(1.) The applicant is seeking regular bail in connection with Crime No.137 of 2019 registered with Veergaon Police Station, District Aurangabad for the offences punishable under Section 302 , 323 , 143 , 147 , 148 , 149 , 504 , 506 of the IPC. His application with similar prayer came to be rejected by the Additional Sessions Judge, Vaijapur, District Aurangabad, vide order dated 02.03.2020 in Sessions Case No.6 of 2020, below Exh.8.
(2.) The learned counsel for the applicant submits that the investigation is over and the charge-sheet has been submitted. The applicant is in jail in connection with the present crime since 29.09.2019. The learned counsel for the applicant submits that the informant Dagadu Hari Jadhav who happened to be the real brother of deceased Babasaheb @ Sambha has no first hand knowledge about the incident and he lodged the compaint on the basis of the information received from one Khandu Mistri. According to the prosecution story, the said Khandu Mistri is the only eye witness to the incident. On the basis of the information received from the said Khandu Mistri, informant has alleged that the applicant and the co-accused extended the beating to the deceased Sambha in the agricultural land and at that time, the present applicant was holding an axe in his hand. The learned counsel submits that even in the complaint, there are no allegations against the applicant that he had used an axe in the assault. The learned counsel submits that during the course of investigation, the statement of the said Khandu Shankar Aalhat (Mistri) was recorded, wherein though he stated about the presence of the applicant on the spot holding an axe in his hand, however, he has also not made any allegations against the applicant to the extent that the applicant has used the axe against the deceased. The learned counsel submits that on 30.09.2019, the statement of the said Khandu Mistri came to be recorded under Section 164 of the Cr.P.C. before the Magistrate, wherein he has clarified that during the said quarrel, co-accused Bhausaheb suddenly snatched the axe from the hands of the applicant and gave a blow of the axe on the head of the deceased Sambha. The learned counsel submits that even the said Khandu Mistri in his supplementary statement recorded by the police, on the same day, has clarified the same in the manner as stated before the Magistrate in his statement recorded under Section 164 of the Cr.P.C. The learned counsel submits that though in the Post Mortem Report, particularly in column No.17, one depressed fracture on right parieto occipital region has been noted with corresponding internal injury of depressed skull fracture, however, the cause of death is "haemorrhagic shock due to head injury". The learned counsel submits that nothing was recovered at the instance of the present applicant except his clothes, however, those clothes have no blood stains. The learned counsel submits that the applicant is a young person, 21 years of age having no criminal history. The applicant has a fixed place of residence. The applicant is easily available for trial. The applicant is ready to abide the conditions, if imposed by this Court. The applicant may be released on bail.
(3.) The learned APP has strongly resisted the application on the ground that prima facie, there is evidence about the formation of an unlawful assembly. It appears from the allegations made in the complaint that co-accused Bhausaheb took deceased Sambha along with him on his motorcycle towards agricultural field and thereafter the applicant and the other co-accused persons followed them towards the agricultural field. In the said field, the applicant and the co- accused persons including the said co-accused Bhausaheb started beating the deceased with the help of sticks, fists and kicks blows etc. The learned APP submits that there is evidence about the common object of the unlawful assembly and if co-accused Bhausaheb has done any act in prosecution of the common object of the unlawful assembly, all the members including the present applicant are liable for the act of co-accused Bhausaheb, in terms of the constructive liability as defined under Section 149 of the IPC. The learned APP submits that even eye witness Khandu has also stated about the presence of the applicant on the spot at the time of incident holding an axe in his hands. The learned APP submits that had there been no axe in the hands of the present applicant, there was no question to use the said axe by co-accused Bhausaheb. Thus, common object is apparent. Prima facie, there is a strong case against the applicant. The applicant may not be released on bail.