1 criapln2610-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPLICATION NO.2610 OF 2011 1] Vilas S/o Suka Savale [Salave] .. APPLICANT Vs 1] The State of Maha .. RESPONDENT ... Shri N.L.Choudhari, Adv.for applicant. Shri N.H.Borade,APP for R-State. CRIMINAL APPLICATION NO.2139/2011 Ashok Sitaram Ingale .. APPLICANT VS The State of Maha . .. RESPONDENT ... Shir S.K.Kulkarni h/f Shri C.R.Deshpande,Adv.for applicant Shri N.H.Borade,A.P.P. for State. ... CORAM : T.V.NALAWADE,J. DATE : 12/07/2011 ORAL ORDER: 1] This application is filed for bail in Crime No.148/2010 2 criapln2610-11 registered in Dondaicha police station, Tq. Shindkheda, Dist.Dhule for offences punishable U/s 302, 201, 218, 342, 323, 504 r.w. 34 of I.P.C. Papers of investigation are made available by A.P.P. Heard both sides. 2] Criminal Application No.2139/11 is filed by police inspector Ashok Ingle for relaxation of condition and condition is imposed on him by this Court while granting bail that he should not enter entire Dhule district till the conclusion of trial and it is observed that he avoided to produce the genuine record before Court. He was not actually involved in the incident of assault on Yogesh. In this proceeding also both sides are heard. 3] Present applicant was working as a constable in Dondaicha police station at relevant time. Yogesh son of the first informant had gone to police station on 26/10/10 to lodge the report against Shailesh Sonar and his associates that they had assaulted him. Yogesh was trunk at the relevant time. He had gone there in the night time and he was taken to Dondaicha cottage hospital in the morning. One Salman Khan Pathan was also taken to hospital and they were in the same handcuff. In the hospital, when Yogesh was asked to put his thumb impression on the papers in the hospital, he refused to give thumb impression by saying that he was education person. Yogesh then stared saying something against the doctors and so he was taken 3 criapln2610-11 away from doctors by present applicant and P.S.I. Mehetre. As Yogesh was not under control, beating was given by both Mehetre and present applicant to Yogesh and due to beating he collapsed. Doctor examined him and declared that Yogesh was dead. 4] In Criminal Application No.777/11, this Court granted bail to PSI Mehetre subject to some conditions. In the order dated 10/3/11, the learned Single Judge has made it clear that the release of Mehetre will not be used as a ground of parity by other police officials. Mehetre is directed to remain present before investigating officer in Dondaicha police station on every Thursday and Sunday between 3 and 6 p.m. 5] The material collected by police and particularly post mortem report shows that there were injuries like abrasion over right arm at clervicle region, abrasion over left knee, abrasion over right chick, abrasion over left knee circular in nature and contusion over intra scapula region of the size 5x4 c.m. and second contusion of the size of 4x4 c.m. There was no palpable fracture. There was traumatic haemopericardium and the death took place due to “Cardio respiratory arrest due to blunt trauma over chest wall leading to traumatic haemopericardium”. 6] The material collected by police shows that there are allegations against applicant Vilas that on the night when Yogesh had approached 4 criapln2610-11 police, one P.S.I. Mahajan and present applicant had given shock of electricity to Yogesh as he was appearing violent. Serious allegations are made against Mahajan. The machine of giving electric shock of was brought by Mahajan. On the next morning Yogesh was taken to the cottage hospital. 7] As per the record, Salmankhan Pathan was taken with Yogesh to the hospital and his hand was in the same hand-cuff. In the statement made on 13/11/10, Salmankhan stated before police that in the hospital, Yogesh was not under control and so police had given slaps to him. One Ashish Gupta was also taken to the hospital with Yogesh and in the statement dated 26/10/10, he stated before police that police had kept Yogesh back and Ashish Gupta was taken back to the police station. In supplementary statement, Ashish Gupta made allegations that in the hospital, applicant gave blow of elbow on the back of Yogesh and when Yogesh fell on the ground, applicant gave a kick on the chest of Yogesh. He has stated that at the relevant time, applicant was wearing shoes. There are statements of the staff members of the hospital. One staff Anita has stated that in her presence, one police officer had given slaps to Yogesh. Statement of Dinesh Khairnar, Watchman of the hospital shows that the police officer who was wearing round cap, i.e. Mehetre had given a fist blow on the chest of Yogesh and after that, Yogesh sat on the floor and started crying. He has stated that when Yogesh was on his legs, the 5 criapln2610-11 present applicant gave slaps to Yogesh. There are statements of other members to the effect that present applicant had given slaps to Yogesh. In the statement of Manoj, there is mention that Mehetre had given fist blows on the chest of Yogesh and present applicant had given a blow of elbow on the back and then a kick was given on the chest by the applicant. 8] In the post mortem report, there is a mention that there was contusion over infra-scapula region [ 2 in number] and there was traumatic haemopericardium. No injury of kick was found on the chest as a surface wound. 9] The aforesaid material shows that it is against both the present applicant and PSI Mehetre. Even at this stage, it can be said that some witnesses like Ashish Gupta have tried to take the blame entirely to present applicant by giving supplementary statement. The only other allegation against present applicant is that he was involved when shock of electricity was given to Yogesh by Mahajan. 10] The learned Single Judge has made clear that the relief granted to Mahetre will not be a ground for getting relief to other officers on the ground of parity. Such observation is made in respect of the bail granted to Ashok Ingle also. It is true that the observations are made to show that each case will have to be considered on the basis of 6 criapln2610-11 material collected against the said accused. The aforesaid material is sufficient to make out prima faice case of custodial death but it should be kept in mind that Yogesh was out of control even as per the versions of the witnesses. The number of injuries found on the dead body will speak for themselves when at the end Court will decide as to what offence is committed by present applicant. This Court has no hesitation to hold that when on the basis of aforesaid material, Mehetre got bail, his subordinate, present applicant who is a constable needs to be given bail. So, application No.2610/11 is allowed subject to condition that he should not tamper with prosecution witnesses and if this Court comes across any such instances, his bail will be cancelled. He is to furnish P.R. & S.B. of Rs.15000/-. 11] So far as the condition imposed against Ashok Ingle is concerned, it can be said that the evidence will be from the police officer like Suresh Patil who was working as A.P.I. at relevant time. It was informed that Ingle is under suspension so also constable Savale is under suspension. The witnesses mentioned above are from Dondiacha, Dist.Dhule. Condition is imposed on Mehetre that he should visit Dondaicha police station. The record shows that Ingle was not actually involved in the incident of assault made on Yogesh. In these circumstances, this Court holds that condition can be relaxed to some extent. It was submitted that daughter of the applicant Ingle is studying in 12th standard on Science side in Zulal B.Patil College of 7 criapln2610-11 Deopur, Dist.Dhule. In these circumstances, and as the family of the applicant is living there, he can be allowed to live in Deopur proper and he can be prevented from entering area of jurisdiction of Dondaicha police station. In such terms, Criminal Application No. 2139/11 is also allowed. [T.V.NALAWADE,J.] umg/criapln2610-11