MHNS010045752020 Order below Exh.1 in Cri. Bail Application No.1678/2020.

1 Sumanbai Namdeo Pagere
2 Rupali Ankush Pagere

Vs.

State

This is an application under section 439 of the Criminal Procedure Code for grant of bail pending trial.

2.Brief facts giving rise to this application can be narrated as follows.

The applicants came to be arrested on 31.08.2020 in Crime No. 92/2020 for the offence punishable under sections 302, 307, 143, 147, 148, 149, 324, 323, 504, 506 of the Indian Penal Code and 135 of the Maharashtra Police Act registered with Wadivarhe Police Station, District Nashik on the accusation that on 23.08.2020 at 11 a.m. at village Nandgaon Bk., on Belgaon Kurhe­Nandgaon road, near bridge of Undovol river, Taluka Igatpuri, the applicants­accused and co­accused formed an unlawful assembly, common object of which was to commit murder to Sampat Pagere and accordingly, committed the murder.

3.The applicants contend that they have not committed any offence as alleged by the prosecution. There is delay of more than 7 hours in lodging FIR. The deceased had sustained injury in a free fight between two groups. The co­accused have also sustained grievous injuries in that incident and therefore, co­accused Namdeo has filed the report with Wadivarhe police station, upon which crime No. 93/2020 under section 326 of the Indian Penal Code is registered against the informant and prosecution witnesses. It is also submitted that section 302 of the Indian Penal Code is not applicable because the record will show that there was no intention to commit murder and therefore, the case will fall within the ambit of section 304 of the Indian Penal Code.

It is the contention of the applicants that now the charge­sheet is filed against the applicants. Nothing is to be recovered or discovered from them. Therefore, their further detention is not necessary for the purpose of investigation. They are having permanent place of abode and roots in the society. They are ready to furnish the surety to the satisfaction of this Court and also ready to abide by the conditions, if any, imposed by this Court. Lastly, it is submitted that applicant No.1 is of 55 years old and applicant No.2 has two small kids. There is nobody to look after them as entire family is behind bar. On these lines, they have prayed for bail pending trial.

4.The respondent State filed its reply and inter­alia denied all the adverse allegations made by the applicants and reiterated prosecution case. There is prima­facie sufficient material on record to show the involvement of the applicants in the commission of the offence. It is contended that the applicants had actually participated in the commission of offence. If the accused are released on bail, they may hamper or tamper with the prosecution witnesses. On these lines, respondent State has prayed for rejection of the bail petition.

5.Heard learned advocate Mr. Wani appearing on behalf of the applicants and learned A.P.P. Mr. Gaikwad. I have also perused the charge­sheet which is allotted to this Court for disposal according to law. I have also gone through the written notes of arguments filed on behalf of original informant.

6.Learned advocate for applicants has sought enlargement of applicants mainly on the ground that the evidence on record does not indicate the intention of the applicants was to commit the murder and therefore, according to him, the case will fall within the purview of section 304 of the Indian Penal Code and secondly, the charge­sheet has been filed. The recitals of FIR prima­facie disclose that there is dispute between these two family with respect to the boundaries of the landed properties. On 23.08.2020, the informant alongwith his brother had been to the spot of incident for excavation with the help of JCB. At that time, accused No.1 Ankush and applicants went there and asked them not to excavate. There was altercation between them. Thereafter, accused No.1 Ankush gave lathi blows to the informant and his brother Sandip. Within 10 to 15 minutes other co­accused came there and started beating to the informant and witnesses with the help of lathis.

The victim Sampat Pagere sustained head injury and fell unconscious.

He was taken to the hospital and on 25.08.2020, he succumbed to the injuries. Initially offence under section 307 of the Indian Penal Code was registered against the accused and after the death of deceased, it is converted into 302 of the Indian Penal Code. The statements of witnesses recorded by Investigating Officer corroborates the report.

Prima­facie, it would show that the accused had motive to commit offence. The veracity of prosecution case can be subject to scrutiny at the time of trial. At this juncture, the record shows strong prima­facie evidence disclosing complicity of the applicants in the commission of serious crime. A few hours delay to lodge the FIR does not appear fatal to the prosecution and helpful to the applicants.

7.Now, the question is whether these applicants are likely to flee from trial or jump the bail or tamper with the prosecution witnesses and so on. The recitals of FIR prima­facie show that though these applicants were members of unlawful assembly, there is no overtact on their part or there is no criminal force used by them. While bearing in mind the nature of accusations against them, the applicants being women accused having two small kids, there is no possibility of fleeing from the trial or tampering with prosecution witnesses. It is also material to note here that the entire family is behind bar from the date of their arrest. There is no nobody to look after the kids of this family.

The applicants are ready to furnish sufficient surety. They are also ready to abide by the conditions, if any, imposed by this court. No useful purpose will suffice by keeping them behind bar till conclusion of the trial, when they are ready to furnish surety and ready to abide by the conditions. Considering the aforesaid facts, I am of the opinion that the applicants have made out case for grant of bail on certain terms and conditions. With this, I proceed to pass the following order.

O R D E R

1 Application is hereby allowed.

2 Applicant Nos.1­Sumanbai Namdeo Pagere and 2­Rupali Ankush Pagere be enlarged on bail, in Crime No. 92/2020 for the offence punishable under sections 302, 307, 143, 147, 148, 149, 324, 323, 504, 506 of the Indian Penal Code and 135 of the Maharashtra Police Act registered with Wadivarhe Police Station, District Nashik, on furnishing personal bond of Rs.30,000/­ each with one or two sureties each in like amount.

3 They shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as dissuade them for disclosing such facts to the Court or to any police officer.

4 They shall not commit similar or any other offence and misuse the liberty granted by this Court.

5 They shall furnish their address proof, identification proof and mobile number, if any, and shall not change their residential address without informing Investigating Officer.

Seema Digitally signed by Seema Chandrakant Chandrakant Jadhav Jadhav Date: 2020.12.15 17:03:41 +0530 ( Smt. S.C. Jadhav ) 15th December, 2020. Additional Sessions Judge­ 8, Nashik.