1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application No. 1769 of 2010 Pralhad Rajuni Gaikwad ..VERSUS.. State of Maharashtra, thru. P.S.O. , P.S., Washim. Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. A.M.Ghare, Advocate for the applicant. Mr. M.J.Khan, A.P.P. for Respondent-State. CORAM : Prasanna B. Varale, J. DATED : 06 th Decem ber , 2010 . Heard. By the present application under Section 439 of Cr.P.C., the applicant has approached this Court for grant of regular bail in connection with Crime No. 256/2009 registered with police Station, Washim for the offences punishable under Section 147, 148, 149, 302, 201 and 342 of I.P.C. A report dated 01/8/2009 was lodged by one Ravi Gangaram Jadhav against the applicant and other accused persons. The sum and substance of the report is that the applicant and his father i.e. the victim Satish Jadhav, were having inimical terms on certain agriculture property. The parties were on cross terms. There was a civil proceeding pending in the Court of law as well as there was exchange of threats between the parties. On 01/8/2009, while returning from Washim after attending the Court matter, the complainant and his father were accosted by the applicant and other accused persons near Wangi toll naka. The applicant was armed with weapon Sword, accused Gajanan was armed with Axe, accused Kisan was armed with stick, one Vijay Gaikwad threw chilli powder and 2 Pralhad and Kailash instigated to assault the victim. Kailash, who was armed with sickle made attack on the neck whereas Pralhad who was armed with sword, pierced the sword in the stomach of the victim. As the complainant Ravi apprehended that the accused persons may kill his father, ran away from the spot and came to village Rithad and again came to the spot along with other relatives. He found that the body of his father was lying there, blood was oozing and the clothes were smeared with blood. Mr. Ghare, learned Advocate for the applicant submits that it is not in dispute that the parties were in cross terms and there was exchange of threats between the parties and only because of this prior enmity, the applicant is involved in the said crime. He further submits that the investigation is concluded by the investigating agency by filing final report and the material collected by the investigating agency, no way connects the applicant with the alleged crime. He further submitted that on the basis of such a vague and doubtful material, keeping the applicant behind the bars for indefinite period would be a pre-trial conviction to the applicant and as such the applicant is entitled to be enlarged on bail. Per contra, Mr. Khan, learned APP has vehemently opposed the application. Reply is filed by the State. The investigation papers are also kept before the Court for perusal. Mr. Khan, learned APP for the State has stated in the reply that there is specific mention in the statement of the complainant the fact that the applicant and the victim were in cross terms and there was constant exchange of threats to his father. He further submitted that the complaint lodged by Ravi Jadhav specifically states that the applicant and other accused persons reached on the spot having an intention in their mind to teach lesson and as such they were armed with the weapons and the victim Satish was subjected to assault by 3 the weapons possessed by them. The main assailant, who was armed with sword and made assault thereby piercing the sword in the stomach of Satish and in view of this strong material , the applicant is not entitled to be released on bail. He further submitted that release of the applicant may lead to pressurizing the witnesses, who are resident of village Rithad. Considering the submissions of learned Advocate for the applicant as well as learned APP and the material placed for perusal, it reveals that though it is a specific case of the complainant and investigating agency that the applicant was armed with Sword and pierced that sword in the stomach of the applicant, the post mortem report show that injuries caused to the victim are on neck, ear, chest and occipital region. Column 20 of said report i.e. abdomen, reveals that there is no reference to any injury to abdomen. The material further discloses that a supplementary statement of the complainant was recorded on next day i.e. on 02/8/2009, which reveals that the accused persons including the present applicant, were armed with the weapons. It is further stated that the applicant used the sword and made assault on the stomach of the victim. Therefore, it is a very specific case of the complainant that the applicant has used sword and made an assault on the stomach of the victim, where as there is no corresponding material in the post mortem report to connect the applicant in the backdrop of the alleged assault on stomach piercing the sword. Learned Advocate for the applicant has submitted that except the present applicant and accused Kailash Gaikwad, who alleged to have used sickle and made assault on the neck of the victim, all the other accused persons are released on bail either by the Sessions Court or by this Court. Learned Advocate for the applicant submits that the applicant is ready to reside at Washim town and he 4 will not enter the village Kekat Umra or Rithad for a period of six months. In my considered opinion, on perusal of the material collected by the investigating agency, prima facie case is made out by the applicant. The apprehension expressed by learned APP that the applicant may pressurize the witnesses, can be taken care of by putting the applicant on certain conditions. At this stage, learned Advocate for the applicant submitted that as per his instructions, recently the applicant has lost his father and the last rites of his father are going to be performed on 10th and 11th December, 2010. Learned Advocate, therefore, seeks permission to the applicant to enter villge Kekat Umra and stay there on 10th and 11th December, 2010 for performing the last rites of his father and thereafter, the applicant will stay at Washim. In the result, the application is allowed. The applicant be released on bail on furnishing P.R. bond of Rs.25,000/- (Rupees Twenty Five Thousand only) with one or more solvent sureties in the like amount, on the following conditions. a] The applicant to cooperate with the investigating agency and attend the police station, Washim as and when called by the police. b] The applicant shall not tamper with the prosecution evidence nor commit any act such as contacting the prosecution witnesses or pressurize them. c] The applicant to submit his residential address and his contact numbers such as phone/mobile numbers to the investigating agency, immediately. d] In case the applicant is moving out of the area of police station, Washim, he shall inform the police station about his 5 visit to other place. e] In addition to above, the applicant is directed to reside at Washim town for a period of six months from today. The applicant is prohibited from entering the village Kekat Umra and Rithad during the said period. However, he is permitted to stay at village Kekat Umra for two days only i.e. on 10th and 11th December, 2010 for performing last rites of his father and thereafter he shall continue to reside at Washim. In case of breach of these conditions, the prosecution agency to take necessary steps in accordance with the provisions of law. JUDGE Diwale