1 CRI.APP.NO.1826/2009. IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. CRIMINAL APPLICATION NO.1826 OF 2009. 1. Rajesh s/o Sadhashiv Gajalwad. 2. Shankar s/o Rama Gajalwad. 3. Sanjay s/o Shankar Gajalwad. ...Applicants. Versus The State of Maharashtra. ...Respondent. ... Mr.A.M.Gaikwad, Advocate for the applicants. Mr.N.H.Borade, APP for the respondent. Mr.Nitin K.Choudhari, Advocate appearing on behalf of the original complainant, to assit the prosecution. ... CORAM: A.V.NIRGUDE,J. Date : 9th July,, 2009. COURT'S ORDER: 1. The applicants are seeking bail in Crime No. 107/2008 registered at Kuntur Police Station, Dist. Nanded, dated 14th December, 2008, for the offence under Sections 143,147,148,149,302,307,120-B of the 2 CRI.APP.NO.1826/2009. Indian Penal Code. 2. The applicants and six others are accused of committing offence of rioting and murder of one Digambar on 13th December, 2008 at about 06.30 p.m. at village Koklegaon, Taluka: Naigaon, Dist.Nanded. Complainant Malu said, at about 06.30 p.m. He left his house to attend religious feast (Bhandara) at the Math of the village. On the way, he saw the applicants and six others armed with weapons like sticks, axes, Katties. He saw they had encircled his cousin Digambar. He saw all of them launching attack on Digambar. The applicants NO.2 and 3, he said, were armed with sticks and they participated in the assault. The complainant did not see any weapon in the hands of the applicant No.1 Rajesh. The complainant said that he tried to intervene but the assailants came after him too. They chased him and ultimately caught him. In the scuffle, he said, other accused Venkat delivered Katti blow on his back. Raising alarm, he ran towards Math and sought help. He said, witness Dattu, Sambha, Shankar, Hanumant, Mahisaji (his father) came to his help. They all went towards Digamber, but by that time, the assailants had already gone. 3. Witness Datta, Sambha and Shankar, however, have different story. They said that they and deceased 3 CRI.APP.NO.1826/2009. Digambar had meals at Math & after the programme of feast was over by about 06.30 p.m. they started walking back to village. On their way to village, the applicants and six others ambushed them. They saw weapons in the hands of the assailants. They stated that the target of the assault was the Digambar. 4. Witness Hanmant and Mhaisaji have yet another story to tell. They stated that while they were waking towards Math, they saw the applicants and others having arms in their hands assaulting Digamber. However, they added that by the time they saw the incident, it was dark and they used torch light to see the incident etc. 5. The prosecution case is rather fragmented. On one hand, the complainant mentioned that after the incident, while he was running towards Math, he met all the five eye witnesses. His statement thus indicates that the other five witnesses did not see the assault. On the other hand, the witnesses Datta, Sambha and Shankar did not mention presence of the complainant in their statements. 6. The third batch of the witnesses Hanumant and Mahisaji, however, stated that the complainant was walking ahead of them towards Math. 4 CRI.APP.NO.1826/2009. 7. Thus, the three sets of witnesses have different versions about the incident, and makes the case of the prosecution rather weak. I am inclined to release the applicants on bail because as said above, they are not attributed with specific role in the attack. As said above, applicant Rajesh did not have any weapon in his hand. The applicants No.2 and 3, though had sticks in their hands are not attributed specific role in the assault. The post-mortem report does not indicate that the deceased sustained injuries of sticks. The applicants are in custody since December, 2008. The applicants deserve bail. The application is allowed. (i) The applicants are released on bail of Rs. 15,000/- (Rs.Fifteen Thousand only) each, with one surety in the like amount, each. (ii). The observations made in this order are only for the purpose of deciding this bail application and shall not bind the trial Court. (iii). Mr.Nitin K.Choudhari, learned Advocate is permitted to assist the prosecution on behalf of the original complainant. Criminal Application No. 2326/2009 stands disposed of. (A.V.NIRGUDE,J.) lkp.