(1) CRI. APLN. 4643.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 4643 OF 2010 Raviraj S/o. Uttamrao Dhat Age : 19 years, Occu.: Student and Part Time Service, R/o. Savitra Hostel, Opp. Narayan Peth Police Chowki, Narayan Peth, Pune APPLICANT VERSUS The State of Maharashtra Through Police Station, Kopargaon, Tq. Kopargaon, Dist. Ahmednagar RESPONDENT ..... Mr. Jagdish V. Deshpande, Advocate for the Applicant. Mr. B.J. Sonawane, A.P.P. for the respondent/State. ..... CORAM : V.R. KINGAONKAR, J. DATED : 3RD DECEMBER, 2010 ORAL ORDER:- 1. The Application is for bail under section 439 of the Code of Criminal Procedure. 2. Heard learned Advocate for the applicant and learned A.P.P. for the State. Perused the investigation papers. The alleged incident occurred in the morning of June 16, 2010. There was property (2) CRI. APLN. 4643.2010 dispute going on between Vyankat Dhat and his brother including father of the applicant and his uncle by name Pratap. A civil suit was also filed for injunction. Father by the applicant had put on his share in the agricultural land for sell. However, father of said Uttam and Venkat purchased that share of the applicant's father and thereafter he was asking to return it. The applicant's father was having impression that injured Vyankat was instigating his father i.e. Parasram Dhat in that civil dispute. Somewhere in January, 2010, there was a quarrel between father of the applicant and his uncle i.e. Vyankat and a criminal case was filed by the applicant's father. The F.I.R. purports to show that on 16.6.2010 while Vyankat Dhat was proceeding on a motorcycle for reaching his minor son Rohan and minor daughter Poonam to a school at Kopargaon, the applicant alongwith his two uncles and other 3-4 persons alighted from an auto-rickshaw at a place near square of village Bhojade. They were armed with an iron bar, axe and sickle. They gave blow of iron bar on the face of Rohan, father of the applicant dealt blow of axe on head of deceased-Tushar, whereas (3) CRI. APLN. 4643.2010 the applicant raised sickle to mount assault on Vyankat Dhat but then he got missed the blow and speeded the motorcycle ahead. The assailants pelted the weapons from behind and therefore, his daughter Poonam was injured. Immediately, the injured minor daughter and the son were rushed by injured Vyankat Dhat to the hospital. It appears that the minor son of Vyankat Dhat, by name Tushar died during the course of the hospitalization. 3. The learned Advocate for the applicant would submit that the applicant is a college student and is not the assailant of deceased-Tushar nor could be attributed any intention to cause the death of the minor. It is argued that the role attributed to the applicant is unconcerned with the death of Tushar. It is however argued that applicant deserves liberty inasmuch as he could not have any intention to eliminate his uncle or any other person. It is contended that the applicant and his uncles or others could not have gathered any prior intimation about the movements of Vyankat Dhat and his driving of motorcycle alongwith the children on the road where (4) CRI. APLN. 4643.2010 the incident did occur. In other words, an attempt is made by learned Advocate to suggest that the incident could not be result of any pre-planning made by the applicant and his uncles. 4. I find it difficult to countenance the argument of learned Advocate for the applicant. First, the applicant and his uncles alongwith 3-4 others had alighted from an auto-rickshaw near the place of incident. They could have gathered the knowledge about Vyankat Dhat's taking his minor sons and daughter on the motorcycle by that road to reach the children to the school. The very fact that in the morning, at about 9.00 am, the uncles of the applicant and he himself were armed with dangerous weapons like iron rod, axe and sickle would show that they had prepared to obstruct Vyankat Dhat on the road and to mount serious assault on him, probably with intention to do away with his life. The medical certificates would show that Vyankat Dhat's minor son and daughter i.e. Rohan and Poonam were injured during the course of assault. There is eye witness account of Vyankat Dhat and minor son and the (5) CRI. APLN. 4643.2010 daughter to show presence of the applicant at the spot. It is prima facie manifest that the applicant, his father and uncle flocked together with common intention or common knowledge to assault Vyankat Dhat and assaulted him and his minor children by means of dangerous weapons. At this juncture, it is not possible to minutely examine whether the intention was to cause death of Vyankat or the intention was only to scare him by mounting the assault. The fact remains that there was common design of the applicant and his uncle and father alongwith 3-4 other persons who were with them. The minor son of Vyankat Dhat died during the course of the assault. 5. Considering the language in section 437(1) of the Cr.P.C. the applicant is not entitled to seek bail when there is prima facie evidence about his complicity. One cannot be oblivious of the fact that injured cousin of the applicant is the eye witness and his uncle is also eye witness of the incident. The applicant's liberty is implicit threat to them. 6. The learned Advocate for the applicant submit that the applicant is ready to reside in some other (6) CRI. APLN. 4643.2010 district. In my opinion, such condition is not sufficient to ensure fair trial of the Sessions case and particularly when there is eye witness account available regarding involvement of the applicant in the alleged serious crime. 7. In this view of the matter, the Application is dismissed. The observations in this order may not be considered while deciding the Sessions case on merits. Sd/- [V. R. KINGAONKAR, J.] arp