1 appa1237.10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Criminal Application No. 1237 of 2010 in Criminal Appeal No. 939 of 2009 Mr. Umesh Manohar Barkade ...Applicant v/s. The State of Maharashtra ..Respondent Mr. Shirish Gupte, Sr. advocate with Kuldeep S. Patil-advocate for the applicant. Dr. F.R. Shaikh-APP for the State. CORAM:- A.M.KHANWILKAR & P.D. KODE, JJ DATED :- OCTOBER 29, 2010. P.C. This Application for bail is by original accused no.3. Amongst others, the Applicant claims parity with accused no.2 who has already been granted bail by this Court in terms of order dated 18th January, 2010 passed in Criminal Application No. 1358/2009. 2 appa1237.10.sxw 2. The Learned APP has disputed this position essentially on two arguments. Firstly, that the witnesses have mentioned not only the role of the Applicant but also about the fact that he was having weapon in his hand. The evidence further indicates that the Applicant was in possession of stick and had assaulted PW4. There is no evidence to indicate that the Applicant assaulted deceased Nitin Toradmal. If it is so, we fail to understand why the Applicant before us cannot claim parity with accused no.2. Merely because the Applicant has been stated to be in possession of stick and had assaulted PW4, that can be no basis to convict the Applicant- Accused No. 3 for offence under Section 302. Notably, the accused are not convicted for offence under Section 149. In that view of the matter, the offence ascribable to Applicant would at best be for assaulting PW4 and causing injury to him, which certainly would not be a case covered by Section 302. 3. Suffice it to observe that the Applicant before us-original accused no. 3 is covered by reasons referred to in the order dated 18th January, 2010 to release the accused no. 2 on bail during the pendency of the Appeal. Even in that case, the Court found that there was no evidence to the effect that the concerned accused had dealt any blow to the deceased. The Court also 3 appa1237.10.sxw took into account the fact that accused was on bail throughout the trial. We are, therefore, in agreement with the submission of the Applicant that the Applicant is entitled for parity alongwith accused no. 2. Accordingly, the Applicant-accused no. 3 is ordered to be released on bail on the same terms and conditions as applicable to accused no. 2. 4. We proceed to pass the following order:- O R D E R (i)Accused No. 3 Umesh Manohar Barkade is ordered to be released on bail in the sum of Rs. 35,000/- with one or two sureties to make up the amount. (ii) While on bail, Applicant Umesh Manohar Barkade shall attend Nigadi police station once in a month. (iii) Needless to say that accused no. 3 is expected not to threaten the witnesses and not to indulge in illegal activities. (iv) Needless to say further that in case he commits breach of conditions the police will be free to move for cancellation of bail. 4 appa1237.10.sxw 5. Application stands disposed of. (P.D. KODE, J) (A.M.KHANWILKAR, J)