1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 3819 OF 2010 Daulat S/o Dattatraya Garje and another ..APPLICANTS -VERSUS- The State of Maharashtra and others ..RESPONDENTS ......... Mr. N.K. Kakade holding for Mr. D.R. Markad, advocate for applicants Mr. N.H. Borade, A.P.P. for respondents ........ (CORAM : V.R.KINGAONKAR,J.) DATE : 1 st October, 2010. PER COURT : 1. This is an application for anticipatory bail. The applicants are the real brothers inter-se. They apprehend their arrest in connection with Crime No.I-341/2010 registered at Pathardi Police Station for the offence under Sections 307, 363, 143, 144, 147, 148, 149, 323, 324, 504 and 506 of the Indian Penal Code and under Sections 37(3) r/w Section 135 of the Bombay Police Act. 2. The learned Advocate for the applicants would submit that the applicant no.1 is employed and was prima facie on duty in the office of Orphanage, which is situated at Pathardi. He would 2 submit that due to property dispute, complainant-Dnyaneshwar lodged a false report implicating the applicants, and therefore, their arrest is likely to cause humiliation. He further submits that the F.I.R. does not attribute any particular role to the applicants, and therefore, it can not be inferred that they have common intention with other accused persons. The learned A.P.P. points out from the investigation papers that sub-district hospital Pathardi examined injured Dnyaneshwar in the very same morning and noticed nine injuries on his person of which there was suspected fracture of seventh and eighth ribs. 3. Perusal of the investigation papers, prima facie, indicates that injured Dnyaneshwar was battered in the relevant early morning by his elder brother-Pandurang, the applicants and others. It appears that there is property dispute between injured Dnyaneshwar and his elder brother by name Pandurang. The F.I.R. purports to show that injured Dnyaneshwar was proceedings by road to attend call of nature. It appears that on the way, he was intersected by seven accused persons, who had alighted from Qualis Brand Jeep vehicle. He was assaulted by them with iron rod and tommy. He narrated that he was forcibly pushed in Jeep vehicle while he was raising alarm. His mouth was gagged with cotton swab. He was beaten up by the side of Kaccha road after he 3 was taken out of the vehicle. Thereafter he was left at the place in the injured condition and assailants fled away in the vehicle. 4. It is pertinent to notice that during the course of investigation, the Police recorded the statement of wife of injured Dnyaneshwar, namely, Manisha, who narrated that she heard hue and cry of injured Dnyaneshwar while he was going by the road to attend call of nature. She then noticed that Pandurang and applicants along with other accused persons were taking away her husband in Qualis Brand Jeep vehicle. The police also recorded the statement of another witness, by name, Vinod Gite, who seems to be an independent person. His statement prima facie shows that he and his neighbour, by name, Kamalbai found one injured person lying by the side of road. His version further shows that the injured person gave his name as Dnyaneshwar and also narrated names of assailants, which are inclusive of the present applicants. So far as plea of alibi is concerned, the applicants have filed copy of the certificate (Exhibit `C' to the application) issued by the President of Orphanage called Sanay Gandhi Vasatigruh Sanstha, Pathardi or Niradhar Nirashreeth Balak Ashram. The certificate shows that since 7 a.m. to 5 p.m., the applicant no.1 was present on duty. Such certificate given by President of Private Institution can not be considered at this juncture when there is an eye witness account to 4 indicate the presence of the applicant no.1 at the place of incident and his participation during the course of incident. Moreover, the F.I.R. purports to show that the incident occurred at some where between 6.30 a.m. to 7 a.m. The incident is said to have occurred on road between Mohata Devi to Pathardi. The Orphanage is at Pathardi, and therefore, within a short span, the applicant could have reached the place of work. 5. In the circumstances of the present case, when there is prima facie evidence appearing against the applicants, it can not be said that their arrest is likely to cause humiliation or that arrest is without any reason. Consequently, the application is dismissed. (V.R.KINGAONKAR) JUDGE gas/cri3819.10