High Court

Legal Reasoning

1BA468.2025IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD944 BAIL APPLICATION NO. 468 OF 20251. MANOJ HARIKISHAN SHELAKE2.DAYANAND SUKHDEV SHINDEVERSUSTHE STATE OF MAHARASHTRA...WITH...CRIMINAL APPLICATION NO. 1243 OF 2025 IN BA/468/2025…Advocate for Applicant : Mr. Satej S JadhavAPP for Respondent/State: Ms. P. V. DiggikarAdvocate for assist to PP : Mr. R. V.Gore...CORAM :ARUN R. PEDNEKER, J.DATE :17.06.2025P.C. : 1]Criminal Application No.1243 of 2025 for assistto public prosecutor is allowed.2]Heard learned counsel for the applicants,learned APP for the respondent-State and learned counselfor the assist to public prosecutor. 3]The applicants are seeking bail as ApplicantNo.1 / Accused No.3 – Manoj Harikishan Shelake andApplicant No.2 / Accused No.5 – Dayanand Sukhdev Shindewere arrested on 10.09.2024 and 11.09.2024 respectivelyin connection with Crime No.0581/2024, dated 10.09.2024, 2BA468.2025registered with Taluka Jalna Police Station, District Jalna,for the offences punishable under Sections 103(1), 189(2),190, 191(2), 193(3), 115(2), 118(1), 352, 351(2) of theBharatiya Nyaya Sanhita, 2023. 4]The case of the prosecution is that on09.09.2024 at about 09:30 p.m. the deceased Hafij went toHotel Chiranjivi, where he consumed liquor for some timeand, thereafter, he had gone to the hotel room.It is the case of the prosecution that the wife ofaccused no.1 was having affair with the deceased Hafij andthat the deceased had called her to the lodge by sending hera auto rikshaw, as she was not responding to the phonecalls and messages of the deceased.It is stated by Rani (wife of accused no.1) thatshe was having relations with the deceased for last 2 ½ yearas the accused no.1 was having affair with some other lady.At the time of incident, there was festival of Ganpati andMahalaxmi and at that time her son (accused no.2) wasvisiting her. The son (accused no.2) was taking educationout of station. At around 05:00 p.m. Rani received a callfrom the deceased expressing his desire to meet her at herplace. However, she had asked the deceased not to come tohouse as her son was in the house. When the deceasedinsisted to meet her, she took the auto rikshaw send by thedeceased and went to meet the deceased at around 09:00p.m. While she was taking auto rikshaw, she was seen by 3BA468.2025the present applicant no.2 / accused no.5 – Dayanand.Immediately thereafter, Accused no.1 / Husband of Rani,Accused No.2 / Son, the present applicants and one anotherperson total 5 persons reached the hotel. Thereafter, theyinquired with the auto rikshaw driver as to where the Raniis. Initially the auto rikshaw driver avoided to answer and,thereafter, on insistence and assault by all the accused heinformed that she is in the room upstairs i.e. Room No.15 ofthe hotel. Thereafter, all 5 accused went upstairs in searchof wife of accused no.1 and while going up 3 of the accusedincluding accused no.3 / applicant no.1, picked up weaponsi.e. iron rod, sickle as were available in the Hotel. It isstated that there was knock on the door, as such, when thedoor of the Hotel room was opened, accused no.2 enteredinside abusing the deceased. It is stated by Rani that thedeceased first assaulted her son (accused no.2) with akodi(iron hook) and thereafter her son assaulted the accusedwith sickle. While she tried to intervene the applicant no.1i.e. accused no.3 caught her hairs and assaulted her withiron pipe. Thereafter, she freed herself from accused no.3and went downstairs followed by accused no.3 and her son.Thereafter, her son came down and later while travellingwith her on the motorcycle accused no.2 informed her thatthey (accused) have killed the deceased. Accordingly, theFIR is lodged and all the accused were arrested immediatelythereafter on 10.09.2024 and 11.09.2024 and afterinvestigation charge-sheet in the matter is filed. 4BA468.20255]The case of the prosecution as can be seen fromthe charge-sheet is that, when the accused reached the hotelthey have assaulted the auto rikshaw driver Rafiq and,thereafter, they have taken weapons which were availablein the hotel i.e. iron rod, Koyta (sickle) and tikas from thestore room and they went to Room No.15 which is on firstfloor and that they have assaulted the deceased. As such, allthe accused are charged for the above referred offence.6]The learned counsel for the applicants has takenme through the statements of witnesses i.e. Rani Shelkeand the statement of the hotel owner and, thereafter, theCCTV footage. He contends that the applicants were notholding any weapon, when they reached the hotel as suchthere was no intention to assault or kill the deceased. As faras applicant no.1 / accused no.3 is concerned, it is statedthat when the deceased assaulted the son of Rani, theapplicant no.1 / Accused no.3 has caught hold of the ladyand brought her out. He submits that as regards applicantno.1 / accused no.3 is concerned, there is absolutely noevidence that he has assaulted the deceased. He submitsthat, prima facie, from the evidence on record it would besaid that applicant no.1 / accused no.3 was holding iron rodby which he has assaulted his sister-in-law (Rani). Asregards applicant no.2 / accused no.5 is concerned, hesubmits that it is not stated anywhere that he entered theroom with a weapon. The learned counsel also submits that 5BA468.2025the evidence on record prima facie would indicate that theincident had happened in the spur of the moment. Whenaccused no.2 had seen Rani with the deceased in the hotelroom and he was possibly agitated. However, the firstassault is by the deceased on accused no.2, as such, indefence, the accused, who were holding the weapons havepossibly assaulted the deceased. He submits that it cannotbe said that the applicants were having intention to kill thedeceased. He also submits that the applicant no.1 / accusedno.3 is no where connected as far as assault on thedeceased is concerned. In so far as assault on Rani isconcerned, that she is the sister-in-law of applicant no.1 /accused no.3 and that there are minor injuries suffered byher and that he is in custody from 10.09.2024 and that thecharge-sheet in the matter is filed. He submits thatapplicant no.2 / accused no.5 is not seen in the CCTVfootage holding any weapon. There is no evidence that hehas assaulted the deceased.7]Per contra, the learned APP submits that thestar witness is Rani herself. She has also relied upon thestatement of the auto rikshaw driver. However, she has notdisputed one aspect of the matter that the weapons aretaken from the hotel itself. She submits that Rani in herstatement has stated that she was having affair with thedeceased for last 2 ½ year and when she was alone thedeceased used to came to her place to meet her and that 6BA468.2025fifteen days prior to incident she was not picking up phonecalls from the deceased, due to which the deceased hadasked her to immediately meet him. She also stated that on06.09.2024, her son had been to her place for Ganpati andMahalaxmi festival and that she has received a phone callfrom the deceased at about 05:00 p.m. that he will comehome to meet her. At that time she had told the deceasedthat her son had come for festival and that the deceasedshould not come home to meet her. Thereafter, thedeceased had sent an auto rikshaw to Rani’s house so thatshe could come in the auto rikshaw and meet him. Whenshe was taking auto rikshaw from her home to the hotel,applicant no.2 / accused no.5 had seen her. Thereafter,when she reached the hotel and entered the hotel roomwhere the deceased was staying it is stated that somebodyknocked the door and when the deceased had opened thedoor her son entered in the room with weapon vila (sickle)and abused the deceased. Behind him was her husbandhaving Katar and applicant no.1 was holding iron pipe andothers entered without any weapon. When they entered inthe room the deceased assaulted her son with akodi (ironhook) at that time her son hit back on the deceased withvila (sickle) on his head. It is further stated that she tried tohold her son at that time applicant no.1 / accused no.3,who is the brother-in-law of Rani caught hold of her hairsand dragged her and assaulted Rani by iron pipe.Thereafter, she managed to escape herself and went down. 7BA468.2025She was followed by applicant no.1 / accused no.3 and herson. It is also stated that her son informed her to stopotherwise he would kill himself. Thereafter, she went onmotorcycle with her son and it is stated that on the way herson informed her that they have killed the deceased.8]The Postmortem report indicates that there areapproximately major six injuries and that case of death isalso indicated as under:“..due to CRA due to haemorrhegic shock due tomultiple penetrating injuries with head injuryhowever viscera is preserved for C.A.”9]The learned APP has also relies upon thestatement of the auto rikshaw driver, who has stated thatwhen he informed the accused that she is in the room atfirst floor that son of Rani / accused no.2 – Yash, Daya -accused no.5, Manoj accused no.3 told to accused no.1 –Sanjay that leave this auto rikshaw driver now, we willfinish Hafij and then they went upstairs.10]The learned counsel for assist to publicprosecutor also pointed out statement of Chaitanya Ubaleand Dhananjay Raut. Chaitanya Ubale stated that he hasdropped the accused no.4 at the place of the incident i.e.Chiranjiv Hotel on motorcycle and later on he came to knowthat he had dropped him so that he could assault thedeceased and he had seen the all the accused had assaulted 8BA468.2025the auto rikshaw driver.11]The learned APP, so also, the learned counselfor the assist to public prosecutor submits that this is a per-meditated murder and that the accused were aware that thewife of accused no.1 was having affair with the deceasedand when applicant no.2 / accused no.5 saw the lady goingin the auto rikshaw they followed her to the hotel and,thereafter, they have assaulted killed the deceased and, assuch, this is a clear offfence of murder and that theapplicants in such a grievous matter are not entitled forbail.12]Considered the rival submissions. Star witnessof the assault is Rani. Rani has stated that when shereached the hotel room within a short time there was knockat the door and on opening the door her son - accused no.2- Yash came and used obscene language to the deceased.The deceased first assaulted accused no.2 – son of Rani withAkodi (iron hook). Thereafter, accused no.2 assaulted thedeceased with sickle. Thereafter, applicant no.1 / accusedno.3 caught hold of her hairs and dragged her and alsoassaulted her. Considering these aspects of the matter, wecannot at this moment say that all the accused who hadreached the hotel without any weapon in search of Rani,wife of accused no.1 had gone to the hotel to kill thedeceased. The weapons were collected from the Hotel as 9BA468.2025were available. After the initial assault by the deceased onaccused no.2, there is assault by accused no.2 using sickleon the head of the deceased to that extent Rani has seen theassault. However, after releasing herself from applicantno.1, she came down, as such, there is no further eyewitness as to how the assault has further progressed. Asregards applicant no.1 / accused no.3 is concerned, itcannot be said from the evidence on record that he hasassaulted the deceased. He assaulted on the lady and shehas suffered minor injuries. He is in custody from10.09.2024. As regards accused no.5 / applicant no.2 isconcerned, he was there without any weapon. The injuriesare caused by the weapon. Prima facie, the assault hashappened on the spur of the moment, when the accusedhad found that the wife of the accused no.1 is with thedeceased in the hotel room upstairs.13]Considering these aspects of the matter and alsothat the applicants are in jail from 10.09.2024 and11.09.2024 respectively and considering that there is noassault by the present applicants on the deceased, this courtwould consider this case for grant of bail for the presentapplicants. Also, at this moment, it cannot be said, whetherthe deceased was responsible for precipitating a grievousassault as from the statement of Rani it could be seen thatthe deceased first assaulted her son with Akodi (iron hook)while her son had gone inside the hotel room using abusive 10BA468.2025language. Considering the above aspect of the matter, thepresent applicants can be granted bail.14]In view of the above, the application is allowedin the following terms : a]The applicants shall be released on bail inconnection with Crime No.0581/2024, dated10.09.2024, registered with Taluka Jalna PoliceStation, District Jalna, for the offences punishableunder Sections 103(1), 189(2), 190, 191(2), 193(3),115(2), 118(1), 352, 351(2) of the Bharatiya NyayaSanhita, 2023, on furnishing PR bond of Rs.20,000/-each with one or two sureties in the like amount tothe satisfaction of the trial Court. b]The applicants shall not enter the jurisdiction ofthe concerned police station during the pendency ofthe trial.c]The applicants, upon being released on bail,shall not contact the informant, in any mannerwhatsoever, during the pendency of the trial. d]The applicants shall co-operate with the trialCourt and they shall attend each and every date,unless exempted by the trial Court. 11BA468.2025e]The applicants shall not tamper with theevidence of the prosecution and they shall notinfluence the informant, witnesses and other personsconcerned with the case. f]The applicants, upon being released on bail,shall place on record of the trial Court the details ofhis Contact Number and residential address withupdates in case of any change. 15]Needless to say, in case of violation of any ofthe aforesaid conditions, the bail granted to the applicantsshall be liable to be cancelled. 16]It is also clarified that the observations made inthis order are limited to the disposal of the present bailapplication. The concerned Court shall proceed further inthe matter without being influenced by the observationsmade hereinabove. 17]The application stands disposed of. [ARUN R. PEDNEKER] JUDGE marathe