- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.1764/2010 1] Samirali Gulamali Makrani, age 22 yrs.,occu.labourer, 2] Latifali Gulamali Makrani, age 25 yrs., occu.labourer, Both are r/o Mothi Rajmohi Tq.Akkalkuva Dist.Nandurbar. ...Applicants.. Versus The State of Maharashtra. ...Respondent... ..... Smt.Sushma Savale, Advocate for applicants. Shri K.S. Patil, APP for respondent. Shri S.P. Brahme, Advocate for original complainant – intervenor. ..... - 2 - CORAM: A.V. POTDAR, J. DATE: 17.06.2010 PER COURT: 1] By the present criminal application, the applicants pray for their release on bail in connection with Crime No.689/2008 registered in Akkalkuva Police Station of District Nandurbar for the alleged offence u/ss.143 to 149, 302, 307, 323, 504, 506 r/w 34 of the Indian Penal Code and also u/s 37(1)(3) and 135 of the Bombay Police Act, in which the applicant no.1 came to be arrested on 14.10.2008 and second applicant was arrested on 15.10.2008. After completion of investigation, charge-sheet was filed in the said crime against 10 persons on 6.1.2009. As per record, earlier application was moved before the Sessions Court on 12.12.2008, which was rejected. Thereafter, this Court was moved by all the applicants for grant of bail, but it appears that the said application was withdrawn on 6.8.2008. 2] Record also shows that one of the accused in the said crime namely Mahemoodali @ Kalu Miyadad Makrani has also moved this Court vide Criminal Application No.400/2010, which was rejected by this Court on 18.2.2010. 3] Heard learned counsel for the applicants, learned A.P.P. for the State and learned counsel appearing for the original complainant. 4] From perusal of the record, it appears that the complaint came to be lodged - 3 - on the complaint of one Abdul Hakim Abdul Sattar on 14.10.2008 about the incident occurred in the afternoon of that day. The F.I.R. came to be lodged within some hours after the incident occurred at 11-15 hours in Akkalkuva Police Station of District Nandurbar. While considering the investigation carried out in this case, the recitals of the complaint itself play a very vital role. When the complainant and one Sallauddin, the injured witness in this crime, were proceeding to the field on the motor bike as Sallauddin received a message that labours are now present in the field and for supervision, they were proceeding to their agricultural land. On theire way, they were followed by these two applicants and some 8 to 10 other persons in a jeep and motor bikes, armed with deadly weapons. Sallauddin was attacked by these two applicants and one Gulamali Muradali Makrani. It is alleged that said Gulamali Muradali Makrani was holding sickle in his hand, while the present first applicant was having sword in his hand, while the second applicant was holding one barbour razor in his hand, with which they assaulted on Sallauddin. At this juncture only, I would like to criticise that even though it is alleged that as these applicants and others were agriculturists, the fact that they were carrying these weapons for cutting the harvested crops standing in their fields, cannot be accepted as neither sword nor barbour’s razor is an instrument to be used for the agricultural operations to cut the standing harvesting crops. In the later part of the complaint, it is alleged that one Abdulla Abdul Rehman Makrani was killed by the remaining associates of the present applicants, who had been in a banana orchard by dragging him on the road. That attack was a brutal attack. - 4 - 5] In this background, it is urged across the Bar that the application of one of the applicants was allowed by another Bench. Hence, on the ground of parity, these applicants be released on bail. The second phase of the submissions across the Bar is that the injuries, which Sallauddin has sustained, are not on his vital organs, but these are the simple injuries which in natural course would not cause death of Sallauddin. The injury certificate about the injuries sustained by Sallauddin clearly demonstrate that said Sallauddin has sustained three injuries. Out of which, one injury is on the nasal part, for which X-ray was advised, taken and disclosed that the nasal bone on the face of Sallauddin was fractured. At any stretch of imagination, the submissions can not be accepted that the face of a human being and the middle part of it is not a vital part of the body. If the nasal part is cut with the sharp instrument, the entire breathing system will collapse resulting into death of a human being. In the premises, these submissions are devoid of merits. Apart from that, the papers of investigation indicate that the sword and the barbour’s razor were recovered at the instance of these two applicants. 6] Thus, it is clear that one injury sustained by Sallauddin was on the face in which his nasal bone was fractured. In routine course, breathing system might have collapsed, if not instantly treated. These two applicants are the members of unlawful assembly assembled with the deadly weapons for causing serious injuries to Sallauddin as well as the deceased. It is a next phase of submissions across the Bar that even if the entire evidence collected during the investigation is - 5 - accepted, these applicants are not a party to the injuries sustained by the deceased Abdulla Abdul Rehman Makrani. Still the fact remains and it can not be ruled out that both these applicants are party of the unlawful assembly holding deadly weapons in furtherance of their common object. 7] It is also clear from the fact that as the incident occurred in the broad day light of which the said injured witness Sallauddin as well as the complainant are the eye witnesses, then the point is required to be considered as to whether their lives will be safe if these applicants are released on bail. During the course of submissions across the Bar, antecedents of these applicants are brought on record that these two applicants were on bail in Crime No.95/2007 for the offence u/s 307, 143 to 149 of the Indian Penal Code about an attempt to commit murder of the deceased in the present crime and were accused in Crime No.42/2008 in which the victim is one Aziz, who is member of the complainant’s party, that offence was u/s 307, 143 to 149 of the Indian Penal Code. The date of offence related to Crime No.95/2007 was 15.10.2007 and the date of offence in Crime No. 42/2008 was 22.4.2008. It is informed across the Bar that these applicants were released on bail in these two offence and while on bail, they have committed and participated in the present offence in which they were arrested on 14.10.2008. By their acts, the applicants have proved that they have misused the liberty and taken disadvantage of the liberty granted to them by the order of this Court. Such persons are not entitled for any leniency. - 6 - 8] During the course of submissions, reliance is placed by learned counsel for the applicants on the ruling in the matter of Criminal Application No.2008/1997 about the observations in para 3 reported in 1997 (5) LJSOFT, 587. At any stage of imagination, it can not be applicable while deciding this application as it relates to a single accused and not related to the unlawful assembly armed with deadly weapons. Further reliance is placed in the matter of Abdul Salam Abdul Rauf V/s State of Maharashtra reported in 1997 (1) LJSOFT, 778 on the observations in para 3, which relate to the injuries on the person of the victim not tallying with the weapon seized at the hands of the applicant. The facts of the present case are otherwise, as the weapons seized match with the injuries found on the person of Sallauddin and hence the facts of the cited case can not be made applicable while deciding the present application. 9] The application is sans any merits and deserves to be rejected. Accordingly, it is rejected. The application stands disposed of. (A.V. Potdar, J.) ndk/cr1761017