1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 172 OF 2009 Majid Nishar Khan ...... Applicant. V/s The State of Maharashtra ....... Respondents. ------ Mr. H.H. Ponda, Senior Counsel i/b Mr. Yogesh Israni for the applicant. Mr. M.H. Solkar for the original complainant. Mr. Rajesh More, APP for the State. ----- CORAM : V.M. KANADE, J. DATE : 16th February, 2009 P.C:- 1. Heard the learned Senior Counsel for the applicant, the learned Counsel appearing on behalf of the original complainant and the learned APP for the State. 2. This is an application for bail. Applicant has been arrested in connection with the offence punishable under section 307, 326 and 341 read with section 34 of the Indian Penal Code. Allegation against the present applicant is that they were travelling in a car when the complainant and one person were travelling on a bike. They took over the said motor-cycle. Four persons got down from the said car and assaulted the complainant and one more person with knives. In 2 the said assault, both the persons were injured. The injury certificates have been annexed to the application. The injury certificate of Gulzar shows that there was incised wound on the back, neck and hand and the injury certificate of Nilesh A. Keni shows that there were two injuries viz. C.L.W 5 X 2 X Muscle deep and C.L.W. 4 X 2 X Muscle deep on the abdomen. The injury certificate shows that the said injury was caused by a sharp weapon and the injury was grievous. 3. The learned Senior Counsel appearing on behalf of the applicant submitted that these injuries, in the first place, are not grievous injuries but are simple injuries and, therefore, charge under section 307 of the Indian Penal Code would not be attracted to the facts of the present case. He further submitted that there is a contradiction in the statement of four eye witnesses who have seen the said incident. The complainant in his statement has stated that one person had taken out a revolver and had put that revolver on the chest of the complainant and had fired it. However, it did not work. Thereafter, four other persons came and assaulted the complainant and one other person. Counsel for the applicant submitted that other witnesses have not mentioned about the revolver being shown to the complainant or the attempt having been made to fire from the said revolver. He submitted that other witnesses are silent on this aspect. He, therefore, submitted that the said contradiction in this sequence clearly shows that the story, as put up by the witnesses and more particularly the complainant, was concocted. He further submitted that there was a motive to implicate the present applicant. He submitted that, in fact, a complaint had been filed against the 3 complainant and others for the offence punishable under section 307 and that an attempt was made to pressurise the applicant and others to withdraw the said complaint. He further submitted that the applicant had informed the police that they are likely to be implicated in the false case. The learned Senior Counsel appearing on behalf of the applicant invited my attention to the said statement and letters which have been sent by the applicant herein to the Police Officers. It is further submitted that, in fact, the SMS message was sent which has been annexed to the said compilation. It is submitted that this is a clear case where the applicant and others were sought to be falsely implicated. He further submitted that one of the injured persons had written a letter to Shivaji Park Police Station and he had retracted his earlier statement and he had stated that the complainant had asked him to falsely implicate the present applicant. 4. Mr. Solkar, the learned Counsel appearing on behalf of the original complainant, on the other hand, submitted that threats were given by the applicant and the members of their gang and a complaint had been lodged by the complainant. He has further submitted that pursuant to the said threats, one of the witnesses had retracted his earlier statement. He submitted that these persons belonged to Dawood Ibrahim Kaskar's gang and, if they are released, they would threaten the other witnesses. He submitted that the charge-sheet has been filed and the trial is ready for hearing. He has filed xerox copy of the certified copy of the roznama. 5. Taking into consideration the serious allegations which are 4 made against the present applicant, in my view, this is not a fit case for granting bail. Though there are some discrepancies in the statement of two witnesses, presence of the applicant has been established by the statement of the complainant. It is alleged by the complainant that the complainant and other witnesses had received grievous injuries. However, it is submitted by the learned Counsel for the applicant that the injuries are simple and not grievous. At this stage, it is not possible to give a finding as to whether the said injuries are grievous or simple and that question can only be taken into consideration after the evidence is led by the prosecution. The fact remains that the complainant has stated that one of the members of the applicant's gang had pointed out revolver on the chest of the complainant and had fired from it. However, luckily for the complainant, the revolver did not work. Taking into consideration these allegations, prima facie, offence punishable under section 307, therefore, is made out. Since the criminal case is ready for hearing, it is expedited. Trial Court is directed to decide the case as expeditiously as possible and, in any case, within a period of six months from today. Application for bail is rejected. 6. It is clarified that the Trial Court shall not be influenced by the observations made by the this Court in this order while deciding this application for bail as they are prima facie in nature and that the Trial Court shall decide the case on its own merits and in accordance with law. 7. Application is disposed of. (V.M. KANADE, J.)