– Justice Anil Pansare has granted bail to murder accused Bholeshwar Shamlal Nirmalkar.
Nagpur – Bholeshwar was prosecuted for the alleged offenses punishable under sections 302, 143, 144, 147, 148, 504 Of Indian Penal Code Vide Crime No: 481/2021 by Yashodhara Nagar Police Station Nagpur.
The prosecution case was that complainant Mangesh Ramkrushna Dhakate lodged report that on 19-07-2021 at about 09.30 p.m. when his brother named Atul Ramkrushna Dhakate was standing near electricity pole in front of Shaurya Fitness Gym in front of his house, at that time Manish Shhau, Tushar Varma along with co-accused made unlawful assembly and picked quarrel with Atul with anger on him on old petty quarrel and stabbed on the left side of stomach, forehead and elbow of left hand of Atul with deadly weapons causing him serious injuries with intention to kill him. After admitting Atul in Mayo hospital, during treatment he died. At the instance of the report, offence bearing Crime No.481/2021 came to be registered. After completion of investigation chargesheet was filed.
It was submitted that, from the statement of eye witness Dinesh Narbariya, it is clear that he had seen the assailants. But he has not referred to applicant at all and no test identification parade has been conducted to arrive at the identity of the assailants.
Further it was submitted that prosecution case is that, deceased has made oral dying declaration to some witnesses that, persons namely Manish along with Tushar, Ankit, Sunil and Pappu have assaulted him. It is submitted that, there is no investigation as who these persons are. It was submitted that no Evidence was collected to show that applicant is also known as Pappu.
Accepting the submission, court made following observation
2. The prosecution claims that the nick-name of said Bholeshwar is Pappu. However there is nothing on record to show that Bholeshwar is known as Pappu as well. The Investigating Officer has not recorded the statement of a common friend of Manish or the relatives of Bholeshwar to show that Bholeshwar is also called as Pappu. There is noting on record to show as to on what basis the Investigating agency claims Bholeshwar to be Pappu. In the circumstances, though there is an eye witness to the incident, to my mind, it will be challenging for the prosecution to prove that the name Pappu utterred by the deceased prior to his death, is the present applicant. It is so because the eye witness has stated that he has seen Manish and 3 /4 boys assaulting Atul. He however states that he could not properly see the other 3 /4 boys. The Investigating Officer has not subjected the applicant to the test identification parade and, therefore, his identity has not been fixed.
3. It is unfortunate that when the crime as serious as for offence punishable u/s 302 of IPC, the I.O. has not taken even efforts to fix the identity of the person named Pappu, whose name has been uttered by the deceased prior to his death. May be that the applicant is known as Pappu or that his nick-name is Pappu, but then in absence of statement of any witness in support thereof, one cannot really infer that the applicant is the same person whose name has been uttered by the deceased.
Adv Mir Nagman ali appeared for Bholeshwar Nirmalkar.
