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.485 OF 2008 CRIMINAL APPLICATION NO.485 OF 2008 CRIMINAL APPLICATION NO.485 OF 2008 Amol Sriniwas Khanolkar & Others ..Applicants versus The State of Maharashtra ..Respondent Mr.Nitin Pradhan i/b. Law Global for the Applicant Mr.Dedhia for the State CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. CORAM : R.Y.GANOO, J. DATED : 6th May, 2008. DATED : 6th May, 2008. DATED : 6th May, 2008. P.C. 1. The three applicants are arrested in C.R.No.280 of 2007 of Bhandup Police Station under Section 302 of the Indian Penal Code and other related sections. The bail application is filed by Amol, Utpal and Nandkishore. The applicant No.1 Amol is commonly referred to as Ultya. The applicant No.2 is called as Utpal and applicant No.3 is called Nandu and as such there is no dispute about referring to the applicants by their nick names. 2. The incident is said to have taken place in -2- the night of 7th October, 2007. FIR is filed by Jagannath who claims to have witnessed the incident of assault by six persons including the present applicants with stump and bat. The statement of Jagannath is involving the present applicant. 3. The Investigating Agency has recorded the statements of daughter Rasika and Siddesh, son of the victim Biajyanath and these two young children have implicated the applicants as assailants. The arguments advanced by learned Advocate Mr. Pradhan that the statement of these two persons have been recorded at a belated stage may not weigh to discard these two statements atleast at the stage of disposal of the bail application. The fact that these two persons are of tender age is required to be noted as a part of investigation and delay in recording the statement cannot run against the prosecution. The post mortem report goes to indicate that the victim has suffered injuries in the nature of periorbital discoloration, multiple contusion on both side of chest and CLW. Item No.19 goes to show that the victim has suffered injury to his skull and even sub dura is damage. The final cause of death is reported to be head -3- injury in the form of fracture to skull bone. Intra cranial haemorrhage is also noticed. The post mortem report is in confirmity with the allegations of assault with cricket stump and bat. It was sought to be argued by the learned Advocate Mr.Pradhan with assistance of panchanama which has been conducted on 9th October, 2007 concerning the recovery of the three articles in the nature of cricket bat and stump at the instance of the assailants including the present applicants. It was tried to be argued by the learned Advocate Mr.Pradhan that the six assailants are alleged to have assaulted Baijyanath with stump and bat. The recovery of only three articles in the nature of cricket bat or cricket stump damages the case of the prosecution as regards use of cricket bat or stump by each of the applicant. In so far as this aspect is concerned the recovery which is sought to be made by the prosecution on 9.7.2007 cannot be considered as final and merely because only three articles were recovered, that by itself will not be of use to discard the word of Jagannath as also the two minor children who have deposed against the present applicants. The recovery of three articles by itself cannot be considered as coming in -4- conflict with the account of eye witnesses. The statement of Jagannath clearly indicates that the assailant including the applicants were in positive search of Baijyanath and after they could not find Baijyanath, at the house of Deonath they left the house and could trace Baijyanath near the shop by name Saguna Chicken Centre. . All the aforesaid material goes to show that the prosecution has made out a prima case against the present applicants. . The witness, namely Jagannath is a man of ordinary living and the two young children who have given statement against the applicants are of tender age. The motive behind the alleged incident was specific and if that be so, at this juncture keeping in view the time gap between the date of occurrence and the present application, if the applicants are released on bail, there is every likelihood of the applicants tampering the prosecution witnesses. In my view, considering the allegations and the charges levelled against the applicants this is not a case where the court should grant bail to the applicants. Hence the -5- application is required to be rejected. Hence the order. ORDER . Application for bail is rejected. (R.Y.Ganoo, J.) (R.Y.Ganoo, J.) (R.Y.Ganoo, J.)