High Court
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{1} APEAL-973-2023IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 973 OF 2023Shivaji Yeshwant Tidke...AppellantVersusThe State of Maharashtra & Another ...Respondents Mr. Avinash Hande, Advocate for appellant.Mr. S.B. Jadhav, APP for State.Mr. S.G. Magare, Advocate for respondent No. 2. WITHCRIMINAL APPEAL NO. 974 OF 2023Narayan Vishwanath Tidke...AppellantVersusThe State of Maharashtra & Another ...RespondentsMr. Avinash Hande, Advocate for appellant.Mr. S.B. Jadhav, APP for State.Mr. S.G. Magare, Advocate for respondent No. 2. WITHCRIMINAL APPEAL NO. 985 OF 2023Krishna Govindrao Tidke...AppellantVersusThe State of Maharashtra & Another ...RespondentsMr. R.K. Ingole, Advocate for appellant.Mr. S.B. Jadhav, APP for State.Mr. S.G. Magare, Advocate for respondent No. 2. WITHCRIMINAL APPEAL NO. 1016 OF 2023Bhagyawant Punde
Legal Reasoning
{2} APEAL-973-2023Madhav Govind Tidke...AppellantVersusThe State of Maharashtra & Another ...Respondents Mr. S.R. Bagal h/f. Mr. B.N. Gadegaonkar, Advocate for appellant.Mr. S.B. Jadhav, APP for State.Mr. S.G. Magare, Advocate for respondent No. 2. WITHCRIMINAL APPEAL NO. 1027 OF 2023Nilkanth Ganesh Tidke...AppellantVersusThe State of Maharashtra & Another ...Respondents Mr. Avinash Hande, Advocate for appellant.Mr. S.B. Jadhav, APP for State.Mr. S.G. Magare, Advocate for respondent No. 2. WITHCRIMINAL APPEAL NO. 1037 OF 2023Baburao @ Babarao Sonaji Tidke...AppellantVersusThe State of Maharashtra & Another ...Respondents Mr. S.J. Salunke, Advocate for appellant.Mr. S.B. Jadhav, APP for State.Mr. S.G. Magare, Advocate for respondent No. 2. ....... [CORAM : NITIN B. SURYAWANSHI, J.] RESERVED ON: 4 th JANUARY, 2024 PRONOUNCED ON: 31 st JANUARY, 2024 Bhagyawant Punde {3} APEAL-973-2023ORDER :1.These appeals filed under section 14-A(2) ofScheduled Caste and Scheduled Tribes (Prevention of Atrocities)Act, 1989 (for short ‘Act of 1989’), challenge rejection of bailapplications of appellants by Sessions Court, Nanded.2.Appellants are arrayed as accused in FIR at CrimeNo. 392/2023, registered with Nanded (Rural) Police Station, foroffences punishable under sections 302, 307, 324, 323, 114,115, 336, 294, 143, 147, 148, 149, 504 of Indian Penal Codeand under section 3(1)(r)(s), 3(2)(v), 3(2)(va) of Act of 1989and under section 4 read with Sections 25 and 27 of Arms Act.3.Aakash Bhalerao, a member of Scheduled Castelodged FIR alleging that on 01.06.2023, at about 7.30 pm, atvillage Bondar, he and deceased went to purchase grocery. Atthat time, marriage procession of Narayan Tidke, a member ofMaratha community was in progress and people were dancing onthe music played on DJ system. Accused persons were carryingweapons like sword, daggers, sticks and wooden poles whiledancing in procession. At about 7.30 pm, after seeing informantand his brother, accused Santosh Tidke abused them in thename of their caste. He also said that as to how they took outBhagyawant Punde {4} APEAL-973-2023Bhim Jayanti procession in the village and they should be killed.Then Krishna Tidke, Nilkanth Tidke, Narayan Tidke and ShivajiTidke all assaulted his brother Akshay with dagger on hisstomach. When informant tried to intervene Madhav Tidke,Baburao Tidke and Balaji Mungal abused him and assaulted himwith kick and fist blows. Datta gave blow of dagger on his leftarm, therefore, he sustained injury. At that time, accusedpersons also assaulted his mother. Due to said assault Akshaydied and informant and his mother sustained injuries.4.Appellants were arrested pursuant to registration ofcrime and on completion of investigation charge sheet is filed.Sessions Court rejected respective bail applications filed byappellants under section 439 of Cr.P.C. Hence, these appeals.5.Heard learned advocates for appellants, learned APPfor respondent-State and learned advocate for respondent No. 2.6.Learned advocates for appellants submitted thatappellants have not assaulted deceased with any weapon. Theyhave not participated in homicidal death of deceased Akshay.Merely, because appellants were present in procession it cannotbe said that they were part of unlawful assembly. No recovery isBhagyawant Punde {5} APEAL-973-2023effected from appellants. Merely because appellants are from thebrotherhood of Tidke group which is a rival group of informant’sBhalerao group, they are arrayed as accused. None of thewitnesses have stated about active participation of appellants inthe crime. Appellants are bread earners of their family and theymay be released on bail and since charge sheet is filed, furthercustodial detention of appellants is not necessary. Reliance isplaced on order passed by this Court (Coram: R.M. Joshi, J.) inCriminal Appeal No. 781 of 2023, thereby releasing one of co-accused namely Balaji Mungal on bail. It is therefore claimedthat on the ground of parity also appellants are entitled to bereleased on bail.7.Learned advocate for respondent No. 2 vehementlyopposed the appeals. He submitted written notes of argumentsand compilation of citations in support of his argument thatassembly of accused persons was unlawful from its veryinception as accused persons were carrying weapons like sword,dagger, wooden sticks, wooden poles and knives, which werebanned by notification dated 26.05.2023 issued by AdditionalDistrict Magistrate, Nanded under the provisions of Section 37(1)(3) of Maharashtra Police Act. It is submitted that each ofBhagyawant Punde {6} APEAL-973-2023accused is as guilty as accused stabbing the deceased. Relianceis also placed on Section 8 of Act of 1989, which raises apresumption. According to him, there was a pre-existing disputein relation to procession carried out on Amedkar Jayanti. It issubmitted that accused persons have committed serious offenceof murder of young person and therefore they do not deservebail. In support of his submissions, he relied on Dani Singh andothers v. State of Bihar, (2004) 13 SCC 203, KattukulangaraMadhavan v. State of Kerala (2017) 5 SCC 568, Ajwar v. NiyajAhmad and another, 2022 SCC OnLine SC 1403, Jayaben v.Tejas (2022) 3 SCC 230, Ramesh Bhavan Rathod vs. VishanbhaiHirabhai Makwana (Koli) and another (2021) 6 SCC 230, RohitBishnoi v. State of Rajasthan 2023 SCC OnLine 870, HariramBhanbi v. Satyanarayan, AIR 2021 5610 and Sundeep KumarBafna v. State of Maharashtra and another, (2014) 16 SCC 623.8.Heard learned advocates for appellants, learned APPfor respondent-State and learned advocate for respondent No. 2at length. Perused investigation papers, written notes ofarguments and citations.9.Charge sheet in the present matter is filed on14.07.2023 against nine accused persons named in the FIR.Bhagyawant Punde {7} APEAL-973-2023Appellants namely Shivaji Tide (A-7), Narayan Tidke (A-4),Madhav Tidke (A-5), Nilkanth Tidke (A-3), Krishna Tidke (A-6),were arrested on 02.06.2023 and appellant and Babarao @Baburao Tidke (A-9), was arrested on 24.06.2023. From chargesheet it transpires that weapons used in the crime i.e. twodagger, one sword, and six sticks are seized in the investigationfrom Santosh Tidke (A-1). Actual assault with dagger ondeceased and informant is also attributed to Santosh Tidke (A-1)and Datta Tidke (A-2).10.Post mortem report shows following injuries on theperson of deceased:-i)Stab injury over epigastric and left hypochondriac region, obliquely placed 3cm below left subcostal margin.(ii)Graze abrasion present over lateral aspect of right forearm, lower part, of size 7cm X 3cm.(iii)Graze abrasion over right trapezoid region of size 6.5cm X 2cm.(iv)Graze abrasion over left arm, posterior aspect upperpart, of size 1.5cm X 05.cm.(v)Contused abrasion present over back of right elbow of size 1cm X 1cm.(vi)Contused abrasion present over shin of right tibia upper 3rd part of size 1cm X 1cm.(vii)Contused abrasion present over dorsum of second toe of right foot of size 1cm X 0.5cm.(viii)Contused abrasion present over right side of back, 5cm below lower angle of scapula of size 0.5cm X Bhagyawant Punde {8} APEAL-973-202305.cm. 11.Perusal of injury certificate of informant shows thathe has suffered one incised wound on left arm, which isattributed to Datta (A-2). Injury certificate of informant’s mothershows that she has suffered blunt trauma on right knee andparital avulsion of right great toe (foot).12.Prima facie, stab injury and incised wound ofinformant are attributable to Santosh Tidke (A-1) and DattaTidke (A-2). Admittedly, incident has taken place while marriageprocession was going on, therefore, it cannot be said to bepremeditated. The incident is alleged to have taken place at theinstance of Accused No. 1 and 2. Most of grazed abrasions andcontusions are suffered by deceased on back side of his body.These injuries are possible due to fall and friction of body withroad.13.In the FIR specific allegations are levelled againstKrishna Tidke (A-6), Nilkanth Tidke (A-3), Narayan Tidke (A-4)and Shivaji Tidke (A-7) that they assaulted deceased with sticks,kicks and fist blows. They also instigated accused No. 1 and 2 tokill deceased. So far as Madhav Tidke (A-5) and Baburao Tidke(A-9) are concerned it is alleged that they assaulted informantBhagyawant Punde {9} APEAL-973-2023with fists and kick blows. It is further alleged that Madhav Tidke(A-5) and Baburao Tidke (A-9) assaulted informant’s mother withsticks and stone.Column No. 17 of post mortem report does not showinjuries caused by sticks, fists and kick blows on the body ofdeceased, which are attributable to appellants- Krishna Tidke,Narayan Tidke, Shivaji Tidke and Nilkanth Tidke. In the FIR it isspecifically alleged by informant that Krishna Tidke, NilkanthTidke, Narayan Tidke and Shivaji Tidke assaulted deceased withsticks, kicks and fists blows. But, there are no correspondinginjuries in the post mortem report. It is further alleged in the FIRthat these accused instigated Accused No. 1 and 2 to kill thedeceased. It is difficult to believe that all these accused in chorushave instigated accused No. 1 and 2 to kill deceased and calledname of cast of deceased. Prima facie, possibility cannot beruled out that appellants are implicated, as they participated inthe marriage procession.14.In the FIR there is no allegation that Baburao Tidke(A-9) assaulted deceased. Allegation against him is that he alongwith Balaji Mungal (A-8) and Madhav Tidke (A-5) assaultedinformant with kicks and fists blows and he with Madhav TidkeBhagyawant Punde {10} APEAL-973-2023(A-5) assaulted mother of informant with sticks and stone.15.This Court has released co-accused Balaji Mungal (A-8), who is similarly situated like Baburao Tidke (A-9). This Courtwhile releasing Balaji Mungal (A-8) has observed; ‘Though Sections 147, 148 and 149 of IPC are sought tobe made applicable to the present appellant butpertinently there is no role at all shown by informanthimself in the assault caused on the brother of theinformant. As recorded earlier it is the incident was notpremeditated. Spontaneity of the incident is not ruledout. As far as the carrying weapon like sword and daggerin the marriage procession is concerned, the photographplaced on record by the learned counsel for the informantshows that the bridegroom is seen holding the sword inhis hand and someone else displaying dagger. Rightly orwrongly there is practice followed of carrying suchweapons in the procession which is known fact.Therefore, it cannot be held at this stage that theweapons were carried in order to cause assault onsomeone. Prima facie breach of prohibiting order, inpresent case is not sufficient to attach premeditation touse these weapons or common object being stood by allaccused cannot be inferred.’Therefore, on the ground of parity Babarao @Baburao Sonjai Tidke (A-9) is entitled to be released on bail.16.While opposing appeals, learned advocate forinformant has placed strong reliance on Dani Singh (supra),Kattukulangara Madhavan (supra), Ajwar (supra) and JayabenBhagyawant Punde {11} APEAL-973-2023(supra), which are on the point of common object under section149 IPC. In the facts of present case, since, incident has takenplace while marriage procession was going on, it cannot be saidthat common object of accused was to kill the deceased.17.Ramesh Rathod (supra), is on the point of parity withco-accused and manner in which parity is to be determined.There cannot be any dispute about proposition of law laid downin the said case.18.In Rohit Bishnoi (supra), Apex Court has emphasizedthat there should be reasoned order while granting bail undersection 439 Cr.P.C.19.Hariram Bhanbi (supra), in which plea seekingcancellation of bail was rejected by the High Court and ApexCourt cancelled the bail on the ground that there is absolutely noreasoning in the order of High Court granting bail.20.In the present case, it is not the case of prosecutionthat appellants were carrying dangerous weapons like daggerand sword. Those allegations are not attributed to appellants. Itis common knowledge that in marriage procession it is generalpractice to carry dagger and sword, but not sticks. AppellantsBhagyawant Punde {12} APEAL-973-2023are arrested on 02.06.2023 and 24.06.2023 and since then theyare in jail. Trial is not likely to commence in near future. Allappellants are permanent residents of their native village havingmovable and immovable properties and they are not likely toabscond if released on bail. There are no criminal antecedentsagainst them. Therefore, appellants are entitled to be releasedon bail. Hence, the following order: ORDER(i)Criminal Appeal Nos. 973 of 2023, 974 of 2023, 985 of2023, 1016 of 2023, 1027 of 2023 and 1037 of 2023are allowed.(ii)Order dated 03.10.2023 passed by learned AdditionalSessions Judge, Nanded, below Exhibit Nos. 2, 21, 22,28 and order dated 12.10.2023, below Exhibit-15 inSpecial Case No. 99/2023, are hereby quashed and setaside.(iii)Appellants- Shivaji Yeshwant Tidke, NarayanVishwanath Tidke, Krishna Govindrao Tidke, MadhavGovind Tidke, Nilkanth Ganesh Tidke and Baburao @Babarao Sonaji Tidke be released on bail in connectionwith Crime No. 392/2023, registered with NandedRural Police Station, Dist. Nanded, for the offencepunishable under Sections 302, 307, 324, 323, 114,115, 336, 294, 143, 147, 148, 149, 504 of IndianPenal Code and under section 3(1)(r)(s), 3(2)(v), 3(2)(va) of the Scheduled Castes and Scheduled Tribes(Prevention of Atrocities) Act and under sections 4/25and 4/27 of Arms Act, on furnishing PB and SB of Rs.30,000/- (Rupees Thirty Thousand Only) each with oneBhagyawant Punde {13} APEAL-973-2023or two sureties in the like amount.(iv)They shall attend the concerned police station once ina month for period of six months from today.(v)They shall not contact the witnesses directly orindirectly.(vi)They shall not interfere with the evidence in anymanner whatsoever.(vii) Bail before Trial Court.21.High Court Legal Services, Sub Committee,Aurangabad, to pay fees of learned advocate appointed torepresent respondent No. 2, as per rules, within four weeks fromthe date of receipt of order. [NITIN B. SURYAWANSHI, J.]Bhagyawant Punde