IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1217 OF 2009 Pandharinath Karbhari Thore ...Applicant Vs. The State of Maharashtra .. Respondent --- Shri A.P. Mundargi, Senior Counsel i/b. Milind Deshmukh for Applicant Shri S.S. Pednekar, APP for the State Shri M.S. Karnik for Original Complainant. ---- CORAM: V.M. KANADE J. DATED 3RD APRIL, 2009 P.C. 1. Heard the learned Counsel appearing on behalf of the Applicant, the learned Counsel appearing on behalf of the Complainant and also the Learned APP for the State. 2. The Applicant has been arrested in connection with an offence which is registered vide C.R. No. 9 of 2008 with Lasalgaon Police Station for the offences punishable under sections 3-2, 143, 147, 148 of the Indian Penal Code and sections 3 and 25 of the Arms Act and section 135 of the Bombay Police Act. The Applicant was arrested on 20.8.2008. The incident in question took place on 7.3.2008. 3. The prosecution case is that the Applicant's son was an owner of hardware shop at Lasalgaon. The Municipal Authorities had started the work of demolition of certain properties in Lasalgaon for the purpose of road widening. Admittedly, there are two rival groups in the village, one belonging to the Applicant and other belonging to the Complainant Madhukar Baburao Darekar. While demolition work was going on, according to the Complainant in this case i.e. C.R.No.9 of 2008, persons from the Applicant's group assaulted Ramdas Karbari Darekar and when the Complainant was taking away Ramdas, one Balu Naik belonging to Applicant's group took out a pistol from his pocket and, at that time, the Applicant took the pistol from him and fired at a point range at Ramdas Karbari Darekhar and he was taken to the hospital. He succumbed to the injuries. A complaint also has been lodged by the present Applicant's group vide complaint No.11 of 2008, in which they have given another version of the said incident. It is stated in the complaint of the Applicant's group that people from Darekar's group wanted to ensure that even the hardware shop and other shop of the Applicant are also demolished in the road widening and, therefore, they had assembled in the group and entered in the shop and started assaulting the Applicant and other members of the Applicant's group with instruments which were available in the hardware shop and, therefore, at that time, the Applicant had opened fire in self defence. In the complaint which is filed on behalf of the Applicant, the members of Darekar's group are arraigned as accused for the offence punishable under sections 307, 324, 395, 337, 452, 435, 436, 127 r/w. 143, 147, 149 of the Indian Penal Code against Madhukar Darekar and other 72 to 75 persons. It is the case of the Applicant that in fact, members of the Darekar's group had entered their shop and they are the main aggressors to the said incident and the Applicant's group was seriously injured and, therefore, the said incident of firing the shot at the deceased had taken place. 4. A third complaint was also lodged by the police vide C.R. No.10 of 2008 for the offences punishable under section 307, 353,332, 333, 435, 436, 427, 143, 147, 148 of the Indian Penal Code in which number of police constables were seriously injured. The hardware shop was damaged and there was damage to the public properties which were adjoining to the shop. The Applicant and one other person from the Applicant's group were admitted in a private hospital. 5. A writ petition was filed by members of Darekar's group in this Court vide Criminal Writ Petition No.1350 of 2008, in which the principal grievance was that the applicant and other accused herein were not being arrested by the police though the case was registered against them under section 302 of the Indian Penal Code. Several orders were passed in this writ petition by the Division Bench of this Court from time to time. Initially the police arrested the Applicant. It is case of the Complainant that after this Division Bench appointed a committee to go ahead and examine the Applicant, the Police, arrested the Applicant which was stoutly opposed by the learned Senior Counsel appearing on behalf of the Applicant. Initially the Division Bench in the said writ petition had directed the Sessions Court not to hear the application for bail which was filed by the Applicant until further orders. This order was passed on 12th September, 2008 (Coram: Shri Bilal Nazki and Shri A.A. Kumbhakoni JJ.). Thereafter, the said order was withdrawn and the following order was passed: “P.C. 1. In the fats and circumstances of this case, this Court by an order dated 12.9.2008 directed the concerned Sessions Judge not to proceed with the bail applications of the accused, if any, filed by them and not to pas any order regarding grant of bail to the accused till further orders from this Court. Since the accused have been arrested and/or in custody for about six months, we do not consider it appropriate to continue with the said direction. 2. After hearing the learned counsel for Respondent Nos.4 and 5, we modify the order dated 12.9.2008, as under:- If any bail application is moved, that shall be decided by the learned Sessions Judge on its own merit without getting influenced by any of the orders passed by this Court in this proceeding. 3. The application is, accordingly, disposed of. The Sessions Court, thereafter, heard the bail application and was pleased to reject the said bail application. Being aggrieved by the said order, the present application has been filed. 6. I have perused the material which is on record. The fact that Ramdas Karbari Darekar died as a result of gun fire is not seriously disputed at this stage. The material indicates that the witnesses from the Darekar's group have given a statement viz. the Applicant herein had fired a shot at Ramdas Karbari Darekar and, therefore, the crowd had gathered in the shop and had gone on the rampage. The Applicant's group, on the other hand, has stated that the Darekar's group had first attacked the shop and assaulted the Applicant and others and, as a result, the Applicant had fired. The police witnesses, however, had stated in their statements that the person from Darekar's group were inside the shop and they had picked up various articles from the shop and started assaulting the Applicant and others after their initial altercations. The police constable R.J. Bagool has stated that they had heard the shot fired, after the initial altercations had arisen in the shop. The independent witnesses, therefore, in their statements given to the police had supported the Applicant's case. There is no dispute that after the death of Ramdas, the mob went on rampage. Taking into consideration, these peculiar facts and circumstances of the case, prima facie, it does appear that the applicant was injured in the said incident and 6/7 persons were also injured and had suffered fracture injuries and other severe injuries. Prima facie, it appears that the said injuries were received before the shot was fired. Persons from the Applicant's group as well as Darekar's group have been injured in the said incident. Police officers were also seriously injured. Under these circumstances, possibility of the Applicant acting in self defence cannot be ruled out at this stage. Taking into consideration these facts, prima facie case is made out for grant of bail, however, subject to certain conditions being imposed on the Applicant: (i) The Applicant, therefore, be released on bail in a sum of Rs.5,000/- with one or two sureties in the like amount. (ii) Applicant shall not enter the jurisdiction of Nasik District for a period of six months from today and, thereafter, he shall report to the Nasik Police Station once in a month. (iii) The Applicant shall submit his new residential address to the Superintendent of Jail before he is released on bail and report to the nearest police station from his new residence twice in a month. (iv) The Applicant and the members of his group shall not threaten the prosecution witnesses and try to tamper with the evidence. If any complaint is received from the Complainant's side on this ground, bail granted to the Applicant shall be cancelled. 7. Though normally the Court not supposed to weigh and sift an evidence at the stage of grant of bail, in order to see whether there is a prima facie material, the Court can go through the statement to find out the sequence of events which had taken place in order to consider the gravity of the offence, circumstances in which the offence had taken place so that the question whether the Applicant is entitled to get the bail or not can be considered by the Court. 8. The Trial Court, therefore, shall not be influenced in any manner by the observations made by this Court while considering the bail application of the Applicant. The Trial Court shall strictly consider the evidence on record and shall decide the case on merits and in accordance with law. 9. Application is, accordingly, disposed of. V.M. KANADE J.