BA-786-11.sxw 1 Dixit IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL BAIL APPLICATION NO.786 OF 2011 Mohd. Ali Jabbar Shaikh & Ors. ... Applicants V/s. The State of Maharashtra, Thru' Arey Police Station ... Respondent Mr. N. Khan for the Applicants. Mrs. A.A. Mane, APP, for the Respondent. CORAM:- A.M. THIPSAY, J. DATED :- 27 TH JUNE, 2011. P.C. : 1. Heard. 2. Pursuant to the directions given by this Court, the Investigating Officer is present before the Court with Case Diaries. I have glanced through the Case Diaries. 3. The Applicants are the accused in C.R. No.27 of 2011 registered with the Arey Police Station on 21st February, 2011. The allegation against them is that on account of some petty quarrel, that had taken place, they assaulted one Ganesh Valvi and his friend Mohan Valvi, by the iron rods and sticks. Ganesh Valvi died an unnatural death on 26th February, 2011. The case, which had been registered, was, initially, with respect to the offences punishable under Section 326 of the IPC, but, BA-786-11.sxw 2 Dixit after the death of the said Ganesh Valvi, the accusation of an offence punishable under Section 302 of the IPC was levelled. 4. The Applicants have been named as the 'assailants' in the First Information Report, which had been lodged by the deceased himself. However, there is some ambiguity in the F.I.R. as regards the identity of the Applicants and as regards the person or persons with whom the deceased and his friend allegedly had a quarrel over the parking of the motor cycle, before the incident. The F.I.R. narrates that the First Informants, Ganesh Valvi and Mohan Valvi, were going to attend a marriage ceremony at about 7:00 p.m. to 7:30 p.m. That, at that time, the motor cycle of one person, (,dk blekph), was standing on the road in front of one Godavari Building. Ganesh Valvi and Mohan Valvi asked that person not to park the vehicle on the road, and to park it at one side. Thereafter, 'one of those persons', (R;krhy ,dk blekus), quarreled with Ganesh. That, thereafter, Ganesh and Mohan were returning, after attending the marriage ceremony, at about 8:10 p.m. That, at that time, the Applicants, who are named in the F.I.R., are alleged to have assaulted Ganesh and Mohan by sticks and iron rods. The reason for the assault, as given in the F.I.R., is ‘the grudge entertained by the Applicants on account of the previous quarrel in connection with the parking of the motor cycle on road’. Strangely, however, the F.I.R. does not mention that the earlier quarrel was with the Applicants, or any of them and, in fact, describes the person or persons, (even this is not clear whether there was one person or there were more persons with whom the quarrel had taken place), 'as one person'. The F.I.R. does not mention that earlier the quarrel was with the Applicants, or any of them; and straightaway refers to the Applicants for the first time, only while narrating the incident of assault. There is substance in the contention advanced by the learned Advocate for the Applicants that if the Applicants were known to the First Informant and the BA-786-11.sxw 3 Dixit other victim Mohan since prior to the incident, why they were earlier described as 'one person', (not even as three persons), is not clear. The same ambiguity occurs in the statement of the said Mohan also. 5. It is also contended by Mr. Khan, the learned Advocate for the Applicants, that the offence allegedly committed by the Applicants cannot be said to be one of murder. He has pointed out that the said Ganesh was treated in the Out Patient Department and was allowed to go. Ganesh died on 26th February, 2011, and the cause of death has been opined to be ‘septicemia and pneumonia as a complication of traumatic perforative veritouitis following assault’. Mr. Khan contended that the death cannot be said to have been caused as a direct result of the assault. 6. It is also pointed out that in the history of the incident, that was narrated by the victim to the Medical Officer, the victim mentioned that the assault was by 12 to 13 people, by iron rods and sticks. Mr. Khan contended that this is inconsistent with the specific version that these three Applicants assaulted the victim. 7. At this stage, a further or deeper probe into the material collected during the investigation is not possible. What, however, needs to be observed is that the death has been caused after five days from the incident. This, together with the opinion about the cause of death, as reflected in the Notes of the Post Mortem Examination, would need consideration during the trial for determining the offence allegedly committed by the Applicants. 8. Proceeding on the basis that the Applicants appear to have, indeed, assaulted the deceased and the other victim Mohan, it would be necessary to consider whether the Applicants deserve to be released on bail. The Applicants are young BA-786-11.sxw 4 Dixit persons with no criminal antecedents. They are in custody since 2nd February, 2011. Mr. Khan submits that the Applicants are ready to abide by the conditions, as the Court may impose, and are ready to give an undertaking that they would not enter the locality i.e. the area within the jurisdiction of Arey Police Station, till the trial would be over. 9. Considering all the relevant aspects of the matter, I am inclined to grant an opportunity to the Applicants of availing of liberty subject to certain conditions. 10. The Applicants are ordered to be released on bail in the sum of Rs.50,000/- each, with one surety in like amount, on the following conditions : (i). The Applicants shall not enter within the territorial jurisdiction of the Arey Police Station till the disposal of the case against them. (ii). The Applicant shall not contact, meet or approach any of the witnesses for the prosecution, in any manner, whatsoever. 11. The learned Magistrate, before whom the case is pending for committal, shall commit the same as early as possible and the learned Judge of the Sessions Court, to whom the case will be assigned for trial, shall endeavour to dispose it of within a period of one year from the date of receipt of the record and proceedings by him. [A.M. THIPSAY, J.]