1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application [ABA] No. 248 of 2011 (Vitthal Vishwasrao Chavan and another Vs. State of Maharashtra) Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. A.M. Ghare, Advocate for the applicants. Mr. D.B. Patel, APP for the State/non-applicant. CORAM : M. N. GILANI, J. DATE : 28th JULY, 2011. Heard. This is an application under Section 438 of the Code of Criminal Procedure, praying for anticipatory bail in the event of arrest of the applicants in Crime No. 29/2011 for the offence punishable under Section 307 read with Section 34 of the Indian Penal Code, registered at Police Station Pophali, District Yavatmal. One Ramrao has two sons, namely, Bhagwantrao and Vishwasrao. The applicants herein are the sons of Vishwasrao. There is a dispute between Bhagwantrao and Vishwasrao over sharing of water of the well, which is in the land at Mouza Wanegaon. On 23/05/2011, Ramrao went to the field along with a wireman viz. Sandeep. There was exchange of words between Ramrao and Vishwasrao (deceased). Thereafter, Bhagwantrao came in the field. Bhagwantrao and Vishwasrao both were possessing revolvers. There was exchange of fires and in that Vishwasrao sustained injuries, which proved fatal. Bhagwantrao and Gajanan also sustained firearm injuries. 2 On the basis of report lodged by the applicant no. 1, offence bearing Crime No. 28/2011 is registered against Bhagwantrao and others, for the offences punishable under Sections 302, 307, 447, 147, 148 and 149 of the Indian Penal Code. Perused the case-diary made available to the Court by the learned A.P.P. Although, in the F.I.R. lodged by Bhagwantrao, the name of the applicant no. 1 figured, but in the statement, recorded while he was in the hospital, he did not mention about the presence of applicant no. 1 Vitthal. The copy of F.I.R. lodged by the applicant no. 1 Vitthal, is produced for the perusal of this Court. In that applicant no. 1 had stated that at the time of incident, he was not present on the spot, but he received message from his brother and then went to the spot. In the statements of Ramrao, Ganesh and Sandeep, there is no mention of presence of the applicant no. 1 on the spot. The learned counsel for the applicants contended that the applicant no. 2 Gajanan had received firearm injuries. The allegations that he is involved in the offence punishable under Section 307 of the Indian Penal Code are groundless. In fact the applicants lodged the F.I.R. because of firing of bullets by Bhagwantrao. Perusal of the statements of Bhagwantrao, recorded in the hospital, Ramrao, Ganesh and Sandeep point out that in the beginning only the applicant no. 2-Gajanan was present. Thereafter, he went to other field and brought his father on motorcycle. Other 2-3 persons were also with them. The statement further make mention of the overt act of the applicant no. 2-Gajanan. This was followed by Bhagwantrao and Vishwasrao exchanging fires. One Sandeep, who had come with Bhagwantrao, had sustained 3 firearm injury. It is also in the statement of Sandeep that he was Vishwasrao, who firstly fired at Bhagwantrao. Since overt act has been attributed to applicant no. 2-Gajanan, it is not desirable to extend the benefit of Section 438 of the Code of Criminal Procedure in his favour. In the event of arrest of the applicant no. 1-Vitthal in Crime No. 29/2011, he be released on his executing P. R. Bond in the sum of Rs.5,000/- (Rupees Five Thousand Only) with one surety in the like amount. The application, so far as it relates to applicant no. 2 Gajanan, is rejected. Hamdast is allowed. JUDGE *sdw