Bombay High Court
Shri Pepsi @ Pepsing @ Pushpendrasing ... vs The State Of Maharashtra And Anr on 5 March, 2020
Author: Mangesh S. Patil
Bench: Mangesh S. Patil
26.BA.135.2020.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL BAIL APPLICATION NO.135 OF 2020
Shri Pepsi @ Pepsing @ Pushpendrasing
Kishoresing @ Bhavarsing Balavat
Age :45 yrs, Occ: Business,
R/o. Ajitgaon, Tal: Samadhadi/Shivana
Dist. Badmer (Rajasthan). ... Applicant
VERSUS
1. The State of Maharashtra
through the Secretary,
Home Department Mantralaya,
Mumbai-32.
2. The Police Station Officer,
Nandurbar City Police Station,
District : Nandurbar. ... Respondents
...
Advocate for Applicant : Mr. Sant Kishor C.
APP for Respondent/State: G.L. Deshpande
...
CORAM : MANGESH S. PATIL, J.
DATE : .05.03.2020 PER COURT :
The applicant is seeking bail after filing of supplementary charge sheet in Crime No.72/2003 registered with Nandurbar City Police Station, District Nandurbar for the offence punishable under Section 302, 323, 504 read with Section 34 of the Indian Penal Code.
2. In short, prosecution case is that the deceased owed some money to co-accused Gajendrasing. The latter was insisting for paying the 1/4 ::: Uploaded on - 07/03/2020 ::: Downloaded on - 08/03/2020 00:08:21 :::
26.BA.135.2020.odt dues but the deceased was not obliging. It is alleged that on 01.06.2003 in the night when the deceased along with his family members was having a dinner, all the accused including the present applicant knocked at the door. Gajendrasing again demanding money. The deceased asked him to wait for an hour or two since he was having dinner. Gajendrasing got annoyed. He picked up a brick laying nearby and hit it the deceased on head. As a result he fell to the ground. Co-accused Ratansing also thereafter inflicted another blow on head with a brick. The deceased sustained fatal injuries and succumbed.
3. It is necessary to note that only Ratansing was arrested. He was tried by the Sessions Court and by the judgment and order dated 25.05.2012 he has been acquitted.
4. It appears that the applicant was arrested on 08.11.2019. Supplementary charge sheet has been filed and he is now seeking bail.
5. The learned advocate for the applicant submits that there is a serious dispute about identity of the applicant as one of the assailants. Neither the informant nor any other witness has identifed him. In fact the two persons who were posed to be the eye witnesses namely Vasant Chaudhari and Vinod Sonar have been examined as prosecution witnesses Nos. 1 and 2 in the Session Case No.43/2003 conducted against accused Ratansing. Neither of them have specifically named the applicant as one amongst the assailants.
6. The learned advocate further submits that even otherwise, the 2/4 ::: Uploaded on - 07/03/2020 ::: Downloaded on - 08/03/2020 00:08:21 :::
26.BA.135.2020.odt incident seems to have occurred on a spur of moment. There was no premeditation. Accused Gajendrasing was merely insisting for payment of money which were his legitimate dues. The deceased was avoiding to pay him. No weapon was used. It is only when Gajendrasing was enraged as the deceased had asked him to wait for an hour or two that Gajendrasing and Ratansing are stated to have picked up bricks laying nearby and having hit the deceased on head. No intention or knowledge is attributable to the applicant. Even if it is assumed that he was present, he cannot be implicated for causing death. He may be granted bail.
7. The learned APP opposes the application. He submits that in the statement under Section 161 of the Code of Criminal Procedure witness Vasant Chaudhari has specifically stated about that he was knowing the other two assailants by face and later on came to know that one of them was the applicant. The offence is serious. The applicant was absconding for almost 15 years. There is every likelihood of his jumping the bail. The application may be rejected.
8. I have carefully gone through the papers. Indeed, the charge sheet was filed against the accused Ratansing and he has been acquitted after a trial. A copy of judgment in his case shows that witness Vasant Chaudhari was examined as PW1 but has not stated anything about the identity of the persons who were accompany Gajendrasing. Conspicuously, he has not named the applicant as one amongst them.
9. Apart from the above state of affairs, accepting the allegations 3/4 ::: Uploaded on - 07/03/2020 ::: Downloaded on - 08/03/2020 00:08:21 :::
26.BA.135.2020.odt at their face value, all the accused had arrived there seeking the deceased to make payment to Gajendrasing. They were not carrying any weapon. Had the money been paid, in all probability the incident would not have taken place. It appears from the FIR that Gajendrasing got enraged when deceased asked him to wait for another hour. No role is attributed to the applicant even if he was amongst the two unknown assailants. The assault is attributed to Gajendrasing and Ratansing.
10. In view of such state of affairs, in my considered view, the applicant deserves to be released on bail.
11. The application is allowed. The applicant be released on bail on his executing personal recognizance for an amount of Rs.25,000/- and furnishing a solvent surety in the like amount subject to condition that he shall punctually attend the trial and any two consecutive absences shall result in automatic cancellation of bail.
12. Bail before the trial court.
(MANGESH S. PATIL, J.) habeeb 4/4 ::: Uploaded on - 07/03/2020 ::: Downloaded on - 08/03/2020 00:08:21 :::