Digitally

2023:BHCs-igAnSe:d2 b4y355-DB SHAGUFTA SHAGUFTA QUTBUDDIN QUTBUDDIN PATHAN

8-APEAL-440-2022.doc PATHAN Date:

2023.08.25

18:12:24 +0530 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 440 OF 2022 Sagar @ Nikhil Jagdish Kate, Age : 21 Years, Occ: Student, R/at Pimpale Saudagar, Near Datta Mandir, Pune – 411 027 (Presently lodged in Yerwada Jail) ...Appellant Versus

1. The State of Maharashtra (At the instance of Sr. Inspector, Sangvi Police Station)

2. Jitesh Vasant Jagtap, Age: 44 years, Occ: Business, Residing at : Jagtap Nagar, Near Buddha Vihar, Pimple Saudagar, Pune ...Respondents Mr. Niranjan Mundargi i/b Ms. Keral Mehta for the Appellant Ms. P. P. Shinde, A.P.P for the Respondent No.1-State Mr. Niranjan Mogre i/b Mr. Sujay H. Gangal for the Respondent No. 2 PSI Mr. S.S. Khalate from Sangli Police Station, is present in Court CORAM : REVATI MOHITE DERE &

GAURI GODSE, JJ.

WEDNESDAY, 23 ^rd AUGUST 2023 JUDGMENT (Per Revati Mohite Dere, J.) :

1 Heard.

2 Admit. Learned A.P.P waives notice on behalf of the respondent No.1-State. Mr. Mogre waives notice on behalf of the respondent No.2.

3 By this appeal, preferred under Section 14A of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act (for short 'SCST Act'), the appellant has impugned the order dated 18^th February 2022 passed by the learned Special Judge, Pune, by which, the appellant’s application (Exhibit 15) was rejected by the said Court. Accordingly, the appellant seeks his enlargement on bail in connection with C.R. No.306/2020, registered with the Sangvi Police Station, Pune, for the alleged offences punishable under Sections 302, 143, 147, 148, 149 of the Indian Penal Code and under Sections 3(1)(r)(s), 3(2)(va), 3(2)(v) of the SCST Act and Sections 37(1), 135 of Maharashtra Police Act.

4 Learned counsel for the appellant submits that there is a contradiction between the information given by the first informant, pursuant to an alleged dying declaration made by deceased-Viraj on the one hand and the statements of the eye- witnesses, in particular, the statements of Abhishek and Anant Dongre. He submits that the facts in question would reveal that the appellant was not armed with a weapon, as is evident from the statement of Maulana Shaikh, at the relevant time. He further submits that the deceased-Viraj was found to have sustained only one injury on his head, which was the cause of his death. He submits that it is after an altercation between the accused and the deceased, which led to the incident in question.

5 Learned A.P.P opposes the grant of bail. She submits that no interference is warranted in the impugned order, rejecting the appellant’s bail application.

6 Learned counsel for the respondent No. 2 also opposes the grant of bail. He submits that the statement of Maulana Shaikh would show that co-accused-Hemant was driving the tempo and that he intentionally dashed against the Scooty driven by the deceased. He submits that Maulana's statement would reveal that after the scuffle between the accused and the deceased, the co-accused-Hemant pulled out a tommy from the tempo and chased Viraj and that the appellant and another co- accused-Rohit also chased Viraj. He submits that although Maulana has not alleged that the appellant was armed with any weapon, he submits that subsequently, the statements of Abhishek and Anant would show that the appellant has assaulted the deceased with a tommy, after which, Hemant assaulted the deceased again, with a tommy, on his head. He submits that the intent of the appellant and the co-accused was to cause death of the deceased-Viraj.

7 Perused the papers. This Court has granted regular bail to co-accused Jagdish Kate and Kailash Kate.

8 According to the first informant, who was also present at the spot at the time of the alleged incident, the deceased himself had made an oral dying declaration to the first informant and his mother disclosing to them the complicity of al