Allowed

Gopichand S/O Lokchand Katangkar v. State of Mha. Thr. Pso Ps Davaniwada Dist.Gondia and Another

Bombay HC26 Jul 2022APEAL/514/2021

Case brief

AI extract

What is this about?

The High Court allowed the bail appeal of an appellant accused in an offence under the IPC and SCAST Act. The court held the appellant's role was distinct from the main assaultors and found no prior criminal antecedents, directing release on bail subject to strict conditions against contacting witnesses or tampering with evidence.

What did the court decide?

The order rejecting bail was quashed; appellant released on bail on Rs. 50,000 with one surety, subject to conditions prohibiting contact with witnesses, torturing of self, tampering with evidence, an

Gopichand S/O Lokchand Katangkar Vs State of Mha. Thr. Pso Ps… — Bail and Remand | Bombay HC (2022)

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1 924-J-APPEAL-514-21.odt

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR.

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CRIMINAL APPEAL NO. 514 OF 2021

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APPELLANT :Gopichand S/o Lokchand Katangkar,
Aged about 21 years, Occ. Agriculturist,
R/o Lohara, Tal. & Dist. Gondia.

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V E R S U S

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RESPONDENTS :1. State of Maharashtra,
 through Police Station Officer,
 Police Station, Davaniwada,
 Dist. Gondia.

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2. Sau. Sevangan Wd/o Rajesh Kirsan,
 Age - 30 years, Occ - Household,
 R/o. Lohara, Tal. & Dist Gondia.

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Shri R. M. Daga, Advocate for appellant.

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Shri M. J. Khan, Additional Public Prosecutor for respondent No.1-State.
Dr. Renuka S. Sirpurkar, Advocate for respondent No.2.

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CORAM:-MANISH PITALE AND
VALMIKI SA MENEZES, JJ.
DATED :-26/07/2022.

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ORAL JUDGMENT : (PER MANISH PITALE, J.) :

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1. Heard. Admit. Heard learned counsel for the parties.

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2.At the outset, Shri R. M. Daga, learned counsel
appearing for the appellant sought permission to amend the
prayer clause so as to state the details of order passed by District

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Judge-2 and Additional Sessions Judge, Gondia, whereby

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application for bail filed on behalf of the appellant was rejected.

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2 924-J-APPEAL-514-21.odt

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3.Leave to amend the prayer clause a) is granted in the
above terms. Amendment be carried out forthwith.

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4.By this appeal, appellant - one of the accused persons,
has challenged order dated 17/11/2021 passed by the aforesaid
Court, whereby his bail application has been rejected. The
appellant is one of the accused persons in Crime No.134/2021
registered at Police Station, Davaniwada, Dist. Gondia for offences
punishable under Sections 302, 364, 324, 504, 506, 143, 144, 201
of the Indian Penal Code (IPC) and Sections 3(2)(5), 3(1)(r)(s),
3(2)(5)(a) of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989. Pursuant to investigation, on
01/10/2021, the charge-sheet came to be filed.

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5.The appellant had approached the aforesaid Court
seeking bail on the ground that the material on record pursuant to
the investigation and along with the charge-sheet, did not ascribe
specific role to the appellant and being a person with no criminal
antecedents, he deserves to be enlarged on bail. But, the aforesaid
Court rejected the application.

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6. Shri R. M. Daga, learned counsel appearing for the appellant submitted that in the present case, the alleged incident

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3 924-J-APPEAL-514-21.odt

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took place on 23/06/2021 and the FIR was registered after delay
of 11 days on 04/07/2021. In the FIR, appellant was not named as
one of the accused persons and only 12 persons were specifically
named in respect of whom, specific role was attributed by the
complainant i.e. respondent No.2 herein, who happens to be
widow of the deceased victim. It is further submitted that on
06/07/2021, the appellant was arrested, while the statements of
the witnesses filed along with the charge-sheet would show that it
was for the first time that on 08/07/2021, respondent No.2
(informant - complainant) named the appellant and attributed
some role to him in respect of the said incident. It is submitted
that the said role ascribed to the appellant did not match with the
alleged role ascribed to the appellant in the statements of other
witnesses, which are recorded much later in July, 2021.

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7.It is submitted that even if the statements of the

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witnesses filed along with the charge-sheet were to be taken at
their face value, no role was attributed to the appellant and that
he appeared to be roped in, after registration of FIR. According to
the learned counsel appearing for the appellant, neither
respondent No.2 (informant - complainant) nor her mother-in-
law, who claims to be eye-witness to the incident, named the

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4 924-J-APPEAL-514-21.odt

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appellant in their initial statements. On this basis, it was submitted
that as per statements on record, the allegations made against
other accused persons were clearly distinct from the role
attributed to the appellant, thereby indicating that the appellant
did not deserve further continuance in custody, having been
arrested more than a year earlier.

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8.On the other hand, Dr. Renuka Sirpurkar, learned
counsel appearing for respondent No.2 (informant - complainant)
submitted that the presence of the appellant was clearly
established as per the statements of respondent No.2 and other
eye-witnesses. Since Section 149 of the IPC was invoked in the
present case, material indicating presence of the appellant at the
spot of incident, was sufficient to show his active involvement in
the crime and his liability as regards the said incident. It is
submitted that delay in registration of FIR was not fatal, for the
reason that immediately after the incident, which took place on
23/06/2021, respondent No.2 pursued the matter with the police.
It is only because of the attitude of the police in not co-operating
with the respondent No.2 and the victim that the offences were
eventually registered on 04/07/2021.

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5 924-J-APPEAL-514-21.odt

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9.It is submitted that the role of the Police was

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commented upon by the Division Bench of this Court in the
Judgment and order dated 06/04/2022 in Criminal Appeal
No.54/2022 filed by co-accused person challenging the order of
the Court below rejecting his application for bail. The Division
Bench of this Court found that the police officers of the said Police
Station were responsible for the manner in which they handled
the situation on 23/06/2021. The victim was brought to the Police
Station in seriously injured condition. It is further seen that, while
dismissing the appeal, Division Bench of this Court directed that
the investigation would stand transferred to the State CID. On this
basis, it is submitted that the present appeal deserves to be
dismissed.

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10.Shri M. J. Khan, learned Additional Public Prosecutor

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appeared on behalf of the Respondent-State and opposed the
present appeal.

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11.We have considered the contents of the FIR dated

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04/07/2021, oral report leading to the registration of FIR, as also
statements filed along with the charge-sheet.

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6 924-J-APPEAL-514-21.odt

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12.Perusal of the aforesaid material shows that in the oral
report submitted by respondent No.2, there is no reference to the
appellant and only 12 accused persons were specifically named
and their specific acts were described in detail. Even, while
describing the manner in which the injured victim was transported
from the place of incident to the Police Station, there is no
reference in the oral report, either to the presence of the appellant
or any role attributed to him.

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13.The material on record shows that the body of victim
was recovered on 06/07/2021 and the appellant was also arrested
on the same day. It is, thereafter, on 08/07/2021, when the
supplementary statement of the respondent No.2 was recorded
that she named the appellant for the first time, alleging that he
was also one of the persons, who had surrounded her husband
when the assault was carried out. The mother-in-law of
respondent No.2, also claimed to be an eye-witness to the
incident, but she did not name the appellant, while describing the
incident.

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14.Apart from respondent No.2 and her mother-in-law,
the appellant appears to have been named by Dipak Patle,

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7 924-J-APPEAL-514-21.odt

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Kamlesh Kirsan and Kewal Lilhare. Perusal of statements of these
witnesses indicates that while Dipak Patle claimed that after the
assault, when the injured victim was being transported from the
place of incident to the Police Station, the said witness and the
appellant along with others accompanied the injured victim in the
vehicle in question. The statement of witness Kamlesh Kirsan also
indicates that the aforesaid role is attributed to the appellant. Both
these witnesses, after describing the specific role attributed to the
appellant, towards the end of their statements, have stated that
the name of the appellant along with others as being involved in
the assault on the victim. The witness Kewal Lilhare claimed to
have seen the appellant along with others after the assault had
taken place.

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15.It is on the basis of the aforesaid material that the
appellant has been in custody since 06/07/2021. It is also an
admitted position that the bail applications of the other co-accused
persons were rejected and appeal filed by one co-accused Dinesh
Nagpure, referred to above, was dismissed by the Division Bench
of this Court on 06/04/2022 (Criminal Appeal No.54/2022).

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8 924-J-APPEAL-514-21.odt

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16.Perusal of the aforesaid material shows that from the

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beginning in the oral statement leading to the registration of FIR,
specific act of assault was attributed to the said co-accused Dinesh
Nagpure and therefore, the case of the appellant is
distinguishable. In the initial statement made by respondent No.2,
her mother-in-law and other alleged eye-witnesses, the appellant
was not even named as being present at the spot of the incident.
In subsequent supplementary statement, the name of the
appellant has surfaced and the role attributed to him was that he
was sitting in the car in which the injured victim was transported
to the Police Station. Specific acts of assault have not been
attributed to the appellant. Therefore, we are of the opinion that
the case of the appellant for grant of bail is distinguishable from
the other co-accused persons.

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17. There is no material placed before us to contradict the

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statement made on behalf of the appellant that there are no
criminal antecedents, insofar as he is concerned. The appellant is
21 years old young man. Learned counsel appearing for the
appellant, on instructions, made a statement that the appellant
would undertake not to contact respondent No.2 or any of the
eye-witnesses in any manner during the trial. He would reside in a

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9 924-J-APPEAL-514-21.odt

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place away from the place of residence of the respondent No.2
and her mother-in-law.

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18.In view of the above, we are convinced that the present
appeal deserves to be allowed in the following terms :-

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i]The impugned order passed by the Court below
dated 17/11/2021, rejecting the bail is quashed and set
aside.

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ii]It is directed that the appellant be released on
bail in connection with FIR No.134/2021 registered
with the Police Station, Davaniwada, Dist. Gondia for
offences punishable under Sections 302, 364, 324, 504,
506, 143, 144, 201 of the Indian Penal Code (IPC) and
Sections 3(2)(5), 3(1)(r)(s), 3(2)(5)(a) of the
Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 on executing P.R. Bond in the sum
of Rs.50,000/- with one solvent surety in the like
amount.

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iii]The appellant shall not enter the jurisdiction of
Police Station, Davaniwada, during the pendency of the
trial.

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iv]The appellant shall not in any manner contact
respondent No.2 or other witnesses, during the
pendency of the trial.

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10 924-J-APPEAL-514-21.odt

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v]The appellant shall not undertake any steps
which may have the effect of tampering with the
evidence or influencing the witnesses.

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vi]The appellant shall attend each and every date
before the trial Court.

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vii]Needless to say, failure to comply with the
aforesaid conditions would make the appellant liable
for cancellation of bail.

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viii]It is made clear that the observations made in
this order are only for the purpose of consideration of
grant of bail to the appellant and the trial Court shall
not in any manner be influenced by the same during
the trial.

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19. The appeal is allowed in the above terms.

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[VALMIKI SA MENEZES, J.]

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 [MANISH PITALE, J.]

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Choulwar

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VITHAL Digitally signed byVITHAL MAROTRAO MAROTRAO CHOULWAR CHOULWAR Date: 2022.07.2719:14:48 +0530

Gopichand S/O Lokchand Katangkar v. State of Mha. Thr. Pso Ps Davaniwada Dist.Gondia and Another

Case brief

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Gopichand S/O Lokchand Katangkar v. State of Mha. Thr. Pso Ps Davaniwada Dist.Gondia and Another

Case brief

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What did the court decide?

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