( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 4649 OF 2010 1. Trimbak s/o Havgirao Hakele, R/o Hipparga (De), Tq. Mukhed, District Nanded. 2. Sangram s/o Trimbak Hakele, R/o Mukhed, Taluka Mukhed, District Nanded. APPLICANTS VERSUS The State of Maharashtra through Police Station Officer, Police Station, Mukhed, Dist. Nanded. RESPONDENT .... Mr. H.V. Patil, advocate for the applicants. Mr. N.H. Borade, APP for the respondent/State. .... [CORAM : V.R. KINGAONKAR, J.] [DATE : 29th November, 2010] PER COURT : 1. The application is for bail. 2. Heard learned advocate for the applicants and learned A.P.P. for the State. Perused the investigation papers. ( 2 ) 3. The alleged incident occurred on 8th July, 2010 at about 11.15 a.m. The deceased by name Hanmantrao was retired Agriculture Officer. Informant Pratibha is a school teacher. Main accused Mahesh is the son of applicant No. 2 and grandson of the applicant No.1. Said Mahesh was infatuated towards daughter of informant Pratibha. He used to tease her. The Informant had, therefore, urged the applicants to give word of advice to the main accused i.e. Mahesh in order to discontinue the u-teasing. He did not, however, stop u-teasing. Therefore, the informant arranged to send her to her relative's house at Shirur-Tajband and for her schooling in a different school. Undaunted by such conduct of the informant, Mahesh did not stop persecution of the daughter of the informant and had gone that school at Shirur-Tajband in order to tease her. On 8th July, 2010, he went to the school of the informant while she was teaching 7th standard class. The informant, therefore, called her father. While the informant was going near her father, by crossing the ground of the school, Mahesh got up from the parapet wall of the school and started going towards her father. It is alleged that Mahesh abused her father and said that he was obstructing the marriage. Both the applicants then allegedly went to the place and instigated Mahesh by saying that let the thorn ( 3 ) (father of the applicant - deceased Hanmantrao) be removed. The main accused i.e. Mahesh then took out a dagger from his pant's pocket. He suddenly stabbed deceased Hanmantrao on his abdomen by means of the dagger. Injured Hanmantrao was rushed to the hospital. An FIR was lodged by the informant. It appears that dying declaration of Hanmantrao was also recorded. Said Hanmantrao died in the hospital on 14th July, 2010. The cause of his death is said to be "septicemia due to the multiple ileal perforation which had resulted due to the stab injury". 4. It is not necessary to state anything about complicity of main accused, namely, Mahesh in as much as there is a prima face case which implicates him in the serious crime. He may not be entitled to seek bail because apparently, he assaulted the deceased due to frustration caused on account of the protest in respect of the marriage which Mahesh wanted to perform with the daughter of the informant. It probably was one-sided love affair and the Mahesh infuriated due to refusal of permission by the informant and her father. It cannot be overlooked that Snehal, the daughter of the informant was the school-going girl at the relevant time and was minor. So far as the ( 4 ) applicants are concerned, they are only the alleged instigators who asked Mahesh to eliminate the deceased and, therefore, said Mahesh is said to have stabbed the deceased by means of a dagger (big knife). It prima facie appears that the statement of an eye witness by name Keshavnath Kothiwale was recorded under section 164 of the Criminal Procedure Code. He did not refer to the presence of the applicants and the alleged instigation made by them. The applicants did not visit the premises of the school in the relevant morning for any particular reason and had no prior information that Mahesh had gone there to settle the score. In ordinary course of human conduct, the applicants could not have anticipated the presence of deceased Hanmantrao in the premises of the school ground. It appears that Mahesh had gone to the premises of the school in order to threaten the informant or to avenge upon her due to shifting of her daughter to another school in another village. Considering these aspects, it is difficult to prima facie infer that both the applicants shared common intention with said Mahesh. In any case, their verbal instigation by itself may not amount to sharing of the common intention to eliminate the deceased Hanmantrao. Secondly, the cause of death appears to be septicemia which was developed due to non-filling of of the perforation inspite of the ( 5 ) suturing caused below the abdomen. Considering these aspects, the applicants deserve liberty on certain conditions. 5. In the result, the application is allowed. Both the applicants are directed to be released on bail on furnishing of bail bonds in sum of Rs. 20,000/- (rupees twenty thousand) each, with one solvent surety bond in the like sum, to the satisfaction of the Court of Sessions, and on further condition that they shall not enter limits of Mukhed Taluka until the sessions trial is completed, except on the dates of hearing of the sessions case and that they shall not contact any of the prosecution witnesses and shall not make any attempt to tamper with the evidence of the prosecution. [V.R. KINGAONKAR] JUDGE NPJ/criapln4649-2010