(1) CRI.APP. 4051.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 4051 OF 2010 1. Laxman S/o Subhash Bhange Aged : 33 years, Occu.: Agri., R/o Hadgaon Doka, Tq.Kaij, Dist. Beed 2. Sayas @ Shashikant S/o Subhash Bhange, Aged : 30 years, Occu.: Agri., R/o. Hadgaon Doka, Tq. Kaij, Dist. Beed .. Applicant VERSUS The State of Maharashtra .. Respondent ... Mr. S.S. Choudhary, Advocate for the Applicant Mr. N.H. Borade, APP for the respondent-State ... CORAM : V.R. KINGAONKAR, J. DATED : 22ND NOVEMBER, 2010 ORAL ORDER:- 1. By this Application, the applicants seek bail under section 439 of the Code of Criminal Procedure. 2. The incident giving rise to the prosecution case is stated to have occurred in agricultural lands bearing survey no. 6/7 situated at village Hadgaon- Doka on 17.6.2010. The FIR is lodged by one (2) CRI.APP. 4051.2010 Shivkanya Mahaveer Bhange alleging that she, her husband Mahaveer, deceased father-in-law by name Raosaheb and others were working in the agricultural land for the purpose of plucking raw cotton with help of two women labours. At about 3.00 pm., the applicants alongwith other co-accused entered the agricultural land. The applicant no.1 was having an axe and the applicant no.2 was having a stick with them. The women co-accused were having "chatni". All of sudden, chatni (containing chilli powder) was flung in the direction of the complainant, her husband and the father-in-law. Soon thereafter, the applicants started beating her husband and father-in- law i.e. Raosaheb by means of axe and stick. She and others raised hue and cry. Some witnesses rushed to the place. The applicants left the agricultural land thereafter. The injured persons including the deceased Raosaheb were sent for medical treatment. In the course of such severe assault, Raosaheb Bhange died due to the severe head injury caused to him by the applicants. (3) CRI.APP. 4051.2010 3. Heard learned Advocate for the applicants and learned A.P.P. Perused the investigation papers. The chargesheet has been already filed after due investigation. 4. The learned Advocate for the applicants would submit that the presence of the applicants is no more required by the Police for any effective investigation and keeping them behind the bars is not necessary to ensure fair trial. He would submit that the prosecution case does not inspire confidence because there was enmity between the members of the family of complainant i.e. Shivkanya and the family members of the applicants. It is contended that the nature of injuries found on person of deceased Raosaheb did not spell out intention of the assailants to cause his death. For, only two suture wounds were noticed during course of post-mortem examination. It is argued that the offence may not come within the ambit of section 302 of the Indian Penal Code and, therefore, it is urged that the applicants may be granted bail. The learned A.P.P. however, opposes the Application. (4) CRI.APP. 4051.2010 5. Perusal of the investigation papers prima facie indicates that the party members of the applicants entered the agricultural land in question at about 3.00 pm. with certain preparation to assault the members of the complainant's family. The very fact that both the applicants were armed with axe and stick and the women members of their family had brought "chatni" go to show that they together intended to mount an assault on the members of the complainant's family. It is true that there exist prior enmity between the two family. The enmity is double edged weapon. It is true that the post mortem report shows that two lacerated wounds were found on the person of deceased Raosaheb and which supposedly caused his death. It is important to notice that who used the axe or weapon, which resulted into said injuries is rather in-significant at this juncture because all the concerned accused were together when they had intruded in the agricultural land with preparation to mount assault in pursuance to their common design. It appears, prima facie, that both the applicants are involved in the alleged crime. (5) CRI.APP. 4051.2010 Their presence is also stated by eye witnesses Khandu Bhange and Mahaveer Bhange. It appears that there is direct evidence about complicity of the applicants and they jointly went in the agricultural land in the relevant afternoon, together, with an unlawful object in their mind to assault the deceased and his family members. 6. Under the circumstances, the Application is without merits and as such is dismissed. The observations in the order shall not be considered by the Sessions Court while deciding the Sessions case on merits. Sd/- [V. R. KINGAONKAR, J.] arp