Bombay High Court
Kishan @ Kisan Sarjerao More vs The State Of Maharashtra And Others on 10 March, 2023
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
907 CRIMINAL APPEAL NO.116 OF 2023
KISHAN @ KISAN SARJERAO MORE
VERSUS
THE STATE OF MAHARASHTRA AND OTHERS
...
Advocate for Appellant : Mr. P.R. Katneshwarkar h/f. Mahesh P. Kale
APP for Respondents/State : Mr. A.V. Deshmukh
Advocate for R/3 : Mr. Z.H. Farooqui
...
CORAM : SMT. VIBHA KANKANWADI &
Y.G. KHOBRAGADE, JJ.
DATE : 10th March, 2023
P.C. :-
1. Admit.
2. The present appeal has been filed under Section 14A of
Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (for
short 'SC and ST Act') to challenge the order dated 03.02.2023 passed by the
learned Special Judge / Additional Sessions Judge, Jalna under SC and ST Act
in Criminal Misc. Application (Bail) No.117/2023 rejecting the application for
pre-arrest bail filed by the present appellant.
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3. Heard Mr. P.R. Katneshwarkar h/f. M.P. Kale learned advocate
for the appellant, Mr. Deshmukh learned APP for the State and Mr. Farooqui
learned advocate for the respondent no.3.
4. The present respondent is the original informant and deceased-
Maruti is his son. The informant is the member of Scheduled Caste and he
says that his son Maruti who is a married person was facing prosecution for
the offence punishable under Section 307 in respect of an incident dated
29.11.2022 and since then he was not residing in the house. He then states
that he is the owner of the agricultural land bearing no.102 and there is
dispute in respect of the said land between the present appellant and his
family members in respect of sale and money lending. The said dispute is
pending before Sub-Registrar, Jalna. In the FIR which is lodged on
08.01.2023 vide C.R.No.10/2023 he states that on 07.01.2023 he came to
know that a dead body is found in the well in gut no.625 belonging to one
Manik Ashruba Gawali. He also came to know that the dead body has been
taken to Rural Hospital, Mantha and his wife came to know that said dead
body is of their son-Maruti. Therefore, he along with his wife and son went to
hospital, identified the dead body on the basis of clothes, shoes, wallet,
aadhar card and other documents. He says that the dead body was highly
decomposed. He has then stated that in between 29.11.2022 to 07.01.2023
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all the accused persons i.e. ten in numbers including the present appellant had
abused his son in the name of caste and then they have committed his murder
and thrown the dead body in the well.
5. From police papers it can be seen that the substantial part of the
investigation is over.
6. Learned advocate Mr. Katneshwarkar h/f. Mr. Kale submits that
the said case under Section 307 of the I.P.C. against Maruti was filed by one
Ramchandra Khavane that FIR came to be lodged on 05.08.2022 with Partur
Police Station, District Jalna for the offence punishable under Section 143,
147, 148, 149, 307, 323, 504, 506 of the I.P.C., deceased-Maruti was accused
no.3. The present appellant was not involved in any manner in the incident
dated 29.11.2022. The copy of the said FIR is made available for perusal. It
is then stated that the said dispute in respect of land of the informant was also
not against the present appellant but it was against Khavane family. The
photocopy of the report is produced to show that the transaction was between
the informant and his wife with Khavane family and no allegations were made
against the appellant. It was held that it is an out and out sale and no
question of money lending is involved and therefore the said complaint
application was filed. It is further submitted that Maruti went missing on
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29.11.2022 and his dead body has been found on 07.01.2023 till then there
appears to be no progress and even the FIR does not say that a missing report
was filed. Though, before the learned Special Judge when the bail
application was filed and informant was called upon to put-forth his say he
had given the written objection, yet it appears that the learned advocate
engaged by the informant made a statement before the Special Judge that
there is no prima facie case against the applicant and this has been reflected
in the order, still the learned Additional Sessions Judge went on to reject the
bail application. The impugned order is of no substance and therefore
deserves to be set aside. Learned advocate for the appellant has placed on
record the copy of the order passed in bail application of co-accused and
submitted that though their bail applications were under Section 439 of the
Cr.P.C., yet the observations / reasons stated therein are required to be
considered here.
7. Per contra, the learned APP as well as learned advocate who has
been appointed to represent the cause of the respondent no.2 strongly
opposes the application. It has been submitted that though the appellant was
having knowledge that the informant and his son were the members of
Scheduled Caste, yet the offence has been committed against them, name of
the appellant is reflected in the FIR and therefore thorough investigation is
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required. The appellant is absconding since the registration of the FIR and he
is not cooperating in the investigation. It is required to be considered as to
where the deceased was taken, how the murder was committed and exactly
where it was committed. Learned advocate for the respondent no.3 is also
placing reliance on the written objection that was taken by the informant
before the trial Judge.
8. At the outset, the prosecution case is already narrated in the
foregoing paras and therefore it is not re-produced once again. The facts
therefore reflect that the deceased went missing since 29.11.2022 but the FIR
is silent on the point of lodging missing report. Even the police papers do not
contain those documents which could have been taken in a missing report. In
the FIR there is no explanation as to why the informant and the family
members kept quiet for about 40 days. Another fact which can be seen from
the inquest panchanama and the post mortem report is that the dead body
was highly decomposed and therefore neither the panchas to the inquest
panchanama nor the Medical Officer has given the cause of death, even in the
provisional certificate the Medical Officer has stated that the provisional cause
of death cannot be mentioned right now in this decomposed body and it
appears that it is awaited till the viscera report.
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9. Under such circumstances, as well as the fact that the statements
of the witnesses would show that none of them is eye witness, it cannot be
ascertained even prima facie that it is a murder. But now surprisingly in the
supplementary statement of the informant and also the statements of his
family members it has come that Maruti was forcibly taken from his house at
around 6.00 pm on 29.11.2022. At the cost of repetition, it can be noted that
in the FIR it is stated that since the quarrel that had taken place on
29.11.2022, Maruti has not returned to home. If we consider the FIR in C.R.
No.588/2022 that was the FIR which was filed against the deceased then the
timing during which the alleged incident took place was around 9.30 pm on
29.11.2022. Further when the family members including the wife of the
deceased had the knowledge or were under the impression that the deceased
was forcibly taken by Mayur More and Sadashiv More, why they had not
lodged any FIR about the abduction. The supplementary statement also states
about the inquiry by one Sadashiv More about the whereabouts of Maruti
when in fact according to the informant and family members, Sadashiv was
the person who along with Mayur had taken deceased forcibly. The said
Sadashiv is now accused no.9 in the present FIR. It is then stated that after
30.11.2022 the informant and the family members were taking search of
Maruti and they came to know that there was quarrel between two groups in
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which Maruti was involved and then they were searching Maruti at Pathri,
Watur, Pune, Aurangabad, Nasik, Mumbai, Lonar where his relatives are
residing. Further the statement of the wife of the deceased gives another
picture and even prior to the FIR it is stated that she was having mobile
recording of the call from one Sandip More indicating the alleged murder by
them.
10. With this kind of evidence collected right now and also the fact
that whether the murder of Maruti is itself in question, at this stage the
protection of liberty of the appellant is necessary. Unfortunately, the learned
Special Judge has passed a very cryptic order literally within 10 to 15 lines
and it appears that that he has not even gone through the police papers. His
own observations from the order granting regular bail were before him but
those have been brushed aside by saying that the criteria for grant of regular
bail and pre-arrest bail are different. No doubt principally that is a true fact
but when it comes to assessment of the fact that whether physical custody of
the person is required or not then the observations would be same because
they are based on the police papers those were considered even for grant of
regular bail. Such cryptic order which is without application of mind cannot
be allowed to sustain and therefore deserves to be set aside. The interim
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protection granted earlier by this Court on 13.02.2023 deserves to be
confirmed. Hence the following order:
ORDER:
i) Appeal stands allowed.
ii) The order passed by the learned Special Judge under the
Atrocities Act / Additional Sessions Judge, Jalna in Criminal Misc. Application (Bail) No.117/2023 on 03.02.2023 stands set aside.
iii) The interim order passed by this Court on 13.02.2023 stands confirmed, in other words, if the appellant is not yet released on bail on the terms granted by this Court, in the event of his arrest in connection with C.R. No.10/2023 dated 08.01.2023 registered with Partur Police Station, District Jalna for the offence punishable under Section 302, 147, 148, 149 of the I.P.C. and Section 4(i), 1(s), 3(2) (va) of the SC and ST Act, he be released on executing PR bond of Rs.30,000/- with two solvent sureties of Rs.30,000/- each.
iv) He should remain present before the Investigating Officer every Monday between 10.00 am to 2.00 pm till the filing of the charge-sheet and shall cooperate with the investigation.
v) He shall not try to tamper with the evidence of the prosecution by contacting the witnesses in any manner.
vi) The fees of the appointed counsel for the respondent no.3 is quantified @ Rs.5000/- and it is to be paid through the High Court Legal Services Sub-Committee.
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