Mahesh @ Maheshkumar Mahadev Kamble v. The State Of Maharashtra

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION BAIL APPLICATION NO.2101 OF 2017 Dr. Mahesh @ Maheshkumar Mahadeo ....

Applicant Kamble Vs.

The State of Maharashtra ....

Respondent Mr. A.P. Mundargi, Senior Counsel i/by Mr. Subir Sarkar for the Applicant.

Mr. Ajay Patil, APP for the State.

Coram : Smt. Sadhana S. Jadhav, J.

Date : 21st December, 2017 P.C.:

Heard the learned counsel for the applicant and the learned APP. Perused the papers of investigation. This is an application under Section 439 Code of Criminal Procedure. The applicant herein is chargesheeted in Crime No.128 of 2016, registered at Miraj Rural Police Station, for the offences punishable under Sections 302, 120B read with 34 Indian Penal Code. The investigation is completed and the charge-sheet is filed.

2/5 It is the case of the prosecution that on 30th April 2016, Vishal Laxman Kamble lodged a report at the Police Station alleging therein that on 29th April, 2016, he was returning home alongwith his brother. They were followed by a motorcycle, which had given a dash, due to which both the brothers had fallen down. It is alleged that in the meanwhile, suddenly three persons had come in autorickshaw armed with stumps and sticks. They had mounted assault on both the brothers. The complainant had succeeded in rescuing himself, however, his brother was brutally assaulted. He was then taken to Miral Civil Hospital. He had succumbed to the injuries on 1st May, 2016. He had disclosed to the police that on the occasion of Dr. Babasaheb Ambedkar Jayanti, there was a quarrel between Mayur and his brother Sudhir.

That in the said quarrel Mayur was assaulted by Sudhir and also threatened them of dire consequences and due to fear of both the brothers, he had not disclosed the incident on the earlier date. The supplementary statement of the complainant was again recorded on 17th March, 2017 and it was specifically stated that the present applicant and his brother had conspired to cause to homicidal death of Sudhir. The applicant was granted ad-interim relief under Section 438 Cr.P.C. by this court (Coram : A.S. Gadkari, J.) by an order dated 25th October, 2016. The said application was rejected on 17th January 2017.

3/5 application seeking pre-arrest bail, the applicant had approached the Hon'ble Apex Court. The said application was rejected and thereafter the applicant has surrendered before the court on 14th March, 2017 and he is in custody. After the applicant had surrendered, supplementary statement of the complainant was again recorded on 17th March, 2017, where he had alleged conspiracy against the present applicant. In the course of the investigation, the statements of several witnesses was recorded. The relevant witness as far as the role attributed to the present applicant is concerned would be one Popat Kamble, who had disclosed to the police that on 18th April, 2016, he had visited Hotel Ashwini alongwith his friend Prabhakar.

That the present applicant had occupied an adjacent table in the said hotel and had informed his associates that on the occasion of Dr. Babasaheb Ambedkar Jayanti, his brother Mayur had been assaulted by Bhiku Kamble, i.e. the deceased Sudhir and therefore, he was asking his friends to assault them to teach the lesson. The investigating officer had also recorded statement of Prabhakar, who had reiterated the same. There are more than three witnesses, who have disclosed the same incident dated 18th April, 2016.

Learned Senior Counsel appearing for the applicant has drawn attention of this court to the fact that 15 accused have been enlarged on bail by the Sessions Court. The said orders are not

4/5 challenged, hence have attained finality. Some of them had criminal antecedents and were also earlier charge-sheeted for the offence punishable under Section 302 Indian Penal Code. As far as the present applicant is concerned, there is nothing on record that he had participated in the assault. The allegation is in respect of the alleged conspiracy to assault Sudhir, due to the incident, which had occurred on 14th April, 2016. It appears that all the statements are recorded only after Sudhir had succumbed to the injuries. It is pertinent to note that none of the witnesses even claimed to have apprised either Vishal or Sudhir about the conspiracy or the talks hold in Hotel Ashwini.

Upon perusal of the papers of the investigation, it appears that there are two rival groups and due to some previous incidents, Sudhir was brutally assaulted by some of the persons. Taking into consideration the facts of the case and more particularly the belated role attributed to the present applicant, this court is of the opinion that further incarceration of the applicant would be unwarranted. There is nothing on record to indicate that the present applicant had breached any conditions imposed upon him while he was granted pre-arrest bail. It appears that he has co-operated with the investigating agency. It is, in these circumstances, that the applicant deserves to be enlarged on bail.

5/5 However, it is made clear that the observations made hereinabove are restricted to the application under Section 439 of Cr.PC. and shall not be taken into consideration for the purpose of discharge application, quashing of charge-sheet or at the time of trial. Hence, the order.

O R D E R

The application is allowed.

The applicant be enlarged on bail in Crime No.128 of 2016, registered at Miraj Rural Police Station, on furnishing P.R. bonds in the sum of Rs.50,000/- with one or more solvent sureties in the like amount.

The applicant shall not reside in Miraj till 15th April, 2018.

( Smt. Sadhana S. Jadhav, J)