1 CA-4210.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE  CRIMINAL CRIMINAL APPLICATION NO.4210 OF 2010 1. Gurunath Basappa Patil 2. Mallikarjun Annarao Patil 3. Mallaya Sharanaya Swami 4. Ramesh Shrishail Patil 5. Mahadev Annarao Patil & 6. Sidhappa Satappa Patil .... Applicants Vs. The State of Maharashtra .... Respondent S/Shri A.P. Mundargi, Senior Counsel i/b Suresh M. Sabrad for the Applicants. Ms P.P. Shinde, APP, for the State. S/Shri S.V. Kotwal i/b P.G. Sarda for the complainant. CORAM: R.C. CHAVAN, J. DATED: DECEMBER 09, 2010 P.C: 1. This is an application for bail by six persons who are alleged to be involved in the offence of forming an unlawful assembly in the formation of which assembly one Bhimashankar Kore was done to death and several other persons were injured. The allegations are that about nine days before the date of the incident, one Siddharam Mhetre assured his companions, that is the present accused persons 2 CA-4210.10 and others, that they may do anything to the persons from the opposite camp and that he would back them. On 27-9-2009 the incident occurred in which the applicants and others attacked a meeting held by the candidate contesting against Siddharam Mhetre. It was alleged that one of the members of the unlawful assembly had fired from a revolver which caused an injury on the head of the victim Bhimashankar Kore. One Shankar Mhetre attacked the victim by knife. Between 27-9-2009 and 12-11-2009 all the applicants were arrested. The charge-sheet has been filed and on 3-5-2010 charges have been framed. The case was listed before the learned Addl. Sessions Judge for evidence on several occasions when most of the panch witnesses summoned remained absent and hence warrants were issued against them. One of the witnesses was also kept in prison. The evidence of only one witness is so far recorded. 2. The complainant's side filed an application for transfer of the case because of apprehension about political pressure as also some apprehension about the Presiding Officer. This application was subsequently withdrawn and another application was filed before the 3 CA-4210.10 Sessions Court for transfer of the case which application the Sessions Judge rejected. Now another application has been filed in the High Court where the trial has been stayed. In this backdrop, the question as to whether the applicants are entitled to bail on merits has to be considered. Ordinarily, if trial of a case commences, there would be no question of grant of bail since evaluation of case of each applicant for his entitlement to bail would inevitably result in comments on merits being made which may prejudice the trial. However, since in this case the trial has virtually not commenced and is not likely to commence in the near future in view of the stay granted by this Court, this exercise has to be carried out. 3. There is no dispute that as far as applicant No.4-Ramesh Shrishail Patil and applicant No.6-Sidhappa Satappa Patil are concerned, except for the allegation that they were present in the mob which attacked the victim and others, there is no specific role which these persons are alleged to have played. The learned counsel for the intervener and the learned APP both submit that in a case where miscreants are charge-sheeted because they are members of an unlawful assembly, the role of 4 CA-4210.10 each individual member need not be looked into and each one would be liable for the acts of the others. There can be no doubt about the correctness of this proposition. All the same, since about 20 members of the unlawful assembly have already been bailed out by various orders passed by this Court as well as the Sessions Court, it would be unfair to refuse to go into the role of the applicants to deny bail to them. Therefore, as far as applicant Nos.4 and 6 are concerned, they would be entitled to bail since no specific role is attributed to them. 4. Though the victim Bhimashankar Kore was said to have been shot by one Bapurao, the notes of post-mortem examination show that there was no gun shot injury. The panel of doctors which conducted the post-mortem has specifically ruled that the victim did not die as a result of any gun shot injury. Most of the prosecution witnesses have stated that applicant No.1-Gurunath Basappa Patil hit the victim by a hunter on the victim s head while they said that applicant No.2-Mallikarjun Annarao Patil hit the victim on his face by a hunter. The learned counsel for the intervener submits that the penetrating wound which could not be attributed to a bullet could be the 5 CA-4210.10 result of the injury caused by the other end of the hunter and, therefore, the injury could be attributed to applicant NO.1-Gurunath Basappa Patil. There are clearly injuries on the nose which led to fracture of the nasal bone which could be attributed to applicant No.2- Mallikarjun Annarao Patil since he had hit the victim on the face. Therefore, there would be no question of admitting applicant Nos.1 and 2 to bail. 5. This leaves applicant Nos.3 and 5. The applicant No.3 is alleged to have hit the victim with a stick on the stomach and applicant No.5 is alleged to have hit the victim with a hunter on the chest. The injury observed which could have been caused by such an assault is linear contusion 3 cm x 3 cm in size starting at mid-clavicular line in the left clavicular region extending upto 3 cm above umbilicus with tapering ends towards abdomen. The possibility of this injury being caused by a hunter is greater than by a stick. Though upon dissection the doctor found that the ribs were intact, there was a major haematoma on the left side with 60 grams of reddish brown blood. Therefore, the probability of this injury being caused by applicant No.5- 6 CA-4210.10 Mahadev Annarao Patil is greater than that being caused by applicant No.3-Mallaya Sharanaya Swami. 6. At the cost of repetition it has to be clarified that all these observations are tentative in nature and the learned trial Judge would have to assess all the evidence as it comes before him in the course of the trial to decide the complicity of the persons concerned in the assault. It is also clarified that this observation of individual role is not intended at diluting the complicity of the applicants with the help of Section 149 of the IPC. In view of this, applicant No.3 also deserves to be admitted to bail. 7. The application of applicant No.3- Mallaya Sharanaya Swami, applicant No.4-Ramesh Shrishail Patil and applicant No.6-Sidhappa Satappa Patil is, therefore, allowed. They shall be released on bail in C.R. No.84 of 2009 of Akkalkot South Police Station, District Solapur on their furnishing P.R. Bond in the sum of Rs.20,000/- each with one or more solvent sureties in the sum aggregating to Rs. 20,000/- per person on the condition that they shall stay outside the limits of Akkalkot 7 CA-4210.10 Taluka and shall furnish the addresses where they intend to reside during the course of the trial. They shall also report at the office of the CID-Crime, Solapur on the first Sunday of every month between 10:00 a.m. and 1:00 p.m. till the trial is over. So far as applicant Nos.1, 2 and 5 are concerned, their application for bail is rejected. (R.C. CHAVAN, J.)