1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1358/2009 IN APPEAL NO. 939/2009 Ramesh M.Barkade Applicant/original accused no.2 Vs. The State of Maharashtra Respondent Mr.Shirish Gupte ,Sr. Counsel for applicant Mr.R.More,APP CORAM : SMT.RANJANA DESAI, & MRS.MRIDULA BHATKAR,JJ. DATE : 18th JANUARY, 2010 . P.C. 1] The applicant is original accused 2 . He was tried alongwith 10 others by the Sessions Judge, Pune in Sessions Case No.577/2006 for the offences punishable under sections 143, 147, 148, 302, 427, 326, 452 read with section 34 of the Indian Penal Code. By judgment and order dated 25/8/2009 learned Sessions Judge convicted the applicant interalia for the offence punishable under section 302 read with section 34 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for life. Being aggrieved by the said judgment and order the applicant has preferred appeal which is admitted. This is his application for bail. 2 2] According to the prosecution 4 to 5 days prior to the incident dated 7/2/2006 in which one Nitin Toradmal (the deceased) was murdered there was a quarrel between one Lakhan Barne and Kiran Bhilare . On 6/2/2006 in the evening Ravi Bhilare brother of Kiran Bhilare was threatened by the accused. On 7/2/2006 Ravi Bhilare was assaulted by the accused. Ravi Bhilare had to be admitted in Supertake Hospital. It is the case of the prosecution that on the same day at about 11.15 p.m. the applicant alongwith the other accused came to the Supertake Hospital and assaulted the complainant, P.W.1 Avinash , P.W.4 Suresh, P.W.7 Yuvraj and the deceased by means of weapons like sword, chopper , iron rods, etc.. P.W.1, 4 and 7 received injuries . Nitin (the deceased) ,who also received injuries, succumbed to death. The accused were, therefore, tried as aforesaid. 3] So far as the present applicant i.e. accused 2 is concerned his name figures in the evidence of P.W.1,4,and 7 . We find that P.W.1 1 , Avinash, has no doubt stated that accused 2 was alongwith the other accused, who came to the hospital but he has not stated that he assaulted the deceased. He has not stated that accused 2 had any weapon in his hands. 3 P.W. 4 , Suresh , has also not attributed any role to accused -2 qua the deceased . He has also not stated that accused 2 had any weapon in his hands. P.W. 7 ,Yuvraj, has, however, stated that accused -2 alongwith others came to the hospital, armed with sharp edged weapons, however, he has also not attributed any role to accused -2 qua the deceased. At one stage he has stated that accused no.2 was carrying either iron rod, wooden club or stick. Thus , prima facie there is inconsistency about the weapon allegedly held by accused no.2. 4] Therefore, so far as accused -2 is concerned prima facie we are of the opinion that the prosecution has not been able to substantiate the case that accused -2 dealt any blow to the deceased. It must be stated that there is no discovery of weapon at the instance of accused 2.We must also note that accused -2 was on bail throughout the trial. His case stands on different footing from that of the other accused. In the circumstances we feel that accused – 2 ought to be released on bail. Hence the order. O R D E R Accused-2 Ramesh Manohar Barkade is 4 ordered to be released on bail in the sum of Rs.35,000/- with one or two sureties to make up the amount. While on bail , applicant Ramesh shall attend Nigadi police station once a month. Needless to say that accused-2 is expected not to threaten the witnesses and not to indulge in illegal activities. Needless to say further that in case he commits breach of conditions the police will be free to move for cancellation of bail. Application stands disposed of. (Smt.Ranjana Desai,J.) (Mrs.Mridula Bhatkar,J.)