1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR Criminal Application No. (BA) No.468/2011 Lokesh @ Kallu s/o Sunderial Yadav Vs. State of Maharashtra =-=-=---=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, Office Memorandum of Coram appearances, Court's orders or directions & Registrar's orders. Court's or Judges Order =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- CORAM : U.V. BAKRE, J. DATED : 21/09/2011. Heard Mr. R.M. Daga, learned counsel for the applicant and Mr. C.N. Adgokar, learned APP for the respondent. The applicant, who has been arrested on 7.3.2011 in Crime No.16/2011 registered at Police Station, Ramnagar, Gondia for offence punishable under Sections 147, 148, 302, 307 and 324 read with Section 149 of the Indian Penal Code has filed the present application for bail. The case of the prosecution is that on 6.3.2011 at night time at about 10.20 to 10.40 p.m. Dhiru Yadav, Dasu, Kallu (present applicant), Shushant Yadav, Bhawani Yadav, Rajesh Methiya and about 7-8 others came to the hotel/beer bar of the complainant Haribhau Choudhari with swords, iron pipe, hockey stick etc., and assaulted the said complainant Shri 2 Haribhau, his elder brother Shri Ramkisan and one Sanjay Meshram and ran away from the spot. Ramkisan sustained head injury along with other grievous injuries and died. The applicant has alleged that there was fight between two groups in which Ramkisan Choudhari, Haribhau and Sanjay of one group have received injuries and Dhriu Yadav and Bhawani Yadav from other group have also received injuries and that Ramkisan has died. It is further stated that regarding the assault on Dhiraj Yadav, Bhawani Yadav and others, there is counter case registered against the complainant Haribhau and his companions under Crime No. 17/2011 for offence punishable under Sections 307 and 324 read with Section 149 of the Indian Penal Code. It is alleged that all 12 accused persons in the said crime No.17/2011 have been released on bail by the Trial Court and accused no. 6 namely Bhawani @ Tinku of Crime No.16/2011 has been granted anticipatory bail. The applicant has stated that as per FIR he was in possession of hockey stick but as per the statement of Harikisan he was having iron rod and this shows inter-se inconsistency. It is further pointed out that the deceased had sustained two incised wounds ,which cannot be caused either by stick or by iron rod. The applicant, therefore, prays for bail on the ground on parity as well as on the ground of role allegedly attributed to him. 3 In the reply filed by the respondent as well in the arguments advanced by the learned APP, the application for bail has been vigorously opposed on the ground that there is prima facie evidence against the applicant and that he is hardened criminal with already five cases previously registered Crimes against him and externment proceedings being pending before the Sub Divisional Magistrate, Gondia. It is seen that as per medico-legal certificate pertaining to Ramkisan, he had sustained incised wounds to parietal region and fracture to scalp. The post-mortem examination report also reveals that the deceased had sustained incised wounds on parietal region along with other injuries and that the death was due to head injury. Upon query being posed by the Investigating Officer, the Medico-Legal Officer has opined that the injuries sustained by Ramkisan as mentioned in the previous certificate cannot be caused by steel rod which was produced before him. It can be said primafacie that incised wounds on the parietal region of the deceased, which resulted in death, cannot be caused by means of iron rod or by means of stick. It is seen that in the FIR it is mentioned by Harikisan that the present applicant was armed with hockey stick whereas in the supplimentary statement of Harikisan, it is stated that the applicant had iron rod 4 and had used it against Sanjay. In the supplementary statement, Harikisan has stated that Kallu Yadav took Ram Bhaiyya away and wanted to talk to him and at that time Dassu Yadav assaulted Rambhaiyya with sword on his head. According to Sanjay Meshram, the applicant assaulted Ramkisan on his head with a rod. As already stated above, the deceased had sustained incised wounds on his head which are not possible by means of iron rod. The above discussed evidence, prima facie, goes to show that role attributed to the applicant does not relate to death of the deceased. On the contrary, it is seen from the record that one Bhavani Yadav was armed with sword and had also assaulted the deceased with sword. However, on 29.4.2011 the learned Additional Sessions Judge, Gondia has granted anticipatory bail to him. The twelve accused persons in the counter case under Crime No. 17/2002, also registered for serious offence punishable under sections 307 and 324 r/w section 149 of IPC, which include the Complainant and other witnesses of Crime No. 16/2001, have been released on bail. As far as the five cases, against the applicant, which are mentioned in paragraph 8 of the reply filed by the prosecution, are concerned, the present applicant 5 is not in custody in respect of any of those cases and it is stated across the bar by Ld. Advocate Shri Daga that in three of those cases, the applicant has already been acquitted. The externment proceeding about which mention has been made in the reply is allegedly pending and it would take its own course and time,the result of which is not known. In my view, that cannot be a ground for rejecting the bail application in the present crime. In the circumstances above, the application is allowed. The applicant shall be released in Crime No.16/2011 registered by Ramngar Gondia Police Station for offence punishable under Sections 147, 148, 302, 307, 324 read with Section 149 of the Indian Penal Code upon execution of personal recognition bond of Rs. 50,000/- (Rs. Fifty thousand only) with one solvent surety in the like amount under the following conditions:- (i) The applicant shall attend Ramnagar Police Station on every Monday and sign there an attendance register, until further orders. (ii) He shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; (iii) He shall not leave India without previous permission of the Trial Court. 6 (iv) It is made clear that the applications for bail, if any, filed by other accused persons, shall be decided on their own merits. Application stands disposed of accordingly. JUDGE Ambulkar.