1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR CRMINAL APPLICATION (BA) NO. 614/2011 Shrawan Debuji Gawande ..vs.. State of Maharashtra, thr. PSO P.S. Daryapur, Dist. Amravati - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. S. V. Sirpurkar, Advocate for applicant. Mr. D. M. Kale, A.P.P. for State. CORAM : M.N.GILANI, J. DATE : NOVEMBER 29, 2011. 1. This is an application under section 439 of the Code of Criminal Procedure for releasing the applicant on bail against whom Sessions Trial No.5/2011 is pending on the file of Additional Sessions Judge, Achalpur alleging commission of an offence punishable under Sections 143, 147, 149, 341, 307, 302 of the Indian Penal Code. One Nalubai married Sudhakar Wankhede six years prior to the incident. Out of this wedlock, they have a son aged about 2 ½ years. Because of matrimonial dispute, Nalubai lodged complaint with Police Station, Murtizapur against her husband. The police intervened. The child, who was in the custody of Sudhakar was handed over to Nalubai. This happened on 15.10.2010 at about 8.00 p.m. in the Police Station, Murtizapur. Thereafter, Nalubai, her father Harishchandra and 2 one Krushnabai boarded the auto and started proceeding towards their village. Her brother Sanjay Ingale and maternal uncle Sadashiv Tayade were escorting them on motorcycle. On the road in between Daryapur and Anjangaon their motorcycle was intercepted by five motorcycles which came from behind. In all there were seven persons. All those assailants started assaulting Sanjay and Sadashiv. Sanjay fell unconscious whose statement was later on recorded in the hospital. Sadashiv Tayade, was removed to the hospital at Daryapur. He was declared dead. 2. On the person of deceased, 12 injuries were noticed. The cause of death was recorded as due to throttling and blunt trauma to spleen and lungs. There was fracture to 5th and 6th rib. Sanjay Ingale had sustained injuries on neck, leg and back. 3. The prosecution story as unfolded above points out that the attack was premeditated. The name of the applicant is appearing in the First Information Report, which is lodged by Sanjay Ingale, who is an eye witness as well as injured. The motive is obvious. Because the custody of the child was lost due to intervention of the police they wanted to take revenge and succeeded in executing their plan. 4. Learned counsel for the applicant placed for perusal of this Court a copy of the order passed by this Court (Coram: U.V. 3 Bakre, J) on 15.09.2011. By that order, Sudhakar-husband of Nalubai- was released on bail. In the said order, it is observed as under: “6. I have perused the material on record mainly the initial statement of Sanjay Ingle recorded on 16/10/2010 and his supplementary statement recorded on 21/10/2010. It is seen that the main allegation leveled against the present applicant is squeezing of private part of Sanjay, through there is a general statement that all accused also assaulted the deceased Sadashiv. Prima facie it is seen that the death of the deceased Sadashiv occurred on account of cardio respiratory arrest due to asphyxia as a result of throttling though the deceased has also sustained fracture of ribs, etc. The allegation of strangulation of deceased is only against Deepak. It is seen that the allegations against the present applicant as far as the deceased is concerned, are similar to those which are against Prabhakar Wankhede and Prashant Wankhede, both of whom have already been ordered to be released on bail by this Court by order dated 28th April 2011, in Criminal Application (BA) No. 145/2011.” 5. I am not at all convinced that on the ground of parity, the applicant is entitled to be released on bail. This is a clear cut case of premeditated attack with a motive to take revenge of losing custody of the child. The evidence points out the formation of unlawful assembly object of which was to cause such injuries 4 which are sufficient to cause death of the uncle of Nalubai namely Sadashiv Tayade and her brother. 6. Learned counsel for the applicant then contended that on the medical ground the applicant be released on bail. According to him, the applicant is suffering from severe spinal problem and is under continuous medical treatment. He has produced an OPD card of General Hospital, Akola dated 29.12.2009 and other medical papers. All these medical case papers pertain to the period prior to the incident. The fact remains that the applicant rode motorcycle and was a party to the commission of offence. For the aforesaid reasons, I do not find any merit in this application. The same is, therefore, rejected. JUDGE kahale