1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, NAGPUR BENCH, NAGPUR. CRIMINAL APPLICATION (BA) NO. 422/2011 (Amol Gulabraoji Shivarkar V/S. State of Maharashtra, Through Police Station Officer, Police Station, Dist. Bhandara) Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Shri. R. M. Daga, Advocate for the Applicant Shri. P. D. Kothari, APP for Non-Applicant CORAM : U. V. BAKRE, J. ORDER RESERVED ON : 17/08/2011 ORDER PRONOUNCED ON : 20/08/2011 1. This is an application for bail filed by the applicant, who has been arrested on 11/01/2011, by Pulgaon Police in Crime No. 04/2011, registered for offence punishable under Sections 302 and 504 read with Section 34 of the Indian Penal Code. 2. The case of the prosecution is that on account of previous incident which had taken place on 08/01/2011, the applicant and two others namely Pundalik Dayare and Milind Ambade, in furtherance of their common intention, on 10/01/2011 at 19.30 hrs., abused the deceased Purushottam Nanhe and then assaulted him by means of kicks, fist blows and sticks and thereby committed his murder. 2 3. The applicant has stated that the complainant Maya has not explained as to how her husband died and that the post-mortem notes reveal that the injuries sustained by Purushottam are on thigh, forearm, leg, elbow, finger etc. and there is no injury to vital part of the body. The applicant has further stated that nothing has been recovered at the instance of the applicant and there is nothing to connect the applicant with the crime. According to applicant, since the investigation is complete and charge-sheet is already filed and further since he is young boy of 20 years of age having no criminal background, he should be released on bail. 4. The respondent, in its reply, has resisted the application stating that the report lodged by Smt. Maya Nanhe names the present applicant, who has played major role in assaulting the deceased and that there is also an eye witness by name Ishwar Meshram. It is stated by the respondent that the accused persons and the complainant are residing in the same area and, therefore, there is strong possibility of tampering with the prosecution witnesses. 3 5. Learned Advocate Shri. R. M. Daga, argued on behalf of the applicant whereas learned A.P.P. Shri. P. D. Kothari, argued on behalf of the respondent. 6. Perused the case papers made available to me by the learned A.P.P. 7. The contention of Shri. R.M. Daga, the learned counsel for the applicant that the deceased has not sustained any injury to the vital part of his body, is not true. The post- mortem examination report in its column no. 20 reveals that the deceased had sustained fracture at the 7th and 8th ribs level and that the death of deceased was due to injury to vital organs like lungs, spleen, liver etc. 8. The contention of the learned Advocate for the applicant, that there is nothing incriminating against the applicant, is also not true. In the oral report given by Maya (wife of the deceased), she has stated that the present applicant had kept his knee on the chest of her husband and 4 he was assaulting her husband and, thereafter, the applicant took stick from the hands of Milind and assaulted her husband on his legs. 9. There is one of the eye-witnesses to the incident who has fully corroborated the statement of the complainant, whose name is Ishwar Meshram. 10. The deceased died on the day of incident itself. 11. Therefore, prima facie it is evident that this is a case of murder and applicant is one of the main accused along with Milind. 12. It is true that the co-accused namely Pundalik Dayare has been released on bail by order of this Court dated 28/07/2011. However, the case of the said Pundalik cannot be compared with that of the present applicant. The said Pundalik is about 65 years of age and he was found to be discharging his duties as Watchman at the place of incident. Ground of parity is, therefore, not available. 5 13. The applicant and complainant are residing in the same area and, therefore, there is possibility of tampering with prosecution witnesses, in the event of release on bail. The charge-sheet has been filed but the trial has not yet begun. Therefore, in my view, the applicant, who is involved in a serious offence for which there can be a capital punishment, is not entitled for bail at this stage. 14. In the result, the application is rejected. JUDGE Punde