1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 5436 OF 2009 Nagesh Sidharam Bagali ...Applicant vs. The State of Maharashtra ...Respondent Mr.M.S. Mohite for the Applicant. Mr.Y.M. Nakhwa, APP for the State. CORAM : V.M. KANADE, J. DATED : DECEMBER 15, 2009 P.C. :- 1 Heard Counsel for the applicant and APP for the State. 2 The applicant has been arrested in connection with an offence punishable under Sections 302, 323, 504 read with 34 of the IPC registered vide C.R.No.135/2009. 3 Prosecution case is that there was some 2 altercation between the applicant and complainant Shobha. The entire incident started with the trivial dispute between the complainant and the applicant and his family members. On 13th June, 2009, while the complainant was washing her gallery, some water fell on the family members of the accused  applicant herein who were residing below the complainant s house. At that time, accused Parvatibai picked up a quarrel with the complainant. Though the complainant tried to pacify the Bagali s, however, she was abused and thereafter, she went to the police station to lodge a complaint. Initially, an offence was registered vide C.R.No.135/2009 under Sections 326, 323, 504 read with 34 of the IPC. While she was at the police station, her son Vikas had gone to the house of his neighbour and asked for a glass of water and after, he drank water from the neighbour, at the time, the present applicant caught him by scruff of his neck and assaulted him, as a result of which, Vikas fell down on the ground. At that time, one Narsing and Omles came there. Narsing 3 was armed with iron pipe and Omles had a wooden bat. Narsing assaulted him with an iron pipe and Omles assaulted him with a bat. After sometime, Vikas tried to get up at which point of time, again Omless beated him with wooden bat on his head. He was thereafter taken to the hospital where he succumbed to the injuries. The post mortem notes indicates that the death was caused on account of head injury. 4 Shri Mohite, learned Counsel for the applicant strenuously urged that so far as the present applicant is concerned, there is no material to indicate that he shared the common intention of Narsing and Omles who had assaulted the deceased with iron pipe and wooden bat. It is submitted that the entire incident happened on the spur of moment and it cannot be said that the applicant could have, therefore, shared the intention of the other assailants. He invited my attention to the statements of the witnesses who had given sequence and chronology of events and after pointing out the 4 statements of the said witnesses, he had urged that the applicant had assaulted the deceased with fist blows and kick blows at an earlier point of time and thereafter, suddenly, the other co-accused Narsing and Omles assaulted him. He, therefore, submitted that from the sequence of events also, it can be seen that the applicant could not have shared the intention of the other assailants. 5 The learned APP, on the other hand, submitted that the applicant and others had assaulted Vikas even after his mother had gone to the police station to lodge the complaint. It is submitted that therefore, this is not a fit case for grant of bail. 6 After having given my anxious consideration to the submissions made by the learned Counsel for the applicant and the learned APP for the State, in my view, this is not a fit case for grant of bail. After perusal of the statements of the witnesses, it 5 does appear that all the members of the applicant s family had mercilessly assaulted the deceased as a result of which the deceased had received about seven injuries and grievous injury on his head. In the present case, though the complainant had apologised and had tried to pacify Mrs.Bagali, she abused her and after the complainant had gone to the police station, they started assaulting deceased Vikas who was young boy of 20 years of age and who was not connected with the main incident. This conduct merely shows that though the deceased was not at all responsible for the initial incident just because he is the son of the applicant Shobha, all the members of the Bagali family assaulted him. From this it can be clearly seen that the applicant also shared intention of the other members of the family. Had the applicant not shared the intention, he would have promptly stopped the other two assailants from assaulting the deceased with an iron pipe and wooden bat. Further it can be seen that initially, Omles had assaulted the deceased with wooden bat and 6 Narsing had assaulted him with iron pipe and he fell down and when he was trying to get up, again Omles assaulted with him with wooden bat. If the applicant had not shared the common intention of the Omles and Narsing, he would have promptly stopped or at least made an attempt to prevent these two persons from assaulting deceased Vikas who was lying on the ground in helpless condition. Under these circumstances, therefore, the contention of the learned Counsel for the applicant that the applicant did not share common intention cannot be accepted. 7 Application is rejected. 8 The trial court shall not be influenced by the observations made by this Court while deciding this application for bail since these observations essentially are of a prima facie nature. (V.M. KANADE, J.)