BANo.1311.11.sxw sg IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL BAIL APPLICATION NO. 1311 OF 2011 Feroz Javed Sayyed .... Applicant V/s The State of Maharashtra and another .... Respondents S/Shri Subhash Jha, I/by Subhash Hulyalkar, Advocate for the Applicant. Shri Y.S. Shinde, APP for the Respondent-State. AND CRIMINAL BAIL APPLICATION NO. 1497 OF 2011 Feroz Sayyed Kawalgi .... Applicant V/s State of Maharashtra and another .... Respondents S/Shri Subhash Jha, I/by Subhash Hulyalkar for the Applicant. Smt. R.V. Newton, APP for the Respondent-State. CORAM : J.H. BHATIA, J. DATE : 22nd November, 2011. P.C.: The applicant seeks to be released on bail in Crime No. 72/2011 registered with Yerwada Police Station, Pune, for the offences punishable under Sections 302, 141, 143, 147, 148, 149 of the Indian Penal Code and under Section 4(25) of Arms Act. 1 BANo.1311.11.sxw 2. It appears that the FIR was registered on the basis of the report lodged by one Karpal Jalluram Walmiki on the basis of information received from Kasam Chand Shaikh. The FIR and the statements of Kasam Chand Shaikh dated 9.2.2011 show that six persons armed with different weapons approached one Balli and first accused Mohammed Sayyed abused said Balli and assaulted him with a Koyta or sickle. Out of the said six persons, one unknown person threw chilli powder in the eyes of Balli and at that time Mohammed Sayed gave a blow with sickle on his head. Another accused Raju Shendge stabbed in the back of Balli. One Firoz Sayyed assaulted on the back of Balli with sword and other two persons namely, Hasan Yazadi and Amar Adagale caught hold of hands of Balli. As per the post-mortem report, said Balli @ Dashrath suffered multiple incised and stab wounds on different parts of the body. During the investigation, police found that a conspiracy was hatched by 9 persons to commit murder of Dashrath @ Balli because of previous enmity. 3. Applicant Feroze Javed Sayyed in Application No. 1311/2011 is clearly referred as one of the assailants, who had assaulted on the back of said Balli with sword. In view of this role played by him, the learned counsel for the applicant fairly stated that he would not press the bail application of applicant Feroz Javed Sayyed. 2 BANo.1311.11.sxw 4. However, the learned Counsel contended that applicant Feroz Sayyed Kawalgi is not the person who is referred as Battya in the FIR or in the statement of Kasam Chand Shaikh on 9.2.2011. He also contended that even said Battya had only put sword on the back of the deceased but had not actually given any blow with the sword and, thus, no injury suffered by the deceased can be attributed to the present applicant, even if he is same Battya. The learned APP contended that in the supplementary statement dated 28.02.2011 applicant Firoz Sayyed Kawalgi is referred as Battya. In that statement Kasam Chand Shaikh stated that he and said Balli were taking tea near the tea stall at Kranti Chowk. At about 3.30 p.m., Mohd. Ali Shoukat Ali Sayyed, Raju Shendge, Firoz Sayyed Kawalgi, Feroz Javed Sayyed, who were residents of his locality and were known to him, were seen near one rickshaw near Kranti Chowk. He states that those four persons came from the side of Kshirsagar Hall. Firstly, Mohd. Sayyed came with a sickle or koyta. He was followed by Raju Shendge with Rambo sickle and Firoz Sayyed with a sword and Battya with a sword and two unknown persons, who were identified as Amar Adagale and Hasanali Yazdi, also came with sword and Farshi. Thereafter, he referred Battya as one of the assailants and stated that Battya had put sword on the back of Balli when he was being assaulted. On the basis of this statement, the learned APP contended that if the supplementary statement of Kasam Chand Shaikh is carefully read, it will be clear 3 BANo.1311.11.sxw that applicant Firoz Sayyed Kawalgi is also known as Battya. In support of this, the learned Additional Public Prosecutor also placed reliance on the statement of one Urmila Tak where she named accused Firoz Sayyed Kawalgi @ Battya as one of the assailants. If the original statement and supplementary statement of Kasam Chand Shaikh are read, it appears that four persons, who were known to him and were residents of his locality and two were unknown to him till that time. One of the known persons was Firoz Sayyed Kawalgi. In the latter part, while referring to the assailants, besides the three other named persons i.e. Mohd. Shoukat Ali, Feroz Javed Sayyed and Raju Shendge, he referred Battya as assailant. In view of this, there appears substance in the contention of the prosecution that the applicant is known as Battya. It is true that as per the statement of the eye witnesses he had only put the sword on the back of the deceased when he was being assaulted but he himself had not caused injury. However, taking into consideration as many as 23 injuries, including incised and stab wounds, it appears that he was mercilessly killed. Even though actual blows were given by 3 persons, the applicant Firoz Sayyed Kawalgi @ Battya had provided support to them by keeping the deceased on the point of the sword. That shows the common intention. Taking into consideration the serious offence of murder and the circumstances in which the offence is committed, in my opinion, it is in the interest of justice to grant bail to applicant. 4 BANo.1311.11.sxw 5. Application No. 1311/2011 stands disposed of as withdrawn. 6. Application No.1497/2011 filed by Feroz Sayyed Kawalgi stands rejected. 7. It is made clear that the observations made in this order are only for the purpose of testing this applicant and trial court shall not be influenced by those observations in any manner while deciding the cases. ( J.H. BHATIA, J. ) 5