1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.4181 OF 2009 1. Ashok Sheshrao Diwate, Age: 50 years, Occ: Agri., 2. Shailesh Ashok Diwate, Age: 18 years, Occ: Agri., 3. Datta Ramrao Khindkar, Age: 30 years, Occ: Agri., 4. Manohar Gorakh Dhokale, Age: 30 years, Occ: Agri., All R/o. Tad-Hadgaon, Tq.Ambad, District Jalna. .. Applicants Versus The State of Maharashtra. .. Respondent ... Mr. Joydeep Chatterji, Advocate for applicants. Mrs. Y.M. Kshirsagar, A.P.P. for respondent. ... WITH CRIMINAL APPLICATION NO. 4295 OF 2009 Babanrao s/o Bhimrao Aute, Age: 43 years, Occ: Tailor, R/o. Tad-Hadgaon, Tq. Ambad, District Jalna. .. Applicant 2 Versus 1. The State of Maharashtra. 2. Ashok Sheshrao Diwate, Age: 50 years, Occ: Agri., 3. Shailesh Ashok Diwate, Age: 18 years, Occ: Agri., 4. Datta Ramrao Khindkar, Age: 30 years, Occ: Agri., 5. Manohar Gorakh Dhokale, Age: 30 years, Occ: Agri., Respondent Nos. 2 to 5 All R/o. Tad-Hadgaon, Tq.Ambad, District Jalna. .. Respondents ... Mr. Suhas B. Rohile Patil, Advocate for the applicant. Mrs. Y.M. Kshirsagar, A.P.P. for respondent No.1. Mr. Joydeep Chatterji, Advocate for respondent Nos. 2 to 5. ... CORAM : A.V. POTDAR, J. DATE : 9TH DECEMBER, 2009. PER COURT : Criminal Application No. 4181/2009 is filed by the applicants for their release on bail, in 3 connection with Crime No. I-144/2009 registered in Ambad Police Station for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. Now, the investigation in the said offence is over and the charge sheet is filed in the Court of law on 11-09-2009 against these applicants. This application is moved by four applicants who are accused in the said C.R. wherein the applicant No. 1 was arrested 24-08-2009, applicant No. 3 was arrested on 15-08-2009 while applicant Nos. 2 and 4 were arrested on 16-08-2009. 2. Criminal Application No. 4295/2009 is filed on behalf of original complainant seeking leave of the Court to assist the learned A.P.P. during the submissions of bail petition/Application No. 4181/2009, to which neither Counsel appearing for the applicants in Application No. 4181/2009 have any objection, nor A.P.P. has any objection. In the premises, Application No. 4295/2009 filed on behalf of the original 4 complainant, is allowed. The learned Counsel is allowed to assist the learned A.P.P. in the course of submissions in Criminal Application No. 4181/2009. 3. Heard learned Counsel appearing on behalf of the applicants, followed the submissions of learned A.G.P. appearing on behalf of the State. Also perused the papers of investigation till carried out, as ordinarily charge sheet is filed. 4. From the papers of investigation, it appears that the said offence came to be registered in Ambad Police Station on the complaint of one Baban Bhimrao Aute, who is father of deceased Rajendra. The fact disclosed from the allegations in the complaint that deceased Rajendra had love affairs with the daughter of applicant No.1, and sister of applicant No.2 who is a widow. The affair between the deceased Rajendra and daughter of 5 1st applicant and sister of 2nd applicant, came to the knowledge, not only to their family members but it was talk of town. It appears that in the night of 14-08-2009 deceased Rajendra was picked up from his house by applicant No. 4 and was brought to the Dhaba run by applicant No. 1 and brought before applicant No. 1. It appears that applicant No. 1 and others inquired with the deceased Rajendra whether he has love affairs with his daughter and shown the willingness to perform their marriage, if he agree. During that course, because of the alteration of words took place between deceased ands applicant No.1, it is learnt that deceased was assaulted by them. On the next day, dead body of the deceased was found lying by the side of the road. Accordingly, it was informed to the complainant and when he inquired about the incident from the servants working in Dhaba, he came to know that these applicants are responsible for the assault and murder of deceased Rajendra. 6 5. During the course of submissions across the Bar, the learned Counsel appearing on behalf of these applicants drawn my attention towards the statement of three alleged eye witnesses, recorded during the course of investigation. Attention is drawn to the facts disclosed and emerges from the statement of these three eye witnesses that applicant No. 2 Shailesh and applicant No.4 Manohar initially assaulted the deceased with the stick and fist blows and during that process from somewhere, applicant No. 2 Shailesh brought Razor and assaulted Rajendra, resulted in sustaining injury on the neck of Rajendra. Rajendra tried to run away from the spot and he was chased by applicant No. 2 Shailesh and applicant No. 4 Manohar. Later on, they turned back to Dhaba. Pointing out this circumstances, as brought on record during the course of investigation, two-fold submissions are made that in fact when the deceased was brought at Dhaba by applicant No.1, 7 where he was inquired by applicant Nos. 1 and 3 about his affairs with the daughter of applicant No.1. There cannot be said to be common intention behind the act resulted in the death of the deceased. In the premises, according to me, prima facie Section 34 of the Indian Penal Code will not be attracted to rope all the four persons in the present Crime. The second submission is that considering the statements of these eye witnesses recorded, the overt act attributed towards applicant No. 2 and 4 but other than inquiry of love affairs of the deceased with the daughter of applicant No. 1, there is no overt act on the part of the applicant Nos. 1 and 3. In the premises, it is urged that as now the investigation is over and charge sheet is filed, they be released on bail. 6. The learned A.P.P. strongly opposed this application to release the applicants on bail on the ground, according to her, the statements of alleged eye witnesses recorded during the 8 investigation, clearly discloses that in the murder of deceased Rajendra, there is participation of all the four applicants. In the premises, they are not entitled for release on bail. 7. Considering these submissions across the Bar and on perusal of the post mortem notes, wherein, probable cause of death is shown as due to hemorrhagic shock due to major arterial injury, which is connected with the external injuries, found on the person of the deceased, while conducting autopsy, which shows that there is cut injury on the neck of the deceased and which resulted in death of deceased Rajendra. Considering this probable cause of death, as shown in post mortem notes, death of deceased is a homicidal death. Now, the question whether all the applicants are responsible for this cause which is shown resulted in death of the deceased. Considering the statements of the alleged eye witnesses recorded during the 9 investigation, nowhere whisper about the overt act as played by applicant No.1 and applicant No.3, other than questioning the deceased Rajendra about his affairs with the daughter of applicant No.1 namely Shilpa. Now, the question arises if there is no overt act on the part of applicant NO.1 and applicant No.3, can they be held responsible at this stage, in absence of any intention as emerges from the papers of investigation. If there is a love affair of widowed daughter, then it is but natural that her father is going to question the person who is having affair with his daughter, about his willingness to marry with her. It cannot be said that they were having common intention. In the premises, so far as applicant No. 1 and applicant No. 3 are concerned, case is made out to release them on bail but no case is made out at least at this stage to release applicant Nos. 2 and 4, on bail. In the premises, application deserves for following order. 10 : O R D E R : (1) The application is partly allowed. (2) Bail Application for applicant No.1 and applicant No.3 is hereby allowed. (3) Both of them be released on bail, on furnishing surety in the sum of Rs. 20,000/- each and on executing P.R. Bond, in the like amount. (4) Bail Application in respect of applicant Nos. 2 and 4 is hereby rejected. (5) Both applications stand disposed of in terms of above order. ( A.V. POTDAR, J.) sut/DEC09/cra4181.09