IN THE HIGH COURT OF JUDICATURE AT BOMBAY: NAGPUR BENCH: NAGPUR CRIMINAL APPLICATION NO.576 OF 2008 Kisanpal Jagdeo Prasad ..vs.. State ================================================ CORAM: S.R. DONGAONKAR, J. DATE: 8.4.2008 Heard Mr. Abhijit Wagh, advocate for the applicant and Mr. Fulzele, A.P.P. for state. This is an application under section 439 of Criminal Procedure Code for grant of bail. Accused / applicant along with other accused is facing trial for the offence punishable under section 302, 120(b) r/w 34 of I.P.C. The prosecution case as it appears from the F.I.R. is that the present applicant and accused Ashok had come to Motorcycle and thereafter knife was taken from the motorcycle dickey and the same was hit by co-accused Ashok to the deceased by which his death was caused. It is the contention of the applicant that this is a case of single blow and therefore, no offence under section 302 of I.P.C. is made out. It is also contended that the applicant has not played any role in the said assault and therefore, he should be released on bail. From perusal of the postmortem notes it does appear that the injury was serious. It proved to be fatal. It was on vital part of the body therefore, the intention of the accused Ashok appears obviously to kill deceased ex-facie. As regards this applicant, learned counsel has taken me through the statement of Hirala Maiku Verma, Sharif Khan, Shiv Prisad Verma. He has compared the statements of these witnesses recorded by the I.O. during the investigation and the statements recorded under section 164 of Cr.P.C. by the learned Magistrate. According to him, there is no specific involvement pointed out by these witnesses of the applicant. Only statement of Hirala Maiku Verma points out that the applicant was with the accused no.1 at the relevant time. It also shows that he was standing along with his father in law. No doubt the allegations are positively against other accused persons regarding beating and that accused Ashok. Presence of the applicant is incriminating to him at the relevant time like the main assailant as he had come on motorcycle and the knife was taken out from the dickey of the motorcycle. It is further pertinent to note that the statement of Ramesh Verma was recorded and he has specifically stated that Ashok and other accused i.e. present applicant had assaulted him and Pramod. No doubt this statement was not recorded under section 164 of Cr.P.C. but fact remains that his statement was recorded during investigation. It is true other witness namely Hirala has in his statement under section 164 of Cr.P.C. has not named any accused as regards the assault, but fact remains; perhaps this was not got clarified by learned Magistrate;. While recording his statement, he stated “accused” while referring to the assailants. He stated “accused” The statement of Sharif Khan as recorded under section 164 of Cr.P.C. clearly implicates the applicant as an assailant. No doubt there is discrepancy as regards the assault by this applicant and the assault by the accused Ashok, because he mentions that this applicant had hit the deceased by knife and accused Ashok had caught hold him. But it cannot be overlooked that the applicant was along with main accused – Ashok. It also does not appear that he tried to intervene in the matter and save the deceased. In these circumstances as the trial is now fixed on 15.4.2008 for framing of charges, it is not possible to grant this application at this stage, however, liberty is granted to the applicant to move for bail, if the trial does not commence within a period of 3 months from today. Learned trial Judge to expedite the trial. Application stands rejected with above directions. JUDGE smp.