(1) CRI. APLN. 4832.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 4832 OF 2010 1. Tukaram S/o Natha Dhone 2. Yadav Natha Dhone APPLICANTS VERSUS The State of Maharashtra and anr. RESPONDENTS ..... Mr. M. C. Syed, Advocate i/b. Mr. B.R. Borkar, Advocate for the Applicants. Mr. N. H. Borade, A.P.P. for the respondent/State. ..... CORAM : V.R. KINGAONKAR, J. DATED : 30TH NOVEMBER, 2010 ORAL ORDER:- 1. The Application is under section 438 of the Code of Criminal Procedure. 2. Heard learned Advocate for the applicants. 3. Recitals of the FIR prima facie show that the incident occurred on 4.9.2010 at about 9.30 am. It is alleged that in front of a temple of Lord Hanuman, the applicants alongwith other six accused persons intercepted the complainant and his brother, (2) CRI. APLN. 4832.2010 mother and uncle. It is further alleged that the applicant no.1 assaulted uncle of the complainant by means of a sickle and others also assaulted the complainant's uncle by means of a stick and when the complainant and his mother and brother rushed to assist the uncle, they were also assaulted by other co-accused including applicant no.2-Yadav. 4. The learned Advocate for the applicants would submit that since mother of the complainant was not admitted in the hospital, the story is unbelievable. He would further submit that the delay caused in lodging of the FIR is indicative of fabrication of the allegations in the FIR. He therefore submits that both the applicants are entitled to seek protection under section 438 of the Cr.P.C. I do not agree. It is important to mention here that the delay in lodging of the FIR is explained in the FIR itself. Whether to accept such explanation or to dis-believe the same, will be the question that can be addressed after the full-fledged trial. (3) CRI. APLN. 4832.2010 5. The allegations in the FIR cannot be abandoned only because of the so-called delay. It is stated in the FIR that the complainant and his uncle were serious due to the assault and therefore were admitted in Civil Hospital at Beed and subsequently uncle of the complainant was shifted to the Government Hospital at Aurangabad. It is stated that the FIR was lodged after the uncle of the complainant was discharged from the Civil Hospital. It appears that there was previous enmity between the parties and therefore, the assault was mounted on the complainant and his relative in order to avenge upon them. The involvement of the applicants is prima facie explicit from the recitals of the FIR and as such they do not deserve any protection as such. The Application is consequently dismissed. Sd/- [V. R. KINGAONKAR, J.] arp