abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 197 OF 2008 1. Dinesh Ganpat Dinkar 2. Gopal Mangal Dinkar 3. Naresh Laxman Kongere 4. Deepak Dattatraya Dinkar .. Applicants V/s The State of Maharashtra .. Respondent Mr.S.V. Kotwal for the applicants. Mr.D.P. Adsule, A.P.P. for the State. CORAM : D.G. KARNIK, J. DATE : 6TH FEBRUARY 2008 P.C. P.C. P.C. : 1. Mentioned by Mr.Kotwal. Taken on board on request. 2. Mr.Kotwal, learned counsel for the applicants, mentions that on 25th January 2008 the matter has been adjourned to today but accidently has not been shown on board. On his request, taken on board. 3. Heard the learned counsel for the applicant and - 2 - the learned A.P.P. for the State. 4. By this application, the applicant seeks pre-arrest bail in connection with the crime registered against them under C.R. No.I-58/2007 with Kinhavli Police Station, District Thane for the offence punishable under section 307, 326, 353, 333, 332, 147, 148 read with 149 of the Indian Penal Code. 5. The prosecution case in short is that on account of Gram Panchayat elections, there was enmity between the group of the complainant and the group of the applicants. On 25th December 2007 between 11.30 a.m. and 12.00 noon, 10 persons named in the FIR and 8-10 unnamed persons surrounded the complainant and his friend Mahesh Pandharinath Dinkar and said that they had been sent by Hari Mangal Dinkar for beating them as they were favouring Anna Dinkar in the election. After saying this, Baliram assaulted the complainant with a sword. The applicants assaulted him with shock absorber. One police constable came for the rescue of the complainant but the applicant no.2 also assaulted him with a shock absorber. Thereafter some people from the applicants’ party ran away while some were arrested. 6. According to the applicants, it is the applicants’ party who were assaulted by the - 3 - complainant’s party. The applicants’ party went for lodging an FIR to the police station, but for political reasons, the complaint of the applicants’ party was not recorded and the complaint of the complainant’s party was recorded as an FIR. Be that as it may. One thing is clear that there are counter allegations of assault. 7. Some of the members of the applicants’ party made an application before the Sessions Court. Vide his order dated 7th January 2008, the learned 2nd Adhoc Sessions Judge, Kalyan has granted bail to the four members of the applicants’ party. The learned Sessions Judge has held that the medical certificate shows the injuries to the members of the complainant party to be simple injuries. 8. I have perused the injury certificates which were shown to me by the learned A.P.P. The initial certificates shown to me on the last date show simple injuries suffered by the complainant and his friend. However, on the last date, the learned A.P.P. made a statement that the injury certificates were not correct and the police wanted to get the victim re-examined from the government hospital at Shahapur. Accordingly, the complainant and his friend were sent for examination to the government hospital at Shahapur. The new injury certificates also show that the injuries to be simple in - 4 - nature. Thus, it cannot be said that any grievous hurt was caused to the complainant or to any other person from his group. 9. Learned A.P.P., however, submitted that the mere fact that injuries were simple does not mean that there was no attempt to commit murder punishable under section 307 of the I.P.C. In support, he referred to and relied upon a decision of the Supreme Court in State of Maharashtra v. Balram Bama Patil, reported in AIR 1983 SC 305. In that case, the High Court had acquitted the accused for a charge under section 307 of the I.P.C. because the injuries inflicted on the victims were in the nature of a simple hurt. Reversing that part of the judgment, the Supreme Court held that it was not proper to acquit the accused in respect of the charge under section 307 of the I.P.C. What the court is required to see is whether the act irrespective of its result was done with an intention or knowledge or under the circumstances mentioned in section 307 of the I.P.C. In my view, the intention or knowledge on the part of the applicants can be decided at the stage of trial. At this stage, it cannot be said, even prima facie, that there is enough material to show that the applicants intended or had the knowledge that the act (of alleged assault) would cause the death. - 5 - 10. No affidavit in reply has been filed. The averments made in the application that the applicants have no criminal antecedents, are not likely to abscond, and are permanent residents in the same village are not denied by the State. 11. Taking into consideration these facts and in particular the fact that the injuries are simple in nature and four of the persons from the applicants’ party have already been granted bail by the Sessions Court, in my view, the applicants can be granted conditional pre-arrest bail. ORDER ORDER ORDER In the event of the arrest of the applicants or any of them in connection with the offence mentioned above, each of the applicants be released on bail on executing personal bond of Rs.30,000/- with one or two sureties for the aggregate amount of Rs.30,000/- subject to the following conditions:- (a) The applicants shall not make any inducement nor give any threats to any of the prosecution witnesses and shall not in any manner tamper with the prosecution evidence. - 6 - (b) The applicants shall not change their place of residence without prior intimation to the concerned police station. (c) The applicants shall attend the concerned police station once a week on every Monday between 10.00 a.m. and 12.00 noon and offer themselves for interrogation and cooperate with the investigation till the filing of the charge sheet for 3 months from today, whichever is earlier. (d) This order shall come to an end after the charge sheet is filed whereupon the applicants may apply for regular bail before the regular court. If such application is made, it shall be considered on its own merits without being influenced by any of the observations made in this order. . Application is disposed of. (D.G. KARNIK, J.)