JASRAJ CHOPRA, J. - (1.) THIS is an application under Section 439 Cr. P.C. filed on behalf of accused -petitioners Nenaram, Bhikaram, Manglaram, Mithalal and Bhanwarlal, all residents of Sojat City.
(2.) THE case of the prosecution, briefly stated, is that there was some dispute between the parties about the ownership of two Neem and one Jhajhariya trees. It is alleged that these trees were standing on the boundary between Khasra No. 23 belonging to the complaint side and Khasra No. 1803 belong to the accused -party. The case of the prosecution further is that the accused -person have cut these trees and have taken away its wood. When these trees were being cut a report was lodged at Police Station, Sojat and when the complainant party was returning to Basni Tiwariyan, the accused -persons met them in the way armed with lathis and Pharsies and Khoont etc. and availed them in the way and inflicted injuries to Magharam, Bhikji, Mst. Meera, Mst. Panki, Babulal, Chunnilal and Champalal. Bhikji received in all three injuries on his head, out of which, one is a fracture on the head. Magharam received in all 7 injuries, which have resulted in multiple fractures of the skull bone and he succumbed to the injuries. Mst. Meera received two simple injuries whereas Mst Panki received four injuries, which were also simple in nature. Babulal, Chunnilal, and Champalal received in all three, two and two injuries respectively, which were all simple in nature. The occurrence took place on 15 -2 -1987. Magharam died on 16 -2 -1987. The report of the incident was lodged by one Nenaram on the basis of which a case was registered under Section 147, 148, 149 and 307/149 IPC. which was later converted into a case under Section 302 IPC on the death of Magharam. The police after investigation filed a challan against 12 accused. It did not file any challan against one Heerji Tulchha son of Mohanji, Nathu son of Laxmanji and Deeparam son of Motaramji. However, a complaint was filed and cognizance was taken against these four accused persons also. All these 16 accused -persons filed two separate bail applications each filed by 8 accused -persons before the learned Sessions Judge. Both applications were heard together and the learned Sessions Judge vide his order dated 24 -6 -1987 granted bail to accused Babulal Chunnilal, Heerji, Nathuram, Kistoora, Kanaram. Deeparam, Kesaram and' 'Tulchharam. The bail application filed by accused Ratanaram, Bhikaram Laxman, Manglaram, Mitharam, Bhanwarlal and Nenaram was refused Out of these 7 persons, whose bail was rejected, five of them have filed this bail application. No bail application has been filed on behalf of accused Ratnaram and Laxman, who are alleged to be the assailants of deceased Magharam. Mr. M.C. Bhandari, learned Counsel appearing for the accused petitioners has submitted that actually, these trees were situated in the field of accused -persons. This is clear from the order of the Tehsildar, the copy of which has been shown to me. The accused persons tried to cut these trees after obtaining the permission of the Tehsildar, the photostat copy of that order has been produced for my perusal He has submitted that the complainant could not have objected to the cutting of these trees because firstly they were situated in the field of the accused and secondly, they were being cut after obtaining the permission of the Tehsildar. He has, therefore, submitted that it was complainants, who were aggressive and have attacked the accused party when they were carrying wood of these trees. He has further submitted that even according to the challan papers, it is a case of free fight between the parties. I have perused the challan papers and I find that the fight did not take place either in one of the fields or on the boundary of these two fields. It took place near the temple of Mataji, which is situated somewhere between Sojat and Basni Tiwariyan.
(3.) MR . Bhandari has further submitted that from the evidence that has been produced by the prosecution it is clear that only Ratnaram and Laxman have inflicted injuries to the deceased and both of them have not filed this bail application. He has further submitted that the case of the accused -petitioners cannot be distinguished from the case of the other accused persons, who have already been released on bail. It was further submitted that of course, Bhikji received certain injuries and one of those injuries have been characterised as grevious by the Doctor but that at the most is covered by the provisions of section 325 IPC, which is bailable and hence, the accused petitioners should not have been treated differently from the other accused -persons, who been released on bail and, therefore, this court should release them on bail.;