1 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Criminal Application No.532 of 2010 In Criminal Appeal No.830 of 2008 Sagar Baban Aatole Applicant Vs. The State of Maharashtra Respondent Mr.Karan Bhosale with Mr.Shavez Mukhri i/b. Mr.O.A. Siddiqui for applicant. Mr.J.P.Yagnik, APP for State. CORAM: B. H. MARLAPALLE & MRS.MRIDULA BHATKAR, JJ. April 29, 2010. P.C. 1. We have heard Mr.Bhosale with Mr.Mukhri, the learned counsel for the applicant (accused no.3). This is an application for bail pending Criminal Appeal No.830 of 2008. In Sessions Case No.513 of 2005 tried by the learned Additional Sessions Judge at Pune for the offences 2 punishable under Sections 143, 147, 148, 302, 324, 504 read with Section 149 of IPC, in all seven accused faced the trial and by his judgment and order dated 21/7/2008 the learned Additional Sessions Judge was pleased to convict accused nos.1 to 5 for the offences punishable under Sections 143, 147, 148, 324, 302 and 504 all read with Section 149 of IPC. The said order of conviction and sentence is under challenge in Criminal Appeal No.830 of 2008 at the behest of accused nos.1 to 5. 2. The applicant – accused no.3 states that out of the three eye witnesses none of them have attributed any overt act to him, no weapon has been recovered at his behest and the injuries sustained by the deceased have not been attributed to any overt act of the applicant. It was also pointed out that the applicant is a young man of 22 years and he has been in custody from 26/11/2005 i.e. for about four years and six months. It was, therefore, submitted that it would be appropriate that the applicant is released on bail pending the appeal specially when the appeal is not likely to be heard in the near future. The decision in the case of Baladin Vs. State of U.P. [AIR 1956 SC 181] was also cited in support of the contentions that mere presence of an accused along with other members of the unlawful assembly does not make him a member of such an assembly. 3 3. With the help of the learned counsel for the applicant we have persued the evidence of the three eye witnesses i.e. PW 1 – Vishwas Gawli, PW 2 – Sharda Madhav Gawli and PW 4 – Vikas Gawli and out of the said witnesses, two of them i.e. PW 2 and PW 4 have named the applicant as the accused rushing to the spot of incident along with other members of the unlawful assembly. The incident has taken place at odd hours i.e. at about 1.45 a.m. on the night of 3rd June 2005 leading to the morning of 4th June 2005. The applicant was not released on bail during trial. Having regard to the evidence of PW 2 and PW 4 as considered by the trial Court, there is no case made out to suspend the order of sentence qua the present applicant (accused no.3) and release him on bail pending Criminal Appeal No.830 of 2008, at this stage. 4. Hence the application is rejected. Liberty to file a private paper book, in case the paper-book is not ready and to apply for fixing early date of hearing. (MRS.MRIDULA BHATKAR, J.) (B. H. MARLAPALLE, J.)