JEEVAN VYANKAT THOKAL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS application under section 438 of the Criminal Procedure Code is by one of the accused in Crime No. 44 of 1995 of Police Station, Ladkhed. The said crime was registered under sections 147, 148, 149, 188, 302 and 307 of I. P. C. and under section 135 of the Bombay Police Act.

(2.) ACCORDING to the prosecution, there was an election to the Gram Panchayat at village Kamathwada on 20-4-1995. Two parties were contesting the election. One Ramesh Ajabrao Pawar was the head of one group and one Dattatraya Punjaram Dhote and others constituted the other group. After the election, results were announced, accused Punjaram Dhote and his associates, including the present applicant, formed themselves into an unlawful assembly with the common object of comitting murder attempt to murder and other offences, armed themselves with sticks, iron pipes, iron rods and swords, and they assaulted the brother of the complainant and injured him. Receiving the injuries - Sitaram Ajabrao Pawar, brother of the complainant, succumbed to the injuries. It is also the case of the prosecution that several others also sustained injuries. The occurrence took place on 20-4-1995 and, on the same day, the brother of the deceased tendered the First Information Report under section 154 Cr. P. C. before the police station House Officer. It is the case of the prosecution that out of the 21 accused, 18 were arrested. Out of 18 persons, one was released on bail on health ground. Three accused, including the present applicant, could not be arrested as they are absconding.

(3.) NOW, learned Counsel for the applicant - Mr. Rizwy raised several points in support of the applicant contending that, as a matter of fact, the applicant is totally innocent and there is nothing to connect him with the crime. He maintained that brother of the deceased, who had tendered the F. I. S. and father of the deceased, who had been questioned under section 161 of the Cr. P. C. filed separate affidavits on 6-6-1995 stating that the mention of the name of the present applicant in the F. I. S. by the brother of the deceased and the mentioning of his name in his statement given under section 161 Cr. P. C. by the father of the deceased are inadvertent mistakes. Therefore, Mr. Rizwy maintained that on that itself it should be concluded that there is absolutely nothing to connect the accused with the offence and, therefore, the applicant-accused is entitled to be released on anticipatory bail. He also contended that mere absconding cannot be incriminatory so as to deny benefit of section 438 Cr. P. C. to the present applicant.