(1) Cri. Application No. 3755 of 2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. Criminal Application No. 3755 of 2011 1. Sandeep s/o. Prakashrao Bhalerao, Aged : 22 years, Occupation : Agriculture, R/o. Rahati, Taluka & District : Parbhani. 2. Prakash s/o. Venkatrao Bhalerao, Aged : 52 years, Occupation : Agriculture, R/o. Rahati, Taluka & District : Parbhani. .. Applicants. versus The State of Maharashtra, Through Police Inspector, Tadkalas Police Station, Taluka & District : Parbhani. .. Respondent. ....................... Mr. R.N. Dhorde, Advocate, holding for Mr. V.R. Dhorde, Advocate, for the applicants. Mr. B.V. Wagh, Additional Public Prosecutor, for the respondent / State. (2) Cri. Application No. 3755 of 2011 Mr. M.V. Ghatge, Advocate, holding for Mr. A.G. Vasmatkar, Advocate, for the original complainant. ........................ CORAM : SHRIHARI P. DAVARE, J. DATE : 23RD SEPTEMBER 2011 COURT'S ORDER : 1. Perused the investigation papers which were made available for inspection purpose, and heard learned respective Counsel for the parties, finally. 2. After hearing learned Counsel for the parties extensively, learned Adv. Mr. R.N. Dhorde, appearing for the applicants, seeks leave to withdraw the present Application to the extent of applicant no.1, namely, Sandeep s/o. Prakashrao Bhalerao. 3. In view of the said submission, leave granted and present Criminal Application stands dismissed as withdrawn in respect of applicant no.1, namely, Sandeep s/o. Prakashrao Bhalerao. (3) Cri. Application No. 3755 of 2011 4. As regards applicant no.2, namely, Prakash s/o. Venkatrao Bhalerao, he has preferred the present Application seeking regular bail in connection with Crime No. 14/2011, registered at Tadkalas Police Station (Taluka & District : Parbhani), for the offences punishable under Sections 302, 307, 147, 148, 149, 427 of Indian Penal Code, and Section 135 of Bombay Police Act. 5. It appears that the crime has been registered on the basis of the complaint lodged by the complainant, namely, Santosh s/o. Somaji More, on 22nd February 2011. The contents of the said complaint disclose that on 21-2-2011 at about 8.00 p.m., the complainant and his uncle, namely, Kashinath More, and also one person, namely, Trimbak Bharose, proceeded by motorcycle towards Zero Phata, and said motorcycle was driven by the complainant and they arrived at Zero Phata at about 8.45 p.m. Thereafter, the complainant went to the Akhada of Swapnil Kale and watched the cricket match, whereas his uncle Kashinath More and Trimbak Bharose consumed small quantity of liquor. Thereafter, at about 10.00 p.m., they returned back by the said motorcycle and arrived at Toll Naka and stopped there for some time. It is also alleged in the said complaint, that thereafter at about 10.15 p.m., when they were returning by Vasmat-Parbhani road on motorcycle, a vehicle coming from behind dashed their (4) Cri. Application No. 3755 of 2011 motorcycle near Jijau temple and thereby they fell down along with the motorcycle. It is further alleged in the said complaint, that at that time, Bhujangrao Dhas came from behind and gave a blow of stick on the head of the complainant since the complainant saw him in the head lights of the vehicle. The complainant also recites that Kashinath More was lying thereby on the road. It is further stated in the said complaint, that the applicant no.1, Sandeep, Bhujang Dhas, and his brother Ramesh Prabhu assaulted Kashinath More by sharp weapon and sticks, when he was lying on the road. At this juncture, the complainant stated that he heard the voice of Sandeep Bhalerao, who instigated his father Prakash i.e. applicant no.2, stating that 'he is still alive, not died, take the vehicle on him and assault him', and thereafter, the complainant got faint since he had sustained injuries on his head, but thereafter, he stood up after frightening and saw that his uncle was lying in a pool of blood and Trimbak Bharose was also lying at some distance in unconscious condition. 6. Apparently, although name of applicant no.2, Prakash, has been reflected in the FIR, that he was present at the place of occurrence of the incident, the contents of complaint are silent in respect of any specific role or overt act in respect of the said applicant no.2 and no specific role has been attributed to him. (5) Cri. Application No. 3755 of 2011 Moreover, apparently, contents of the said complaint are also silent in respect of the very aspect, whether applicant no.2 Prakash acted upon the instigation given by applicant no.1 Sandeep. 7. No doubt, the post mortem notes of Kashinath More disclose that the victim sustained about 13 injuries, and his cause of death was traumatic and haemorragic shock as a result of multiple injuries, but apparently, there is no cogent evidence that the applicant no.2, Prakash, is the person who caused the said injuries. Moreover, it is also apparent that Trimbak also sustained about 14 injuries. Out of the said injuries, two injuries are grievous injuries, and apparently, the complainant and said Trimbak are the only eye witnesses to the occurrence of the incident. The statement of Trimbak was recorded after substantial period i.e. on 8-3-2011, and the said statement of the eye witness, apparently, does not raise finger of guilt against the applicant no.2 herein. 8. Admittedly, said Trimbak identified the applicant no.2 in the test identification parade by pointing out finger towards him, but no specific role has been attributed to him in the parade memorandum during the occurrence of the incident. (6) Cri. Application No. 3755 of 2011 9. Besides, learned Counsel for the applicants invited my attention to the first intimation which was given by Police Constable Tulshiram Deshmukh on 22nd February 2011 at 00.15 hours i.e. prior to the FIR, which apparently, refers the aforesaid incident as accident and sight cannot be lost of the said aspect. 10. Having survey of the totality of the facts and circumstances, since the investigation has been completed and charge sheet has been filed, present Application in respect of applicant no.2, Prakash, deserves to be considered for grant of bail but on certain conditions. 11. In the result, present Criminal Application is allowed in respect of applicant no.2, namely, Prakash s/o. Venkatrao Bhalerao, and it is directed that he be released on bail in connection with Crime No. 14/2011, registered at Tadkalas Police Station (Taluka & District : Parbhani), on furnishing P.R. Bond in the sum of Rs. 25,000/- with one surety in the like amount, on the following conditions : (i) After release on bail, applicant no.2 Prakash shall reside out of Parbhani District, except attending the present Sessions Case. (ii) Pursuant to the said condition, learned Counsel for the (7) Cri. Application No. 3755 of 2011 applicants, on instructions, submits that the applicant no.2 shall reside at Vasmat. Hence, applicant no.2 Prakash to furnish his fresh / changed address to concerned investigator forthwith and shall give attendance before incharge of Vasmat Police Station, once in a month i.e. on first Monday of each month, between 04.00 p.m. to 07.00 p.m., till disposal of the trial. (iii) Applicant no.2 Prakash shall not influence upon witnesses and/or tamper with the evidence, in any manner whatsoever, directly or indirectly. 12. Present Criminal Application, to the extent of applicant no.1, namely, Sandeep s/o. Prakashrao Bhalerao, stands dismissed as withdrawn, as aforesaid, and accordingly present Criminal Application stands disposed of finally. 13. However, it is made clear that the above observations are prima facie in nature, and same shall be restricted to this order only and shall not be used in any other matter while deciding it on merits. ( SHRIHARI P. DAVARE ) JUDGE bgp/ka3755