PIRAJI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The applicant is seeking bail in connection with crime No. 376 of 2019 registered with Hatta police station, District Hingoli for the offences punishable under Sections 302, 120-B r.w. 34 of I.P.C . His criminal bail application bearing No. 33 of 2020 with similar prayer came to be rejected by the learned Additional Sessions Judge, Basmathnagar vide order dated 29.02.2020.

(2.) Learned counsel for the applicant submits that though the prosecution claims that the case rests upon direct evidence, however, if the police statements of Tukaram Deshmukh and Dr. Dharmaraj Chavan are perused, there is hardly any evidence against the applicant. Learned counsel submits that even witness Tukaram Deshmukh in his statement recorded under Section 164 of Cr.P.C. before the Magistrate has not taken names of the assailants. Furthermore, even if the police statement of witness Tukaram Deshmukh is considered for the sake of discussion, however, it appears that said Tukaram Deshmukh was not knowing anybody and as such, it was necessary for the investigating officer to conduct identification parade. However, there was no identification parade conducted by the investigating officer. Learned counsel submits that even assuming that deceased was subjected to beatings and was taken to one Hospital of Dr. Dharmaraj Chavan, it is very unlikely on the part of the assailants to take the deceased to hospital. Even it is not clear as to how Dr. Dharmaraj Chavan was knowing names of the persons, those are father-in-law, mother-in-law and wife and then the name of the present applicant and co-accused Gajanan. Learned counsel submits that the cause of death is due to head injury. Learned counsel submits that during the course of investigation one stick and rope came to be recovered at the instance of the applicant from his house by drawing panchnama under Section 27 of the Evidence Act, however, there is nothing on the said stick and rope. There is no incriminating evidence as against the applicant so far as the said recovery is concerned. Moreover, such type of sticks and ropes are easily available in the house of persons residing in rural area. Learned counsel submits that the evidence as against the applicant is vague. Learned counsel submits that in addition to this, the applicant is suffering from HIV positive and as such he is exposed to all sorts of infections including COVID-19, as his immunity system has been diminished drastically due to his HIV sufferings. Learned counsel submits that the applicant is available for trial. He has a fixed place of residence. He may be released on bail.

(3.) Learned A.P.P. has strongly resisted the application on the ground that two witnesses viz. Tukaram Deshmukh and Dr. Dharmaraj Chavan have taken name of the applicant. Learned A.P.P. submits that one stick and rope came to be recovered at the instance of the applicant from his house. Learned A.P.P. submits that it has come in the statement of said Tukaram Deshmukh that the assailants tried to strangulate the deceased with the help of rope and he was also subjected to beating with the help of stick. Learned A.P.P. submits that there are many contusions and abrasions on the person of deceased and he died due to head injury. Learned A.P.P. submits that the applicant is the owner of vehicle of Bolero Jeep and there is reference of the said vehicle in the statement of said Tukaram Deshmukh. Learned A.P.P. submits that in addition to that, after coming from the postmortem room, two witnesses overheard the conversation between the applicant and co-accused person. Learned A.P.P. submits that the statements of those witnesses are also important. They are Kapil Digambar Kalyankar and Sainath Gangadhar Kalyankar. The applicant and co-accused had discussed between them as to how they had extended beatings to deceased and about the consequences they are now likely to face. Learned A.P.P. submits that there is prima facie strong case against the applicant. The applicant may not be released on bail.