High Court
Legal Reasoning
1 cri appeal 982.24 with cri appeal 1013IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 982 OF 2024Shiv @ Sandesh S/o Manoj Nandwanshi,Age : 23 Years, Occu. :Residing at : Flat No. 1-1-54, KoliWada, Begampura, Aurangabad... AppellantVersus1.The State of Maharashtra,through its Police Inspector,Police Station, M.I.D.C. Walunj,Aurangabad City, Dist. Aurangabad.2.Sudam Kalba Pingale,Age : 50 Years : Occu. :R/o Deogiri Colony, Ranjahangaon,Tq. Gangapur, Dist. Aurangabad... RespondentsShri Ramesh N. Dhakane, Advocate for the Appellant.Shri S. B. Narwade, A.P.P. for the Respondent No. 1.Shri G. G. Suryawanshi, Advocate for the Respondent No. 2.WITHCRIMINAL APPEAL NO. 1013 OF 2024Amar @ Sonu Suresh Shinde,Age : 32 Years, Occu. : Agril.,R/o Karla, Tq. Jalna,District Jalna... AppellantVersus1.The State of Maharashtra,through Police Inspector,Police Station, Walunj,Dist. Aurangabad. 2 cri appeal 982.24 with cri appeal 10132.Sudam Kalba Pigale,Age : 50 Years : Occu. : Pvt. Job,R/o Mahadev Mandir Galli,Deogiri Colony, Ranjangaon She. Pu.Tq. Gangapur, Dist. Aurangabad... RespondentsShri Sudarshan J. Salunke, Advocate for the Appellant.Shri S. B. Narwade, A.P.P. for the Respondent No. 1.Shri G. G. Suryawanshi, Advocate for the Respondent No. 2.CORAM :SHAILESH P. BRAHME, J. DATE :28TH MARCH, 2025.FINAL ORDER :.Heard both sides.2.These appeals are arising out of offence bearing C. R. No.661/2024 with M.I.D.C. Waluj Police Station, Dist. ChhatrapatiSambhajinagar for offences punishable U/Sec. 103(1), 140(1),61(2), 238, 3(5) of the Bhartiya Nyaya Sanhita, 2023 (for the sakeof brevity hereinafter referred as to the ‘B. N. Sanhita’) andU/Sec. 3, 4 and 25 of the Arms Act and U/Sec. 135 of theMaharashtra Police Act and U/Sec. 3(2)(va) of the ScheduledCastes and Scheduled Tribes (Prevention of Atrocities) Act (forthe sake of brevity hereinafter referred as to the ‘Atrocities Act’).Hence they are decided by this common order. The investigationand record is common.3.(a)The Criminal Appeal No. 1013 of 2024 is preferredagainst order dated 12.11.2024 passed below Exhibit 19 by the
Legal Reasoning
3 cri appeal 982.24 with cri appeal 1013learned Additional Sessions Judge, Chhatrapati Sambhajinagar,rejecting regular bail of the appellant – Amar.(b)The Criminal Appeal No. 982 of 2024 questions orderdated 21.10.2024 passed by the Additional Sessions Judge,Chhatrapati Sambhajinagar, rejecting application for pre-arrestbail of appellant – Shiv @ Sandesh. Appellant Shiv @ Sandesh isgranted protection against arrest vide interim order which iscontinued till this date.4.Informant – Sudam lodged report on 19.07.2024 that hewas informed that his son Kapil was found in injured ocnditionat a place in between Wadgaon Kilhati to Teesgaon. Thedeceased Kapil had left home on 18.07.2024 and thereafter hewas found with multiple injuires including injury by countrymade pistol. The deceased was in company of co-accused YashFatelashkar and other three persons. There are in all eightaccused. Out of them two are before this Court. The postmortemreport shows that there were multiple injuries and the cause ofdeath was hemorrhage and shock due to multiple injuries overchest. It is the case of the prosecution that there was politicalrivalry between deceased and co-accused – Shivram.6.Learned counsel appearing for both the appellants submitthat there is no direct evidence against them. They were notseen last in the company of the deceased along with co-accused.They are roped in just because appellant - Amar is the brother- 4 cri appeal 982.24 with cri appeal 1013in-law of co-accused - Shivram and appellant – Shiv is also incontact with co-accused – Shivram. It is submitted that thepapers of the investigation do not disclose any incriminating roleagainst the appellants. The investigation is complete and thecustodial interrogation is not required. It is submitted that thereis no recovery of weapon at the instance of appellant – Amar.They would further submit that only role attributed against boththe appellants is that they played active role in hatchingconspiracy. The appellant – Amar provided Rs. 50,000/- forpurchasing a gun to co-accused Jayesh. Appellant – Shiv helpedthe co-accused to flee away by providing vehicle. It is submittedthat unless the chain of the circumstances is established,culpability cannot be attributed to the appellants.7.Per contra, learned Assistant Public Prosecutor submittedthat the master mind is co-accused Shivram and Jayesh. Inmeetings which took place on 16th and 17th appellant – Amar hadattended the same, in which plan was hatched to eliminate thedeceased. Learned A. P. P. adverted my attention to thememorandum U/Sec. 27 of the Evidence Act., spot panchanama,statements of the Bhausaheb and Kamran. He also adverted myattention to statements of Lata, Arjun and Danish to show theconduct of the co-accused persons after commission of offence. Itis vehemently submitted that the call data report shows that theappellants were in contact with the co-accused preceding thecommission of offence and after math of it. It is furthervehemently submitted that appellant – Amar is brother-in-law 5 cri appeal 982.24 with cri appeal 1013and he was always with co-accused Shivram. The chain ofcircumstances is completely established to show that theappellants were part of the conspiracy.8.Learned A. P. P. further submitted that appellant – Shivhelped the co-accused to escape. He was instructed to bringcloths and vehicle to facilitate the main perpetrators to flee awayand to destroy the stained cloths and the weapons. It isvehemently submitted that there were calls in between Shiv andco-accused Jayesh and four calls with co-accused Sagar. It issubmitted that tower location of appellant – Shiv was near thespot immediately before the incident and after the assault.There are antecedents of two crimes against Shiv. It is furthersubmitted that the vehicle which was provided by appellant -Shiv that is Thar is yet to be recovered.9.Learned counsel for the respondent No. 2 vehementlyopposed the submissions of the appellants. He would submitthat offence U/Sec. 3(2)(va) of the Atrocities Act is attractedbecause the allegations against the appellants would squarelyfall in scheduled offfence. He adopted the submissions of thelearned A. P. P. It is submitted that when ad-interim relief wasgranted to appellant – Shiv, respondent No. 2 was not heard. Allfacts were not brought to the notice of this Court. Appellant –Shiv is absconding and he is history sheeter and custodialinterrogation is required for further investigation. 6 cri appeal 982.24 with cri appeal 101310.Having heard the litigating sides and after having gonethrough the relevant papers of investigation what emerges isthat co-accused Shivram engaged contract killers to eliminatethe deceased because of political rivalry. The co-accused gave Rs.50,000/- to co-accused Jayesh for purchasing revolver. On18.07.2024 in night hours, co-accused Shivram, Jayesh, Vikas,Sagar, Bharat met the deceased and they consumed liquor atMahesh Beer Shopee opposite of Hotel Swaraj. Thereafter,deceased was carried in a Honda city car of black colour. In carhe was assaulted by Jayesh, Sagar and Vikas. His body wasthrown in the lonely place. Thereafter, the car was left strandedand present appellant - Shiv was called on telephone to bringcloths and car to escape the co-accused. Thereafter, appellant -Shiv reached the spot collected the co-accused and took them toHotel Jay Maharashtra Ladgaon, where co-accused was waitingfor them. From there all the co-accused escaped in a car.11.From the statements of witnesses namely Bhausaheb,Suraj, Kamran, Rajesh, Vicky, Sudam, it is transpired that co-accused Shivram is the mastermind and who was apprehendingthat deceased would kill him because of the old rivalry. Before itcould happen, he hatched conspiracy, engaged contract killerswho actually assaulted the deceased in the car. The roleattributed to the appellant – Amar is that he is the brother-in-law of Shivram and was always accompanying him whilehatching a planning. He paid Rs. 50,000/- to co-accused Jayeshto purchase a pistol. He was in touch with other co-accused 7 cri appeal 982.24 with cri appeal 1013before and after commission of offence. A fortuner car was seizedfrom his custody.12.As against appellant – Shiv, the allegations are that he isabsconding and history sheeter. He acted at the instructions ofmain perpetrators. Immediately before the commission of offencehe was near the location. After receiving a call from co-accusedhe promptly arrived at a decided place to collect the co-accused.He facilitated them to escape from the site.13.The actual assault is committed by co-accused Jayesh,Vikas, Sagar and Bharat. They acted at the instance of co-accused Shivram. It is not the case of the prosecution that therewas any rivalry or animosity directly between appellants and thedeceased. The statements of the witnesses do not show directinvolvement of the appellants in the offence in question. Noweapon is recovered from them.14.The statement of Bhausaheb shows that on 17.07.2024 co-accused - Shivram and Amar had been to the Hotel JayMaharashtra run by the witness. Few person met them andlateron it was transpired that they were the main perpetrators.Similarly a statement of Suresh son of co-accused Shivram showsthat on 16.07.2024 appellant – Amar and himself had been toHotel Jay Maharashtra to hand over Rs. 50,000/- to Jayesh. Thepresence of appellant – Amar is mentioned by couple ofwitnesses, but that is not sufficient to show that he was part of 8 cri appeal 982.24 with cri appeal 1013conspiracy at this juncture. There is no direct evidence on thepoint that appellant – Amar or appellant - Shiv are the actualconspirators.15.The appellant – Shiv is alleged to have helped the co-accused and facilitated their escape. In his case also at thisjuncture there is no material to connect him directly to thecommission of offence. It is further alleged that both theappellants were in contact with other co-accused which can beseen from the call log. This possibility cannot be ruled out. Theprosecution will have to establish during trial complete chain ofevents. Simultaneously, at this juncture it cannot be said thatboth the appellants are innocent.16.The charge sheet is filed on 25.09.2024. The investigationis complete. I am not convinced that there is incriminatingmaterial against the appellants to deny them bail. From thematerial on record there is room to raise suspicion against them.But the prosecution will have to undertake the exercise ofproving complete chain of circumstances to bring home the guiltof the appellants.17.In case of appellant – Shiv, ad-interim protection wasgranted on 29.10.2024. The charge sheet was filed on 30.07.2024U/Sec. 335 of the Bhartiya Nagarik Suraksha Sanhita, 2023against him. He was not available for the investigation. Hisinterim protection can be continued by imposing additionalconditions. If the investigating officer with the approval of the 9 cri appeal 982.24 with cri appeal 1013Special Judge wants to undertake further investigation, probablythe need of custodial interrogation will arise. In thatcontingency, I find it fit to grant liberty to the investigatingofficer to seek modification of order of his protection, albeit,subject to the reasons to be recorded in the application and theorder of further investigation.18.In view of my reasons stated above, I find that the learnedSpecial Judge committed illegality and arbitrarily rejected theregular bail of appellant – Amar and pre-arrest bail of appellant -Shiv. I, therefore, pass following order.O R D E RI.Criminal Appeal No. 1013 of 2024 and Criminal Appeal No.982 of 2024 are allowed by quashing and setting aside theimpugned orders rejecting regular and anticipatory bailsrespectively.II.In case of Criminal Appeal No. 1013 of 2024 Appellant –Amar @ Sonu Suresh Shinde shall be released on bail on hisfurnishing personal bond of Rs. 70,000/- (Rs. Seventy thousandsonly) with one solvent surety of like amount on followingconditions :(i)He shall provide his whereabouts and mobile/contact number to the investigating officer.(ii)He shall not tamper with the prosecution witness or in any way contact them.
Decision
10 cri appeal 982.24 with cri appeal 1013IIIIn case of Criminal Appeal No. 982 of 2024 the ad-interimprotection granted on 29.10.2024 in faour of appellant - Shiv @Sandesh S/o Manoj Nandwanshi shall continue with theconditions mentioned therein and additionally followingconditions are imposed.(i)The appellant - Shiv @ Sandesh S/o Manoj Nandwanshi shall co-operate with the investigating officer and shall make him available as and when called for further investigation.(ii)The appellant shall provide his contact/mobile number.IV.It would be open for the investigating officer by seekingprior approval of the learned Special Judge to undertake furtherinvestigation and for that purpose to apply formodification/cancellation of the protection granted by this Court.V.The learned Special Judge shall independently consider theapplication so submitted by the investigating officer withoutbeing influenced by the observations and minutes of this orderand decide it on its own merits.VI.Both the criminal appeals are disposed of in above manner. [ SHAILESH P. BRAHME J. ] bsb/April 25