Ashok Maluram Munde Vs the State of Maharashtra and Another

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(1)

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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911 BAIL APPLICATION NO.1333 OF 2021

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WITH

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APPLN/2897/2021 IN BA/1333/2021

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VILAS ANNA MUNDE

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VERSUS

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THE STATE OF MAHARASHTRA

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Advocate for Applicant : Mr. Salunke Sudarshan J Mr. VM Kagane, APP for Respondent-State; Mr. AM Karad, Adv. To assist APP

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 -----

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CORAM: SMT.VIBHA KANKANWADI,J.
DATE : 9th December, 2021

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PER COURT :-

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1.The application moved to assist learned

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APP is allowed and disposed of.

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2.Present application has been filed under
section 439 of Cr.P.C.The Applicant is

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original accused No.1, arrested in CR No.328/2020
dated 18.12.2020, registered with Dharur police
station, District Beed, for the offences punishable
under sections 302, 307, 325, 323, 143, 147, 148,
149, 504, 506 of IPC and under Section 4/25 of
Indian Arms Act.

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(2)

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3.It has been vehemently submitted on

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behalf of the applicant that as per the FIR, which
has been lodged by one of the injured, it is stated
that the present applicant had made deceased
Maluram to lie on the ground and thereafter
assaulted him by an iron rod. He further states
that when he went to rescue father, he was
assaulted by co-accused – Umesh with the help of a
sword on his head. The informant had seen co-
accused Anna Sampati Mundhe (now deceased) was
assaulting deceased Maluram by means of stone. At
the outset, this FIR has been lodged on 17.12.2020
in respect of the incident that had taken place on
15.12.2020 There is inordinate delay in lodging
the FIR which was then filed under Section 307 of
IPC. However, thereafter Maluram expired on

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21.12.2020 and Section 302 of IPC came to be added.
Now, the investigation is over and charge shet is
filed and, therefore, further physical custody of
the applicant is not required for the purpose of
investigation.

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4.In respect of the same incident, the
applicant had filed an FIR with the same police

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(3)

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station bearing CR No.326/2020 on 16.12.2020 for
the offences punishable under Sections 324, 323,
504, 506 read with 34 of IPC. The applicant had
given reason of belated approaching to the police
station. As per the prosecution story, the incident
had seen by family members of the deceased and the
informant. However, nobody had tried to inform to
police prior to 16.12.2020. The post mortem report
of Maluram would show that he had sustained eight
injuries described in para No.17 and cause of death
has been given as Head injury (unnatural). Even if
we consider the evidence on record; yet it cannot
be said that present applicant is an author of the
injury to the head. The statements of the relatives
of the deceased and the informant would show
corroboration, which is bound to be. Reading of
both the FIRs together would show that, in fact,
the informant and his family membrs were agressors.
Now, the discovery of iron rod and other weapons
allegedly used, has been done at the instance of
the present applicant. But, the author of the
fatal blows to the head of deceased Maluram were by
Anna. Anna was arrested on 22.12.2020 and he was
in MCR till 24.12.2021. Thereafter, while in MCR,

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(4)

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he expired on 26.1.2021. Therefore, the applicant
deserves to be released on bail.

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5.Per contra, learned APP, assisted by

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learned Advocate Mr. Karad, for the informant,
submitted that though the informant and other
witnesses have not stated in clear terms as to
which part of the body of Maluram received the blow
given by the applicant with the help of iron rod,
but that has been disclosed by witness Savita, who
has specifically stated that the present applicant
had given blow by means of iron road on the head of
Maluram, after Maluram was made lie on the ground.
There is ample evidence against the present
applicant as the said injury is co-relative to the
injuries noted on the person of the deceased in
column No.17 of pm report. The Injury Certificates
of the other witnesses would also show that they
were also assaulted by the accused and his family
members. Explanation regarding delay in lodging the
FIR would be given at the time of evidence.
Therefore, when there is strong evidence against
the applicant, no leniency be shown to him.

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(5)

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6.At the outset, when charge sheet is filed
it can be presumed that further physical custody of
the applicant is not required for the purpose of
investigation. The contents of the charge sheet
are, therefore, required to be considered. As per
the FIR lodged by the injured – Ashok, the incident
had taken place around 8.00 to 8.30 pm on
15.12.2020. He states that when he was along with
his family members in the house, at that time,
present applicant, along with other persons, came
in front of his house, who were already armed with
sword, iron rod, sticks etc. Present applicant
called the informant and started asking as to why
he has lodged case in respect of kidnapping at
Sangola District Solapur. He then started asking
the informant to take back that case and started
giving threats to kill. When Maluram tried to give
advice to the applicant, the applicant instigated
the persons, who had come along with him. The
applicant then gave blow of iron rod to Maluram
after he was made to lie on the ground. The
informant was assaulted by sword on his head by
Umesh. He also states that accused Anna Sampati
Mundhe, assaulted Maluram with the stone. He has

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(6)

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also given account as to what other accused persons
done with other persons who were present there. He
tried to contend that since he had also received
severe injuries on the vital part and were taken to
the hospitals at different places, he could lodge
report only on 17.12.2020. Whether the said
explanation of delay is reasonable or not, will
have to be considered by the Trial Court. It also
appears from the documents, which have been filed
that the applicant had lodged the FIR on 16.12.2020
against the informant – Ashok, his father Maluram,
mother Mahananda and his wife Kavita. It is stated
by this applicant that when he was proceeding from

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the road, which was in front of the house of
Maluram, on his motorcycle, he was interrupted and
then they were assaulted. His mother and elder son
had come to rescue him, however, they were also
assaulted. It is to be noted that for the said
incident dated 15.12.2020, the present applicant
has lodged report on 16.12.2020 around 3.41 am.
Only fact will have to be taken note of that there
is a cross-complaint.

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(7)

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7.The charge sheet would give further fact
that accused – Anna Sampati Mundhe expired on
26.1.2021. As regards role allegedly played by the
present applicant is concerned, the other witnesses
are contending that the applicant had assaulted the
deceased Maluram with iron rod, however, they have
not explained as to which part of body of Maluram
had received the blow. Except witness Savita,
whose statement has been recorded on 18.12.2020,
i.e. two days after the FIR was lodged, which was
prior to death of Maluram, whether sole testimony
of Savita in respect of the said point, i.e. part
of the body of Maluram, which received the blow,
can be considered, would be part of appreciation of
evidence. But the fact remains that the other eye-
witnesses are not giving those details. If we
consder the PM report, especially column No.17
thereof, injury No.1 is described as abrasion -
size 5 cm X 2 cm on right parietal region of head;
10 cm supraorbital ridge; 15 cm from right mastoid
process, brownish scab seen. Second injury is
contusion to place over right eye. Third is
contusion on lateral aspect of right elbow. Injury
Nos.4, 5 are to the right and left legs. 6th

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(8)

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injury is back to shoulder and injury Nos.7 and 8
are therapeutic injection. Therefore, it appears
that there was only one abrasion, which was on the

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right parietal region of the head. It was the
surface injury. As regards column No. 19 is
concerned, which is in respect of internal
examination. It showed underscalp hematoma and
there was non displaced linear fracture to the

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skull. Cause of death has been stated to be head
injury which is of course stated to be unnatural.
As of today, it appears that the weapons, those
have been used, were seized, but they were not sent
to the Medical Office to get further opinion from

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the doctor. What has been discovered by the
applicant is, the sword ( which as per the
prosecution story, he has not used it); iron road
(which as per the prosecution story, it has been
used by present applicant) and three stones ( as
per the prosecution story the applicant has not
raised them). Therefore, taking into consideration
the fact that pm report shows only one head injury
and the spot panchanama shows that three stones

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have been seized of different shapes of which
further dimensions have not been given and the

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(9)

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statements of the witnesses say that co-accused
deceased Anna Mundhe, was seen assaulting deceased
Maluram with the stone on his head, case is made
out to release the present applicant on bail.
Hence, following order is passed, -

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ORDER

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i.The application stands allowed;

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ii.The applicant be released on
bail in connection with CR No.328/2020
dated 18.12.2020, registered with Dharur
police station, District Beed, for the
offences punishable under sections 302,
307, 325, 323, 143, 147, 148, 149, 504,
506 of IPC and under Section 4/25 of
Indian Arms Act, on PR bond of
Rs.1,00,000/-(Rupees one lakh) with one
solvent surety in the like amount;

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iii.The applicant shall not indulge
in any criminal activity nor shall tamper
with the prosecution evidence in any
manner.

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iv.The applicant shall not enter in
Dharur taluka Dist. Beed, till conclusion
of the trial.

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(10)

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v.Along with submitting the bail
papers before the learned Trial Judge,
the applicant shall give his complete
address of the place of residence where
he intends to reside along with mobile
number till end of the trial.

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vi.The applicant shall also give
the said information to the Investigating
officer along with mobile number and
shall comply with the requirements set
out in Para No.12 (1) to (6) of Chapter-I
of Criminal Manual, whichever are
applicable.

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vii.Bail before the trial Court.

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(SMT. VIBHA KANKANWADI)
 JUDGE

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BDV

Ashok Maluram Munde v. the State of Maharashtra and Another

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Ashok Maluram Munde v. the State of Maharashtra and Another

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