Bombay High Court
Amol Babasaheb Sonwane @ Sonu Fitter vs The State Of Maharashtra And Another on 20 February, 2023
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
criapl919.22+
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPEAL NO.919 OF 2022
Amol s/o Babasaheb Sonawne
@ Sonu Fitter,
Age-34 years, Occu:Labourer,
Resident of: Rokade Mala, Wadgaon,
Gupta Road, Taluka and Dist-Ahmednagar
...APPELLANT
VERSUS
1) The State of Maharashtra,
Through Deputy Superintendent of Police/
The Police Inspector/ Investigating Officer
in Crime No. I-289/2022,
MIDC Police Station, Ahmednagar,
Taluka and Dist-Ahmednagar,
2) Mrs. Shobha Ramesh Kamble,
Age-55 years, Occu:Labour,
Resident of: Near Datta Mandir,
Balikashram Road, Borude Mala,
Ahmednagar.
...RESPONDENTS
...
Mr.Abhaykumar D. Ostwal Advocate for Appellant.
Ms. V.S. Choudhari, A.P.P. for Respondent No.1 - State.
Mr.Rajesh H. Mewara Advocate for Respondent No.2
appointed through Legal Aid.
...
AND
CRIMINAL APPEAL NO.913 OF 2022
Sanket Vitthal Somwanshi,
Age-30 years, Occu:Labour,
R/o-Navnagapur,
Taluka and Dist-Ahmednagar
...APPELLANT
::: Uploaded on - 20/02/2023 ::: Downloaded on - 22/02/2023 01:03:11 :::
criapl919.22+
2
VERSUS
1) The State of Maharashtra,
Through MIDC Police Station, Ahmednagar,
District-Ahmednagar,
2) Shobha Ramesh Kamble,
Age-55 years, Occu:Labour,
Resident of: Near Datta Temple,
Balikashram Road, Borude Mala,
Ahmednagar, Tq and District-Ahmednagar.
...RESPONDENTS
...
Mr.S.V. Sudrik Advocate with Mr. Santosh S. Jadhavar
Advocate for Appellant.
Ms. V.S. Choudhari, A.P.P. for Respondent No.1 - State.
Mr.Rajesh H. Mewara Advocate for Respondent No.2
appointed through Legal Aid.
...
AND
CRIMINAL APPEAL NO.880 OF 2022
Arun Narad Saha,
Age-45 years, Occu:Labour,
R/o-Gajanan Colony, Navnagapur,
Ahmednagar, Taluka and Dist-Ahmednagar
...APPELLANT
VERSUS
1) The State of Maharashtra,
Through the Superintendent of Police,
Ahmednagar, Taluka and Dist-Ahmednagar,
2) Shobha Ramesh Kamble,
Age-55 years, Occu:Labourer,
R/o-Near Datta Mandir,
Balikashram Road, Borude Mala,
Ahmednagar, Taluka and Dist-Ahmednagar.
...RESPONDENTS
::: Uploaded on - 20/02/2023 ::: Downloaded on - 22/02/2023 01:03:11 :::
criapl919.22+
3
...
Mr.Amol S. Sawant Advocate with Mr. Shrikant S. Dubepatil
Advocate for Appellant.
Ms. V.S. Choudhari, A.P.P. for Respondent No.1 - State.
Mr.Rajesh H. Mewara Advocate for Respondent No.2
appointed through Legal Aid.
...
CORAM: SMT. VIBHA KANKANWADI AND
ABHAY S. WAGHWASE, JJ.
DATE OF RESERVING JUDGMENT : 17th January 2023
& 23 rd JANUARY 2023
DATE OF PRONOUNCING JUDGMENT : 20th FEBRUARY 2023
JUDGMENT [PER SMT. VIBHA KANKANWADI, J.] :
1. All these Appeals have been filed by the original accused
Nos.1, 5 and 4 as arrayed in the First Information Report (for
short "FIR"), under Section 14-A(2) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act (for short
"Atrocities Act"), to challenge the order of rejecting their
applications under Section 439 of the Code of Criminal Procedure
by learned Special Judge/ Additional Sessions Judge No.3,
Ahmednagar. Accused No.1 Amol Babasaheb Sonawne filed
application Exhibit-18 in Special Case No.141 of 2022, which
came to be rejected on 15th November 2022 by the learned
Special Judge. Accused No.5 - Sanket Vitthal Somwanshi filed
::: Uploaded on - 20/02/2023 ::: Downloaded on - 22/02/2023 01:03:11 :::
criapl919.22+
4
application Exhibit-3 in Special Case No.141 of 2022, which
came to be rejected on 29th August 2022 and accused No.4 -
Arun Narad Saha filed application Exhibit-13 in Special Case
No.141 of 2022, which came to be rejected on 14 th September
2022.
2. Heard learned Advocates appearing for the appellants in
respective Appeals, learned APP appearing for the State and
learned counsel appearing for respondent No.2, appointed
through Legal Aid.
3. Learned Advocates appearing for the appellants have
vehemently submitted that perusal of the FIR, which is lodged by
present respondent No.2, who is the mother of the deceased
Pravin, would show that she is not the eye witness to the
incident, however, she depended upon the information supplied
by one Amol Borde, who was stated to be along with the
deceased at the relevant time. There was nothing to indicate
that the incident took place merely because the deceased was
the member of scheduled caste. Even the tenor used in the FIR
does not attract any of the offences described in Section 3 of the
Atrocities Act. The FIR is lodged after delay of about a day and
three hours from the occurrence. The said delay is inordinate,
::: Uploaded on - 20/02/2023 ::: Downloaded on - 22/02/2023 01:03:11 :::
criapl919.22+
5
unnatural and unexplained. Now the entire investigation is over
and charge-sheet is also filed. All the accused have been
arrested on 28th April 2022 and since then they are in jail. As the
entire investigation is over, their further custody is not required.
They have permanent place of abode and they are ready to
abide by the terms of the bail. The appellants have cooperated in
the investigation.
4. All the learned Advocates appearing for the appellants
have submitted that from the charge-sheet it can be seen that
there was only one eye witness i.e. Amol Borde. He was not
attacked at all by any of the accused persons. He was close
friend of the deceased and therefore, possibility of giving
interested version cannot be ruled out. Even though Amol Borde
is claiming that he has tried to intervene and even to snatch the
axe, it does not show that it has caused any injury to him.
According to his statement under Section 161 of the Code of
Criminal Procedure, there was a single blow to the head of the
deceased with iron rod, which has caused oozing of blood and
the said rod has been discovered under Section 27 of the Indian
Evidence Act. The description does not say that blood stains
were found on the iron rod. The medical officer does not say that
there was any such injury which can be said to have caused by
::: Uploaded on - 20/02/2023 ::: Downloaded on - 22/02/2023 01:03:11 :::
criapl919.22+
6
iron rod. The allegations will also not attract the ingredients for
the offence punishable under Section 302 of the Indian Penal
Code, as the intention or motive is missing. It has been stated
that in the afternoon when the deceased and his friend Amol
Borde had gone to the shop of accused N.4 - Arun for
purchasing Vada-pav, there was altercation between deceased
and accused No.4. At that time, it is stated that accused No.1
along with 4 to 5 others gathered there. They had assaulted
deceased with kicks and fist blows as well as wooden log. At that
time Amol Borde had intervened and thereafter deceased and
Amol purchased four plates of Bhaje and ten Pav (bread). It is
then stated that cost of the same was Rs.100/- but in the scuffle
the cooking oil spilled from the vessel and therefore, accused
No.4 had charged Rs.100/- more. At that time deceased had
abused accused No.4 and threatened that he would see accused
No.4, and then the deceased as well as Amol Borde left that
place. This indicates that the dispute was over at that point of
time. But then Amol discloses that when they started going from
the premises of the godown of closed company, they were
caught by accused No.1, accused Amol Salve, servant of accused
No.4 and other two persons, who were holding axe, iron rod,
wooden log with them. It is then stated that accused No.1 had
::: Uploaded on - 20/02/2023 ::: Downloaded on - 22/02/2023 01:03:11 :::
criapl919.22+
7
assaulted deceased with iron rod on his head, as a result of
which deceased fell down and blood started oozing out of his
nose and head. It is then stated that Amol Borde was asking
them as to why they were assaulting him. At that time friend of
accused No.1 started to assault deceased with the help of axe, at
that time he was obstructed by Amol Borde but still accused
Amol Salve assaulted deceased with iron rod on the head as well
as legs of the deceased. It is submitted that these facts would
disclose that it had happened in a spur of moment and there was
no intention to eliminate deceased.
5. Learned Advocate appearing for original accused No.4 has
further submitted that accused No.4 was not even present at the
place of incident where the other accused alleged to have
assaulted deceased. Whatever dispute had taken place in the
shop of accused No.4 - appellant in Criminal Appeal No.880 of
2022, it was treated by them that the quarrel is over. There was
nothing for accused No.4 to drag the matter further. He has been
falsely implicated.
6. Learned Advocate appearing for original accused No.5 has
further submitted that no specific role is attributed to accused
No.5 and nothing has been recovered from him. The name of
::: Uploaded on - 20/02/2023 ::: Downloaded on - 22/02/2023 01:03:11 :::
criapl919.22+
8
accused No.5 has been taken by the other witnesses who were
alleged to have been there in the shop of accused No.4.
7. Learned Advocates appearing for all the appellants further
submitted that under such circumstance, the allegations do not
require further custody of the appellants. All these facts were not
considered by the learned trial Judge while rejecting the
applications filed by the appellants and therefore, the impugned
orders deserve to be set aside.
8. Learned APP as well as learned Advocate for respondent
No.2 - informant, appointed through Legal Aid, have strongly
objected the Appeals. It is submitted that since the member of
scheduled caste is murdered, the seriousness in the case has to
be considered. Learned Advocate appearing for respondent No.2
placed reliance on Prathvi Raj Chauhan vs. Union of India
and others, (2020) 4 SCC 727 and submitted that the Hon'ble
Supreme Court has held that seriousness in such offences has to
be given prime consideration as the Special Enactment is
enacted to protect the persons who belong to the scheduled
castes and scheduled tribes. Learned Advocate also points out
the decision in State of Madhya Pradesh vs. Chunnilal Alias
Chunni Singh, (2009) 12 SCC 649. He also points out the
::: Uploaded on - 20/02/2023 ::: Downloaded on - 22/02/2023 01:03:11 :::
criapl919.22+
9
decision in Hariram Bhambhi vs. Satyanarayan and
another, 2021 SCC OnLine 1010, wherein it has been
observed that Sub-section (3) of Section 15A of the Act confers a
statutory right on the victim or their dependents to reasonable,
accurate, and timely notice of any court proceeding including a
bail proceeding. It has been further observed that, atrocities
against members of the scheduled castes and scheduled tribes
are not a thing of the past. They continue to be a reality in our
society even today. Hence the statutory provisions which have
been enacted by Parliament as a measure of protecting the
constitutional rights of persons belonging to the scheduled
castes and scheduled tribes must be complied with and enforced
conscientiously. Learned Advocate points out that no notice in
respect of the bail application by accused No.4 was given to the
informant. The learned Advocate appearing for respondent No.2
has relied on Nitu Kumar vs. Gulveer and another, (2022) 9
SCC 222, Prashant Kumar Sarkar vs. Ashis Chaterjee and
another, (2010) 14 SCC 496, Panchanan Mishra vs.
Digambar Mishra and others, (2005) 3 SCC 143, Ram
Govind Upadhyay vs. Sudarshan Singh and other, (2002)
3 SCC 598 and Shahzad Hasan Khan vs. Ishtiaq Hasan
Khan and others, (1987) 2 SCC 684, in order to canvass his
::: Uploaded on - 20/02/2023 ::: Downloaded on - 22/02/2023 01:03:11 :::
criapl919.22+
10
submissions that the gravity of the offence, nature of allegations,
prima facie reasonable ground or facts against the accused will
have to be considered by the Courts. Those factors have been
considered by the trial Court and therefore, there is no necessity
to interfere.
9. Before we consider the merits of the Appeals, certain facts
are required to be mentioned. When the FIR was lodged on 27 th
April 2022, at that time the offences under the Atrocities Act
were not invoked. The offence was registered only under
Sections 302, 341, 323, 504, 506 read with Section 34 of the
Indian Penal Code. The sections under the Atrocities came to be
added on 9th June 2022. General diary details about the same
have been produced. It appear that after adding those sections,
the District Superintendent of Police has issued order regarding
handing over of the investigation to the police officer of the rank
of Deputy Superintendent of Police on the same day and
thereafter report of the same appears to have been given on 14 th
June 2022 to the learned Judicial Magistrate First Class as well
as Special Judge under the Atrocities Act, Ahmednagar. The
investigation from 27th April 2022 to 9th June 2022 has been
carried out by Assistant Police Inspector, MIDC Police Station,
Ahmednagar. The charge-sheet has been presented before the
::: Uploaded on - 20/02/2023 ::: Downloaded on - 22/02/2023 01:03:11 :::
criapl919.22+
11
Special Judge on 15th July 2022. When this fact was noted, the
investigating officer, Deputy Superintendent of Police was called,
because what was transpiring was that he has not started the
investigation since beginning or has not reiterated the
investigation that was made but he started from the point when
the said sections under the Atrocities Act got added. We could
not get a proper explanation from him. Learned Advocate Mr.
Ostwal has then pointed out the decision of the Hon'ble Apex
Court in State of Madhya Pradesh vs. Chunnilal Alias
Chunni Singh, (2009) 12 SCC 649. In this case also offences
were under the Indian Penal Code as well as under the Atrocities
Act. It was found that the investigation has been carried out by
the investigating officer in absence of authorization by
competent authority and after considering all the facts, the
Hon'ble Supreme Court held that:-
" The provisions in Section 9 of the Act, Rule 7 of the Rules
and Section 4 of the Code when jointly read lead to an
irresistible conclusion that the investigation of an offence
under Section 3 of the Act by an officer not appointed in
terms of Rule 7 is illegal and invalid. But when the offence
complained are both under IPC and any of the offence
enumerated in Section 3 of the Act the investigation which is
being made by a competent police officer in accordance with
the provisions of the Code cannot be quashed for non-
investigation of the offence under Section 3 of the Act by a
competent police officer. In such a situation the proceedings
shall proceed in an appropriate court for the offences
::: Uploaded on - 20/02/2023 ::: Downloaded on - 22/02/2023 01:03:11 :::
criapl919.22+
12
punishable under the IPC notwithstanding investigation and
the charge-sheet being not liable to be accepted only in
respect of offence under Section 3 of the Act for taking
cognizance of that offence. "
10. No doubt, in the present case the facts are slightly
different. Here, at the fag end of the investigation it is realized
that the offences under the Atrocities Act are made out and
therefore, the above course was undertaken and therefore the
charge-sheet is filed by the police officer of the rank of Deputy
Superintendent of Police which is as per Rule 7 of the Act. In
regard to this situation, we would like to say that the
investigating officer ought to have been more vigilant. It is not a
case that he should start the investigation from the point it was
left by the earlier investigating officer. The tenor, scope and
purpose of Rule 7 to the Atrocities Act should have been
considered by the investigating officer. The intention of the
legislature in making such provision was to give investigation of
the offences under Section 3 of the Act to senior police officers
taking into consideration the principle to protect the rights of the
oppressed section of the society. Under such situation, it would
be the endeavour of the investigating officer not to leave any
kind of lacuna in the investigation as well as the procedure that
::: Uploaded on - 20/02/2023 ::: Downloaded on - 22/02/2023 01:03:11 :::
criapl919.22+
13
is undertaken. The benefit of such faulty investigation should not
go to the accused.
11. Here in this case, since beginning when the FIR was
lodged, it was for the police officer to consider the caste of the
informant and to see whether it is giving rise to any offence
under such Special Enactment. That exercise appears to have
not been done in this case. In catena of Judgments the Hon'ble
Supreme Court has held that the accused cannot take benefit of
lacunas in the investigation. We are at a primary stage and
therefore, though this glaring point has cropped up, yet the
advantage of the same cannot be given to the appellants in view
of the decision in State of Madhya Pradesh vs. Chunnilal
Alias Chunni Singh (supra), because here the case is also
under Section 302 and other sections under the Indian Penal
Code. Therefore, from both the angles it is required to be seen,
as to whether the learned Special Judge was justified in rejecting
the bail applications filed by the appellants.
12. Further, before going to consider the merits another
situation has arisen which is of wide importance, as this Court is
coming across various such orders by Special Judges under the
Atrocities Act that they are not following / observing the
::: Uploaded on - 20/02/2023 ::: Downloaded on - 22/02/2023 01:03:11 :::
criapl919.22+
14
mandatory requirement under Section 15-A of the Atrocities Act.
Section 15-A of the Atrocities Act gives statutory right to the
victim to get the knowledge about the proceedings before the
Court including bail application.
13. In Hariram Bhambhi vs. Satyanarayan and another
(supra), it has been observed that victims are often relegated to
the role of being a spectator in the criminal justice system. The
victims of crime often face hurdles in accessing justice from the
stage of filing the complaint to the conclusion of the trial and
therefore, those rights of the victims have been acknowledged
by the Hon'ble Supreme Court as well as those are incorporated
under Section 15-A of the Atrocities Act. In connection with the
said provision, in the aforesaid decision, it has been held in
Paragraph Nos. 13, 14, 15 and 18 as under:-
" 13. Section 15A of the SC/ST Act contains important provisions
that safeguard the rights of the victims of caste-based atrocities
and witnesses. Sub-sections (3) and (5) of Section 15A
specifically make the victim or their dependent an active
stakeholder in the criminal proceedings. These provisions enable
a member of the marginalized caste to effectively pursue a case
and counteract the effects of defective investigations. Sub-
sections (1) to (5) of Section 15A are extracted below:
"15A(1) It shall be the duty and responsibility of the State to
make arrangements for the protection of victims, their
dependents, and witnesses against any kind of intimidation
or coercion or inducement or violence or threats of violence.
::: Uploaded on - 20/02/2023 ::: Downloaded on - 22/02/2023 01:03:11 :::
criapl919.22+
15
(2) A victim shall be treated with fairness, respect and
dignity and with due regard to any special need that arises
because of the victims age or gender or educational
disadvantage or poverty.
(3) A victim or his dependent shall have the right to
reasonable, accurate, and timely notice of any Court
proceeding including any bail proceeding and the
Special Public Prosecutor or the State Government
shall inform the victim about any proceedings under
this Act.
(4) A victim or his dependent shall have the right to apply to
the Special Court or the Exclusive Special Court, as the case
may be, to summon parties for production of any documents
or material, witnesses or examine the persons present.
(5) A victim or his dependent shall be entitled to be
heard at any proceeding under this Act in respect of
bail, discharge, release, parole, conviction or sentence
of an accused or any connected proceedings or
arguments and file written submission on conviction,
acquittal or sentencing."
(emphasis added)
14. Sub-section (3) of Section 15A confers a statutory right on
the victim or their dependents to reasonable, accurate, and
timely notice of any court proceeding including a bail proceeding.
In addition, sub-section (3) requires a Special Public Prosecutor
or the State Government to inform the victim about any
proceeding under the Act. Sub-section (3) confers a right to a
prior notice, this being evident from the use of the expression
"reasonable, accurate, and timely notice of any court proceeding
including any bail proceeding". Sub-section (5) provides for a
right to be heard to the victim or to a dependent. The expression
"dependent" is defined in Section 2(bb) thus:
"2(bb) "dependent" means the spouse, children, parents,
brother and sister of the victim, who are dependent wholly
or mainly on such victim for his support and maintenance;"
::: Uploaded on - 20/02/2023 ::: Downloaded on - 22/02/2023 01:03:11 :::
criapl919.22+
16
15. The provisions of sub-section (3) which stipulate the
requirement of notice and of sub-section (5) which confers a right
to be heard must be construed harmoniously. The requirement of
issuing a notice facilitates the right to be heard."
" 18. The finding of the Gujarat High Court that the requirement
of issuing notice of a court proceeding to a victim or a dependent
under Section 15A(3), in order to provide them an opportunity of
being heard, is mandatory, finds echo in multiple High Court
decisions 13 including a decision of the Rajasthan High Court 14.
We find ourselves in agreement with the proposition and hold
that sub-sections (3) and (5) of Section 15A are mandatory in
nature."
14. Further, it has been observed in Paragraph No.22 in the
aforesaid decision of Hariram Bhambhi vs. Satyanarayan
and another (supra), that:-
" 22. We also emphasize that sub-section (3) of Section 15A
provides that a reasonable and timely notice must be issued to
the victim or their dependent. This would entail that the notice is
served upon victims or their dependents at the first or earliest
possible instance. If undue delay is caused in the issuance of
notice, the victim, or as the case may be, their dependents,
would remain uninformed of the progress made in the case and it
would prejudice their rights to effectively oppose the defense of
the accused. It would also ultimately delay the bail proceedings
or the trial, affecting the rights of the accused as well."
15. We are constrained to observe that, many Courts/ Special
Judges are not following the said procedure which is in fact in
derogation to the mandate of the law. Secondly, even if the
notice is given, the order that is passed on the bail application is
::: Uploaded on - 20/02/2023 ::: Downloaded on - 22/02/2023 01:03:11 :::
criapl919.22+
17
many times silent about the submissions/ say put forth by the
victim. When the statutory right is given of being heard to the
victim, then the natural corollary would be that those
submissions which have been put forth by the victim should be
reflected in the order by the learned Special Judge. We had,
therefore, called the copy of relevant Roznama of the Special
Case No.141 of 2022, which reflects that as regards the bail
application Exhibit 18 which was filed by accused No.1, notice
was issued to the informant. She appeared before the Court.
However, it appears that adjournment was sought to file say on
behalf of the prosecution, as well as the informant on the
adjourned date i.e. 12th October 2022. On 19th October 2022,
Presiding Officer was on leave. The matter was taken up on 21 st
October 2022, on which date the prosecution filed say but
informant sought adjournment. Thereafter it appears that till the
application was decided, the informant - victim did not appear
and she was not heard at all. The impugned order below
Exhibit-18 also does not say that the Special Judge had heard
the victim - informant. Same is the case as regards the other
two appellants. As regards accused No.5 is concerned, he has
given application for bail at Exhibit-3. Notice was issued to the
informant and on the day of appearance she filed application for
::: Uploaded on - 20/02/2023 ::: Downloaded on - 22/02/2023 01:03:11 :::
criapl919.22+
18
adjournment and in the meantime bail application was moved by
accused No.6. Notice in respect of that application was also
issued to the informant but it appears that she never filed say.
Again, in the meantime accused No.4 i.e. one of the appellant
here, made application for bail and there is no endorsement that
notice in respect of application Exhibit-13 was ever issued to the
informant. The impugned orders in other two Appeals are also
silent on this aspect of issuing notice to the informant and giving
an opportunity to her to make submissions. Certainly, in these
cases the applications have been rejected and no prejudice can
be said to have been caused to the informant. But the fact
remains is that the learned Special Judge has not adhered to the
procedure that is contemplated in bail applications in which the
offence under the Atrocities Act is involved. Note also can be
taken of the decision of Three Judge Bench of the Hon'ble
Supreme Court in Jagjeet Singh and others vs. Ashish
Mishra Alias Monu, (2022) 9 SCC 321. In fact in this case
there was no question of offences under the Atrocities Act, yet,
the Hon'ble Supreme Court has upheld the rights of the victim to
be heard and to participate in the proceedings before the Courts.
Note has been taken in respect of the provisions under the
Atrocities Act which make the legal obligation to hear the victim
::: Uploaded on - 20/02/2023 ::: Downloaded on - 22/02/2023 01:03:11 :::
criapl919.22+
19
and then it has been reiterated that the rights of the victim are
totally independent, incomparable, and not accessory or auxiliary
to those of the State under the Code of Criminal Procedure and
therefore, the presence of 'State' in the proceedings, would not
tantamount to according a hearing to a victim of the crime.
Under such circumstance, when such wide rights are given to the
informant / victim and those are acknowledged, it is mandatory
on the part of the Special Judges to issue notice to the victims /
informants, as the case may be in view of Section 15-A(3) of the
Atrocities Act and then to proceed to hear them under Section
15-A(5) of the Atrocities Act.
16. Now, turning towards the facts of the case, the FIR lodged
by respondent No.2 is based on the information supplied to her
by Amol Borde who was with the deceased at that time. The
statement of said witness would disclose that the incident has
taken place at two places, one is the shop / Wada-pav center of
accused No.4 and the other is near the godown of company.
Amol has stated that since he as well as deceased had not
brought tiffin, they had gone to the Wada-pav center of accused
No.4 at about 12.00 noon on 26 th April 2022. They made inquiry
about the rates of Bhaje plate. It was told by accused No.4 that
one plate is for Rs.20/-. Deceased objected stating that Bhaje
::: Uploaded on - 20/02/2023 ::: Downloaded on - 22/02/2023 01:03:11 :::
criapl919.22+
20
plate is for Rs.15/- and why accused No.4 is charging Rs.20/-.
Thereafter accused No.4 abused him and there was heat
exchange of words as well as abuses. Accused No.4 then raised
his hand to assault deceased and at that time in his hand there
was perforated ladle (Zara). Deceased tried to snatch perforated
ladle from the hands of accused No.4 and at that point of time
accused Nos.1, 5, one Amol Salve, Babdya and the servant of
accused No.4 gathered there and they started assaulting
deceased by kicks and fist blows as well as stick. Amol Borde
rescued the deceased and in the said process the cooking oil
from the vessel spilled from it. Deceased and Amol Borde
purchased four plates of Bhaje and 10 bread (Pav). Accused
No.4 charged him Rs.200/- which was inclusive of the damage of
the cooking oil. Deceased got annoyed and therefore, by abusing
him said that he would see accused No.4. They both had taken
the parcel. That means they had intention to eat it at a different
place and therefore, they started on the motorcycle. This part of
of the facts does not disclose prima facie that the deceased was
assaulted only because he was the member of the scheduled
caste. Though witness Amol Borde says that accused Nos.4, 5
and others knew deceased as well as Amol himself, he does not
say that they had the knowledge about the caste of the
::: Uploaded on - 20/02/2023 ::: Downloaded on - 22/02/2023 01:03:11 :::
criapl919.22+
21
deceased. The said incident at the Wada-pav center, at the most
would disclose the offence under Section 323, 504, 506 of the
Indian Penal Code.
17. From the statement of Amol Borde, it can be gathered that
around 12.20 p.m. they both, i.e. deceased and Amol were
proceeding from the internal road in MIDC and they were
intercepted by accused Nos.1, 5, Amol Salve, Gupta - servant of
accused No.4 and Babdya. They were holding axe, iron rod and
wooden stick. Amol Borde says that after he himself and
deceased got down from the vehicle, accused No.1 gave blow of
iron rod on the head of the deceased, as a result of which
deceased fell down and blood started oozing from his nose and
head. Though Amol has tried to intervene, it is stated that
accused Gupta was about to give blow of axe to the deceased
but that was held by Amol Borde, still by giving jerk to him,
Gupta managed to assault deceased. Amol Salve assaulted by
iron rod, accused No.5 - Sanket and Babdya had assaulted
deceased by wooden sticks. All of them were giving threat to kill
deceased at that time. Thereafter all of them left the place. Amol
Borde states that he went to the godown where the work was
going on and informed the incident to his friends. The ambulance
was called and deceased was taken to hospital. However,
::: Uploaded on - 20/02/2023 ::: Downloaded on - 22/02/2023 01:03:11 :::
criapl919.22+
22
deceased was declared dead around 7.00 a.m. on 27 th April 2022
i.e. on the next day. It is to be noted that his statement has
been recorded on 27th April 2022. No doubt as regards the
second incident is concerned, there is no statement about the
presence of accused No.4, however, at this stage the prosecution
story is that since the earlier incident had taken place with
accused No.4, that common intention was hatched up at his
place and all these persons had then gone to the place of second
incident for execution of the plan. Statement of witness Nilesh
Pund, Sushan Zaware are on the same line in respect of the
incident that had taken place in front of Wada-pav center.
18. The next evidence in line is the postmortem report which
shows the probable cause of death, fracture of skull and internal
injury to brain due to chop wound over the head by sharp edged
heavy object. It would be clarification that would be given by the
medical officer as to whether the said injury is possible by blow
of iron rod and then of the axe at the same place.
19. While considering the bail application the decisions those
have been relied by the learned Advocate for respondent No.2
are definitely required to be considered. But at the same time,
we are also required to consider the role attributed to each one
::: Uploaded on - 20/02/2023 ::: Downloaded on - 22/02/2023 01:03:11 :::
criapl919.22+
23
of the accused persons. Here, whatever evidence has been
gathered would show prima facie case against accused No.1 i.e.
Sonu fitter - appellant in Criminal Appeal No.919 of 2022.
20. As regards accused No.5 - Sanket Somwanshi, appellant in
Criminal Appeal No.913 of 2022 is concerned, his presence has
been shown but even Amol Borde has stated that he used iron
rod to assault deceased. He has not stated the portion of the
body of the deceased which received the assault. In this case,
axe, two iron rods, two wooden logs have been seized under
Section 27 of the Indian Evidence Act from accused Nos.1 to 3.
Nothing has been recovered from accused No.5 - Sanket
Somwanshi.
21. Next is the case as regards accused No.4 - Arun Narad
Saha, appellant in Criminal Appeal No.880 of 2022, and as
aforesaid his role ended to the incident in front of his shop. At
this stage there is nothing on record to show that any conspiracy
was hatched up between the accused persons inter-se and then
all other accused left the said place and followed the deceased.
22. It would take long time to stand trial and therefore, case
was made out to consider the bail applications filed by accused
::: Uploaded on - 20/02/2023 ::: Downloaded on - 22/02/2023 01:03:11 :::
criapl919.22+
24
Nos.4 and 5. However, as regards accused No.1 is concerned,
there is evidence and therefore for him no case is made out for
releasing him on bail. Hence, Criminal Appeal No.999 of 2022
deserves to be rejected, whereas Criminal Appeal Nos.913 of
2022 and Criminal Appeal No.880 of 2022 deserve to be allowed.
Hence the following order:-
ORDER
(I) Criminal Appeal No.919 of 2022 stands dismissed.
(II) Criminal Appeal No.913 of 2022 and Criminal Appeal No.880 of 2022 stand allowed.
(III) The order passed below application Exhibit-3 in Special Case No.141 of 2022 dated 29 th August 2022 and order passed below application Exhibit-13 in Special Case No.141 of 2022 dated 14th September 2022 by the learned Special Judge under the Atrocities Act and Additional Sessions Judge No.3, Ahmednagar, stand set aside. Both the said applications stand allowed.
(IV) The appellant in Criminal Appeal No.913 of 2022 - Sanket Vitthal Somwanshi and the appellant in Criminal Appeal No.880 of 2022 - Arun Narad Saha, who have been arrested in connection with ::: Uploaded on - 20/02/2023 ::: Downloaded on - 22/02/2023 01:03:11 ::: criapl919.22+ 25 Crime No.289 of 2022 registered with MIDC Police Station, Ahmednagar for the offence punishable under Sections 302, 341, 323, 504, 506, 143, 147, 148, 149 read with Section 34 of the Indian Penal Code and under Sections 3(1)(r), 3(1)(s) and 3(2) (v-a) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, be released on bail on P.R. Bond of Rs.50,000/- each with two solvent sureties of Rs.25,000/- each.
(V) The Appellants in Criminal Appeal Nos.913 of 2022 and 880 of 2022 shall not tamper with the evidence of the prosecution in any manner.
(VIII) They shall not indulge in any criminal activity.
(IX) Bail before the Trial Court.
[ABHAY S. WAGHWASE] [SMT. VIBHA KANKANWADI]
JUDGE JUDGE
asb/FEB23
::: Uploaded on - 20/02/2023 ::: Downloaded on - 22/02/2023 01:03:11 :::