1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CRIMINAL APPLICATION (BA) NO. 494 OF 2011 CHANDAN RAMLAL MISHRA ..VERSUS.. STATE OF MAHARASHTRA, THROUGH P.S.O., P.S., WARDHA (CITY), WARDHA Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. R. M. Daga, Advocate for the applicant. Mr. M. A. Kadu, A.P.P. for the respondent CORAM : PRASANNA B. VARALE, J. DATED : 7 th SEPTEMBER , 2011 . Heard Mr. R. M. Daga, the learned counsel for the applicant and Mr. M. A. Kadu, the learned Additional Public Prosecutor for the respondent/State. By the present application, the applicant is seeking his enlargement on bail under Section 439 of the Code of Criminal Procedure. On the statement of victim namely Virendra Devidas Ramteke, Crime No. 323/2011 came to be registered at Police Station, Wardha (City), Wardha for the offence under Section 307, 341 r/w Section 34 of Indian Penal Code and under Section 4, 25 of Arms Act and under Section 3 (1)(10) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act. It was stated by Virendra in his statement that on 18.07.2011, while returning from his brick kiln on his motorcycle in front of the shop of one Pawan Mishra, he was apprehended by the applicant and Ramlal Mishra and the younger brother of the 2 applicant. These persons abused him on the caste. Ramlal Mishra assaulted Virendra with Baseball bat while Pawan landed assault with the help of Sword and the younger brother of the applicant-Chandan assaulted with the help of Hammer on the left shoulder of Virendra. Hence, Virendra ran towards the house of one Thakre. In that process, his wrist watch and golden chain fell down. One Ashish Thakre called the brother of Virendra, namely Narendra. Narendra reached on the spot and brought Virendra to Police Station. Virendra was thereafter shifted to the hospital for medical treatment. On these premises, the offence came to be registered. Mr. Daga, the learned counsel for the applicant submitted that the applicant is prosecuting his studies and falsely involved in the said crime only because of the previous enmity. The learned counsel by inviting my attention to the statement of the victim, which was immediately recorded on 18.07.2011 at 8.00 O’clock, submitted that perusal of the statement would show that the role attributed to the applicant is only in respect of abuses given to Virendra. He further submitted that the said statement shows no attribution of any assault at the hands of the applicant. The learned counsel further submitted that the statement of Virendra was initially recorded on 18.07.2011 and subsequent statement of the witnesses recorded by the investigating agency spells out the role played by one Ramlal Mishra i.e. Ramlal Mishra used Baseball bat and assaulted Virendra on his head, whereas Pawan Mishra used Sword and younger brother of the applicant used Hammer. The learned counsel for the applicant further submitted that in the statement of the other witnesses, major role is attributed to Ramlal Mishra and though, there are 3 serious allegations against said Ramlal, the main accused, he is released on bail under Section 438 of Cr.P.C. by the order dated 01.08.2011 by the learned Additional Sessions Judge, Wardha. The learned counsel for the applicant submitted that the applicant is prosecuting his studies and in view of the record collected by the investigating agency, there is nothing against the applicant so as to connect him with the alleged acts. He further submitted that the applicant is desirous of prosecuting his studies and ready to abide by the conditions imposed upon him by this Court. The learned counsel for the applicant lastly submitted that the applicant is behind the bars from 18.07.2011 and the investigation is practically over. There is nothing on record so as to say that any recovery is expected at the instance of the applicant. He, therefore, prayed for release of the applicant on bail. Per contra, Mr. Kadu, the learned Additional Public Prosecutor for the respondent/State submitted that though, in the initial statement of the victim Virendra, no role is attributed to the applicant, in the subsequent statements the witnesses say that that the applicant was armed with the Baseball bat and assaulted victim Virendra on his left shoulder. The learned APP opposes the application and prayed for rejection of the application. After giving anxious consideration to the arguments advanced by the learned counsel for the applicant as well as the learned Additional Public Prosecutor and perusal of the material made available by the learned APP, it reveals that in the initial statement of the victim Virendra, no role is attributed to the applicant, except giving abuses. It is not disputed that the so called main accused Ramlal, against whom there are serious allegation of assault to the victim on head with Baseball bat, is 4 already released on anticipatory bail. Perusal of the medical certificate shows that the injuries caused to the victim are namely C/w over head, incised wound over left forearm, sustained trauma to left shoulder. Even accepted the material as it is, it is very difficult to arrive at a conclusion that the so called injuries caused at the hands of the applicant as alleged, would attract the offence under Section 307 of I.P.C. It is also not in dispute that the applicant is prosecuting his studies and there was enmity between the victim and the accused persons on the ground of money out of the brick kiln business. On considering the material, I am of the opinion that the case is made out by the applicant for releasing him on bail. The interest of state can be protected by putting the applicant on certain conditions. In the result, the criminal application is allowed. The applicant – Chandan Ramlal Mishra, be released on bail on furnishing P.R. bond of Rs.25,000/- (Rupees Twenty Five Thousand only) with one solvent surety in the like amount, on the following conditions. a] The applicant to cooperate with the investigating agency and attend the police station, Wardha (City), Wardha on every Sunday between 11.00 a.m. to 02.00 p.m., till filing of the charge sheet and thereafter as and when called by the police. b] The applicant shall not tamper with the prosecution evidence nor commit any act such as contacting the prosecution witnesses or pressurize them. c] The applicant to submit his residential address and his contact numbers such as phone/mobile numbers to the 5 investigating agency. d] In case the applicant is moving out of the area of police station, Wardha (City), Wardha, he shall inform the police station about his visit to other place. In case of breach of these conditions, the prosecution agency to take necessary steps in accordance with the provisions of law. JUDGE Diwale