1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR CRI. APPLICATION (BA) NO.3038 OF 2008 IN CRI. APPEAL NO.414 OF 2007 (Kaleemuddin s/o Riyazuddin ..vs.. The State of Maharashtra, through P.S.O. Anjangaon Surji, District Amravati) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri A.M. Rizwy, Advocate for the applicant, Smt. S.S. Jachak, APP for the respondent-State. CORAM : MRS. V.K. TAHILRAMANI AND M.L.TAHALIYANI, JJ. DATE : 08-06- 2011 . Heard learned Counsel for the applicant and learned A.P.P. for the respondent-State. 2. The applicant along with others has been convicted for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code. The applicant is now seeking bail. 3. The learned Counsel for the applicant submitted that there is no admissible material to show that the applicant had assaulted Nazir. 4. The learned A.P.P. pointed out that there are four eye witnesses i.e. P.W.1-Mohammad Mujib, P.W.2-Sheikh Kalim, P.W.3-Sayyad Jakirali and P.W.4-Nusaratkhan. She pointed out that P.W.1-Mohammad Mujib has stated that the applicant caught the hair of Nazir and he gave a blow with sword on the person of Nazir. Nazir sustained two injuries in 2 the incident i.e. one injury on the chest and one on the clavicle. 5. According to P.W.1-Mohammad Mujib and P.W.4- Nusaratkhan, the applicant was armed with sword, however the evidence of doctor shows that the two injuries on the person of Nazir were not possible by sword but they were possible by sword stick. Witnesses have stated that accused No3-Jamiluddin and accused No.4-Gablya were armed with sword stick. Mr. Rizwy pointed out that P.W.2-Shaikh Kalim has stated accused Nos.3 and 4 gave blows with swordstick on stomach of Nazir. Mr. Rizwy further pointed out that P.W.3-Sayyad has stated that accused No.3-Jameeluddin gave a blow to Nazir with swordstick on chest and accused No.4- Gablya gave a blow to Nazir with swordstick on stomach of Nazir. P.W.4-Nusratkhan also stated that accused Nos. 3 and 4 assaulted Nazir with swordstick. From the evidence of P.W.2, P.W.3 and P.W.4 it is seen that they have not attributed any role of actual assault by weapon to present applicant. In view of the evidence of witnesses, we found much merit in the submission of the learned Counsel for the applicant that the applicant cannot be held responsible for any of the blows sustained by Nazir. 6. Learned A.P.P. has stated that P.W.1- Mohammad Mujib has stated that the applicant caught hold of the hair of Nazir, so also P.W.4-Nusaratkhan has stated that accused Nos. 1 and 2 caught hold of Nazir and accused No.1 was armed with sword. However, it is revealed in their cross- examination that these averments are omissions. We have also noticed material omissions in the evidence of other witneses. 3 7. It is further noticed that co-accused i.e. original accused No.2-Ejazuddin, who had not actually assaulted the deceased with any weapon, has been granted bail by this Court. Looking to the evidence on record, we find that there is no admissible and reliable material to show that the present applicant has assaulted Nazir with any weapon. In view of the above facts, we are inclined to grant bail. Hence, the following order. i) The sentence of imprisonment imposed on the applicant is suspended. ii) The applicant be released on bail on P.R. Bond in the sum of Rs.25,000/- (Rs. Twenty Five Thousand) and on furnishing surety in the like amount. iii) The applicant shall not enter into the limit of village Anjangaon Surji until disposal of appeal. iv) The learned Counsel for the applicant states that during the period he is on bail, the applicant will reside within the jurisdiction of Paratwada Police Station. The applicant shall report to Paratwada Police Station, once in a week during the pendency of this appeal. v) The applicant shall inform the concerned Police Station i.e. Anjangaon Surji Police Station the address at which he will reside during the period he is on bail. Any change of address to be intimated to the concerned Police Station with one week. 4 Application is allowed in above terms and disposed of. CRI. APPLICATION NO.3156 OF 2008. The applicant has already been granted bail in Criminal Application No.3038/2008, hence this application is infructuous and is disposed of as such. CRI. APPEAL NO.414 OF 2007. The learned counsel for the appellants states that he will collect the paper-book from the office within a week. The appeal be placed on final hearing board on 04-7-2011. JUDGE JUDGE pma