1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.4107 OF 2009 1. Ankush s/o Hariba Borphale, Age: 45 years, Occ: Agri., R/o. Sangvi (J), Tq.Nilanga, District Latur. 2. Pintu @ Mittu s/o Lahu Borphale, Age: 22 years, Occ: Agri., R/o. As above. 3. Satish s/o Shripati Borphale, Age: 21 years, Occ: Agri., R/o. As above. 4. Ramesh s/o Ganpati Borphale, Age: 35 years, Occ: & R/o.As above. 5. Bhagwat s/o Venkat Borphale, Age: 21 years, Occ: & R/o.As above. 6. Shivaji s/o Venkat Borphale, Age: 23 years, Occ: & R/o.As above. .. Applicants Versus The State of Maharashtra. .. Respondent ... Mr. V.D. Gunale, Advocate for applicants. Mr. N.B. Patil, A.P.P. for respondent. ... 2 CORAM : A.V. POTDAR, J. DATE : 9TH DECEMBER, 2009. PER COURT : By the present application, the applicants have approached this Court for their release on bail, in connection with Crime No. 123/2009 registered in Nilanga Police Station, for the alleged offence punishable under Sections 147, 148, 149, with 324, 504, 307 of the Indian Penal Code, with certain offences under the Bombay Police Act. 2. Heard learned Counsel appearing on behalf of the applicants, followed by submissions of learned A.P.P. appearing on behalf of the State. Also perused the papers of investigation till carried out. 3. Considering the submissions across the Bar, it appears that Crime No. 123/2009 came to be 3 registered on the basis of the complaint lodged by one Govind Manik Sartape for the alleged acts at the hands of these applicants, which allegedly took place in the night of 19-10-2009. As according to the learned Counsel appearing on behalf of the applicants, that the quarrel took place between Gajanan, the brother of present complainant in Crime No. 123/2009 and the applicants, on the ground of dispute about "one line of crop" in the field between the complainant and the applicants and for that, said Gajanan has lodged complaint with Nilanga Police Station. While he was returning back in the jeep, after lodging complaint, when they reached near the residence of Lahu Borphale, the injured as well as the complainant in Crime No. 124/2009, at that time, the relatives of present applicants attacked on the persons who were in the jeep and they were assaulted with the deadly weapons and due to that assault, the complainant herein had sustained head injury as well as other persons alongwith complainant had also 4 sustained serious injuries. According to learned Counsel for the applicants urged and brought the fact before this Court that in fact, the incident took place not only in front of the house of the applicants but the incident partly took place in front of the house as well as partly in the house of these applicants, as party of the complainant in Crime No. 123/2009 have initially pelted stones at the house of Lahu and assaulted with the weapons in their hands to Lahu and family members and when they entered in their house, taking advantage of the fodder which was lying outside the house, their house was set on fire. After this news learnt by other villagers and after lodging complaint by the present complainant, police visited spot, rescued Lahu and others and while he was taken to hospital in injured condition, where his statement was recorded. Hence, offence, on the basis of complaint lodged by Lahu, was registered vide Crime No. 124/2009 arising out of the same incident around 1-15 hours of 5 following day. Considering these submission across the Bar, on last occasion, instructions were given to the learned A.P.P. to produce papers of the investigation in Crime No. 123/2009 as well as in Crime No. 124/2009 for the perusal of this Court to find out at whose hands the overt act took place. 4. The learned A.P.P. not only produced the papers, but also opposed the bail application of the applicants herein. 5. Considered the submissions of the learned Counsel appearing for the applicants as well as learned A.P.P. appearing for the State. Perused the papers of investigation, not only in Crime No. 123/2009 but also in Crime No. 124/2009. As even though in both the complaints, there is little variance between place, where exactly incident occurred and on bare perusal of the panchnama of place of offence which was recorded in both C.R, it can be safely inferred that 6 place of offence is in front of house of the applicants herein, where panchnama discloses fodder as well as ash of wood found around the residential premises of these applicants. There are marks of violence on the door of premises of these applicants. Unless somebody from outside attacked on the door of these applicants, there cannot be such marks of violence found on the outer part of the door of the premises of these applicants. At the same time, fresh wooden ash found outside the premises of the applicants, indicate that inmates of the house were attacked by the outsiders. Considering these aspects of the case and counter complaint filed by the complainant herein as well as the applicant herein against the complainant in present C.R, it is necessary to consider which party is aggressive party. If the material on record shows that these applicants party were inside the house and when it was stated that by putting fire to fodder kept outside the house, the opposite party i.e. complainant party who are 7 the complainant in C.R. No. 123/2009, prima facie appears to be the aggressive party and if it is so, the applicants who are arrested on 19th October 2009 deserves to be enlarged on bail. In the premises, application deserves following order. : O R D E R : (1) The application is hereby allowed. (2) The applicants be released on bail, on furnishing surety in the sum of Rs. 15,000/- each and on executing P.R. Bond, in the like amount. (3) After release on bail, the applicants to attend the concerned Police Station, on written requisition, if required by the concerned Investigating Officer. 8 (4) The application stands disposed of accordingly. ( A.V. POTDAR, J.) sut/DEC09/cra4107.09