Bombay High Court
Parmeshwar Devrao Gawande vs The State Of Maharashtra on 1 March, 2021
Equivalent citations: AIRONLINE 2021 BOM 506
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
23 BAIL APPLICATION NO.179 OF 2021
WITH APPLN/562/2021 IN BA/179/2021
PARMESHWAR DEVRAO GAWANDE
VERSUS
THE STATE OF MAHARASHTRA
...
Advocate for Applicants : Mr. Devakate Anant R
Mr. NT Bhagat, APP for Respondent-State;
Mr.VB Madan-Patil, Adv. To assist APP.
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CORAM : SMT.VIBHA KANKANWADI,J.
DATE : 1st March, 2021.
PER COURT :-
1. The Criminal Application No.562/2021
moved to assist APP is allowed and disposed of.
2. Present applicant has been arrested on
10.1.2021 in connection with CR No.8/2021
registered with Bhokardan police station, Tq.
Bhokardan, District Jalna, for the offences
punishable under Sections 302,323, 324, 327, 504,
506 read with 34 of IPC. The present application
has been filed under Section 439 of Cr.P.C.
3. Heard. Learned Advocate Mr.Devkate for
the applicant and learned APP Mr.NT Bhagat for
Respondent-State.
4. It has been vehemently submitted on
behalf of the applicant that, the FIR has been
lodged by the injured deceased himself on 9.1.2021
and at that time, taking into consideration the
injury that was sustained by him, offence under
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Section 324 with other sections of IPC, was
registered. However, deceased informant expired at
00.05 hrs on 10.1.2021 and thereafter offence under
section 302 of IPC came to be added. Perusal of
the FIR would show that only presence of the
present applicant has been stated and the motive is
stated to be old enmity. No specific role has been
attributed to the present applicant. After the
applicant was arrested, he has undergone the police
custody. Nothing has been recovered at his
instance. Under such circumstance, further
physical custody of the applicant is no longer
required for the purpose of investigation and,
therefore, he deserves to be released on bail.
5. The learned APP, well assisted by learned
Advocate Mr.Madan Patil, submits that the act was
done by all the three accused persons in
furtherance of their common intention. Though the
FIR states that the assault was by accused-
Sudhakar and the recovery of the spade, which was
used as murder weapon, is from him; yet the common
intention, the applicant was sharing with him, is
required to be considered. The investigation is
still in progress and already the relatives of the
present applicant are indulging in activity of
tampering with the evidence. Non-cognizable
offence vide No.58/2021 under Section 506 of IPC
has been registered in that respect. The clothes
of the present applicant have been seized at the
time of his arrest and those clothes have been send
for chemical analysis. Possibility of more
evidence against the present applicant cannot be
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ruled out and, therefore, the applicant does not
deserve to be released on bail.
6. At the outset, it can be seen from the
police papers those have been made available that
substantial part of the investigation appears to be
over. The information was lodged by the deceased
himself and it came to be recorded on 9.1.2021. The
FIR states that the information that was received
by the police station was at about 21.00 hrs on
9.1.2021 and the actual FIR came to be registered
at 23.54 hrs. It is specifically stated in the FIR
that after the incident, the informant had gone to
the police station alone and then he was referred
to the medical examination to Government hospital,
Bhokardan. After getting treatment, he came back
to the police station and then lodged the said
report. From the statements of the witnesses, it
appears that after some time he again developed the
problem and he was required to be taken to Suman
hospital at Sillod. He was then referred to Ghati
hospital, Aurangabad and when he was being shifted
in an ambulance and the ambulance was near
phulambri village, his health was deteriorated and
after he was taken to Ghati hospital, Aurangabad,
at the time of admission itself, he was declared
dead. All these aspects are required to be taken
into consideration. But, then when he himself had
lodged the report, he has stated that he was
assaulted by the spade by co-accused Sudhakar. As
regards the role attributed to the present
applicant is concerned, he has stated that others
had made him to lie on the ground and then
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assaulted. He has not stated that any weapon was
used by the present applicant. The police papers
show that the discovery of the spade is at the
instance of co-accused Sudhakar. No doubt, the
clothes of the present applicant have also been
seized and have been sent for chemical analysis but
most of the witnesses have stated that they
gathered the story from the informant himself and
there appears to be no eye-witness to the incident.
As regards the post-mortem is concerned, column
No.17 in respect of surface wound and injuries
discloses three injuries, as follows, -
"1. Contusion present over mid-portion of
frontal region in midline, 8 cm above
glabella of size 6 cm X 4.5 cm, faint
reddish;
2. Lacerated wound superimposed over
injury No.1 over mid-portion of frontal
region in midline, 2.5cm X 0,7cm X muscle
deep, vertically placed;
3. Lacerated wound superimposed over
injury No.1, 2cm right lateral to injury
No.2 of size 1.5cm X 0.5cm X muscle deep,
vertically placed"
7. Further, as regards column No.19, it is
stated that, there was under scalp haematoma
present over frontal region corresponding to the
injury Nos.1, 2 and 3 in column No.17. The
situation of the brain is stated as "Diffused
subarachnoid hemorrhage present over both frontal-
parietal lobes. Further, in column No.23 itself, it
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is stated that the injury Nos.1 to 3 in column
No.17 with its internal injuries were sufficient to
cause death in ordinary course of nature
individually and collectively and, therefore,
opined cause of death of the deceased as "Head
injury".
8. Taking into consideration the contents of
the FIR and the post-mortem report, it is certain
that death of the informant was caused due to head
injury, which appears to have been caused due to
the blow of the spade by co-accused Sudhakar.
Further, it appears that after the discovery of the
spade, the weapon was referred to the medical
officer for opinion and it has been opined that,
injury Nos.1 to 3 noted by the Medical Officer in
column No.17, are possible by the said weapon.
9. Though the above said evidence is coming
on record; yet as regards the present applicant is
concerned, the informant has not specifically
stated that any weapon was used by the present
applicant. In his statement under section 164 of
Cr.P.C., witness - Gajanan Aananda Gawande has
tried to say that the deceased had given a phone
call to him and informed that he was assaulted by
all the three accused on his head and chest by the
spade. However, it is to be noted that such
statement is not made by the informant himself in
his FIR. There is no recovery from the present
applicant of any such weapon. Under such
circumstance, ground is made out to release the
applicant on bail.
10. Now, as regards the apprehension, that is
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expressed in respect of tampering with the evidence
and non-cognizable offence, which has been
registered, it makes allegation against one
Madhukar Sukhdeo Gawande; Tuljabai Sukhdeo Gawande
and Chaya Parmeshwar Gawande, who appear to be
related to the present applicant and it is in
respect of the alleged incident dated 17.2.2021.
But the NC was lodged on 19.2.2021. Thus, there
appears to be delay of two days in lodging the NC
and further, the report that is submitted by the
Investigating officer to learned APP, it is not
made clear as to whether he has sought permission
from the concerned Magistrate under Section 155 of
Cr.P.C. When there is provision under the law to
curb such activity, then, without taking such
recourse, merely filing it just to oppose the bail
application, it cannot be looked into.
11. At the same time, safety of the witnesses
will have to be ensured and, therefore, stringent
restrictions/conditions are required to be imposed
on the present applicant as he is resident of the
same village. With these observations, following
order is passed, -
ORDER
i. The application stands allowed;
ii. The applicant - Parmeshwar s/o Devrao Gawande be released in connection with CR No.8/2021 registered with Bhokardan police station, Tq. Bhokardan, District Jalna, for the offences punishable under Sections 302,323, 324, ::: Uploaded on - 02/03/2021 ::: Downloaded on - 02/03/2021 23:09:53 ::: (7) 327, 504, 506 read with 34 of IPC on PR of Rs.50,000/- with two solvent sureties of Rs.25,000/- each.
iii. The applicant shall not indulge in any criminal activity nor he shall try to tamper with the evidence of the prosecution in any manner.
iv. The applicant shall not reside at village Kolegaon and shall not visit the said village till conclusion of the trial.
v. Along with submitting the bail papers before the learned Trial Judge, the applicant shall give detailed address of the place where he intends to reside till the end of the trial. He should also give that information to the Investigating Officer along with the mobile number and shall comply with the requirements under para 12 (1) to (6) of Chapter-I of Criminal Manual, whichever are applicable.
vi. Bail before the Trial Court.
(SMT. VIBHA KANKANWADI) JUDGE BDV ::: Uploaded on - 02/03/2021 ::: Downloaded on - 02/03/2021 23:09:53 :::