No appeal can be entertained without proper establishment of witnesses and evidence – Bombay High Court

904) Apeal 504 20.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.504 OF 2020 Nikhil Dnyanoba Tambalge Aged 24 years R o: Balajinagar Medankarwadi Chakan Tal. Khed District: PuneAct 1989challenging the order dated 28.08.2020 passed by the Court of Special Judge Pune whereby application for bail fled on behalf of the appellant was rejected The appellant is one of the accused in FIR dated 17.08.2019 registered at Police Station Chakan Pune for ofences under sections 302 143 147 148 149 504 and 506 of the Indian Penal Code as also under section 3(2)(Va) of the Apeal 504 20.doc As per the FIR registered against the appellant and other accused persons the respondent No.2 approached the police on 17.08.2019 stating that the accused including the appellant herein had assaulted his son Akash with wooden logs due to which he sufered multiple injuries. According to respondent No.2 the incident had occurred on 04.08.2019. The accused persons had brought the said deceased to his residence at about 8:00 p.m where respondent No.2 was present. They claimed that since the deceased was allegedly harassing certain girls of Swami Samarth School Amrutnagar they had beaten him. They threatened respondent No.2 to send the deceased to his village According to respondent No.2 the deceased fell unconscious and he had to be admitted to the hospital. When the serious condition of the deceased was known to the accused they came forward and paid the expenses for his treatment but he succumbed to his injuries on 11.08.2019 According to the respondent No.2 the accused persons repeatedly threatened him and since they had borne the expenses of the treatment he did not approach the police earlier and after his son died the respondent No.2 eventually approached the police for registration of the FIR On completion of investigation charge sheet was submitted on 16.10.2019. The appellant moved an application for bail before the Court below which stood rejected by the Apeal 504 20.doc impugned order. The Court below found that the ofence was of serious nature and that there was material on record to connect the appellant with the ofence and further that there was possibility of the witnesses being pressurized if the appellant was released on bail Mr. Samir A. Vaidya learned counsel appearing for the appellant submitted that a perusal of the charge sheet and the material on record demonstrated that there was nothing to connect the appellant with the aforesaid ofence. It was submitted that there were no eye witnesses and that there was delay in registration of the FIR. On this basis it was submitted that the impugned order deserved to be set aside and the appeal deserved to be allowed Smt. A. S. Pai learned APP appearing on behalf of the respondent State opposed the contentions raised on behalf of the appellant and brought to the notice of this Court that an appeal bearing Criminal Appeal No.3220 fled by two co accused persons was already dismissed by this Court by judgment and order dated 23.02.2021. It was submitted that allegations against the accused persons were similar and therefore the present appeal must also fail. It was further submitted that even otherwise there was sufcient material to link the appellant with the ofence in question and therefore the appeal deserved to be dismissed Apeal 504 20.doc A perusal of the judgment dated 23.02.2021 passed by this Court in Criminal Appeal No.326 of 2020 in Ganpat Lohar and another Vs. The State of Maharashtra and another shows that the appeal of co accused persons was indeed dismissed by this Court. The nature of contentions raised in the present appeal are similar to those raised in the aforesaid appeal and therefore on this ground itself the present appeal deserves to be dismissed Even otherwise we fnd that the contentions raised on behalf of the appellant in the present appeal cannot be accepted. The alleged delay in registration of the FIR appears to be explained in the complaint itself lodged by the respondent No.2. In any case it would be a matter to be decided in trial upon leading evidence. But we are of the opinion that at this stage prayer for bail made on behalf of the appellant cannot be granted merely because there was alleged delay in registration of the FIR We have also perused the material on record. We fnd that there are witnesses who have made statements which support the statement made by the respondent No.2with regard to the manner in which the incident took place in the present case. There appears to be material to prima facie link the appellant with the ofence and role attributed to him. The ofence is certainly of a serious nature and considering the fact that the respondent No.2 belongs to a socially and economically weak strata of society there is Apeal 504 20.doc possibility of the respondent No.2 and other witnesses being pressurized if the appellant is released on bail Therefore we do not fnd that the contentions raised on behalf of the appellant can be accepted. No error can be attributed to the fndings rendered by the Court below while rejecting the bail application of the appellant. Accordingly the appeal is dismissed. The direction given by this Court in its judgment and order dated 23.02.2021 in Criminal Appeal No.326 of 2020 fled by the co accused persons regarding expeditious disposal of proceedings by the Court below is reiterated and we expect that the Court below would complete the trial at the earliest In view of the disposal of the appeal all connected applications if any stand disposed of. It is made clear that the observations made in this order are prima facie in nature and they are confned to adjudication of the present appeal only. MANISH PITALE J S. S. SHINDE J] 

Summary: In criminal cases, the evidence plays the most important role. If witness and evidence for the same are not established, then a thousand appeals also can’t help in a case. Therefore, proving the evidence in a criminal matter is the most intrinsic part of it. The mensrea and actus rea are correlated to each, which shows the knowledge and intention of the case, and these two supplements are hence proved by the help of evidence. Therefore,  one such recent case which shows the importance of the evidence is the case of Nikhil Dnyanoba Tambalge v. State of Maharashtra [ CRIMINAL APPEAL NO.504 OF 2020].  The facts of the case initiates when an appeal was filed under section 14 of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (“Atrocities Act”), challenging an order dated 28.08.2020 issued by the Court of Special Judge, Pune, in which the appellant’s application for bail was denied. The appellant is one of the defendants in an FIR filed on August 17, 2019, at Police Station Chakan, Pune, charging him with violating sections 302, 143, 147, 148, 149, 504, and 506 of the Indian Penal Code, as well as section 3(2)(Va) of the Atrocities Act. According to the FIR filed against the appellant and other accused persons, respondent No.2 (original complainant) went to the police on August 17, 2019, alleging that the accused, including the appellant herein, assaulted his son Akash (deceased) with wooden logs, causing him multiple injuries. The incident, according to respondent No.2, occurred on August 4, 2019. At about 8:00 p.m., the accused persons took the deceased to his home, where respondent No.2 was present. They said that they had beaten the deceased because he was allegedly bullying some girls at Swami Samarth School in Amrutnagar. They threatened respondent No.2 to send the deceased to his village immediately. Respondent No.2 states that the deceased became unconscious and had to be rushed to the hospital. When the accused learned of the deceased’s medical condition, they came forward and provided for his care, but he died of his injuries on August 11, 2019. According to respondent No.2, the accused persons repeatedly threatened him, and since they had paid for his care, he did not approach the police at the time. However, after his son died, respondent No.2 approached the police for the registration of the FIR. Mr. Samir A. Vaidya, learned counsel for the appellant, argued that an examination of the charge-sheet and the facts found that there was no evidence linking the appellant to the alleged crime. It was reported that there were no eyewitnesses and that the FIR was not registered in a timely manner. On this basis, it was argued that the contested order deserved to be overturned and the appeal granted. Smt. A. S. Pai, learned APP appearing on behalf of the respondent – State refuted the appellant’s arguments and reminded the Court that an appeal bearing Criminal Appeal No.326 of 2020, filed by two co-accused persons, had already been dismissed by this Court by judgment and order dated February 23, 2021. It was argued that since the charges against the defendants were identical, the current appeal would also fail. It was also argued that even though there was no evidence linking the appellant to the crime in question, the appeal deserved to be dismissed.  The court held that “even otherwise, we find that the contentions raised on behalf of the appellant in the present appeal cannot be accepted. The alleged delay in registration of the FIR appears to be explained in the complaint itself lodged by the respondent No.2. In any case, it would be a matter to be decided in trial upon leading evidence. But we are of the opinion that at this stage, prayer for bail made on behalf of the appellant cannot be granted merely because there was alleged delay in registration of the FIR.” “We have also perused the material on record. We find that there are witnesses who have made statements which support the statement made by the respondent No.2 (original complainant) with regard to the manner in which the incident took place in the present case. There appears to be material to prima-facie link the appellant with the offense and role attributed to him. The offense is certainly of a serious nature and considering the fact that the respondent No.2 belongs to a socially and economically weak strata of society, there is possibility of the respondent No.2 and other witnesses being pressurized, if the appellant is released on bail.”