1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.2593 OF 2010 Bhagwan @ Balu Khushalrao Nagre, Age-26 years, Occu-Agriculture, R/o.Ramgavhan, Ta.Ambad, Dist. Jalna APPLICANT VERSUS The State of Maharashtra RESPONDENT Mr.Joydeep Chatterji, learned counsel for applicant. Mr.K.S.Patil, learned APP for State. WITH CRIMINAL APPLICATION NO.2659 OF 2010 Jagdish S/o.Bhalchandra Domale, Age-28 years, Occu-Agriculture, R/o.Ramgavhan, Tal.Ambad, Dist. Jalna APPLICANT VERSUS The State of Maharashtra RESPONDENT Mr.S.J.Salunkhe, learned counsel for applicant. Mr.K.S.Patil, learned APP for State CORAM : A.V.POTDAR, J. DATE : 13/07/2010 2 PER COURT : 1. By the present applications, the applicants have approached this Court for their release in connection with CR No.57/2010, registered in Gondi Police Station of Dist. Jalna, in which these applicants came to be arrested on 10/03/2010, and after completion of investigation, charge sheet was filed in the Court of J.M.F.C. Ambad on 24/05/2010 and the case is numbered as RCC No. 128/2010. 2. Heard learned counsel for applicants in both the applications, learned APP for State. Perused the papers of investigation till carried out in this crime as well as in Crime No.59/2010, registered in the same police station. 3. From the papers of investigation in Crime No.57/2010, it appears that the said complaint came to be lodged by one Murab Amruta Pawar, the brother of deceased Wardhaman about the incident allegedly took place in the night of 09/03/2010. So far as CR No.59/2010 is concerned, it is registered on the complaint of father of applicant in Cri.Appl.no.2593/2010 by name Khushalrao, whose statement was recorded while he was under treatment in the Civil Hospital. This complaint is also in relation with the incident occurred in the night of 09/03/2010, in which the complainant party in CR No.57/2010 were arrayed as an accused. 4. During the course of submissions across the bar, learned 3 counsel for applicants as well as learned APP taken me through the entire record of investigation. The post mortem notes indicates that total 14 injures were noticed on the person of deceased. Injury at Sr.No.13 in coloumn no.17 was caused due to fire arm. According to the statement made in the complaint by Murab Pawar as well as the eye witnesses to this incident, the sister of the said Murab by name Sharifabai indicates that when they were proceeding on the road in front of the house of Khushalrao, the complainant in second crime, these applicants and 15 other persons attacked on them with deadly weapons in their hand, as there was dispute over right of way in the land acquired by Khushalrao under the provisions of Ceiling Act. As the mob was attacking which belongs to Pardhi community, the applicant in first application went inside the house, took out the gun which is 12 bore gun and fired two shots. According to the complainant and other eye witnesses, the mob escaped themselves from the coverage of first gun shot, but the another gun shot hit on the head of Wardhaman and from where he was taken by hospital. So far as the statement made in the complaint as to which part of the body where deceased has received gun shot were corroborated by the eye witnesses, but not supported by the post mortem notes. As the exact spot, where the gun shots are received, is on the chest and lungs were ruptured and received lacerated wound due to hit of gun shot on the chest of Wardhaman. Whatever it may be, apart from the injury of the gun shot, there are 13 more injuries in the form of ICW found on the dead body of Wardhaman which indicates that there was free fight between two groups at the time of alleged incident. In 4 this light, the contents of the FIR in CR No.59/2010 require to be considered, wherein the injured witness, who is the complainant in second crime Khushalrao has stated that as there was dispute over the right of way through the land which was acquired under Ceiling Act in between the Pardhi community, there are frequent disputes between the parties. Alongwith the first application, a list of documents registered against this group is annexed with. At this juncture, who is right or who is wrong, it can not to be decided, but the police record require to be verified, which indicates that against the complainant group in the first crime, there is registration of more than 10 offences of the serious nature, which clearly indicates that the complainant group in the first crime is having a history of criminal antecedents and in that light, the contents of papers of investigation in the second crime needs consideration. 5. The papers in the second crime discloses that when the complainant Khushal and his wife were inside their house, they heard hue and cry outside their house premises. When the came outside his house to see as to what happened, he noticed that the mob of Pardhi community, armed with deadly weapons and the plastic can containing liquid substance, approaching towards them. They forcibly entered in their house and tried to snatch the ornaments on the person of female members present in the house. One person poured kerosene on the person of applicant in first application and set him on fire. The clothes on the person of the first applicant were extinguished with pillow due to the fire, which he 5 thrown near the door, which find substance from the panchnama of place of offence drawn in the second offence about the entry of complainant’s party inside the house of applicant’s party. 6. It is projected across the bar that when the mob of more than 15-20 persons attacked with the deadly weapons in their hand and tried to set them on fire, to protect themselves and their property, they used the gun, which can not be disputed. According to learned APP, the applicants have exceeded the right of private defence as there are 5 entry wounds present on the person of deceased Wardhaman. This court require to take a note of the fact that the fire arm used in this attack is 12 bore gun. In 12 bore gun, at a time, only 2 bullets can be put and fired, and unless empty of those bullets are unloaded, there can not be re-loading of fresh bullets, and if it is so, the submissions of learned APP that the applicant in the first application has exceeded the right of private defence, can not be accepted. So far as the applicant in second application, whose role is shown as per the statement is of eye witnesses as well as the complainant, was found present at the spot and no overact is attributed to him. Considering the fact that these applicants came to be arrested about 5 months back, now the investigation is over, there is rivalry between the two groups and when the another group is enjoying the facility of bail, then there shall not be any possibility of tampering of prosecution evidence. It is made clear that these observations are prima facie, on the basis of documents placed before me. Learned Sessions Court not to influence with these 6 observations. In view of this, case is made out to enlarge both the applicants on bail. O R D E R 1. Both the applications are hereby allowed. 2. Both the applicants be released on bail, on their furnishing solvent surety in the sum of Rs.20,000/- each and on executing PR bond in the like amount. 3. Applications stand disposed of accordingly. (A.V.POTDAR, J.) khs/JULY 2010/cri.appl.2593-10