High Court
Facts
1 Cri.Appeal.146-25.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.146 OF 2025Rupesh Devidas Mokase,Age 25 years, Occu. Agriculture,R/o Karanjkheda Jahagir,Aurangabad.… Appellant. Versus1.State of Maharashtra.2.Sangita Kailas Sonawane,Age 50 years, Occu. Sarpanch,R/o Karanjkheda, Tq. Kannad,Aurangabad.… Respondents....Advocate for Appellant : Mr. Ghanekar Nilesh S.APP for Respondent/s-State : Mr. K. K. Naik.Advocate for Respondent No.2 : Mr. Khizer Patel....CORAM : SHAILESH P. BRAHME, J.DATE :21.04.2025O RDER :- 1.Heard finally by consent of the parties.2.This appeal is preferred challenging rejection of bailapplication vide order dated 18.11.2024 passed below Exh.9 inSpecial Case No.584 of 2024. Appellant is behind bars inpursuance of offence bearing Crime No.267 of 2024, registeredwith Pishor Police Station, District Aurangabad for offencespunishable under Sections 103(1), 189(2), 191(3), 190 of 2 Cri.Appeal.146-25.odtBhartiya Nyaya Sanhita, 2023, Section 3(2)(va) of theScheduled Castes and the Scheduled Tribes (Prevention ofAtrocities) Act and 3/25 of Arms Act.3.Report was lodged by respondent No.2/mother of thedeceased Nilesh, at about 13.47 hours, on 01.08.2024 that thedeceased was found lying in a pool of blood in severely injuredcondition caused by sharp weapon in the agricultural land ofthe informant. Before sighting the dead body, informant andher husband saw accused persons going towards the village. Itis alleged that due to old political rivalry, accused includingappellant committed murder of Nilesh. 4.Appellant was arrested on 16.08.2024. Charge sheetwas filed on 27.09.2024. Interesting fact of the case is thatbefore the informant could lodged the report on 01.08.2024, atabout 7.56, co-accused Mayur Subhash Solunke and Vijay BapuWagh presented themselves at Police Station Pishor with desimake pistol and the knife and reported that they committedmurder of the deceased Nilesh. A statement to that effect ofPolice Constable Pandhari Hari Ingale was recorded. Onsimilar line, statement of Lalchand Trambak Naglot and whowere present in the police station were also recorded duringthe course of investigation.
Legal Reasoning
9 Cri.Appeal.146-25.odt18.Though statements under Section 164 are recorded,there is CDR and possibility of motive, in my considered view,this is not sufficient to deny bail to the appellant. I cannotconcur with the reasons assigned in the impugned order.Prima facie case is made out that implication of the appellant isafter thought and allegations are shrouded with serious doubts.Hence, appellant deserves enlargement on bail. I, therefore,pass following order :ORDERA.The criminal appeal is allowed. B.Impugned order below Exh.9 dated 18.11.2024passed by Additional Sessions Judge, Aurangabadrejecting Criminal Bail Application in Special CaseNo.584 of 2024 is quashed and set aside. C.Appellant Rupesh Devidas Mokase shall bereleased on bail in furtherance of offence bearingCrime No.267 of 2024, registered with PishorPolice Station, District Aurangabad for the offencepunishable under Sections 103(1), 189(2),191(3), 190 of the Bhartiya Nyaya Sanhita,Section 3(2)(va) of the Scheduled Castes and theScheduled Tribes (Prevention of Atrocities) Act 10 Cri.Appeal.146-25.odtand 3/25 of the Arms Act on his furnishing P. R.bond of Rs.50,000/- (Rupees Fifty Thousand only)with one solvent surety of like amount onfollowing conditions :(i)The appellant shall cooperate with thespeedy disposal of the trial.(ii)The appellant shall stay away from entireKannad Taluka, District Aurangabad till finalconclusion of trial.(iii)The appellant shall report his whereabouts tothe Investigating Officer. (iv)Appellant shall not tamper or contact withthe prosecution witnesses. (SHAILESH P. BRAHME, J.)...vmk/-
Arguments
3 Cri.Appeal.146-25.odt5.Mr. Nilesh S. Ghanekar, learned counsel for the appellantsubmits that appellant is being implicated on sheer suspicionand due to rivalry between informant Ex-sarpanch and oneBhagwan Kashiram Kolhe. It is vehemently submitted thatinformant and her husband learnt about death or the deadbody and preceding that they saw the accused going towardsthe village. Still no information was given to either police orany other person. FIR was lodged at 1.47 p.m. Even thepresence of the accused near the spot was not disclosed toBabasaheb Wagh, Govind Murade and Vishal Zambare whorushed to the spot after hearing commotions of informant.Learned counsel for the appellant refers entries of policestation diary to show that after surrendering of two accused,immediately police personnel were sent to the spot of theincident and informant or her husband had occasion to disclosename of the appellant or co-accused. But, that was not done.6.It is further submitted that seizure panchnama, inquestpanchnama and spot panchnama were conducted stillinformant did not disclose name of the appellant to the policewhich is very suspicious. It is submitted that eye witnessRushikesh Sandu Sapkal is got up and interested one. He gavefalse account of the overt tact. 4 Cri.Appeal.146-25.odt7.Learned counsel further submits that deliberatelywitness Rushikesh Sapkal gave mobile number of his motherbecause he was not present at the relevant time. It transpiresthat CDR of his mobile number shows his location at Padegaon.It is further harped on by the learned counsel that arrest of theappellant was illegal as it was without disclosing grounds ofarrest. My attention is adverted to the statements of witnessesBabasaheb Wagh, Govind Murade, Vishal Zambare to showthat allegations against the appellant are not free from doubt.Lastly, it is contended that statements under Section 164cannot be relied upon to deny bail to the appellant. 8.Learned APP tenders on record the relevant papers ofinvestigation. It is submitted that there is cogent materialagainst the appellant to attribute incriminating role. For thatpurpose, reliance is placed on the statement of eye witnessRushikesh Sapkal, statement under Section 164 of informantand Govind. Post Mortem report corroborates prosecutionstory. It is contended that CDR collected during theinvestigation shows that appellant and other co-accused werein touch with each other. There was strong motive of rivalryand prejudice on the caste to eliminate the deceased. It is 5 Cri.Appeal.146-25.odtcontended that appellant’s arrest was intimated to the closerelative. Therefore, arrest cannot be faulted. 9.Learned counsel Mr. Khizer Patel for respondent No.2adopts the submissions of learned APP. Additionally, it issubmitted that informant and her husband were in deep shockand trauma when their son was found to be dead having beenbrutally assaulted. It cannot be expected that they woulddisclose the names of all accused to everybody. No case is madeout to grant any relief to the appellant. 10.I have considered rival submissions of the parties andalso gone through relevant papers of investigation. Initially,prosecution story based on theory of last seen together.Incident took place on 01.08.2024. For the first time, whenstatement of Mr. Rushikesh Sapkal was recorded on07.08.2024, it was transpired that he was eye witness. For sixdays, he did not come before the police or disclose anybodythat he was a witness to the assault on deceased. He wasshown to be one of perpetrators in offence Crime No.172 of2024, registered with Pishor Police Station at the instance ofco-accused Mayur Subhash Solunke lodged on 21.05.2024.His statement refers to a mobile which is undisputedly that ofhis mother. 6 Cri.Appeal.146-25.odt11.Application submitted by the wife of one of the co-accused, Archana Bhagwan Kolhe on 13.02.2025 to theSuperintendent of Police shows that the tower location of themobile which was registered in his name was shown to be ofPadegaon, 90 k.m. away from the spot of the incident.Mentioning of mother’s mobile, not disclosing the incident inquestion for six days and he was involved in offence registeredby co-accused Mayur would create serious doubt for theaccount given by him as an eye witness. His veracity needs tobe tested during the course of trial, but relying on hisstatement, bail cannot be denied to the appellant. 12.Undisputedly, on 01.08.2024 co-accused Mayur andVijay appeared in the Police Station at Pishor at about 6.50 to6.55 a.m. with weapons and confessed that murder ofdeceased Nilesh was committed by them. This fact iscorroborated by the statements of police personnel PandhariIngale, Lalchand Noglot, Ganesh Kawal, Sanjay Lagad andKaduba Mhaske. Confession before these personnel might be ofextra judicial in nature which may not be substantive piece ofevidence. But, has some relevance at this stage to show thatperpetrators are co-accused Mayur and Vijay. In such a 7 Cri.Appeal.146-25.odtsituation, very strong overwhelming material is needed toimplicate any third person for the murder of Nilesh. 13.Respondents have rightly submitted that informant andher husband were in shock finding that their son was brutallymurdered. Under normal course of circumstances, they werenot expected to rush to the Police Station for lodging report.However, the sequence of events from 6.50 a.m. to lodging ofFIR at 1.47 p.m. is very relevant. There are statements ofpolice personnel referred above to show that immediately onreceiving information that murder was committed, policesquad was sent to the spot of the incident to verify the truth.Mr. Lalchand Naglot, Ganesh Kawal, Sanjay Lagad, KadubaMhaske had been to the spot of the incident. It is notunderstood as to why informant and her husband could notdisclose the name of the appellant and co-accused to thesepersons. Immediately thereafter, spot panchmama, seizurepanchnama and inquest panchnama were conducted, but stillnames of the perpetrators were not disclosed. 14.Informant is Ex-sarpanch. For the first time in the firstinformation report, the names of the appellant and others arefiguring. I am inclined to accept the submission of the learnedcounsel for the appellant that there is every reason to infer that 8 Cri.Appeal.146-25.odtimplications of the accused other than Mayur and Vijay is afterthought and due to previous rivalry. 15.The statements of Aakash Kailas Sonawane shows thatthere was quarrel on 25.07.2024 with few of the accusedpersons and he was threatened. This fact was known to theinformant, her husband and Aakash. All the accused were seengoing towards village at the relevant time on 01.08.2024.Informant and her husband or Aakash could have promptlydisclosed names of the accused to somebody including police.But, that has not been done which is very unusual andimprobable. 16.I have gone through arrest panchnama of the appellantand notice under Section 47 of the Code. Only offence ismentioned therein. It does not disclose the grounds of arrest. 17.Heavy reliance placed by Mr. Ghanekar on the judgmentsof Supreme Court in Vihaan Kumar Vs. State of Haryana andothers, Division Bench of Bombay High Court in SachinMahipati Nimbalkar Vs. The State of Maharashtra and AshishKakkar Vs. UT of Chandigarh. I find force in his submissionthat grounds were not supplied in the notice and arrest can besaid to be illegal.