1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application No. 3269/2009 [ Ajay Hagruji Rahulkar ...vs... State of Maharashtra ] AND Criminal Application No. 3516/2009 [ Deva @ Ankal Bhaiyalal Bhivgade ...vs... State of Maharashtra ] ..................................................................................................................................................................... Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's order of directions and Registrar's orders ..................................................................................................................................................................... Mr. S.D.Sirpurkar. Advocate, for applicant Mr. R.M.Daga, Advocate, for applicant. Mr. A.D.Sonak, APP for Respondent .......... CORAM : P.D. KODE, J. DATE : DECEMBER 14, 2009. Common Order. By these applications, the applicants respectively arrested on 3rd January, 2009 and since then in custody and ultimately charge sheeted by Gondia Police Station for commission of offence punishable under Sections 302, 323 r/w Section 34 of the IPC read with Sections 4 & 25 of the Arms Act, have prayed for bail. The said police station has charge sheeted the applicants accordingly as a result of investigation effected into the Crime No. 42/2009 & 2/2009 registered with the 2 same on 1.1.2009, upon the first information lodged by one Smt. Mangli w/o deceased Rajesh Bagde, regarding the incident which had occurred on the same day at about 11.30 in the morning in which the respective applicants allegedly were armed with knife & gupti having participated and the applicant Ajay in Criminal Application No. 3269 of 2009 having assaulted the deceased by means of a weapon possessed by him and thereafter applicant Deva @ Ankal in Criminal Application No. 3516/2009 having used the weapon for threatening the persons from the vicinity for not intervening in the incident. The prayer for bail is vehemently opposed by the learned APP on the basis of material comprised in the statement of 4 eye-witnesses viz. Nitin, Vivek, Sunil and Suvarnabai and recovery of the weapons at the behest of both the accused. Learned APP has urged that the material collected during the investigation prima facie reveals the involvement of applicants in commission of offence punishable with death or imprisonment for life. The learned APP has further urged that considering the criminal antecedent of the applicants, it will be dangerous for releasing the accused/applicants on bail as there is every possibility of threatening the prosecution witnesses and/or intimidating them. The learned APP has urged that the house of applicant Ajay and the complainant being nearby, there is strong possibility of the witnesses being threatened by said applicant. He has further urged that 3 the same possibility also exists in case of applicant Deva as he is on visiting terms at the house of applicant Ajay. Mr. Sirpurkar, learned counsel for applicant Ajay in Criminal Application No. 3269/2009 has urged that the matters in the first information report considered along with the statement of witnesses itself reveals that the deceased was extorting money on the guise of erection of statue of Dr.Babasaheb Ambedkar and the said applicant had lodged the complaint in respect of the same with the police. He further urged that, however, the police having not taken any action upon the said complaint, has embolden deceased. The learned counsel further urged that the relevant material also reveals that the deceased had tried to assault said applicant in presence of persons from the Mohalla. He has further urged that the said material also reveals that in a night prior to the day of incident i.e. in the new year night of the year 2008, the deceased and his friends i.e. prosecution witnesses were playing DJ uptill early in the morning. He has further urged that said applicant had protested against the same, however, the deceased had not paid any heed to it. He has further urged that the said material itself reveals that the incident had triggered because of the playing of DJ in the said night and the wife of applicant having reported him of herself being abused by the deceased & his friends and while applicant was making the inquiry about the same from his court yard. The learned counsel urged that the material in the statement 4 of all eye-witnesses reveals that the incident had taken place in the court-yard of the house of said applicant, even though the prosecution witnesses has made an effort to suppress such genesis of the incident. The learned counsel further urged that considering the said state of affairs along with the matters stated by said applicant in his application, which reveals that the deceased was in habit of giving provocation to said applicant and his wife inasmuch as the deceased and his friends had peeped in the bath room when his wife and daughter were taking bath. The learned counsel urged that said applicant had complained about the same to the police, but the police had not even bother to record the complaint. The learned counsel further urged that on the aforesaid backdrop, considering the account of an incident as spelt out from the statement of eye-witnesses, the same does not reveal that said applicant was entertaining an intention to commit the murder of the deceased. The learned counsel tried to strenuously urged that as a matter of fact if the said material is considered in proper perspective, it reveals that an enraged said applicant on account of honour of his wife and daughter being put at stake and the police having failed to take any action upon them, in a heat of moment, had used the weapon. The learned counsel thus tried to canvass that the prosecution material accepted as it is also would not travel beyond commission of offence punishable under Section 326 of 5 the I.P.C. The learned counsel further urged that considering the aforesaid aspect on the backdrop of the fact that the said applicant has undergone a medical operation for removal of his testicles revels that he deserves to be enlarged on bail. He further urged that having regard to said aspect appropriate direction for providing medical treatment or at least expediting trial be given. Mr. Daga, learned counsel for applicant Deva @ Ankal in Criminal Application No. 3516/2009 has urged that accepting the material contained in the first information report and the statement of witnesses, the same does not reveal any act committed by said applicant which can be said to be an act committed by him in furtherance of a common intention to commit the murder of the deceased. The learned counsel further urged that due to the said applicant being armed with a weapon, at the most he can be said to be entertaining intention to assault with weapon and involved in commission of a offence under Arms Act, but the account given in the first information report and that of an eye-witnesses failing to reveal the use of weapon by the said applicant in assaulting the deceased, he cannot be said to be entertaining an intention to commit the murder of the deceased. It is, therefore, urged that, having regard to the same, the said applicant deserves to be enlarged on bail. After giving thoughtful consideration to the 6 submissions advanced by the learned counsel for the applicants and prima facie considering the material collected by the prosecution, in the light of the same, it is difficult to accept the submissions canvassed by the learned counsel for applicant Ajay that same fails to reveal his involvement in offences for which he is charge sheeted. It is true that upon prima facie consideration of the said material, it is not abundantly clear with regard to the precise place at which the incident had taken place, whether in the court yard of the said applicant’s house or in front of the house of deceased. However, the statements of eye witnesses recorded during the course of the investigation including that of first information report being not supposed to be encyclopedia merely because of absence of such minute details, the inferences as canvassed by the learned counsel cannot be drawn. Similarly, in absence of any material regarding the deceased was provoking the wife or the daughter of the said applicant sufficiently enough to give him a provocation, it is difficult to make any concession on the said count to the acts committed by said applicant as prima facie reflected from statement of eye-witnesses. Now, considering prima facie account of an incident as spelt out from the matters stated in the first information report and statement of 4 witnesses along with P.M. notes, the same prima facie discloses the involvement of applicant Ajay in commission of offence punishable with death or imprisonment for life. Even with 7 regard to medical papers of said applicant having undergone medical treatment, the said material by itself not revealing the said applicant requiring any continuous medical treatment, same cannot be said to be a sufficient ground for considering the prayer for bail made by him. Since it is open for said applicant to make an appropriate application before trial Court in event of himself not receiving a proper medical treatment while in custody, it will be wholly unnecessary to give any direction on the said count and that too in present application. However, since every accused in custody has a right of speedy trial and the said applicant is in custody for about 1 year, the request for giving a direction for expediting the trial would warrant consideration. In the premises aforesaid, the application for bail made by applicant Ajay will be required to be rejected. Now, with regard to applicant Deva @ Ankal after considering the account of an incident as given in the first information report and that of witnesses, prima facie the act of said applicant running & rushing along with applicant Ajay towards the deceased can be said to be an act of himself entertaining some common intention. However, the same not revealing applicant having used any weapon for assaulting the victim in spite of himself being armed and having used the same after assault on the deceased was over i.e. for threatening the witnesses, prima facie makes it difficult to accept that he can be said to be 8 entertaining the same intention which was entertained by his friend – i.e. applicant Ajay. Thus, prima facie there appears substance in the relevant submission advanced by the learned counsel for the said applicant. Hence his involvement being prima facie not borne in commission of offences punishable with death or imprisonment of life, his prayer for bail will be required to be accepted. Needless to add that strict conditions will be required to be imposed having regard to the fact that he is alleged to be holding weapon like Gupti at the time of incident. As a net result of the aforesaid, the application made by applicant Ajay Hagruji Rahulkar stands rejected. However, inform the trial Court for commencing and disposing his trial as early as possible i.e. within the period of six month from the receipt of this order. Applicant Deva @ Ankal Bhaiyalal Bhivgade is directed to be released on bail on his furnishing a P.R.Bond in a sum of Rs. 50,000/- with two solvent sureties in like amount and subject to the conditions that said applicant shall (i) attend Police Station Gondia (City) on every alternate day for first two weeks in between 11 a.m & 1 p.m and thereafter on every Monday until conclusion of trial; (ii) not directly or indirectly tamper the prosecution evidence and or forestall the progress of the trial against him; (iii) stay at the address mentioned in the application and shall not change the same without prior permission of the trial court and (iv) not commit any 9 offence while being on bail granted vide this order. Applications stand disposed of. In view of the disposal of the main applications, Criminal Application No. 241/2009 and Criminal Application No. 371/2009 also stand disposed of. JUDGE Rvjalit