1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 1507 OF 2010 Kayyum Beg Wahed Beg & anr. ...Applicants VERSUS The State of Maharashtra ...Respondent ..... Shri Sk. Ashpak Taher Patel, advocate for the applicants Shri S.G.Nandedkar, A.P.P. for the respondent ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 3rd May, 2010 PER COURT : 1 Heard Shri Sk. Ashpak Taher Patel, advocate for the applicants and Shri S.G.Nandedkar, A.P.P. for the respondent. 2 This is an application for anticipatory bail preferred by applicant nos. 1 and 2 apprehending their arrest under CR No. 40 of 2010, registered at Badnapur police station, District Jalna, for the offence punishable under Sections 452, 143, 147, 427 of the Indian Penal Code. 2 3 It appears that the offence has been registered on the basis complaint lodged by the complainant namely Feroz Beg Gulzar Beg on 5.4.2010 in respect of the occurrence of incident at about 10.15 a.m. on the same day, alleging that when he and his wife Farah were sitting in his house, at that time applicant no.2 namely Wahed Beg and applicant no.1 Kayyum Beg armed with sticks entered into his house and since they filed suit in Badnapur Court against them, the said assailants abused the complainant on his back by the sticks and when his wife intervened to relieve him, the said assailants assaulted her also. At that time, assailants namely, Ayuub Beg, Ajij Beg, Nawaj Be Wahed Beg, Ajmal Beg Ajij Sarfaraj Beg, Yusuf Beg, Ashfak Beg, Ayyub Beg, Rais Beg Ajij Beg, Faiyyaj Beg, Yusuf Beg arrived there and assaulted the complainant by leg kicks and fist blows and scattered the articles in the house and threatened to kill them. 4 Learned counsel for the applicants urged that although the name of applicant no.1 Kayyum Beg has been reflected in the last para of the first information report, no specific role has been attributed to him in the alleged occurrence of the incident. It is also submitted that applicant no.1 is suffering from cancer 3rd stage and medical case papers thereof are annexed at Exh. ‘E’ (page nos. 31 to 34) to substantiate the same. 5 Besides that, learned counsel for the applicants submitted that applicant no.1 was granted interim protection, and therefore, 3 requested that same be confirmed. It is submitted that applicant no.2 is of 50 years old and although his name has been reflected in the first information report and specific role has been attributed to him in the occurrence of the incident, there is no male member to look after the family, and therefore, it is submitted that his application also be considered for grant of anticipatory bail. 6 Learned A.P.P. opposed the present application vehemently and submitted that investigation is incomplete and same is under progress and during the course of investigation, statements of witnesses have been recorded. It is also submitted that Farah wife of complainant is eye witness to the occurrence of the incident, whose statement reflects name of applicant nos. 1 and 2 categorically as well as specific role has been attributed to them in the occurrence of incident in her statement. Hence, it is submitted that there is no false implication of applicant nos. 1 and 2 and their custodial interrogation is necessary for the recovery of sticks which were allegedly used in the incident while assaulting the complainant and his wife, and therefore, submitted that present application be rejected. 7 On perusal of the documents and investigation papers and after considering the rival submissions advanced by the parties, at the out set, it is apparent that although the name of applicant no.1 namely Kayyum Beg has been reflected in the summing para of the statement of the complainant, no specific role/overt act has been attributed to him 4 during the occurrence of the incident. True it is that statement of eye witness Feroz Beg discloses the name of applicant no.1 and specific role has been attributed to him during the occurrence of the incident, but the said statement has been recorded on the next day of the incident i.e. on 6.4.2010, whereas the alleged incident occurred on 5.4.2010 and complaint was also lodged on 5.4.2010, and therefore, possibility of fabrication of name of applicant no.1 in the statement of said eye witness apparently cannot be ruled out and hence possibility of false implication of applicant no.1 in the alleged incident cannot be ruled out. 8 Besides that, as stated by learned counsel for the applicants, applicant no. 1 is suffering from cancer 3rd stage, which has been substantiated by medical papers annexed at Exh. ‘E’ (page nos. 31 to 34), and therefore, also the application of applicant no.1 needs to be considered for grant of anticipatory bail. 9 However, as the name of applicant no.2 Yusuf Beg has been specifically reflected in the contents of the complaint as well as statement of eye witness Feroz Beg and specific role/overt act has been attributed to him categorically in the occurrence of the incident, there is no possibility of false implication of applicant no.2 in the occurrence of the incident . Moreover, sticks which were allegedly used while assaulting the complainant and his wife are yet to be recovered, and therefore, custodial interrogation of applicant no.2 is necessary for further progress in the investigation in proper perspective, and 5 therefore, his application deserves to be rejected. 10 In the result, present application is allowed partly to the extent of applicant no.1 namely Kayyum Beg Wahed Beg and interim protection granted to him stands confirmed and it is directed that in the event of arrest of applicant no.1 in connection with CR No. 40 of 2010, registered at Badnapur police station, District Jalna, he be released on bail on furnishing surety in the sum of Rs.15,000/- and on executing P.R. bond in the like amount, on the following conditions :- (i) Applicant no.1 shall attend the police station as and when required on written intimation and shall cooperate in the investigation. ii) Applicant no.1 shall not tamper with the evidence and/or influence upon the witnesses directly or indirectly. 11 Present application in respect of applicant no. 2 namely Yusuf Wahed Beg stands rejected. 12 The above observations are prima facie observations and shall be restricted to this order only and shall not be used in any other matter while deciding it on merits. 6 13 Parties to act on the authenticated copy of this order duly signed by the Court Sheristedar. (SHRIHARI P. DAVARE), JUDGE. dbm/crap1507.10