Chaitanya Namdev Mane v. State of Maharashtra and Anr

Megha 38_apeal_1085_2024.docx IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1085 OF 2024 Chaitanya Namdev Mane ...Appellant V/s. The State of Maharashtra and Anr. ...Respondents _________________________________________________________________ Mr. Umesh Mankapure with Ms. Stefy J. Dias for the Appellant. Ms. Shilpa G. Talhar, APP for Respondent No.1-State. Ms. Raveena Jagtap with Mr. Ravi Phonde for Respondent No.2. Mr. Vaibhav Balvant Patil, PSI, Kavthe Mahankal Police Station, District -Sangli, present. _________________________________________________________________

CORAM : SANDEEP V. MARNE, J. Dated : 21 October 2024. P.C. :

¶1This is an appeal filed under the provisions of Section 14-A of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (SCST Act) challenging the order dated 24 September 2024 passed by the learned Additional Sessions Judge-3 and Special Judge (Atrocity Act), Sangli, rejecting the application filed by the Appellant for grant of bail in connection with Crime No.361 of 2023 registered with Kavthe Mahankal Police Station, District-Sangli, for the offences punishable under Sections 302, 201, 364, 323, 143, 147, 148 and 149 of the IPC and Sections 3(2)(v) of the SCST Act.

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MEGHA SHREEDHAR PARAB Date: 2024.10.22 20:41:40 +0530 Megha 38_apeal_1085_2024.docx

¶2I have heard Mr. Mankapure, the learned counsel appearing for the Appellant, who relies on judgment and order dated 12 July 2024 passed by this Court in Anil Maruti Mane V/s. State of Maharashtra and Anr. (Criminal Appeal No.296 of 2024). He would submit that the role ascribed to the Appellant in the present case is not as severe as the one ascribed to Anil Maruti Mane, who has already been released on bail. He would submit that the Appellant also deserves to be granted bail on the principle of parity.

¶3The Appeal is opposed by Ms. Talhar, the learned APP by submitting that the handkerchief used for strangulating the deceased has been recovered at the instance of the Appellant and that therefore, the case of the Appellant cannot be compared with Anil Maruti Mane. She would further submit that the Appellant has higher motive to kill the deceased than the other accused, who have been released on bail. She would submit that the case is fixed for framing of charge and releasing the Appellant at this point of time would result in tampering of the evidence. She would pray for dismissal of the Appeal.

¶4The Appeal is also opposed by Ms. Raveena Jagtap, the learned counsel appearing for Respondent No.2. She would submit that the handkerchief used for strangulating the deceased belonged to the Appellant. She would draw my attention to the statements of various witnesses in support of her contention that the deceased was last seen in the company of the Appellant, who was seen assaulting the deceased and carrying him in Ambulance. She would therefore submit that there is sufficient evidence to indicate the involvement of the Appellant in commission of the crime. She would submit that

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Megha 38_apeal_1085_2024.docx there is no parity between case of the Appellant and other accused. She would accordingly pray for dismissal of the Appeal.

¶5I considered the submissions canvassed by the learned counsel and also perused the records of the case. This Court had an occasion to deal with Criminal Appeal No.296 of 2024 filed by another accused (Anil Maruti Mane) involved in the case. This Court has delivered a detailed judgment on 12 July 2024 releasing the said accused on bail. This Court has recorded following reasons for granting bail to Anil Maruti Mane :-

¶14The entire case appears to have been built on circumstantial evidence and according to the Applicant, the following chain of circumstances virtually cements the possibility of commission of crime by the accused and by none other:

i) There are statements of witnesses viz. Amol Dhende, Vanita Mane, Rajashri Pawar and Shital Chandanshive all of whom had allegedly seen the accused, including Appellant, together with the deceased at 12 noon;

ii) Witnesses Shambhu Mane has allegedly seen the accused travelling in LCV, described by witnesses as either tamtam or dumdum to Mhaishal Canal, in which the dead body was ultimately found;

iii) Handkerchief used in commission of crime is recovered by recording panchanama under section 27 of the Evidence Act, in which accused Chaitanya Mane has stated that the Appellant strangulated the deceased with the said handkerchief;

iv) Recovery of handkerchief and theory of strangulation is sought to be corroborated by finding in the postmortem report about presence of ligature marks over the neck;

v) Statement of Chandrakant Yeshwant Kharat, news channel reporter is recorded about recovery of dead body of the deceased from Mhaisal canal;

vi) Statement of Sadhana Gopal Pachphule, wife of ambulance owner-Gopal Pachphule, who had engaged Chaitanya Mane and Anuj Mane as drivers is recorded. The said statement talks of Chaitanya Mane using the ambulance between 12 noon

to

p.m.

on

October

2023;

vii) To establish the use of LCV for disposal of the dead body, statement of Harshala Maruti Mane is recorded, in which she has stated that the Appellant had asked Kunal Mane to get the small tempo and accordingly Kunal had taken keys of the tempo under false pretext and had driven away the same; viii) Statement of Vishwanath Gaurihar

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Megha 38_apeal_1085_2024.docx Swami is recorded to show washing of ambulance after commission of the crime at the car washing centre for charging the accused under section 201 of the Indian Penal Code for destruction of evidence;

ix) Statements of Mobile Shopee operators are recorded to indicate that the accused had deliberately kept their mobile phones at the repair centers between 12 noon to 1 p.m. with a view to mislead the investigators.

x) Lastly, statement of Onkar Rajendra Gavhane is recorded with regard to recovery of data in GPS installed in LCV used for destruction of the dead body. On the basis of the above chain of circumstances, the prosecution has built the case against the accused. What is most important in the above chain are the statements of four witnesses Amol Dhende, Vanita Mane, Rajashri Pawar and Shital Chandanshive, all of whom apparently saw the accused, including Appellant, assaulting the deceased at 12 noon on 4October 2023 and abducting him in the ambulance. The further statement of witness-Shambhu Yuvraj Mane alleges presence of LCV proceeding towards Mhaisal canal, which was driven by Kunal Mane with Saddam Mulla sitting besides and the same being followed by Chaitanya Mane, Sunil Mane and Anil Mane on red colour Pulsar motor bike. The witness states that after some time, all of them returned by same route to Kavthe Mahankal. It is however seen that the other four accused are released on bail by the learned Additional Sessions Judge. It would be necessary to consider the role ascribed to each of them:

i) Anuj Amrut Mane: He had strong motive to commit crime as his mother's picture was used for spreading derogatory messages by the deceased. He is named in the FIR statement with regard 20 allegation of assault and has accordingly the last seen theory is applied to him.

ii) Alwin Sanjay Waghmare: FIR statement of first informant names him in connection with assault and abduction of the deceased at 12 noon on 4 October 2023. He is also named by the witness Rajashri Pawar. Thus, the last seen theory is applied to this accused as well.

iii) Kunal Sudhir Mane: He allegedly brought the LCV by securing keys from Harshala Maruti Mane. Witness Shambhu Yuvraj Mane names him for driving the LCV towards the Canal and thereafter returning to Kavthe Mahankal. Thus, his role is associated with destruction of the dead body.

iv) Saddam Ilahi Mulla: He is named by witness Rajashri Pawar with regard to allegation of assault and abduction of the deceased at 12 noon on 4 October 2023. He is also seen by the witness Shambhu Yuvraj Mane in the LCV proceeding towards canal and thereafter returning to

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Megha 38_apeal_1085_2024.docx Kavthe Mahankal. Thus, this accused is associated with last seen theory as well as presence at the venue of destruction of the dead body. 17 The above four accused are released on bail by the learnedAdditional Sessions Judge. The Appellant claims parity with the said fouraccused. The learned Sessions Judge has however proceeded to reject the bail application by taking into consideration the following factors:

(i) The deceased had burnt house of Sunil Mane who is real brother of the Appellant and therefore it was but natural for the Appellant to develop grudge against the deceased;

(ii) Appellant was one of the five persons beating the deceased when the deceased had sent friend request to Chaitanya Mane's wife;

(iii) The deceased had published derogatory messages relating to Sunil Mane's wife and it was but natural for Appellant to develop grudge on account of such messages in respect of his sister-in-law;

(iv) Appellant and Sunil Mane had specifically told Amol Dhende on 1 October 2023 that the deceased was still gazing inside the houses and that he would be killed;

(v) The first informant learnt from Amol Dhende that Appellant was one of the persons who had assaulted and abducted the deceased;

(vi) Postmortem report suggest death by strangulation and the handkerchief used for strangulation by the Appellant is recovered;

(vii) Amol Dhende had witnessed assault and abduction of the deceased by Appellant;

(viii) Shambhu Mane saw Appellant proceeding to Mhaisal Canal;

(ix) Statement of Shital Chandanshive shows that accused including Appellant were unhappy with the conduct of the deceased and were calling each other at 12 noon, jumped the fencing wheredeceased was answering nature's call, assaulted and abducted him. On the above nine broad factors, the Additional Sessions Judgethought it appropriate deny the bail to the Appellant. The main factorfound by the Additional Sessions Judge against the Appellant isstrangulation of the deceased by the handkerchief of Appellant and motive of the Appellant to kill the deceased on account of spreading of derogatoryremarks about his sister-in-law. Thus one of the main factors considered by the learned SessionsJudge for denial of bail is recovery of handkerchief throughpanchanamarecorded under section 27 of the Evidence Act at the instance of Chaitanya Mane. I have gone through thepanchanama recorded under section 27 of the Evidence Act, wherein accused-Chaitanya Mane has allegedly takenthe police to the spot at which the handkerchief used in the crime wasrecovered. However, while

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Megha 38_apeal_1085_2024.docx preparing

the

saidpanchanama,

police

hasrecorded 'memorandum made by the accused"inter alia to the effect thatthe deceased was abducted with the intention of killing him and while hewas driving the ambulance, Appellant strangulated the deceased with hishandkerchief. In my view, the said memorandum reflected inpanchanamarecorded under section 27 of the Evidence Act, ought not to have beenincluded therein and even if recorded, the same is required to be discardedaltogether. The Apex Court has repeatedly frowned upon tendency on thepart of prosecuting agencies in getting the entire statement recorded ratherthan only the part of statement which leads to recovery of facts. In thisregard, reliance by Mr. Mankapure on the judgment of the Apex Court inVenkatesh alias Chandra and another (supra) is apposite. The Apex Courthas held in paragraphs 20 and 23 as under:

¶20Before we consider the merits of the matter, some of the features of thepresent case which we have found to be quite disturbing must be noted anddeliberated upon. The Trial Court in paragraphs 27 to 30 of its judgmentextracted voluntary statements of the appellants. First and foremost, going bythe parameters of Section 27 of the Indian Evidence Act, 1872 only so much ofinformation which relates distinctly to the facts thereby discovered can be statedto have been proved. The extent and ambit of said provision as well asapplicability thereof were considered by the Privy Council inPulukuri Kotayyav. King-Emperor, AIR 1947 PC 67 as under: "10. Section 27, which is not artistically worded, provides anexception to the prohibition imposed by the preceding section, andenables certain statements made by a person in police custody to beproved. The condition necessary to bring the section into operation isthat discovery of a fact in consequence of information received from aperson accused of any offence in the custody of a Police officer must bedeposed to, and thereupon so much of the information as relatesdistinctly to the fact thereby discovered may be proved. The sectionseems to be based on the view that if a fact is actually discovered inconsequence of information given, some guarantee is afforded therebythat the information was true, and accordingly can be safely allowed to begiven in evidence; but clearly the extent of the information admissiblemust depend on the exact nature of the fact discovered to which suchinformation is required to relate. Normally the section is brought into operation when a person in policecustody produces from some place of concealment some object, such asa dead body, a weapon, or ornaments, said to be connected with

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Megha 38_apeal_1085_2024.docx thecrime of which the informant is accused. Mr. Megaw, for the Crown, hasargued that in such a case the "fact discovered" is the physical objectproduced, and that any information which relates distinctly to that objectcan be proved. Upon this view information given by a person that thebody produced is that of a person murdered by him, that the weaponproduced is the one used by him in the commission of a murder, or thatthe ornaments produced were stolen in a dacoity would all be admissible.If this be the effect of section 27, little substance would remain in the banimposed by the two preceding sections on confessions made to thepolice, or by persons in police custody. That ban was presumablyinspired by the fear of the Legislature that a person under policeinfluence might be induced to confess by the exercise of undue pressure.But if all that is required to lift the ban be the inclusion in the confessionof information relating to an object subsequently produced, it seemsreasonable to suppose that the persuasive powers of the police will proveequal to the occasion, and that in practice the ban will lose its effect. Onnormal principles of construction their Lordships think that the provisoto s. 26, added by s. 27, should not be held to nullify the substance of thesection. In their Lordships view it is fallacious to treat the "fact discovered" within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate-distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in thesetting in which it is discovered. Information supplied by a person incustody that "I will produce a knife concealed in the roof of my house"does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added "with which Istabbed A" these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant." (Emphasis added)

¶23We must observe that we have repeatedly found a tendency on part of the Prosecuting Agency in

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Megha 38_apeal_1085_2024.docx getting the entire statement recorded rather than only that part of the statement which leads to the discovery of facts. In the process, a confession of an accused which is otherwise hit by the principles of Evidence Act finds its place on record. Such kind of statements may have a direct tendency to influence and prejudice the mind of the Court. This practice must immediately be stopped. In the present case, the Trial Court not only extracted the entire statements but also relied upon them." (emphasis added) Once the alleged statements of accused-Chaitanya Mane, except relating to discovery of handkerchief, are discarded, there appears to be nothing on record, atleast at this stage, by way of direct evidence to show the commission of murder of the deceased by Appellant. The Appellant then comes on par with the other four accused for being enlarged on bail. The role of the accused then gets restricted to assault and abduction of deceased and destruction of his dead body. In my view therefore, the Appellant will have to be given same treatment as extended to the other four accused. It must be borne in mind that the entire case is built on circumstantial evidence and the 'last seen theory' is mainly adopted to prove the accusations against the Appellant. Mr. Mankapure has relied on series of judgments of the Apex Court in Ganpat Singh (supra), Anjan Kumar Sarma (supra), Arujun Marik (supra) and Chand Basha (supra) in support of his contention that 'last seen theory' alone is not sufficient to lead to conviction of the accused. Considering the limited issue involved in the present Appeal, it is not necessary to consider the ratio of those judgments which is essentially laid down while determining the validity of convictions/acquittals in those cases. However, reliance by Mr. Mankapure on orders passed by this Court in Mahadev @ Baban Achyut Kharate (supra) and Prashil Sanjay Jadhav (supra) relating to grant of bail when case involves mere 'last seen theory' and circumstantial evidence appears to be apposite. Though Ms. Gajare-Dhumal has relied upon judgments of the Apex Court in Sharad Biridhichand Sarda (supra), Jagroop Singh (supra) andKashi Ram (supra), in my view, it is not necessary to delve deeper into the issues of circumstantial evidence, last seen theory and time gap between accused being last seen and discovery of dead body considering the limited issue of bail involved in the present Appeal. As observed above, upon discarding the statement of Accused-Chaitanya Mane from panchanama recorded under section 27 of the Evidence Act, Appellant comes on par with the other four accused who are released on bail. Mr. Mankapure has relied on recent decision of the Apex Court in Javed Gulam Nabi Shaikh (supra), which essentially emphasizes the right of the accused for speedy trail and prolonged incarceration of prisoners, which factors are not

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Megha 38_apeal_1085_2024.docx present in the present case, the following observation of the Apex Court need to be taken note of: "18. Criminals are not born out but made. The human potential in everyone is good and so, never write off any criminal as beyond redemption. This humanist fundamental is often missed when dealing with delinquents, juvenile and adult. Indeed, every saint has a past and every sinner a future. When a crime is committed, a variety of factors is responsible for making the offender commit the crime. Those factors may be social and economic, may be, the result of value erosion or parental neglect; may be, because of the stress of circumstances, or the manifestation of temptations in a milieu of affluence contrasted with indigence or other privations.

¶19If the State or any prosecuting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime.

¶20We may hasten to add that the petitioner is still an accused; not a convict. The over-arching postulate of criminal jurisprudence that an accused is presumed to be innocent until proven guilty cannot be brushed aside lightly, howsoever stringent the penal law may be." 25 In the present case, there is no possibility of the trial being concluded in near future. Considering that the other four accused viz. Anuj Amrut Mane, Alwin Sanjay Waghmare, Kunal Sudhir Mane and Saddam Ilani Mulla are enlarged on bail, further incarceration of Appellant is not warranted. In my view therefore, the Appellant also needs to be granted parity with that of the four accused.

¶6The above findings are fully applicable to the present case with an additional reason for releasing Appellant on bail. The sheet anchor of the prosecution is the statement recorded of the Appellant under the provisions of Section 27 of the Evidence Act, 1872 while recovering the handkerchief used for commission of the crime. Though the settled position of law is not to read statement recorded under Section 27 of the Evidence Act beyond the aspect of recovery,

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Megha 38_apeal_1085_2024.docx even if the said statement is taken into consideration, it appears that the statement reflects the role of the Appellant as driving the Ambulance in which the deceased was allegedly killed by strangulation by Anil and Sunil Mane. Therefore, though the handkerchief recovered at the instance of the Appellant, the said statement itself shows that the Appellant was merely driving Ambulance. The accused (Anil Mane), who has allegedly strangulated the deceased has already been released on bail.

¶7In my view, therefore, the role ascribed to the Appellant appears to be far less severe than the one ascribed to Anil Mane. In that view of the matter, Appellant also deserves to be enlarged on bail on the principle of parity.

¶8I accordingly proceed to pass the following order: ORDER

(i) Criminal Appeal is allowed.

(ii) Order dated 24 September 2024 passed by the Additional Sessions Judge, Sangli is set aside. It is directed that the Appellant shall be released on bail in connection with CR No.361 of 2023 registered with Kavthe Mahankal Police Station, District Sangli for offences punishable under sections 302, 201, 364, 323, 143, 147, 148, 149 of the Indian Penal Code and section 3(2)(v) of the S.C. & S.T. Act, on furnishing PR Bond of Rs.40,000/- with one solvent surety in the like amount.

(iii) The Appellant shall not influence or pressurize any of the prosecution witnesses nor shall tamper evidence.

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(iv) The Appellant shall not leave the boundary of Sangli District till final decision of the case without prior permission.

(v) Appellant shall inform his latest place of residence and mobile contact number immediately after being released and/or change of residence and mobile phone details, if any, from time to time to the Trial Court as well as to the concerned Police Station, in writing.

(vi) The Appellant shall cooperate in the conduct of trial and shall attend each date of hearing before the Trial Court, unless exempted.

(vii)An undertaking to the aforesaid clauses (iv) to (vii) shall be filed by the Appellant, in the Registry of the Trial Court, within one week of his release.

viii) If there are two consecutive defaults in appearing before the Trial Court, the learned Judge shall make a report to this Court and the prosecution would be at liberty to file an application seeking cancellation of bail.

9.

It is clarified that the observation made herein are prima facie and the Trial Court shall decide the case on its own merits, in accordance with law, uninfluenced by the observations made in this order.

[SANDEEP V. MARNE, J.]

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