1 mss APPA+1391 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1391 OF 2010 IN CRIMINAL APPEALNO. 939 OF 2009 Mr. SACHIN UTTAM GAVARE .. APPLICANT Vs. THE STATE OF MAHARASHTRA .. RESPONDENTS Mr. A. P. Mundargi i/b K. S. Patil for applicant Ms. M. M. Deshmukh, APP CORAM: SMT. RANJANA DESAI & RANJIT MORE, JJ. DATED : 4/3/2011 P.C. 1. This is a second bail application filed by Sachin Uttam Gavare, original accused 5 in Session Case No. 577 of 2006. It is necessary to state a few facts. It is the prosecution case that on 7/2/06 at about 8 p.m. Ravi Bhilare (PW-8), Rajesh Ingale and Shrikant Mane were going by motorbike towards 2 mss APPA+1391 bus stop and at that time accused 1 Sanjay Gavare, accused 2 Ramesh Barkade and other persons intercepted their motorbikes and assaulted Ravi Bhilare, Raju Ingale and Shreekant Mane with hands and rods. All of them went to police outpost Vakad to lodge the report. The police referred Shreekant Mane to Dr. Sunil Kamble. The police also referred Ravi Bhilare to Supertake Hospital of Chinchwad, Pune, for treatment. PW 1 Avinash reported the matter to police outpost Vakad. Thereafter he along with Kaluram Barne, PW 4 Yuvraj Chavan and deceased Nitin Toradmal went to Supertake Hospital to see injured Ravi Bhilare, who was undergoing treatment there. According to the prosecution at about 11-40 pm accused 1 to 11, juvenile offender Rahul, Sharad along with 35 to 30 persons went to Supertake Hospital. Accused 6 Pankaj Gavare was holding a gupti and other accused were holding chopper, sickle, sticks and they assaulted the complainant PW 1 Avinash, PW 7 Yuvraj Chavan, PW 4 Suresh Barne and deceased Nitin Toradmal with weapons and caused injuries to them. They also assaulted PW 9 Dr. Kiran Choudhary, Wardboy Sameer Ansari and other employees of the hospital. They destroyed the doors and windows of that hospital and ran away. Nitin Toradmal succumbed to the injuries sustained by him. 2. On the basis of the complaint of PW 1 Avinash the investigation was 3 mss APPA+1391 set into motion. On the complaint of the investigating officer, the accused came to be charged with offences punishable under Sections 143, 147, 148, 302, 427, 326, 452 read with Section 34 of the Indian Penal Code (“IPC”). By the impugned judgment and order learned Sessions Judge convicted accused 1,2,3,5 and 6 for the offences punishable under Sections 143, 147, 148, 452, 324, 326, 427and 302 read with Section 34 of the IPC. 3. An application for bail was filed by accused 2 Ramesh Manohar Barkade. By order dated 18/1/10, a Division Bench of this court to which one of us (Smt. Ranjana Desai, J.) was a party, directed release of accused 2 Ramesh Barkade on the ground that so far as he is concerned, prima facie the prosecution has not been able to substantiate its case that he dealt any blow to the deceased. It was also observed that there was prima facie inconsistency about the weapon allegedly held by accused 2. 4. Thereafter application for bail was made by original accused 1 and 5 i.e. Sandeep Uttam Gavare and the present applicant Sachin Uttam Gavare. By a detailed order dated 30th March, 2010 a Division Bench of this court to which one of us (Smt. Ranjana Desai, J.) was a party rejected the said application. We shall come to the reasons assigned by this court for rejecting the applicant’s bail application a little later. 4 mss APPA+1391 5. Thereafter original accused 3 preferred a bail application being Bail Application No. 1237 of 2010. A Division Bench of this court presided over by Justice Khanwilkar released accused 3 on bail by its order dated 29/10/2010. We have perused that order. In that application accused 3 had claimed parity with accused 2 who was released on bail. The Division Bench observed that there was no evidence to indicate that accused 3 had assaulted the deceased Nitin Toradmal and the evidence disclosed that he was in possession of a stick and, therefore, he could claim parity with accused 2. The Division Bench also observed that merely because accused 3 was in possession of a stick and had assaulted PW 4 that can be no basis to convict him for offence under Section 302. It was further observed that the accused were not convicted with the aid of Section 149. In our opinion, no support can be drawn by the present applicant from this order. 6. Admittedly accused No. 5 had a chopper in his hand. There was an incident prior to the incident of assault on the prosecution witnesses. On 7/2/06 at about 8 p.m., there was altercation between PW 8 Ravindra Bhilare, Rajesh Ingale, Shreekant Mane and accused 1, accused 2 and the present applicant. Therefore, the incident which took place at about 11-15 p.m. on the same day, had a background and that incident was not a sudden incident out of some provocation. This court noted in its order dated 5 mss APPA+1391 30/3/10 that evidence on record did not indicate that accused 1 and 5 had attacked Nitin Toradmal. This court, however, noted that PW 4 Suresh has stated that accused 5 had assaulted him on his head with chopper. His head injury was sutured with 25 stitches. PW 1 Avinash has also stated that accused 5 assaulted on his head with a chopper. PW 11 Dr. Sanjay Date had examined Avinash on 8/2/06 and he has stated that Avinash had two CLWs. on occipital and sub-occipital region and contusion over shoulder, elbow and abdomen. The doctor had opined that these injuries could be caused by sharp edged weapon. 7. PW 5 Dr. Sanjay Deodhar had examined Suresh. Suresh had received serious injuries which were quoted by this court in its order dated 30/3/2010. About PW 4 Suresh’s injuries Dr. Deodhar has stated as under: “13. I examined him at about 2.30 a.m. of 8/2/2006 and noticed the following injuries. 1] CLW over parieto occipital region, 10 x 2 c.m. 2] Swelling and haematoma over left leg. 3] swelling and haematoma on left forearm and ulna was injured. 14] The CT scan of brain revealed in subdural haematoma, (maximum thickness 4 mm) in right temporo parietal region. Thin subdural haematoma was seen in left temporal region. 6 mss APPA+1391 Subarachnoid haemorrhage was seen. 15] The MRI of the brain showed pituitary macro-adinoma with fluid level probably old pituitary apoplexy. Right temporal low contusion was seen with bilateral parietal sub- arachnoid haemorrhage. The X-ray showed the fracture of left ulna fixed with metallic. This was post operative X-ray. Metallic plate was placed in our hospital. 16] The patient was admitted as indoor patient for 8-15 days. 17] The patient was operated for fracture on left ulna. For fixing metallic plate. 18] All the injuries were fresh, within 24 object. They were caused by sharp, hard and blunt object. I have issued the certificate now shown to me. It bears my signature. Its contents are correct. It is at Exh-32. 19] The injury Nos.2 and 3 of the patient are possible by iron rod, article No.3 now shown to me. The injury No.1 is possible either by sickle, article No.1 and article No.2 the chopper known as Sattur marked Article No. 17. The injuries had they been not attending in time, could have resulted in the death of patient in ordinary course of nature.” 8. In view of the above evidence this court distinguished the case of accused 2 and observed that so far as accused 5’s case is concerned, he was armed with chopper and he had brutally assaulted the prosecution witness. This court held that aggressive role of accused 5 in the entire incident prima 7 mss APPA+1391 facie establishes common intention qua the offence of murder. 9. From the date on which this court rejected the applicant’s (accused 5) first bail application, there is no change in the circumstances except that accused 3 has been released on bail by the Division Bench presided over by Justice A. M. Khanwilkar. Accused 5 can by no stretch of imagination claim parity with either accused 2 or accused 3. Whereas accused 3 had a stick in his hand so far as accused 2 is concerned it was not clear as to which weapon he was holding. So far as accused 5 is concerned, prima facie it is established that he was carrying a chopper and he brutally assaulted prosecution witnesses. It was, however, urged by Mr. Mundargi, learned counsel for the applicant that while releasing accused 3 on bail the Division Bench observed that the accused are not convicted with the aid of Section 149 of the IPC. It is true that accused are not convicted with aid of Section 149. The accused have been however, convicted under Section 141 i.e. unlawful assembly, under Section 147 i.e. rioting, under Section 148 i.e. rioting armed with deadly weapon and under Section 302 read with Section 34 of the IPC. The impugned judgment discloses that the accused were not charged with offences read with Section 149 of the IPC. To attract Section 34 of the IPC it is not necessary that each one of the accused must assault the deceased. It is enough, if it is shown that they shared a common 8 mss APPA+1391 intention to commit the offence and in furtherance thereof each one played his assigned role by doing separate acts. Common intention implies acting in concert and it can be developed on the spot also. With the evidence as it is presented before the court prima facie, we are not in a position to come to the conclusion that because Section 149 was not used to convict the applicant, he cannot be convicted for offence under Section 302 read with Section 34 of the IPC. 10. If with the background of previous altercation, the accused entered the hospital, that too in the Intensive Care Unit with deadly weapon like chopper and brutally assaulted prosecution witnesses prima facie, we do not see any reason why he cannot be convicted with the aid of Section 34 of the IPC. We have noted that some of the accused assaulted even the doctor. The prosecution witnesses have given graphic description of the role played by the applicant. Besides there is no change in the circumstances. The application for bail is, therefore, rejected. (SMT. RANJANA DESAI, J.) (RANJIT MORE, J)