High Court

Legal Reasoning

( 1 ) 28 cri apeal 1086.24IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD28 CRIMINAL APPEAL NO. 1086 OF 20241. VINAYAK S/O. GOVINDRAO TEKALE2. VITTHAL S/O. SHRIDHAR SURYAWANSHIVERSUSTHE STATE OF MAHARASHTRA AND ORS.…..Advocate for the Appellants : Mr. Sachin S. DeshmukhAPP for Respondents/State : Ms. Ashelsha S. DeshmukhAdvocate for the Respondent No.3 : Mr. S.S. Thombre…..CORAM : Y.G. KHOBRAGADE, J.RESERVED ON :17.02.2025 PRONOUNCED ON :25.02.2025ORDER:-1.By the present appeal under Section 14-A of the Scheduled Casteand Scheduled Tribe (Prevention of Atrocities) Act, 1989 r/w Section 483 ofthe Bhartiya Nagarik Suraksha Sanhita, 2023 (BNSS), the Appellants/Accusedtakes exception to the order dated 13.12.2024 passed by the learned SpecialCourt (Atrocities) in Special (Atro) Case No.131/2024, whereby rejecting theapplication for bail in Crime No.496/2024 for the offence punishable underSection 107, 106(1), 238 read with 3(5) of Bhartiya Nyay Sanhita, 2023 (forshort BNS) and Section 3(1)(v), 3(1)(vi) of the Scheduled Caste and ( 2 ) 28 cri apeal 1086.24Scheduled Tribe (Prevention of Atrocities) Act, 1989 (for short the SC & STAct).2.Having regard to the submissions canvassed on behalf of both thesides, I have gone through the record. It is a matter of record that, on30.07.2024, the Informant Shri Sahdev Ganpati Tarkase lodged a report withMIDC Police Station, Latur alleging that, his nephew Arvin son of RajebhauKhope (hereinafter referred as deceased) was pursuing studies in 7th Std., inSwami Vivekanand Secondary School, MIDC Latur. The said school is attachedwith hostel facility. The deceased had undergone surgery for Appendix. On24.07.2024, the deceased left the hostel without informing anyone and visitedhis native place. This fact was informed by mother of deceased to theinformant. On 27.07.2024, the deceased-Arvin visited the house of theinformant and on same day, he (Informant) received a phone call from Smt.Damyanti, the mother of deceased, who told him about sending the deceasedat his home after visiting the hospital. Since, school was closed on account of Saturday and Sunday, therefore, deceased Arvin halted in his house for twodays. On 29.07.2024 at about 8.30 p.m., his son dropped the deceased-Arvinin the school but subsequently he received a phone call from Smt.Damyanti,mother of the deceased, who informed him about receiving a phone call fromclass teacher of deceased stating about blood is oozing from appendix surgery ( 3 ) 28 cri apeal 1086.24wound, hence, Arvin was taken to the hospital but Medical Officer was notavailable. Since, he (Informant) was busy in his work therefore he sent hisson Rohan to see Arvin in his school. Thereafter, Rohan, the complainant’sson visited the school of Arvin at about 3.30 pm to 4.00 pm and he came toknow that, Arvin is not present in the school. When his son inquired with theSupervisor of the hostel at that time his son was informed that Arvin has fledfrom the hostel by jumping the compound wall. Therefore, he inquired withSmt. Damyanti, the mother of victim about visit of Arvin at the house.Thereafter, he came to know that, Arvin did not visit at his native place.Thereafter, he made an inquiry with the relatives about visit of Arvin but hewas not traceable. In the meanwhile, at about 11.00 pm., the informant withhis relatives visited the school of Arvin but the Appellant No.1-VinayakGovindrao Tekale had informed him on phone about suicide committed byArvin in the hostel premises. When he tried to entered into the hostel theWatchman stopped him at the gate and restrained him to enter into hostel butthe informant forcefully entered in the hostel. After the informant enteredinto the hostel he observed about gossiping by the students on second floor ofhostel regarding whereabouts of Arvin but one student disclosed him aboutpresence of Arvin (deceased) in office room of the hostel. Therefore, he visitedsaid office but it was closed and after he opened the latch of the door hefound about one boy lying on the floor covered with the blanket. The ( 4 ) 28 cri apeal 1086.24informant further alleged that, after he removed the blanket, he noticed that,Arvin was already dead. His tongue was between the teeths, eyes wereclosed. On the basis of said complaint FIR bearing Crime No.0496/2024 wasregistered on 30.07.2024 with MIDC Police Station against the Appellants forthe offence punishable u/s. 3(5), 238, 106(1) of BNS.During course ofinvestigation it was revealed that, the deceased belonged to SC community,therefore, considering the allegations made in the Report as well holding boththe Appellants responsible for suicidal death of the deceased, offences underSection 3(1)(v), 3(1) (vi) of the SC & ST Act came to added.3.The Investigating Officer Ranjit Sawant, Sub-Divisional PoliceOfficer conducted the investigation. Both the Appellants were arrested on01.08.2024 and they were produced before the Special Court. Both theaccused were remanded in PCR. On 06.08.2024, the learned Magistratepassed an order and remanded both the Accused to the MCR. TheInvestigation Officer visited the spot of incident and drawn spot panchanama,Inquest Panchanama on dead body was done and the dead body of thedeceased was referred to post mortem. The Investigating Officer has recordedstatements of witnesses namely, Anita Tarkale, Aniket Ugalmugale,Rameshwar Sabne, Mahesh Rapanwad, Yash, Athawale, Rudraksh Hotkar,Sujit Pole, Anita Borade (Nurse) attached with Rajmata Jijau Adiwasi Boys ( 5 ) 28 cri apeal 1086.24and Girls Hostel, Dnyandeo Madibone, Amol Sakhre, Madhav Shinde, KrishnaKendre, Shivraj Mote, Damyanti Khope, Suraj Tarkase, Rohan Tarkase, SanjayBiradar, Govind Shinde etc. The Investigating Officer collected post mortemreport and after completion of investigation the I.O. filed a charge-sheetagainst the present Appellants.4.The Appellants filed Exh.11 in Special (Atro) Case No.131/2024under Section 438 of the BNSS, 2023 and prayed for bail in CrimeNo.496/2024 registered with MIDC Police Station, Latur. On 13.12.2024, thelearned Additional Sessions Judge, Latur, passed the impugned order holdingthat, previous application for bail before filing of charge-sheet has beenrejected on merit. There are no substantial changes subsequent to filing of thecharge-sheet. Being aggrieved by said order, the Appellants have invoked thejurisdiction of this Court under Section 14-A read with Section 483 of BNSS,2023.5.The learned counsel appearing for the Appellants canvassed that,while passing the impugned order dated 13.12.2024, the learned trial Courtfailed to consider the provisions of Section 45 of the BNS Act as well asprovisions of S.C. & S.T. Act. It is canvassed that, the FIR does not discloseabout abusing the deceased on his caste in public view. Further as perstatements of the witnesses, the deceased-Arvin was operated in recent past ( 6 ) 28 cri apeal 1086.24for Appendix and blood was oozing from surgical wound. The deceased wasalways complaining about stomach pain and had also left the hostel withoutinforming to the school and hostel authorities. Further the deceased was notinterested to pursue the studies. The material produced on record does notreveal that the accused persons abetted the deceased to commit the suicide.The investigation is over and I.O. has filed the charge-sheet. Therefore, furthercustody of the present Appellants is not required, hence, prayed for release ofthe Appellants/accused on bail during the pendency of the trial.6.It is further canvassed that, the I.O. collected CCTV footage ofcameras installed in the hostel and school premises, however, none of theCCTV footage shows that, the Appellants abused the deceased in his caste andinstigated him to commit the suicide. The Appellants/Accused are localpermanent residents, hence, there is no possibility of them absconding. TheAppellants/Accused are ready and willing to abide any terms and conditionswhich may be imposed by this Court, therefore, prayed for enlarging both theAppellants on bail during the pendency of the trial.7.The prosecution has filed affidavit in reply of Mr. Ranjit Sawant.The Sub-Divisional Police Officer and strongly opposed the bail application.The learned APP canvassed that, on 01.08.2024, the Appellants/Accused werearrested and initially they were remanded in PCR till 06.08.2024, however, ( 7 ) 28 cri apeal 1086.24subsequently, the learned Special Court remanded the Appellants in MCR.During course of investigation, the I.O. recorded the statements of total 24witnesses and collected CCTV footage of all cameras installed in the schooland hostel premises. As per post mortem report, death of deceased was causeddue to ligature constriction of neck. The deceased committed suicide in thebathroom of hostel. The Accused persons told the victim as to why he visitedthe hostel as he is having stomach pain, ‘let he go at his native and after thestomach pain is cured he should attend the school. If he does not wish topursue study let he die at his native, and he should disappear from there.Therefore, the act of the Appellants prompted the deceased to commit suicide,hence, prayed for rejection of the bail.8.Adv. Thombre, the learned counsel appearing for the RespondentNo.3 strongly opposed the bail application on the following grounds:i)Smt. Damyanti, the mother of the deceased had informed the Respondent No.3 about receiving a phone call from class teacher of deceased-Arvin complaining bleeding from Appendix surgery wound and he was sent to the hospital but the Medical Officer was not present.ii)Mother of deceased had requested the Respondent No.3 to visit the school of the deceased and Shri Rohan, the son of informant had visited the school but the deceased was not found. ( 8 ) 28 cri apeal 1086.24iii)The hostel In-charge informed to Rohan that deceased jumped the compound wall and fled away from the hostel.iv)All the relatives searched for deceased-Arvin at bus stop, Railway Station and various other places but he was untraceable. Thereafter, all relatives of deceased visited Swami Vivekanand Madhyamik Vidyalaya but prior to their visit, the Appellants informed the Respondent No.3 on phone that the deceased hascommitted suicide in the hostel by hanging. v)The Watchman of hostel restrained the Respondent No.3 to enter in hostel till arrival of the Appellant No.1.vi) As per the statements of witnesses, the Appellant No.1 had told the deceased “as to why he returned from his native, he frequently fall ill due to stomach pain, let he go at his village and die”.vii) The Accused No.2 told the deceased “whether his stomach pain isreal or he is doing drama” and “if he does not wish to pursue his study let he go at his native and he should not come back and disappear”. Therefore, the act of the present Appellants certainly reveal instigation on their part due to which the deceased committed suicide.9.The learned counsel appearing for the Respondent No.3 furthercanvassed that, as per the spot panchanama the size of bathroom is 42x38. ( 9 ) 28 cri apeal 1086.24The door of bathroom is of fiber ad-measuring 70x26, having laches andhandle in center. As per panchanama of CCTV footage, the CCTV NVR wasclosed w.e.f. 15.40 hours to 15.57 hours, however,at about 14.54.20 hours thedeceased-Arvin entered in hostel by carrying footwear in his hand and atabout 14.59.10 hours the deceased was seen while proceeding towardsbathroom. Again at about 15.05.35 hours the deceased was seen whileproceeding towards bathroom by carrying footwear in his hand. As per postmortem report, the Medical Officer found injuries/ ligature marks around theneck of the deceased. Therefore, the Appellants/accused have committedmurder of the deceased and depicted a picture that, the deceased hadcommitted suicide. Therefore, the Respondent No.3 filed Criminal WritPetition No.1893/2024 before the Division Bench of this Court and prayed forissuance of direction to register a crime for the offence u/s 103 of the BNS2023 against the present Appellants. Therefore, if the Appellants/Accused arereleased on bail in that event there is possibility of tampering the witnesses,issuing threats and fleeing away from custody of the Court, hence prayed fordismissal of the appeal.10.Having regard to the rival submissions, I have gone through therecord. On perusal of post mortem Report it appears that, the Medical Officernoted about surgical hypopigmented scar mark over right iliac region, stature- ( 10 ) 28 cri apeal 1086.24144 cm. The Medical Officer also found incomplete ligature mark over neck,merging with hairline, absent over posterior region situated at the level ofthyroid cartilage. Ligature mark is found dry and reddish brownish. Totalneck circumference is 28.5 cm as well as abrasion over right iliac fossa region2x0.5 cm, dry brownish blackish scrab present situated 5 cm obliquely fromanterior superior iliac spine, abrasion over left shoulder anteriorly 3x1 cmreddish, multiple abrasions between two scapulas 8x4 cm. The injury nos.1, 2and 4 to 9 are fresh and injury no.3 is about 3 - 7 days old. 11.Needless to say that, while lodging the FIR, the informant has notalleged about abusement to the deceased in his caste. The FIR does notdisclose that, the present Appellants belong to upper caste than the victim. Onperusal of FIR, it prima facie appears that, the deceased-Arvin was havingappendix problem and he was operated for said ailment. Therefore, it appearsthat he was complaining about stomach pain. It is a matter of record that,prior to 24.07.2024, the deceased-Arvin had left the school and hostel withoutgiving intimation to his school friends and teachers as well as hostel Warden.On 24.07.2024, mother of deceased- Smt. Damyanti made a phone call to theinformant asking about sending the deceased to him after attending thehospital. It further appears that, the deceased stayed in the house ofcomplainant on Saturday and Sunday i.e. 25.07.2024 and 26.07.2024. ( 11 ) 28 cri apeal 1086.24Thereafter, on 29.07.2024, Master Suraj, the Informant’s son dropped thedeceased-Arvin in his school to appear for examination. Subsequently, theinformant received a phone call from mother of the deceased- Smt. Damyantiinforming about receiving phone call from class teacher of Arvin about bloodoozing from surgical wound of appendix. The deceased was sent to thehospital but the Medical Officer was not available, therefore, the deceased wastaken to the Nurse Ms. Anita Borade.12.The statement of Ms. Anita Borade (Nurse) shows that, on29.07.2024 at about 2.20 hours she had contacted the mother of the deceasedon cell no.9921777554 and had informed about cleaning of surgical wound ofArvin. At that time, she was informed by mother of deceased that since thedeceased may not wish to stay in the hostel, therefore, he might be doing allthese activities. So also, in the past the deceased was not willing to stay in thehostel in spite payment of fess. As per the statement of nurse, she talked withthe mother of victim for 13 minutes and 9 seconds and after givingunderstanding to the deceased, she left towards the hall. At about 4.15 hourswhen she was coming from her resident quarter at that time she noticed thatthe relatives of deceased-Arvind searching for him. Thereafter, at about 10.30pm she came to know that, the deceased committed suicide with the help ofhis shirt by hanging in the bathroom of the hostel. ( 12 ) 28 cri apeal 1086.2413.The investigation papers does not reveal that the InvestigatingOfficer seized any suicide note. Merely, the deceased child belonging to SC &ST caste and he has committed suicide in the hostel, it does not ipso factoattracts provisions of SC, ST Atrocities Act. The material placed on record,shows that, the deceased was complaining about stomach pain and had leftthe school and hostel without giving intimation to anyone, on insistence of hismother, he was brought at the hostel. The investigation is over and the I.O.has already filed the charge-sheet against the Appellants/Accused. Therefore,further custody of the Appellants is not required for any interrogation purposeand some time will take place to conclude the trial. Therefore, taking intoaccount the golden rule that, the bail is rule and jail is exception”, theAppellants are entitled for bail during pendency of trial in Special (Atro) CaseNo.131/2024 arising out of Crime No.496/2024 under Sec. 107, 106(1), 238read with 3(5) of Bhartiya Nyay Sanhita, 2023 (for short BNS) and Sec. 3(1)(v), 3(1)(vi) of the Scheduled Caste and Scheduled Tribe (Prevention ofAtrocities) Act, 1989 on stringent conditions.14.In view of above, I am inclined to allow the present appeal andproceed to pass the following order: ( 13 ) 28 cri apeal 1086.24ORDER:i)The impugned order dated 13.12.2024 passed by the Special Court / Additional Sessions Judge, Latur below Exh.11 in Special (Atro)Case No.131/2024 is hereby quashed and set aside.ii)The Appellant No.1- Vinayak Govindrao Tekale and Appellant 2- Vitthal Shridhar Suryawanshi are hereby released on bail during the pendency of trial in Crime No.496/2024 for the offences Section 107, 106(1), 238 read with 3(5) of Bhartiya Nyay Sanhita, 2023 (for short BNS) and Section 3(1)(v), 3(1)(vi) of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 on execution of PRbond of Rs.50,000/- each with two solvent sureties each in the like amount.iii)The Appellants shall not issue threats or pressurize any witnesses and they shall not tamper the prosecution evidence.iv)The Appellants shall cooperate for conclusion of trial and shall punctually attend dates of the trial.v)It is made clear that the observations made herein-above are onlyprima facie and confined to the decision of this appeal and the trialJudge shall not get influenced by them. [Y.G. KHOBRAGADE, J.] mub