147, 148, 149, 323, 336, 506 of the Indian Penal Code, 1860, under Section 3(1)(r)(s), 3(2)(v-a), 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and under Section 135 of the Maharashtra Police Act, 1951, be released on P.R. of Rs.50,000/- (Rupees Fifty Thousand only) each with two solvent sureties of Rs.25,000/- (Rupees Twenty Five Thousand only) each.
4 Appellants shall not indulge in any criminal activity nor shall tamper with the prosecution evidence, in any manner. ::: Uploaded on - 13/02/2023 ::: Downloaded on - 02/06/2023 10:26:26 :::
9 Cri.Appeal_15_2023_Jd 5 If they commit any breach of above terms of bail, the prosecution is at liberty to move the Trial Court under Section 439(2) of the Code of Criminal Procedure for cancellation of bail.
6 Appellants shall not enter the jurisdiction of village Shelhal, Tq. Udgir, Dist. Latur till the conclusion of trial. They should reside elsewhere, and before submission of bail papers, the appellants should give complete address of their proposed residence with their mobile number to the Trial Court as well as to the Udgir Rural Police Station.
7 Bail before Trial Court.
( Abhay S. Waghwase, J. ) ( Smt. Vibha Kankanwadi, J. )
agd
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