1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 3172 OF 2010 1. Datta s/o. Tukaram Lohkare, Age 24 yrs., Occu. Agri., 2. Bharat s/o. Tukaram Lohkare, Age 28 yrs., Occu. Agri., Both R/o. Ambad, Dist. Jalna. ....Applicants. Versus The State of Maharashtra ....Respondent. Mr. Vijay Sharma, Advocate for applicants. Mr. N.H. Borade, A.P.P. for respondent assisted by Shri. K.B. Jadhav, Advocate. CORAM: V. R. KINGAONKAR, J. DATED: 27th August, 2010. PER COURT : 1. By this application, the applicants seek bail under section 439 of the Cr.P.C. 2. The applicants have been arrested in connection with Crime No. 159/2009, registered at Ambad Police Station for offence punishable under sections 302, 325, 447, 147, 148, 149 of I. P. Code. As per the F.I.R. lodged by one Shobhabai, who is wife of deceased Arun Lohkare, on 6.9.2009 there took place dispute, when deceased Arun drove out buffaloes grazing in his agricultural land. In the evening at about 5.00 2 p.m. the applicants along with the other co-accused persons went to the agricultural land of deceased Arun where the complainant - Shobhabai and others were working. The applicant No. 1 picked a weapon stick, whereas applicant No. 2 was armed with an axe. The applicants along with other co-accused started beating complainant Smt. Shobabai and her husband as well as her sister-in-law by name Muktabai with the sticks and the axe. Some members from Lamani community came forward to intervene, but the applicants and other co-accused abused and threatened them. The applicants allegedly assaulted deceased Arun by means of stick and axe. He was seriously injured. So also Muktabai was injured and had fallen in the agricultural land. The complainant also received swelling injury on her left hand. The applicant No. 2 gave threat to do away with life of deceased Arun and others. Thereafter, the applicants along with co-accused went towards the village locality. The complainant served water to injured Arun and injured Muktabai. She alone went to Ambad in a tractor vehicle and informed her relative Ganpat Lohkare. Thereafter, the injured were picked up from the agricultural land and were admitted in the Government Hospital at Ambad. They were shifted to the Civil Hospital at Jalna and from there injured Arun was shifted to Rural Hospital at Aurangabad and thereafter to the Government Medical Hospital. He died on 22nd November 2009. 3. The learned counsel for the applicants would submit that there is no material available to implicate the applicants with the alleged 3 incident, except the interested versions of complainant and her relatives. He would submit that there is no relation between death of Arun Lohkare and the alleged assault. He points out that deceased Arun Lohkare did not receive any fatal injury caused by any sharp edged weapon like axe. He would submit that the applicants may be granted liberty under conditions in view of attending circumstances and particularly, the long gap between the alleged incident and death of Arun Lohkare. 4. It is true that the incident occurred due to the alleged trespass of the buffaloes in the agricultural land of deceased Arun Lohkare and he had driven out the cattle from the agricultural land. The F.I.R. purports to show that the buffaloes were being grazed by one Ganesh Lohkare, who is real brother of the applicants. The F.I.R. further purports to show that after driving away all the buffaloes by deceased Arun Lohkare, said Ganesh immediately went towards Ambad and thereafter he returned along with the applicants and other co-accused at about 5.00 p.m. It is quite probable, therefore, that said Ganesh Lohkare informed the applicants about driving away of the buffaloes by the deceased. The fact that the applicant No. 2 Bharat was holding an axe, applicant No. 1 Datta had picked up a stick from nearby place and other co-accused also were armed with sticks, is also immediately disclosed at the time of lodging the F.I.R. It is not necessary that the fatal blows could be attributed to any particular accused. 4 5. There appears eye witness account rendered by complainant Shobhabai and injured Muktabai. It appears that injured Muktabai had also received serious injuries during course of the assault. The attempt of the applicants could be to cause grievous injuries to deceased Arun and said Muktabai or to eliminate their lives. The F.I.R. shows that applicant No. 2 was instigating the others to eliminate the injured persons. Needless to say, there is prima facie evidence to infer presence of the applicants at the spot and there participation in the alleged act of assault on deceased Arun and injured Muktabai. Whether they intended to cause death of Arun or that the death occurred due to any subsequent medical prognosis, is the question which can be decided after the Trial. The intention of the applicants cannot be predetermined at this juncture. In view of such prima facie evidence available against them, the bail application will have to be rejected. It is accordingly rejected. [ V. R. KINGAONKAR, J.] ssc/ca3172.10