(1) CRI.APP. 3301.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 3301 OF 2010 Nanabhau S/o Nivrutti Badade, Age : 55 years, Occu.: Agriculture, R/o Kadiwadgaon, Tq. Wadwani, District - Beed .. Applicant VERSUS The State of Maharashtra Copy to be served on G.P. High Court Bench at Aurangabad .. Respondent Mrs. Sadhana S. Jadhav, Advocate for the Applicant Mr. N.H. Borade, APP for the respondent-State ... CORAM : V.R. KINGAONKAR, J. DATED : 30TH AUGUST, 2010 ORAL ORDER:- 1. This is an application for bail under section 439 of the Code of Criminal Procedure. 2. The applicant is arrested in connection with Crime no. 36 of 2010 registered at Wadwani Police Station for offence under section 302, 325, 506 r/w. 34 of the Indian Penal Code. He is said to be accomplice of the main assailant and allegedly had instigated the main accused while assaulting deceased Lahu Gavhane. (2) CRI.APP. 3301.2010 3. Upon hearing learned counsel and learned APP and on perusal of the FIR and other investigation papers, it emerges that deceased Lahu Gavhane, informant Ankush Gavhane alongwith other 4-5 persons decided to proceed to village Kadiwadgaon in order to verify the information regarding the incident of a quarrel of the family members of sister of one Arvind Sawant. It is apparent that they had gone to village Kadiwadgaon probably, with a view to avenge upon those who had quarreled with sister of Arvind Sawant. They had gone to the said village in the evening in a Tata Sumo Jeep vehicle bearing no. MH-23-E-4368. It appears that they came across a group of 6-7 persons standing by side of road in the village locality. Said Arvind Sawant and deceased Lahu Gavhane alongwith Anil Yadav went towards that group. Someone cried that those persons were coming to assault them and, thereafter, the informant saw that three persons were running towards said Arvind Sawant, Anil Yadav and Lahu Gavhane. One of them gave blow of stick on the head of Lahu Gavhane and (3) CRI.APP. 3301.2010 therefore, said Lahu Gavhane had fallen down. It is alleged that the two other persons were instigating the assailant to beat. Three persons immediately fled away on seeing that Lahu Gavhane had become unconscious. 4. What appears from the recitals of the FIR is that the informant and Arvind Sawant gave false information to the Police of Lahu Gavhane about his involvement in accident. They had admitted him in a private hospital. It was informed by the Medical Practitioner that Lahu Gavhane was required to be immediately treated in a better hospital at Aurangabad. He was brought to Aurangabad in an ambulance and was admitted in private hospital of Dr. Dunakhe. He died on 1.6.2010 at about 7.00 am. but FIR was lodged on 7.6.2010. 5. There are certain glaring aspects revealed from the investigation report. First, the informant tried to conceal the genesis of the incident. Secondly, the incident occurred in the night time and (4) CRI.APP. 3301.2010 the applicant was not named by the informant immediately. The FIR shows that the informant came to know about the name of the applicant as one of the accomplice, who was the instigator during course of incident of assault, from Arvind Sawant. It is probable that said Arvind Sawant had gathered his friends to go to village Kadiwadgaon in order to take revenge in respect of the incident of assault on his brother-in-law and the sister. It is probable that there was counter assault in which Lahu Gavhane was fatally injured due to the blow of stick on his head. The applicant was not armed with stick and was allegedly only the instigator. Considering these aspects, his intention to do away with life of Lahu Gavhane is not prima facie revealed and that his overt act of only oral instigation may not be indicative of the intention to cause homicidal death of Lahu Gavhane. It appears that since beginning the version regarding commencement of the incident and the manner of the assault is changed by the first informant. (5) CRI.APP. 3301.2010 6. In this view of the matter, the applicant deserves liberty. 7. In the result, the Application is allowed. The applicant is directed to be released on bail on furnishing of bail bond in sum of Rs.25,000/- (Rs. Twenty Five Thousand) with one solvent surety to the satisfaction of the Court of Sessions and on condition that he will not contact any of the prosecution witness and will not make any attempt to tamper with the evidence of the prosecution. Criminal Application disposed of. Sd/- [V.R. KINGAONKAR, J.] arp