1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. CRIMINAL APPLICATION (BA) No. 77/2011 (Aftab Alam Khan s/o Fakre Alam Khan Pathan .vs. State of Maharashtra through PSO PS Washim ) ------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders. and Registrar's orders Mr. A.S. Mardikar, Advocate for Applicant. Mrs. B.H. Dangre, Additional P.P. For Respondent. .......... CORAM : P.D. KODE, J. DATED : APRIL 07, 2011 Heard. The applicant/accused no.1 charge sheeted by Washim Police Station as a result of investigation of Crime No.180/2010 registered with the said Police for offences under Sections 143, 147, 148, 149, 324 and 302 of IPC has prayed for bail. The said crime was registered upon dying declaration of injured Habibkhan who however survived, regarding an incident which had occurred on 20.5.2010 at about 1800 hours in agricultural field belonging to the first informant and his deceased father namely Izazat. In short it is prosecution case that the applicant and the other charge sheeted accused were member of an unlawful assembly and were armed with the weapons as stated in the FIR and on the count of previous enmity and upon deceased 2 Izazatkhan having desisted accused no.1 Tahirkhan and Babukhan, they had assaulted the deceased and the first informant who had been for his rescue. As a result of the said assault, the deceased had succumbed to the death on the spot. It will not be out of place to state that as a result of the investigation, initially the charge sheet was filed against the accused persons other than the present applicant and lateron the present applicant was also charge sheeted. The prayer for bail made is vehemently opposed by the learned Additional Public Prosecutor on the count of presence of the applicant and himself being armed with the weapon being borne from the material collected during the investigation. The learned APP has strenuously contended that the offences for which the applicant is charge sheeted being committed in prosecution of common object of unlawful assembly, it is not at all necessary that the prosecution material should reveal any overt act committed by him during the incident. It is urged that the prosecution material revealing the presence of the applicant at the time of the incident and himself being armed and the deceased having sustained the injuries which are possible by weapon possessed by him and the charge sheet not revealing that presence of applicant was for any other purpose and further prosecution material being indicative of himself sharing the common object, the prosecution has established his prima facie involvement in the offences committed. It is urged that in view of such material being available, the applicant is not entitled for bail. 3 The learned APP, however, fairly accepted the position that in spite of the name of the applicant being revealed during the course of investigation and particularly prior to submission of the charge sheet against accused nos. 1 to 8, he was then not charge sheeted. It was urged that then the applicant had claimed of at relevant time being present at Shegaon in connection with censor work by producing certificate of Headmaster and on the inquiry/investigation thereon effected having shown some substance in the said contention, the prosecution had opted not to charge sheet him. It is urged, however, prosecution had obtained the permission from the Court for further investigation in the matter. It is urged that lateron it has been found that the said stand taken by the applicant was not correct as the attendance register seized during the investigation revealed that he was present at the relevant time in the school. It is urged that in view of the same, the prosecution in light of entire material available has opted and submitted the challans against him and upon which the Court has taken the cognizance. The learned APP further urged that at any rate the merits and demerits of the original stand about the said aspect would be determined at the time of the trial and merely because of the same the applicant would not be entitled for bail as his involvement is prima facie borne from the material collected during the investigation. Mr. Anil Mardikar, learned counsel for the applicant has countered the aforesaid submissions by urging that the prosecution say regarding having sought 4 the permission from the Court is wholly incorrect as the permission was sought for investigating the matter regarding the absconding of the applicant. The said submission is apparently found to be in consonance with the matters revealed from the note given by the investigating officer while submitting the charge sheet. The further submission canvassed by the learned counsel by drawing the attention to the post mortem report appears to be prima facie correct that though the deceased and the first informant has been said to have been assaulted by an assembly comprising of more than nine persons, there are only four injuries on the person of the deceased and while two on the person of the first informant. Even giving of concession to the prosecution that out of nine accused, three were armed with pipes, one with spear, one with stone and three more with guptis, still considering the nature of the injury sustained by the deceased and the injured, there appears substance in the contention of each of them being not attacked by more than four to five persons during the incident. It is not in dispute that oral account of incident is comprised of the matters stated in the dyding declaration/first information report of the injured Habibkhan and the statement of three eye witnesses. The learned APP has also stated that account stated in the statements of three eye witnesses is more so in consonance with the matters stated in the FIR read in conjunction with the matters stated in the supplementary statement of first informant recorded on the next date. The bare perusal of the said matters fully 5 supports the submission of the learned counsel for the applicant that the name of the applicant hailing from same village is not found mentioned in the FIR. Though learned APP tried to explain same by stating that first information report contains recitals that besides the persons named therein, two to three more persons were present at the time of the incident, still name of the applicant being not found in the said FIR is a circumstance, prima facie required to be considered in favour of the applicant. Apart from the same, now considering the account of incident as revealed from the FIR as well as the matters stated in the statements of four eye witnesses, the submission of the learned counsel for the applicant that even accepting the said material as it is, the same by itself prima facie does not denote that the applicant was sharing common object to commit the murder of the first informant and the injured. It was rightly urged that in absence of any overt act on the part of the applicant either in the nature of any utterance made by him or having committed any act in pursuance of any utterance given by other persons leading the conclusion even prima facie cannot be reached of himself entertaining such a common object. Having regard to the same, the prayer for bail will deserve credence. The applicant is directed to be released on bail in connection with said crime upon furnishing P.R. Bond in the sum of Rs.1,00,000/- (Rs. One Lac) with two solvent sureties in like amount and subject to the conditions that applicant - (i) after his release on bail, shall stay outside 6 the precincts of village Gram Walki and shall intimate his place of abode to the investigating officer and shall not change the same without the permission of the trial Court and shall also attend the said local Police Station within whose jurisdiction he would be staying everyday in between 11 & 1 p.m. for a period one month and thereafter on first Monday of every month until further orders; (ii) shall not indulge in any activity of tampering prosecution evidence and/or indulge in any activity hampering the progress of the trial, (iii) shall not commit any offence while on bail. Nothing in this order should be construed as an opinion expressed by the court regarding the merits of the prosecution case as all the observations are made primarily for deciding prayer for bail made. The application stands disposed of. JUDGE halwai