1 Ladda IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL BAIL APPLICATION No. 278 OF 2009. IN CRIMINAL APPEAL No.221 OF 2009 Latesh Bapurao Karlekar. ..Applicant/Appellant. (Orig.Accused No.3) vs. The State of Maharashtra. ..Respondent. Shri Khan Abdul Wahab, Advocate for the applicant. Smt. P.H. Kantharia, A.P.P. for the State-Respondent. CORAM: BILAL NAZKI, AND A.R.JOSHI,JJ RESERVED ON: 11.08.2009 PRONOUNCED ON :21st AUGUST, 2009 ORAL ORDER: (Per A.R.Joshi,J) 1. Present application for bail is preferred by original accused No.3 for his release on bail during the pendency of the appeal. Appeal is already admitted on 16.3.2009. Reportedly, during the trial applicant-accused 2 No.3 was on bail. However, after his conviction mainly for the offence punishable under Section 302 r.w.s. 149 of the I.P.C., he was taken in custody. Judgment of conviction was passed by 6th Ad hoc Additional Sessions Judge, Sewree, Mumbai on 10-2-2009 and since then the applicant accused No.3 is in jail. 2. Allegations against applicant- accused No.3 are that he was one of the members of an unlawful assembly which used deadly weapons such as chopper, sword, iron bars etc. Such members of an unlawful assembly inflicted assault on the complainant and his brother in the night of 10th December, 2006 in the lane of St. Pias road, Goshala road,Mulund (West) Mumbai. In the said assault, severe injuries were inflicted on the complainant and his brother. Reportedly, original accused No.1 was apprehended on the spot along with chopper. Other accused were subsequently arrested and charged for various offences including members of an unlawful assembly, using deadly weapon, committing rioting, also committing murder and also attempt to commit murder of the complainant. 3. Admittedly, as revealed from the notes of evidence and as revealed from the rival arguments, the role assigned to the present applicant-accused no.3 was that he was present at the time of the incident but was not armed with any weapon, though total six accused 3 persons were charged for various offences as mentioned above. Also, admittedly, there is no recovery at the instance of the applicant-accused no.3. Reportedly, P.W.No.2 complainant deposed against the present applicant as the person present on the spot not having any weapon but assaulted his brother on the head and hands presumably such assault was by means of hands. However, such role assigned to the applicant was not appearing in the F.I.R.,and as such it is an omission amounting to contradiction. Apart from this it appears that the Trial Sessions Court had convicted the present applicant accused No.3 along with co-accused Nos.1 and 2 for the offence punishable under Section 302 read with section 149 of the I.P.C. 4. Much was argued on such conviction punishable under Section 302 r.w.s.149 of the I.P.C.,on behalf of the applicant accused no.3. It is submitted that if only three accused i.e.,accused Nos. 1 to 3 were convicted for such offences, there could not have been application of provisions of section 149 of the I.P.C.,which requires at least five persons to form the members of an unlawful assembly. By pointing out this, it is submitted on behalf of the applicant that such conviction itself for the offence punishable under Section 302 r.w.s.149 of the I.P.C., is erroneous. In our opinion, the said aspect 4 shall be dealt with appropriately at the time of final hearing of the appeal and to ascertain the correctness and legality of the conviction imposed against the applicant along with the co-accused. Suffice it to say that, at this juncture of deciding the application for bail that the applicant was not armed with any weapon and there is no recovery at his instance and he is roped in the matter as being allegedly member of an unlawful assembly. Mainly considering the contradictions from the statement of the complainant, as referred to above and considering the above factual position and also considering that during the trial applicant accused No.3 was on bail, present application can be allowed on certain conditions. Hence, the following order. ORDER 1. Bail application is allowed. 2. Applicant-accused No.3 be released on bail on his executing P.R.bond in the sum of Rs.20,000/- with one surety in the like amount to be executed before the Sessions Court. 3. After availing the bail, the applicant accused No.3 shall attend local Mulund Police station on every first monday of each month between 10-00 a.m.,to 12.00 noon till the final hearing and disposal of the pending appeal. 5 4. Application is disposed of in terms of this order. 5. We make it clear that the observations made in this order are only for the purpose of disposal of this application for bail. (BILAL NAZKI,J) (A.R.JOSHI,J)