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2022 DIGILAW 2577 (BOM)

Karan v. State of Maharashtra

2022-12-13

ROHIT B.DEO, URMILA JOSHI-PHALKE

body2022
JUDGMENT R.B. Deo, J. - This appeal is preferred by Karan Kailash Itoria, who is arraigned as accused 3 in Crime 509/2021 registered at Rajapeth Police Station, Amravati for offences punishable under Sections 302, 201, 120-B, 364 and 212 read with Section 34 of the Indian Penal Code (IPC), Sections 4/25 of the Indian Arms Act, Section 142 of the Maharashtra Police Act and Sections 3(2)(v) and 3(2)(va) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act (Atrocities Act), assailing the order dated 20-5-2022 rendered by the learned Special Judge and Additional Sessions Judge-2, Amravati rejecting the application preferred under Section 439 of the Criminal Procedure Code (Code). It appears that the memo of appeal and the prayer clause thereof incorrectly refer to the provisions of the Maharashtra Control of Organized Crime Act (MCOCA). 2. The crime is registered at 8.03 p.m. on 30-5-2021 on the basis of oral report lodged by Mahadeo Hiralal Wankhade. The first information report refers to the time or the receipt of the information as 12-47 p.m. 3. The gist of the report is that the nephew of the first informant Bacchu @ Rohan Wankhade resided along with his mother Ramabai in house adjacent to the first informant's house. Accused Nitesh Piwal and Akash @ Gangu More and Bacchu Wankhade were on inimical terms. According to the first informant, complaints were lodged against the duo at Rajapeth Police Station. Enraged, Nitesh Piwal and Akash @ Gangu More were threatening Bacchu @ Rohan Wankhade with dire consequences. At 4-00 p.m. on 29-5-2021 Nitesh Piwal and Akash @ Gangu More induced Bacchu @ Rohan Wankhade to accompany them on the pretext of having liquor and putting a quietus to the enmity. The trio consumed liquor at Sushil Nagar and then at 9-30 p.m. or thereabout Bacchu @ Rohan Wankhade was taken to the open land near Chakradhar Petrol Pump in the Car owned by Akash @ Gangu More. Witnesses Sameer Dongare, Shyam @ Shubham Wasnik and Tridev Dhendwal followed the car. According to the first informant, as soon as Bacchu @ Rohan Wankhade deboarded from the car Nitesh Piwal and Akash @ Gangu More assaulted him on the stomach and chest with sharp weapons and fearing for their lives the three witnesses fled. Witnesses Sameer Dongare, Shyam @ Shubham Wasnik and Tridev Dhendwal followed the car. According to the first informant, as soon as Bacchu @ Rohan Wankhade deboarded from the car Nitesh Piwal and Akash @ Gangu More assaulted him on the stomach and chest with sharp weapons and fearing for their lives the three witnesses fled. The first information report further states that at 12-00 p.m. on 30-5-2021 Sameer Dongare informed the first informant about the incident, and the first informant conveyed the said information to Police Station Badnera. The police went to the spot and noticed the badly mutilated body of Bacchu @ Rohan Wankhade. 4. The learned Senior Counsel Mr. S.P. Dharmadhikari has invited our attention to the statements of the three eyewitnesses. The statements are identical and we may, therefore, only refer the statement of Sameer Dongare. According to him, the details of the incident were conveyed to the first informant at 12-00 p.m. on 30-5-2021. According to Sameer Dongare, the three witnesses followed the car in which Bacchu @ Rohan Wankhade was taken, since Sameer Dongare was telephonically asked by Bacchu @ Rohan Wankhade to do so. Sameer Dongare alleges that after the xylo vehicle stopped at the Valad Forest Road, Akash @ Gangu More, Rohit Mandale and Bacchu @ Rohan Wankhade deboarded and started proceeding towards the Valad Forest. Appellant Karan Itoria and one Sonu Chaware were already present on moped two wheeler. As Akash @ Gangu More, Rohit Mandale and Bacchu @ Rohan Wankhade approached the moped vehicle, appellant Karan Itoria dealt the first flow with sword and immediately Akash @ Gangu More, Sonu Chaware and Rohit Mandale assaulted Bacchu @ Rohan Wankhade with sharp weapons. Frightened, Sameer Dongare and others fled. 5. The learned Senior Counsel Mr. S.P. Dharmadhikari is emphasizing that according to Sameer Dongare, it was at 12-00 p.m. on 30-5-2021 that he informed the first informant the details of the incident. 6. The learned Senior Counsel Mr. S.P. Dharmadhikari would further invite our attention to the statements of Shobha Sarkate and Rama Wankhade, who are the aunt and mother of the deceased. S.P. Dharmadhikari is emphasizing that according to Sameer Dongare, it was at 12-00 p.m. on 30-5-2021 that he informed the first informant the details of the incident. 6. The learned Senior Counsel Mr. S.P. Dharmadhikari would further invite our attention to the statements of Shobha Sarkate and Rama Wankhade, who are the aunt and mother of the deceased. The common version of the two witnesses Shobha Sarkate and Rama Wankhade is that Sameer Dongare and Shyam @ Shubham Wasnik were amongst the 52 to 60 youths of the Belpura area who embarked upon a search for the deceased after 10-00 p.m. on 29-5-2021, and again on 30-5-2021 the search continued till 3-00 p.m. when information was received that Bacchu @ Rohan Wankhade was done to death. 7. The submission is that the eyewitnesses are got up witnesses and there is no explanation whatsoever why the name of the appellant is not reflected in the first information report which is registered at 10-00 p.m. on 30-5-2021 in the teeth of the version of the eyewitnesses that at 12-00 p.m. on 30-5-2021 i.e. eight hours prior to the registration of the first information report, the entire incident was disclosed to the first informant. The other aspect, which is highlighted, is that if the alleged eyewitness would have actually seen the incident, there was no reason for Sameer Dongare and Shyam @ Shubham Wasnik to join the search party after 10-00 p.m. on 29-5-2021. The learned Counsel Mr. S.V. Sirpurkar, who appears on behalf of the complainant, would submit that while the first information report is registered at 10-00 p.m., the information or the commission of offence is received at the concerned police station at 12-47 p.m. Be that as it may, even if the information is received at 12-47 p.m., according to the eyewitness, it was at 12-00 p.m. that the incident was disclosed to the first informant. That apart, after 12-47 p.m., there was ample time available to the first informant and the others concerned to gather their thoughts and name all the assailants in the first information report. 8. We are conscious that while considering an application for bail, microscopic evaluation of the material on record is not necessary, and indeed is best avoided. We are further alive to the position of law that the first information report need not be an encyclopedia. 8. We are conscious that while considering an application for bail, microscopic evaluation of the material on record is not necessary, and indeed is best avoided. We are further alive to the position of law that the first information report need not be an encyclopedia. Having so observed, we are certainly entitled to consider the broad probabilities and the prima facie credibility of the prosecution case, if anything for the limited purpose of deciding the bail application. Having done so, we are satisfied that the appellant has made out a case for bail. 9. We set aside the order impugned and direct that the appellant shall be released on bail on such conditions as may be determined by the learned trial Judge.