Nazim Shaikh Kalim Patve vs The State Of Maharashtra
2021 Latest Caselaw 7565 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD


                          BAIL APPLICATION NO.242 OF 2021


                              NAZIM SHAIKH KALIM PATVE
                                        VERSUS
                             THE STATE OF MAHARASHTRA
                                           ...
                        Mr. S.S. Kazi, Advocate for the applicant
                        Mr. N.T. Bhagat, APP for the respondent
                                           ...

                                    CORAM :      SMT. VIBHA KANKANWADI, J.
                                    RESERVED ON        :        20th APRIL, 2021
                                    PRONOUNCED ON :             08th JUNE, 2021.


ORDER :

1 Present applicant is accused No.7, who came to be arrested on

13.09.2020 by Nandurbar City Police Station, Dist. Nandurbar, in connection

with Crime No.807/2020, for the offence punishable under Section 302, 307,

324, 323, 427, 452, 504, 506, 143, 147, 148, 149 of the Indian Penal Code,

1860 and under Section 37(1)(3) read with Section 135 of the Maharashtra

Police Act. He has filed present application under Section 439 of the Code of

Criminal Procedure, 1973.

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2              Heard learned Advocate Mr. S.S. Kazi for the applicant and

learned APP Mr. N.T. Bhagat for the respondent.


3               It has been vehemently submitted on behalf of the applicant that

even if the contents of the First Information Report are taken as it is; yet it

cannot be stated that it amounts to homicidal death amounting to murder.

As per the contents of the FIR the present applicant had pelted stone on the

chest of deceased Harun Yusuf Qureshi. It is stated that Harun became

unconscious on the spot and when he was shifted to hospital he died during

treatment. The FIR states about the role of co-accused persons. Some of the

co-accused have been released on bail in Bail Application No.1575 of 2020 by

this Court on 15.01.2021. Perusal of the seizure of the weapon i.e. stone

would show that it was weighing about 2-3 k.gs. Prosecution will have to

prove, as to whether such kind of injury, which was noted in his Postmortem

Report, is possible by such weapon. Now, the investigation is over and charge

sheet is filed, therefore, further physical custody of the applicant is not

required for the purpose of investigation. He needs to be released on bail.

4 Per contra, the learned APP strongly opposed the application and

submitted that specific role is attributed to the present applicant. The story

in the FIR would show that there was motive for the present applicant to act

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in such manner. Further, prior to pelting of stone deceased was manhandled

along with the applicant and by uttering, "lkys vkt ge rq>s tku ls ekj gh Mkyrs gS"

the stone has been pelted. It indicates his intention to commit murder. There

are eye witnesses to the incident and, therefore, when such evidence is

already collected against the present applicant, no sympathy be shown to

him.

5 At the outset, it is to be noted that even as per the contents of

the FIR it appears that an incident had earlier taken place at about 8.00 p.m.

on 12.09.2020, on account of flying kites. But then the informant has stated

that the other side has gone to Police Station to lodge report and he had also

followed them. There was mediation at the Police Station and the dispute

was settled. Then he says that at about 10.30 p.m. in all 12 persons

including the present applicant came to his house, armed with sticks, iron

pipes and iron rods, pelted stones on his house and by entering into the

house the applicant and others had started assaulting informant, his mother,

maternal uncle and aunt. Thereafter, the informant was dragged outside the

house and then he was assaulted with sticks. His uncle was assaulted by

some of the co-accused and then the applicant lifted stone lying by the side

and hit it on the chest of Harun, as a result of which Harun became

unconscious on the spot. Thereafter, co-accused Naeem assaulted Shahdab

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Qureshi with iron pipe. Two vehicles were damaged. Accused persons had

abused and threatened the informant and others. Other persons from the

same vicinity came and intervened. Thereafter, accused persons left the spot.

Harun was shifted to hospital, but then succumbed to his injuries while

undergoing treatment.

6 It will not be out of place to mention here that from the side of

the accused it appears that complaint has been lodged against the informant

and his relatives. It may not be permissible, at this stage, to go into the

contents of that proceedings. However, only a fact is required to be noted

that in that FIR also it is stated that the informant and his relatives had

assaulted the accused persons. The reason, as to why two groups fought with

each other, appears to be trifle in nature i.e. on the point of flying kites. The

further story attributing role to the present applicant that he has pelted the

stone towards deceased Harun which hit his chest. If we consider the

probable cause of death shown in the Postmortem Report, it says, "due to

blunt chest trauma (unnatural)". Definitely, it would be for the prosecution

to prove, whether the injuries, which were noted on the body of deceased,

are possible by the stone, which is stated to be around weighing 2-3 k.gs.,

which was seized from the spot. The distance from which the stone was

pelted would also the guiding factor. Therefore, when there are cross cases

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and it is stated that the stone was pelted, whether it was aimed at chest

would also matter. Therefore, when investigation is over and charge sheet is

filed, taking into consideration the fact that there is no possibility of applicant

getting absconding and as per the parameters laid down in various catena of

Judgments of the Hon'ble Supreme Court as well as this Court, the

application deserves to be allowed with stringent conditions. Hence,

following order.

                                      ORDER


1              Application stands allowed.


2              Applicant Nazim Shaikh s/o Kalim Patve, who has been arrested,

in connection with Crime No.807/2020 dated 13.09.2020 registered with

Nandurbar City Police Station, Dist. Nandurbar, for the offence punishable

under Section 302, 307, 324, 323, 427, 452, 504, 506, 143, 147, 148, 149 of

the Indian Penal Code and under Section 37(1)(3) read with Section 135 of

the Maharashtra Police Act, be released on P.R. of Rs.25,000/- (Rupees

Twenty Five Thousand only) with one solvent surety in the like amount.

3 The applicant shall not tamper with the evidence of the

prosecution, in any manner.

4              He shall not indulge in any criminal activity.




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5                If he commits any breach of above terms of bail, the prosecution

is at liberty to move the Trial Court under Section 439(2) of the Code of

Criminal Procedure for cancellation of bail.

6 He shall not enter the jurisdiction of Nandurbar till the

conclusion of trial. He should reside elsewhere, and before submission of bail

papers, the applicant should give complete address of his proposed residence

with his mobile number. So also he should comply with the requirements

under paragraph Nos.12 (1) to (6) of Chapter I of Criminal Manual,

(whichever are applicable).

7                Bail before Trial Court.




                                                ( Smt. Vibha Kankanwadi, J. )



agd