1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.2766 OF 2011 ASIF KHAN ABDUL SAMAD KHAN Applicant. V E R S U S THE STATE OF MAH THR. CHAWANI P.S. Respondent ........................................................................ Mr. Deshpande J.V.Advocate for applicant. Mr.P.P.More,APP for the respondent. ........................................................................ CORAM : SHRIHARI P. DAVARE, J. DATE : 12 th AUGUST, 2011. PER COURT : 1. Heard learned counsel for the parties. 2. This is an application preferred by the applicant, seeking bail in connection with Crime No.I-71/2011, 2 registered at Chawani Police Station, District Aurangabad for the offence punishable under section 307, 323 r/w 34 of Indian Penal Code. 3. It appears that the offence came to be registered on the complaint lodged by the complainant namely one Shaikh Mustafa Rafiq alias Akram Abdul Wahab to Chawani Police Station, on 15.3.2011, alleging that when at about 12.00 noon on 15.3.2011 he and his colleague, Vilas Keruji Saudagar were proceeding towards his site behind Kasambari Darga by his Scorpio, the applicant herein met him, while coming on the motor cycle, on the road behind Kattalkhana and stopped the Scorpio and therefore, the complainant alighted from the said Scorpio and applicant herein congratulated him, since the complainant won the case of land and shook hand with the complainant and after completion of the conversation, when the complainant turned back to board his Scorpio, at this juncture, the applicant herein gave a blow of knife on the 3 right side of the stomach and said wound was so deep that knife was penetrated up to his back and, therefore, the complainant tried to save himself but the applicant herein gave another 3-4 blows of knife on the chest of the complainant and on his head and also on his body on the right side, as well as he sustained injury on his right side thumb. By this time, some of the applicants namely Amirkhan, Asimkhan and some unknown persons arrived at the same place on the motor cycle and some of the applicants also assaulted the complainant by stone, on his head and unknown persons assaulted the complainant by fist blows and leg kicks. The colleague of the complainant namely Vilas tried to intervene but he also was assaulted by the applicant, his son and unknown persons by leg kicks and fist blows. Hence, the complainant and his colleague Vilas shouted and thereupon Mohd llias, Mohd. Dastgir and one more person arrived at the said place, and hence, the applicant’s son Amirkhan and unknown person fled away but the applicant was caught and 4 he was taken to the hospital and complainant went to Ghati Hospital and there after lodged complaint with Chawani Police Station on the same day and offence was registered against the applicant and his son under Crime No.I-71/2011 for the offence punishable under section 307, 323 r/w 34 of Indian Penal Code. 4. On the aforesaid background, Mr. J.V.Deshpande, learned counsel for the applicant submited that his earlier bail application was rejected, since investigation was under progress and now the charge sheet is filed, which discloses that the injuries sustained by the complainant are simple injuries, which do not attract section 307 of Indian Penal Code. Moreover, it is also submitted that since investigation has been completed and charge sheet has been filed, there is no propriety in keeping the applicant in the custody. It is also canvassed that son of the applicant has already been released on the bail. Moreover, it is further submitted that applicant 5 also sustained injury below his eye since there was scuffle between the complainant and applicant out of which applicant sustained injury as well as complainant. But since said injuries were sustained out of free fight and scuffle, there was no intention of the applicant to commit the murder of the complainant. 5. As regards, the criminal cases filed against the applicant, learned counsel submitted that, most of the cases are N.C. cases and some of them are under Maharashtra Regional and Town Planning Act and Schedule Castes and Schedule Tribes (Atrocities) Act and there are very few cases under the Indian Penal Code against the applicant, in which he has been already released on bail and there is no conviction at all against the applicant and hence, there is no impediment in enlarging the applicant on bail. As regards Crime No.I-179/2011, registered with Chawani Police Station, for the offence punishable under section 307, 323 r/w 6 34 of Indian Penal Code, learned counsel for the applicant canvassed that the applicant was in jail at the relevant time and therefore, the applicant cannot be connected with the said Crime. It is further canvassed by the learned counsel for the applicant that since the applicant herein lodged the complaint against Police Inspector Mundhe, under the provisions of Anti Corruption Act on 24.1.2011, the applicant was falsely implicated in the false cases more particularly on 26.1.2011 and thereafter. Accordingly, learned counsel for the applicant urged that considering the totality of the matter, the applicant deserves to be enlarged on bail, at the most if required, imposing conditions upon him. 6. As regards Crime No.I-179/2011 registered with Chawani Police Station, under section 307, 323 r/w 34 of Indian Penal Code although it is canvassed by the learned counsel for the applicant that he was in the jail, at the relevant time and there is no mention of the applicant therein, the 7 argument canvassed by the learned APP that although the applicant was in jail, he committed said offence through his agents and as reflected from the statement of Shaikh Anis- witness and said aspect cannot be overlooked. 7. Learned APP countered the said argument and opposed present application vehemently and submitted that the injuries are not material while considering the ingredients of Section 307 of Indian Penal Code and what is important intention behind it and giving five to six blows of knife on the vital part of the body itself reflects the intention of the applicant that he had intention to kill the first informant. It is also canvassed by the learned APP that, there is chequered criminal history of the applicant and various crimes have registered against him with different police station in Aurangabad and apprehension is posed, if the applicant is enlarged on bail, there is every possibility that he would pressurize the witnesses, and would influence upon the 8 witnesses and tamper with the evidence. In the said context, it is submitted that although the applicant was in jail under Crime No.I-179/2011, registered with Chawani Police Station, he managed to commit the said offence sitting in jail through his agents and although there is no mention of the name of the applicant herein, the man behind the curtain of the said offence is the applicant only and the eye witness in the said offence Shaikh Anis has categorically stated so. It is also pointed out by the learned APP that Criminal cases registered against the applicant are since 2004 onwards and it is submitted that applicant is the seasoned criminal. It is also canvassed that the applicant herein failed to respect the court order and since the complainant won the land case, the applicant instead of approaching the Appellate Forum, assaulted the first informant by knife on his vital part, which shows the conduct of the applicant. 9 8. Coming to the incident in question in the present crime, it is submitted that there is eye witness to the occurrence of the incident and complainant took discharge from the Government Hospital and took the treatment in private hospital, since he sustained injuries on his vital parts of his body. Accordingly, learned APP urged that present application bears no substance, same is devoid of any merits and same be dismissed. 9. On perusal of the present application, its annexures, chargesheet and its annexure, and after considering rival submissions, at the out set, the applicant had preferred bail application before learned Sessions Judge, before filing chargesheet, but same was rejected, as well as he had preferred application seeking bail before this Court, but same also was rejected before filing charge sheet by this court on 5.5.2011. After filing chargesheet, the applicant preferred bail application No.479/2011, before learned Sessions Court, 10 but same also was rejected. Moreover, applicant further filed bail application No.959/2011 before learned Sessions Court, same also came to be rejected on 21.6.2011. There after the applicant has preferred present application before this Court, seeking bail, after filing chargesheet. All earlier bail applications, preferred by the applicant before learned Sessions Court, as well as before this Court, were rejected. 10. Keeping in mind said aspect and coming to the contents of the First Information Report, which discloses that while congratulating to the complainant over a resolution of the land case, applicant herein assaulted by giving blow of knife alongwith his son on 15.3.2011, thereby complainant sustained injuries on his vital parts of the body i.e. right side of face, pre-auricular left forearm, chest and left flank and although he took discharge from the Government Hospital, on the same day, he got himself admitted in the private hospital and took further medical treatment there. Apparently, injury 11 certificate discloses that said injuries are of simple nature, as rightly canvassed by learned APP that said injury is not material, while considering the ingredients of section 307 of Indian Penal Code but the very intention is very important, and giving five to six blows of knife on the vital part of the body itself explicitly discloses the intention of the applicant to kill the complainant. 11. Moreover, it is also important to note that the applicant herein apparently failed to respect the courts order and since the complainant won the case of land, inspite of taking matter to the Appellate Forum, the applicant assaulted the complainant on vital parts of the body and said conduct of the applicant itself is self explicit and speaks volumes. Besides, it is material to note the chequered history and criminal background of the applicant as mentioned below :- 12 S.No. Name of the Police Station Crime Number and Offence 1. Chawani, Aurangabad CR I-23/2011 under section 143, 147, 447, 420, 467, 468, 471, Indian Penal Code with 3 (1), (5), (10) S.C. and S.T. Act with Section 7 (1) (3) 2. Chawani, Aurangabad. CR323/2010 u/s. 143,147,148,149,323,427,504,506 Indian Penal Code. 3. Waluj MIDC Aurangabad City CR I-203/6 u/s 405,415,418,420,422,423,424 of Indian Penal Code. 4. Begampura Aurangabad City. II-15/4 u/s 52,53 MRTP Act. 5. Begampura Aurangabad City. II-17/4 u/s 52,53 MRTP Act. 6. Chawani, Aurangabad city. HM/NC 779/2010 u/s 323,504,506, 34 I.P.C.2.11.2010 7. Chawani Aurangabad City HM/NC 784/2010 u/s 323,504,506,427,34 IPC 8. Begumpura Aurangabad City NC u/s 504,506 34 IPC Dt. 2.5.2010. 9. Chawani, Application give on 5.6.2010 10. Application on 30.6.2010 City Chowk, Aurangabad. 11. Chawani PS application on 23.6.2010. 12. Chawani application given on 7.6.2010 13. Chawani PS 16.7.2010 application 14. Chawani application given on 24.10.2010. 15. Chawani PS 25.10.2010. 12. True it is that some of the aforesaid cases are N.C. cases and cases under Maharashtra Regional Town Planing 13 Act and Atrocities Act as canvassed by the learned counsel for the applicant but it cannot be ignored that other cases pending against the applicant are under the Indian Penal Code cases and pertain to serious nature of offences. 13. Thus, apparently there is substance in the argument canvassed by learned APP that applicant is a seasoned and habitual criminal, considering the aforesaid criminal background and antecedents of the applicant, and hence, the apprehension posed by the learned APP that if the applicant is released on bail, there is every possibility of influencing and/or pressurizing th witnesses and/or tempering with the evidence, is not out of place. 14. As regards, the contention of the applicant that the police personnel have implicated him in false case, since he registered offence against the police official, more particularly under the Anti Corruption Act, apparently, said 14 cases registered against Police Inspector is of 2011, but there are cases pending against the applicant since 2004 onwards and action against the police officials is in the year 2011 and hence said submission deserves to be discarded. As regards submission made by the learned counsel for the applicant that there was a free fight and scuffle between the applicant and complainant on the relevant day, in which the applicant sustained injury below eye and since there was scuffle, there was no intention of the applicant to commit the murder of the complainant, on the part of the applicant. Apparently, there is no substance in the said proposition put forth by the applicant, since the contents of the First Information Report do not support the same and had the applicant suffered injury below his eye as contended by him, he would have filed the complaint in that respect against the complainant, but so did not happen and said inaction on the part of the applicant speaks for itself. 15 15. Having comprehensive view of the matter, and considering the nature of accusations against the applicant, and gravity of the offence, and involvement of the applicant therein, it is not desirable to enlarge the applicant on bail and hence present application deserves to be rejected. 16. In the result, present application, which is sans merit, stands dismissed. [ SHRIHARI P. DAVARE ] JUDGE AAA/2766.11 ...