The main legal point established in the judgment is the consideration of circumstantial evidence and the necessity of physical custody in determining the grant of bail.

JUDGMENT

Vibha Kankanwadi, J. - Admit.

2. Present Appeal has been filed under Section 14-A(2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as 'the Atrocities Act'), challenging the order of rejection of bail of the appellant - original accused No.2 under Section 439 of the Code of Criminal Procedure by the learned Special Judge under the Atrocities Act, Kopargaon in Special Case No.28 of 2021 on 19th November 2021.

3. On the basis of the First Information Report (for short 'FIR') lodged by present respondent No.2 vide Crime No.100 of 2021 with Loni Police Station, District-Ahmednagar, offence under Sections 302, 120-B read with Section 34 of the Indian Penal Code and Section 3(2)(5) of the Atrocities Act has been registered against the present appellant and one Bhiva @ Vitthal Kailas Kawale, alleging that the accused persons have committed murder of his brother-in-law Arjun Pawar at about 7.30 p.m. on 16th March 2021.

4. Heard learned Advocate Mr. Jahagirdar Advocate appearing for applicant, learned APP Mrs. Diggikar appearing for respondent No.1 - State and learned Advocate Mr. Suaryawanshi appointed for respondent No.2.

5. It has been vehemently submitted on behalf of the appellant that perusal of the entire charge-sheet would show that the case of the prosecution is based on circumstantial evidence. The said circumstantial evidence is in the nature of 'last seen together', recovery and discovery under Section 27 of the Indian Evidence Act. The statements of certain witnesses under Section 161 of the Code of Criminal Procedure would disclose that there was love affair between deceased and a girl from the same village. However, the FIR also discloses that accused No.1 was also loving the same girl and used to visit her house. There was dispute between the accused persons and deceased about eight days prior to the date of FIR i.e. 17th March 2021 and the said dispute was settled due to the intervention of one Ajay Lahanu Mali and Vikas Barde. The statements of witnesses also show, as well as supported by the contents of the FIR, that deceased had given phone call around 4.30 p.m. on 16th March 2021 to Ajay Lahanu Mali stating that the accused persons were assaulting him. When Ajay informed the said fact to the informant, informant gave phone call to deceased. Deceased at that time disclosed that he would be proceeding along with accused persons to drink the liquor. Still, the informant went to the house of the accused persons, however, they were not present. From the neighbour of present appellant the mobile number of the appellant was taken by the informant and a phone call was given. Thereupon the present appellant disclosed that he is at Gavanwadi. Later on the informant came to know that a dead body of a boy between the age group of 25 to 30 years has been found at Loni. Therefore, the informant and his relatives went to Loni Police Station and thereafter they went to Pravara Hospital, Loni where they identified the dead body of deceased. Thus, it is clear from the contents of the FIR that at one place it is stated that it was informed by the deceased to witness that he is being assaulted by the accused and at another breath after some time it is told by the deceased that he is proceeding to drink liquor. Both such things cannot go together. Further, now the investigation is over and charge-sheet is filed, which would disclose that articles have been seized and those have been sent for chemical analysis but report of the chemical analysis is not yet received. Whatever discovery has been made, is by accused No.1 and not by this appellant. The prosecution also intends to rely on the statement of the shop owner who sold liquor bottle to the accused persons and also the CCTV footage, which showed dispute between the accused persons and deceased, however, the timings do not match. With this evidence, it is not necessary to keep the appellant behind bars as it will take mu