Nikhil S/O Gajanan Saharkar v. State Of Maharashtra, Thr. P.S.O. Dabki Road Police Station, Akola

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR.

CRIMINAL APPLICATION (BA) NO. 369/2016 (Nikhil s/o Gajanan Saharkar ..vs.. State of Maharashtra through PSO P. S. Dabki Road, Akola, Tq. Dist. Akola) __________________________________________________________________________ Office Notes, Office Memoranda of Coram, appearances, Court's orders of directions Court's or Judge's orders.

and Registrar's Orders.

Mr. Anil Mardikar, Senior Advocate with Mr. R. M. Daga and Mr. S. G. Joshi, Advocate for applicant.

Mr. M. A. Khan, A.P.P. for non applicant.

CORAM : V. M. DESHPANDE, J.

DATE :

JULY 8, 2016.

This is the second bail application filed on behalf of the present applicant. The applicant is arrested on 04.10.2014 in connection with Crime No.19/2014 registered with Police Station Dabki Road, Akola for an offence punishable under Section 302 read with Section 34 of the Indian Penal Code and under Section 4 and 25 of the Arms Act.

Heard Mr. Anil Mardikar, Senior Advocate with Mr. R. M. Daga and Mr. S. G. Joshi, Advocates for the applicant in extenso.

The first application under Section 439 of Cr.P.C. was filed before this Court after completion of the entire investigation, after filing of the charge-sheet. The said application was heard by this Court in extenso and when this Court was about to dismiss the said application at that time the learned Senior Counsel submitted that he

has instructions to withdraw the application and, therefore, the applicant was permitted to withdraw the said application but in fact this Court has already disclosed its intention to dismiss the application. Accused is having right to file successive bail applications. Caveat is only that the applicant should be able to point out change in circumstance. According to the learned Senior Counsel, change in the circumstance is that after passing of the order dated 06.10.2016, this Court on 29.10.2015 released the co-accused while exercising the powers under Section 439 of the Code of Criminal Procedure and till today, the charge is not framed.

The criminal law was set into motion by the first informant Ashish Sahebrao Shirsat. The FIR discloses that the date of commission of offence is 04.10.2014 and time is between 9.10. to 9.20 a.m. The FIR is lodged on the very same day at 10.30 a.m. Thus the FIR is lodged immediately. Lodging of the FIR immediately rules out the possibility of false implication.

According to the learned Senior Counsel, statement of the first informant in the FIR and his statement recorded under Section 161 of the Cr. P. C. are general in nature whereas when his statement under Section 164 of the Cr. P. C. was recorded, he has attributed a specific role. Another submission of the learned counsel is that the

role attributed to the present applicant is that he has dealt with knife blow on the thigh of the deceased. Insofar as release of the co-accused after rejection of the application of the applicant on 06.10.2015 is concerned, the case of the said co-accused and the present applicant is not on the same footing. Principally, the co-accused was granted bail since his name was not appearing at all in statement of the witnesses under Section 164 of the Cr.P.C. Therefore, merely because subsequently the co-accused was released on bail that cannot be released on bail that cannot be termed as change in the circumstance especially when the coaccused and the present applicant stand on the different footing.

The FIR states that the first informant witnessed the assault on the deceased by the present applicant and the other co-accused and according to the FIR, they were assaulting on the deceased by means of sword, knife, farsha and iron rod. Statement under Section 161 of the Cr.P.C. reiterates the said statement. However, in the statement under Section 164 of the Cr.P.C., the first informant has stated that when the deceased stepped out from the gymnasium that time the present applicant assaulted on the deceased on his head by means of pipe and thereafter he also gave a knife blow on the thigh of the deceased. The post mortem report shows the injury on head as well as injury on thigh. The

cause of death, according to the autopsy surgeon, is shock and hemorrhage following the multiple stab over the body.

The FIR is not the last word the prosecution. So also even from the statement under Section 161 of the Cr.P.C. it is clear that the role is attributed to the present applicant. All the three statements of the first informant, i.e. the FIR, statement recorded under Section 161 of the Cr.P.C. and the statement recorded under Section 164 of the Cr.P.C. not only implicate but also attribute role of assault on specific parts of the body of the deceased and in the post mortem report those injuries were found. Though the learned counsel has cited certain decisions before this Court, those decisions are not considered by this Court at this stage because all those decisions were after trial. When sufficient material is brought on record against the present applicant and when the applicant has failed to point out any change in the circumstance, I restrain myself in exercising the discretion under Section 439 of the Cr. P. C. The application is, therefore rejected.

JUDGE kahale