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

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.”

Therefore, we do not find that the contentions raised on behalf of the appellant can be accepted. No error can be attributed to the findings 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 confined to adjudication of the present appeal only.”

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