1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 4210 OF 2010 Uttam Meherbhan Chavan Age : 60 years, Occ : Agri., R/o Hivarkheda, Tq. Mantha, Dist. Jalna. ..APPLICANT -VERSUS- The State of Maharashtra ..RESPONDENT ......... Mrs. S.S. Jadhav, Advocate for applicant. Mr. N.H. Borade, A.P.P. for respondent. ........ WITH CRIMINAL APPLICATION NO. 3637 OF 2010 1. Vijay S/o Uttam Chavan Age : 32 years, Occ : Agril., R/o Hivarkheda, Tq. Mantha, Dist. Jalna, presently at Navyug Vikas Mandal and Surrounding Locality, Akuli Road, East Kandivali, Mumbai. 2. Raju @ Pintya S/o Wasram Rathod Age : 26 years, Occ : Agril., R/o Khorad Savangi, Tq. Mantha, Dist. Jalna presently at Dapodi (Bhivandi), Mumbai. ..APPLICANTS -VERSUS- The State of Maharashtra ..RESPONDENT ......... Mr. N.S. Ghanekar holding for Mr. S.J. Salunke, Advocate for applicants. Mr. N.H. Borade, A.P.P. for respondent. ........ WITH 2 CRIMINAL APPLICATION NO. 4095 OF 2010 Namdeo Khema Rathod Age : 25 years, Occ : Agriculture, R/o Hiwarkheda, Tq. Mantha, Dist. Jalna. ..APPLICANT -VERSUS- The State of Maharashtra ..RESPONDENT ......... Mr. Joydeep Chatterji, Advocate for applicant. Mr. N.H. Borade, A.P.P. for respondent. ........ (CORAM : V.R.KINGAONKAR,J.) DATE : 13 th October, 2010. PER COURT : 1. These are the applications for bail under Section 439 of the Criminal Procedure Code. The deceased, by name, Shankar Rathod was younger brother of main accused, by name, Basram Rathod. There was dispute about the agricultural land between the two brothers. Accused-Basram was demanding transfer of the agricultural land in his name, by way of mutation. Allegedly, on 25.06.2010 accused-Basram quarreled with deceased-Shankar Rathod in the morning time at Auto Rickshaw Stand of the village. He assaulted the younger brother-Shankar, and therefore, in course of retaliation, said Shankar dealt blow of a stick on the head of Basram Rathod. Resultant, deceased Basram Rathod had received head injuries. Some of the villagers intervened and settled that quarrel by separating the two brothers in the relevant morning. 3 2. Alleged incident is said to have been occurred as a sequel to the incident occurred in the morning. The F.I.R. purports to show that in the noon time at about 3/3.15 p.m. said Basram, his relatives Uttam (applicant in Criminal Application No. 4210 of 2010), and other applicants went to the house of informant in Jeep vehicle. They assaulted said Shankar, his son and daughter. They were about 8-9 persons. They forcibly took away said Shankar in that vehicle along with them. He did not return home throughout the night. His dead body was found lying in the secluded place in the outskirts of the village. It was noticed that he was battered to death by causing multiple grievous injuries. 3. Heard the learned Advocates for the applicants and the learned A.P.P. Perused the investigation papers. The charge sheet has been filed against the applicants and other accused persons after the due investigation into the crime. 4. The learned Advocates for the applicants would submit that there is no prima facie material to implicate the applicants in the alleged crime. They would submit that participation of the applicants in the alleged incident of assault is not corroborated by any tangible evidence. It is further submitted 4 that the applicants are roped in due to enmity and suspicion. The learned A.P.P., however, strongly opposes the present application on the ground that there is sufficient material to implicate the present applicants and they are not entitled to seek liberty. 5. The sequence of events goes to show that in the same morning the deceased Shankar had assaulted his elder brother i.e. Basram Rathod during the course of quarrel which had ensued in the proximity of Auto Rickshaw Stand of the village. Obviously, injured Basram Rathod and his relatives had nurtured enmity and sense of vendetta which was propelled by such incident of that morning. The elder brother of the deceased along with their close relatives went to his house in the relevant noon. The deceased was picked up from the house after beating him, his son and daughter. These are tale telling circumstances. Not only the fact that the applicants were last seen together in the company of the deceased but that the version of one Sitaram Jadhav corroborates the fact that applicant-Vijay was armed with the sword and was accompanied by applicant-Raju at the relevant time. He is inhabitant of the said village. At this juncture, the version of Sitaram Jadhav can not be outrightly rejected. It is true that there is certain delay caused in lodging the F.I.R. The informant is rustic and illiterate wife of deceased Shankar. What appears from the record 5 is that the incidents occurred in the same series since morning of that day until deceased Shankar was made to breath his last in the night time at the secluded place where he was taken and dropped dead. The postmortem report shows that deceased Shankar had sustained multiple injuries on right leg, lower limb and index finger and died as a result of hemorrhagic shock caused due to such multiple injuries. 6. It is argued by the learned Advocate appearing for applicant-Uttam that there is no recovery of weapon from him and as such, prima facie, he can not be held criminally liable for the alleged incident. It is also argued by the learned Advocate appearing for applicant-Raju @ Pintya that there is no recovery of any weapon from the said applicant and that he was not present at the spot when the incident happened. It is argued that Raju @ Pintya was employed at Mumbai and in view of the prima facie evidence about his presence at the place of working, he deserves liberty during period of trial. 7. It is pertinent to notice that applicant-Uttam is the father of applicant-Vijay to whom daughter of main accused Basram is given in marriage. Needless to say, they are close relatives. Applicant-Raju @ Pintya is son of main accused Basram 6 and has been named in the F.I.R. and so also, PW-Sitaram Jadhav has corroborated the fact that he was present at the time when deceased Shankar was forcibly taken away from his house after beating him and his children. The question is not whether there was any recovery of weapons from the applicants or not. The question is whether the applicants shared common intention with the main assailants, who were armed with swords and axes or like deadly weapons. In order to find out the their intention, the conduct is required to be examined. All these applicants, who are closely related to each other, together went to the house of the deceased. Some of them were armed with dangerous weapons. This had not happened at spur of the moment. It was their reaction by way of retaliation to the earlier incident, which occurred in the same morning at the Auto Rickshaw Stand. The persons who had accompanied the accused-Vijay and main accused Basram were not naive. They could have gathered that the main accused persons were armed with dangerous weapons and, therefore, their intention was to eliminate the deceased or to cause grievous heart to him, which could have endangered his life. Otherwise there is no reason to take him to the secluded place in the outskirts of village. The small dose of beating was already given to him before he was taken out from the house. 7 8. So far as applicant-Namdeo is concerned, not only the fact that there is no recovery from him but that there is no overtact attributed to him nor anybody has said that he is closely associated with main accused Basram Rathod being such a relative who would do anything in process of the alleged acts. His mere presence by itself, without his participation in the assault, and the evidence regarding use of not only Jeep vehicle but some of the motor cycles would show that he may not be prima facie guilty of sharing common intention with the main accused persons. The learned Advocate appearing for applicant-Uttam invited my attention to the statement of the driver of Jeep vehicle, namely, Vithal Aware. His statement shows prima facie that applicants- Vijay, Chavan, Mahadeo Chavan and Ramesh Jadhav engaged the Jeep vehicle at the relevant time and thereafter other four persons joined them on the way. He further stated that there was one motor cycle on which accused-Kailas Jadhav was riding. His police statement shows that those persons travelling in the Jeep vehicle, had gone to house of deceased and had taken him forcibly to a place in Dhoksal road. All of them alighted along with that old aged person at that place. The statement of the driver further shows prima facie that the persons who were travelling in the Jeep vehicle thereafter asked him to go away and threatened that if he will disclose the incident to anyone else then he would be done to 8 death. The driver was scared to death because he had seen that 2-3 persons were having swords behind their backs. 9. Considering the relevant aspects and material gathered during the course of investigation, I find that out of all these applicants, only applicant-Namdeo Rathod deserves liberty on certain conditions. Other applicants, however, are not entitled for bail and their applications are liable to be dismissed in view of the material which is available against them. 10. In the result, the Criminal Application No.4095/2010 is allowed. Applicant-Namdeo Rathod is directed to be released on bail, on furnishing Bail Bonds in the sum of Rs. 25,000/- (Rupees Twenty Five Thousand) along with one solvent surety in the like sum to the satisfaction of the Court of Sessions and on condition that he shall not enter village Khorad Savangi during the pendency of the trial. He shall give such undertaking simultaneously while executing the bail bonds. The observations made in this order be not considered elsewhere while deciding another matter on merits. The applications of the remaining accused are dismissed. (V.R.KINGAONKAR) JUDGE gas/cri4210.10