1 Cri-A-3351-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL APPLICATION NO. 3351 OF 2010 The State of Maharashtra ... Applicant (Orig. complainant) Vs. Rahul Vasant Choutmal & Ors. ... Respondents Smt. G.P.Mulekar, APP, for the applicant - State. Mr.J.B.Kocheta,Advocate for the respondents. CORAM: J.H.BHATIA,J. DATE : 24th February, 2011. P.C. 1. Heard. Perused the police papers and the impugned order. 2. To state in brief, the prosecution case is that first informant Saheb Sardar Khan and his brothers, namely, Kader, Afzal and Nasir were helping people residing in the slum area at Pune because the Municipal Corporation had undertaken the work of removal of encroachments and the said slums. on 2.1.2010 at about 3.30 p.m., first informant Saheb and his three brothers along with two other persons went to Gandhi Nagar locality to make survey about the persons who needed help. They passed from in front of the house of one Subhash 2 Cri-A-3351-10.sxw Kamble,who is respondent No.3. Said Subhash Kamble felt that his name might not be in the list of the persons requiring the help and therefore he entered into some arguments with Saheb and his brothers. At that time, his son respondent No. 4 Chetan and two other relatives, who are respondent No.1 Rahul and respondent No.2 Sachin, abruptly began to assault Saheb and his brothers with sticks and caused injuries on the head and other parts of the body. First informant and his brothers were injured. Immediately after the incident, the first informant lodged the report at Dattawadi Police Station and Crime No.1/2010 was registered under Sections 324, 504, 506 read with Sec. 34 of IPC. The accused persons were arrested on the same day. On 3.1.2010, they were granted bail. Thereafter police invoked Sec. 326 and on 11.1.2010, Amjad Sardar succumbed to the injuries and died. Due to this, Sec. 302 of IPC was invoked. 3. In view of this, the prosecution filed an application for cancellation of bail before the Sessions Court. Simultaneously, the accused persons also filed fresh application for bail in the murder case. The Sessions Court, after hearing the parties, passed the impugned order dated 25.2.2010 and rejected the application field by the State for cancellation of bail and granted bail to the accused persons with condition that they shall not tamper with the prosecution evidence and shall assist the police in investigation in whatever manner lawfully required and not to 3 Cri-A-3351-10.sxw leave the jurisdiction of Pune without prior permission of the concerned Magistrate. They were also directed to make themselves available to Dattawadi Police Station on everyday as asked by the Investigating Officer. Being not satisfied with the said order, the State has preferred the present application for cancellation of bail. 3. The grounds for cancellation of bail taken by the prosecution are that the Investigating Officer intended to recover blood stained clothes which the accused were wearing at the time of the incident. He wanted to collect their blood samples and nail clippings for sending to the Chemical Analyzer and he also wanted to investigate to find out whether accused persons had used iron rod in the commission of offence and whether there were any other persons. 4. In the FIR, which was lodged immediately after the incident and the statements of injured persons including the deceased, reveal that they were assaulted with wooden sticks. Nobody uttered that any of the accused was armed with an iron rod or that iron rod was used as a weapon of offence. In the FIR and the statements of other witnesses, names of all the four assailants are also clearly mentioned. Therefore, the question of further investigation as to whether iron rod was used as a weapon of offence and whether there were any other associates of 4 Cri-A-3351-10.sxw the accused persons is totally baseless and irrelevant ground. The bail was granted to the accused persons initially on 3.1.2010. The application for cancellation was moved on 11.1.2010 and that application was disposed of on 25.2.2010. If the clothes and nails of the accused persons were stained with blood, they would not have preserved the same for such a long time when the impugned order was passed on 25.2.2010 and now after more than one year, it is impossible to find the blood in the nails of the accused persons or to trace out the blood stained clothes of the accused. As far as taking of sample is concerned, the order passed by the trial Court clearly shows that the accused persons were directed to attend the police station on everyday till the Investigating Officer required and also to assist the investigation in whatever manner lawfully required. It is not the grievance of the State that the accused persons did not co-operate or that they refused to give their blood samples. Taking into consideration the circumstances in which the incident occurred, it is clear that there was no previous enmity. The incident occurred abruptly after exchange of hot words only because of misunderstanding in the mind of the accused persons, that they were being deprived of the help which they could expect like other persons. Therefore, I see no reason to interfere in the bail order. 5. Therefore, the application stands rejected. However, the accused 5 Cri-A-3351-10.sxw persons shall attend the Dattawadi Police Station everyday between 10 a.m. and 2 p.m. from 28.2.2011 to 5.3.2011 and if the Investigating Officer wants to collect their blood samples or to interrogate them, they shall fully co-operate. They shall also furnish their permanent addresses to the police. In case, they fail to attend the police station and/or to give samples of their blood or nail clippings, etc., the State shall be at liberty to prefer fresh application for cancellation of bail. (J.H.BHATIA,J.)