{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.557 OF 2010 Dilip Trimbak Bansode APPLICANT VERSUS The State of Maharashtra RESPONDENT ....... Mr. M.V.Ghatge, Advocate for applicant Mr. N.R.Shaikh, APP for respondent State ....... [CORAM : A.V.POTDAR, J.] DATE: 25 th February 2010 PER COURT: 1. This is an application, by which the applicant has prayed to release him on bail in connection with CR No.172/2009 registered with Nanded (Rural) police station for an offence punishable u/s 302 r/w 34 of the Indian Penal Code. 2. Heard learned counsel for the applicant and learned APP. 3. The present applicant is arrested on the date of the incident i.e. on 15.06.2009 and since then he is in jail. Perusal of {2} papers of investigation disclose that for the one incident, two offence have been registered in one police station. The present offence is at CR No.172/2009 registered by the wife of deceased Raju. It is alleged that when the complainant was informed by one Anita, in respect of the incident of assault on her husband by the accused, she registered the offence. It is alleged that the incident took place at 9.30 a.m. on 15.06.2009 and complaint of the same is lodged at 11.30 a.m. on the same day. In the said complaint names of four persons are disclosed including present applicant and one Rahul, alleging that they have assaulted deceased Raju, Said Rahul has also lodged a complaint at CR No.173/2009 against deceased Raju. It is alleged in CR No.173/2009 that there was dispute between said Rahul and deceased in respect of financial transaction of Rs.150/- advanced by said Rahul to Raju and the same was not paid and on that count Raju was assaulted by Rahul in the past for which Rahul was convicted. It is further alleged deceased Raju took up a quarrel with complainant Rahul and that time Raju attempted to assault complainant Rahul and he was injured in the said incident. There is no reference of presence of present applicant in the complaint lodged by Rahul. 4. The submissions to be considered in the light of evidence collected during the investigation. PM notes indicates that Raju had sustained 13 injuries and it was not possible for the medical officer to describe and hence he has drawn a diagram of the injuries which indicates that upper portion of the body of {3} deceased Raju was punctured. Considering the PM notes, the assault on deceased has to be described not as murder but as a butchery. From the PM notes it is clear that the death of the deceased is unnatural and homicidal. In this connection statement of the witness play vital role. Information in respect of assault on Raju was given by one Anita. Statements of Anita and other witnesses show that at the time of assault, Raju was caught hold by the applicant and others and was stabbed by Rahul. Considering the nature of injuries found on the person of deceased it not possible that the same can be inflected by one person only. Unless anybody holds tightly, another could not have stabbed him in such a brutal manner. In the premises the attempts of learned counsel for applicant are futile. 5. At this juncture, it has to make it clear that in the cases where charge sheets are filed, the role played by the individual accused has to be considered in the light of the evidence collected during the investigation and not on the basis of the material, which is not collected at the time of investigation. Learned counsel for applicant has insisted to take into consideration the representation submitted by ladies of some Bachat Gat, who have allegedly witnessed the said incident. It is alleged in the representation that the present applicant is falsely implicated in the case. However, statements of these ladies are not on record. If anyone has witnessed certain incident and the Investigation Officer has declined to record his/her statement, then {4} complaint has to be filed with Superintendent of Police requesting to record their statement. Mere filing of some representation before this Court is not sufficient. In the premise, the said representation cannot be considered at the time of deciding bail application. 6. Considering the nature of injuries sustained by the deceased, it can safely be inferred that the same is not an act of one person, but is an act of a group and all are liable for punishment under the offence “common intention” to commit murder. From the papers of investigation it appears that the applicant is prima facie involved in the said offence. In the result, the application which is sans merits stands rejected. [A.V.POTDAR, J.] drp/A10/criapln557-10