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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,

NAGPUR BENCH, AT NAGPUR.

CRIMINAL APPLICATION (BA) NO.964/2021

( Madhav Ramchandra Kavhar VS. State of Maharashtra)

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Office Notes, Office Memoranda of Coram,

Court'

s or Judge'

s orders

appearances, Court'

s orders of directions

and Registrar'

s orders

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Mr.Mir Nagman Ali, Advocate for the applicant.

Mr. N.R.Rode, APP for the non-applicant/State.

CORAM : ROHIT B. DEO, J.

DATED : 27-09-2021

The applicant is arraigned as accused 2, alongwith

eight others including one juvenile in conflict with law,

in Crime 14/2021, registered with Police Station,

Shirpur, District Washim, for offences punishable under

sections 143, 147, 148, 149, 302, 307, 341, 504 and 506

of the Indian Penal Code.

2.

The crime is registered on the basis of report

dated 25.1.2021 lodged by Smt. Jayashree Gajanan

Kavhar, who is the wife of injured Gajanan.

3.

Broadly, the prosecution case is that at 2.00 p.m.

or thereabout Gajanan was assaulted by the accused,

who were armed with axe, iron pipes and lathis. The

prosecution case is that the applicant, Prakash Kavhar

and Deorao Kavhar were armed with axe. Gajanan’

s

father Arjun intervened in the altercation only to be

assaulted on the head with axe. This axe assault is

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attributable to Deorao, Madhav and Prakash. It is further

alleged that even after Arjun collapsed, the other accused

continued to assault him with lathis. Gajanan too

suffered injuries on the head and blow was inflicted by

accused Vitthal, is the statement of Gajanan’

s mother.

4.

Arjun succumbed to the injury suffered in the

assault, while being treated at Aurangabad Hospital on

27.1.2021. The learned counsel for the applicant Mr.

M.N.Ali would further submit that the statements of

witnesses that even after the deceased collapsed, he was

assaulted with lathis, reflect an obvious attempt to rope

in all the members of the family. It is further submitted

that the altercation, was a free for all fight and the

applicant too suffered an injury, which is a lacerated

wound. Mr. Ali invites my attention to the injury

certificate which indeed refers to lacerated wound with

dimension 5 x 5 cm which injury was bleeding and the

bone was exposed.

5.

In so far as the injured Gajanan is concerned,

holistically reading of the statements of the witnesses

does appear to be prima facie material to connect the

applicant with the assault on Gajanan. I have already

noted that in so far as Arjun is concerned, who inflicted

the blow, which proved fatal ultimately, is blurred and

the picture is not clear probably due to tendency to over-

implicate and exaggerate. It is true, as argued by

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Mr. Rode, that since Section 149 of the Indian Penal

Code is invoked, the particular role played in the assault

may be irrelevant. However, before Section 149 of the

Indian Penal Code can be invoked effectively, the

prosecution will have to prove several foundational facts,

inter alia, that there was an unlawful assembly, with

common object and that the applicant was a member of

the unlawful assembly pursuant to such object, which are

all aspects, which the Trial Court would consider after

the evidence is adduced. At this stage, considering the

material on record, I am satisfied that a case for bail is

made out particularly since the applicant has no criminal

antecedents. However, certain conditions will have to be

imposed since the family of the applicant and that of

the victim are relatives and neighbours.

6.

The application is allowed.

7.

The applicant sh