BA-677-11.sxw 1 Dixit IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION BAIL APPLICATION NO.677 OF 2011 Rafique Ahmed Haji Mohd. @ Rafique Hindustanwala ... Applicant V/s. State of Maharashtra, Thru' Azad Nagar Police Station, Malegaon, Nashik ... Respondent Mr. Prakash Jaiswal for the Applicant. Mr. K.V. Saste, APP, for the Respondent. CORAM:- A.M. THIPSAY, J. DATED :- 23 RD JUNE, 2011. P.C. : 1. Heard. 2. I have gone through the copy of the Charge Sheet that is annexed to the Bail Application. 3. The Applicant is alleged to have committed murder of one Yusuf, father of the First Informant - Shaikh Farooque. The incident is said to have taken place on 18th June, 2010. It appears that the First Informant and the victim were permitting some residents of the locality to take water from the boring well. This was not liked by the Applicant. The Applicant came to the spot with a cricket bat in BA-677-11.sxw 2 Dixit his hand and questioned the victim as to whether he had become very kind (tum bahut dayawan ho gaye ho). When the victim tried to justify his conduct by saying that the people should be allowed to fetch the water, the Applicant was angry and gave a blow on the head of the victim by the cricket bat, which he was holding in the hand. The victim fell down. He was taken to hospital. He died on 26th June, 2010. The cause of his death was opined to be "cardiorespiratory arrest due to head injury due to assault". 4. Mr. Jaiswal, the learned Advocate for the Applicant, contended that the weapon, i.e. the cricket bat, is a small bat of 2 ft. in length. He submitted that only one blow was given by the Applicant to the victim, as per the case of the prosecution. He submitted that, that the victim died seven days after the incident is also significant. He submitted that the head injury had been caused due to the fall which the victim had. 5. The thrust of his arguments is on the nature of offence. It is contended that the offence, allegedly committed by the Applicant, would be 'culpable homicide not amounting to murder' punishable under Section 304 (Part II) of the IPC. It is attempted to be shown by Mr. Jaiswal, that the incident took place in some sort of a quarrel and fight. 6. After going through the statements recorded during investigation, it does not seem that there was any provocation from the side of the deceased, or that the deceased and the First Informant had any fight with the Applicant or his persons. Undoubtedly, a single blow by a wooden bat has been given and it would be necessary to consider whether the offence allegedly committed by the Applicant BA-677-11.sxw 3 Dixit would be falling under the provisions of Section 302 of the IPC or 304 of the IPC. Even if it is held that it would be an offence punishable under Section 304 of the IPC, considering the part of the body on which the blow was given, prima facie, it seems that it would come within Part-I of Section 304 of the IPC. That offence is also punishable with imprisonment for life. 7. It is submitted by Mr. Jaiswal that the persons who were projected as eye witnesses by the prosecution are actually not the eye witnesses and that such persons have filed affidavits to that effect. I am not impressed by these contentions. Whether the version in the affidavits is true or not would be a matter that would require determination and the version of the witnesses cannot be projected by filing their affidavits in the Court. At the most, it can be said that these witnesses may not support the prosecution when examined in Court, but that can hardly be a ground for today disregarding their version, as is reflected from their statements recorded during investigation. Incidentally, this might be construed as an attempt to tamper with the witnesses also. 8. Though there may be some doubt about the nature of offence allegedly committed by the Applicant, the fact that he gave a blow on the head of the victim and the death was caused due to that assault is, prima facie, clear. 9. Under the circumstances, I am not inclined to release the Applicant on bail, particularly, because the trial can be expeditiously held. In my opinion, it would be proper to expedite the trial and consider the question of bail afresh should the trial be not over within a reasonable time. BA-677-11.sxw 4 Dixit 10. The Bail Application is rejected. 11. However, the trial Court is directed to hold the trial expeditiously and complete it within a period of four months from today. 12. Liberty to the Applicant to apply afresh for bail should the trial be not over by that time. [A.M. THIPSAY, J.]