IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1166 OF 2009 CRIMINAL APPLICATION NO.1166 OF 2009 CRIMINAL APPLICATION NO.1166 OF 2009 1. Raju @ Hanmantu Kallappa Gaikwad, 2. Ramkrishna Kallappa Gaikwad, 3. Bhimashankar @ Tatya Kallappa Gaikwad, 4. Kallappa Hanmant Gaikwad, 5. Hussain Bhima Gaikwad ...Applicants (Orig.Accused Nos. 1 to 5) vs. The State of Maharashtra ...Respondent Mr.V.V. Purwant for the Applicants. Mrs.M.H. Mhatre, APP for the State. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. DATED : MARCH 25, 2009 DATED : MARCH 25, 2009 DATED : MARCH 25, 2009 P.C. :- P.C. :- P.C. :- 1. Heard Counsel for the applicants and APP for the State. 2. The applicants have been arrested in connection with an offence punishable under Sections 302, 307, 323, 148, 149, 504, 506 of the IPC vide C.R.No.87/2008 registered with the Salgar Vasti Police Station. 3. Prosecution case is that one Kallappa Bhima Gaikwad is the brother-in-law of the complainant and he - 2 - had visited his residence on 17th October, 2008 at about 10.30 in the night and had forcibly taken Rs.4000/- from his wife after assaulting her and threatening her. On account of this incident, she lodged the complaint with the police station. Therefore, said Kallappa Bhima Gaikwad had threatened her that he would kill her brother-in-law and children. On account of the said complaint, the police were in search of Kallappa Bhima Gaikwad and they had tried to locate him at his house and the house of his relatives. Thereafter, on 31st October, 2008, according to the complainant at about 7.30 in the evening, Hussain Bhima Gaikwad came and threatened the complainant’s wife that she should withdraw the complaint which she had filed with the police, otherwise she and her family members would be killed. Therefore, the complainant had gone to the office of the Commissioner of Police, Solapur, to give a complaint. When the applicants came to know that the complainant had gone to the office of the Commissioner to give a complaint, they came to the complainant’s house and they were armed with iron pipe, hammer, swords, sticks and applicant no.5 had an altercation - 3 - with the complainant. At that time, the complainant’s brother Laxman came there and told the complainant that he should take his wife to the police station. Hearing this, Kallappa Hanmant Gaikwad told the co-accused that they should kill Laxman since he was interfering in between the complainant and the applicants and thereafter, applicants no.1 and 2 assaulted Laxman with the sword and the hammer and the others also assaulted the complainant and his wife with iron pipe and iron rod and applicant no.5 assaulted the complainant with the stick. Laxman died after two days and the cause of death shows as Septicemia due to head injury. 4. Counsel for the applicant submitted that the cause of death was Septicemia and therefore, provisions of Section 302 were not attracted. It was submitted that so far as the complainant is concerned, he has received simple injuries and there was only one head injury noticed on the head of the deceased. It was submitted that the attack on the Laxman was sudden. It was submitted that all the members of the applicant’s Kallapa family were implicated. It was submitted, - 4 - therefore, the applicants were entitled to be released on bail. 5. I have perused the complaint. In my view, the applicants no.1 to 4 are not entitled to be released on bail. Taking into consideration the nature of complaint which has been filed against the present applicants, there is every possibility that the applicants no.1 to 4 if released on bail, are further likely to threaten the prosecution witnesses. This can be ascertained from the fact that after the first complaint was filed by the wife of the complainant, thereafter, the applicants threatened her. Thereafter, the complainant went to the office of the Commissioner of Police to lodge the complaint. The applicants, thereafter, came to his house, they were armed with deadly weapons, their intention obviously was to finish of the complainant, however, because of the complainant’s brother Laxman intervened, the applicants assaulted him and thereafter, assaulted the complainant and his wife. This clearly shows that intention of the applicant, because the complaint was filed against them, they had not only - 5 - threatened the prosecution witnesses including the complainant and his wife but thereafter when a further complaint was filed by the complainant with the Commissioner of Police, they came and killed the brother of the complainant. These allegations, therefore, clearly indicate that if the applicants are released on bail, they are bound to either make an attempt to further intimidate the prosecution witnesses or try to attack them again. This being the position, applicants no.1 to 4, in my view, are not entitled to be released on bail. Even otherwise, applicant Nos.1 and 2 were armed with deadly weapons and had assaulted Laxman who died because of head injury. The application for bail, therefore, of applicant nos.1 to 4 is rejected. 6. So far as applicant no.5 is concerned, taking into consideration the role attributed to him and the complainant, he deserves to be released on bail subject to certain conditions being imposed on him. 7. Applicant no.5 - Hussain Bhima Gaikwad be released on bail in the sum of Rs.5000/- with one or two - 6 - sureties in the like amount. He shall not, however, enter the city of Solapur during the pendency of the trial save and except for the purpose of attending the criminal case in the Sessions Court. He shall give his new address to the Superintendent of Police before his release on bail and thereafter, shall report to the nearest police station once in a month. 8. The trial court shall not be influenced by any of the observations made by this Court while considering the application for bail filed by the applicants herein since these observations essentially are of the prima facie nature and this should not be construed as finding recorded by this Court. The trial court shall, therefore, decide the case on its own merits and in accordance with law. 9. The application is disposed of. (V.M. KANADE, J.) (V.M. KANADE, J.) (V.M. KANADE, J.)