IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 924 OF 2008 CRIMINAL APPLICATION NO. 924 OF 2008 CRIMINAL APPLICATION NO. 924 OF 2008 IN IN IN CRIMINAL APPEAL NO. 834 OF 2008 CRIMINAL APPEAL NO. 834 OF 2008 CRIMINAL APPEAL NO. 834 OF 2008 Yogesh Vinod Ahiwale ...Applicant/ Appellant (Orig .Accused No.2) vs. The State of Maharashtra & Anr. ...Respondents Mr.Shekhar Ingawale i/b. Mr.R.R. Bhonsale for the Applicant. Mr.Rajesh More, APP for the State. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. DATED : OCTOBER 15, 2008 DATED : OCTOBER 15, 2008 DATED : OCTOBER 15, 2008 P.C. :- P.C. :- P.C. :- 1. Heard Counsel for the applicant. 2. The applicant has been convicted by the trial for the offences punishable under Sections 143, 147, 148, 304(I) read with 149 of the IPC and also for the offence punishable under Section 37(1) of the Bombay Police Act and sentenced to suffer RI for 10 years. The applicant was on bail during the trial, however, he has been in jail for two years and four month. - 2 - 3. Prosecution case in that 16-17 persons came and assaulted the deceased and other persons who were watching the cricket match. The complainant who is the brother of the deceased has stated in his evidence that the applicant and other accused chased the deceased and other prosecution witnesses and the complainant saved himself by hiding in a latrine and the others went into the hotel. The deceased was hiding near the wall. The accused, however, it is alleged. assaulted him with sticks, stumps and it is alleged by the prosecution that the present applicant broke a bottle on the compound wall of the hotel and gave blows on the deceased on his head. The trial court accepted the evidence of the complainant and the other prosecution witnesses viz. guard of the hotel where the incident took place. 4. Counsel for the applicant submitted that the other accused no.1 and 3 to 5 have been released on bail by this Court. He submitted that the statement of the complainant that he had seen the present applicant assaulting the deceased with the broken bottle has been - 3 - proved to be insufficient. He submitted that the complainant has admitted that he had not made this statement to the police. The Investigating Officer also has admitted that the complainant had not stated to the police that the present applicant had assaulted the deceased with a broken bottle. It is then submitted by the Counsel for the applicant that no identification parade was held by the prosecution and PW 8 who was the guard, h e had identified the applicant in the court and no independent identification parade was held. He further submitted that the complainant was hiding in the latrine for about one hour whereas the other witnesses have stated that the relatives of the deceased came to the seen of the offence within a couple of minutes and took the deceased to the hospital. He submitted that from the evidence of this witness, it is seen that the complainant had not seen the incident at all. He invited my attention to the medical evidence and submitted that such kind of injuries could have been caused only by sword or sharp piercing instrument and it is not possible to accept the statement made by the complainant. The prosecution witnesses have stated that - 4 - 16-17 persons attacked the prosecution witnesses and the deceased who was hiding near the compound wall was assaulted by all the accused. The other witnesses are saved because they were successful in hiding from the accused. As many as 13 injuries were found on the person of the deceased. The Doctor has stated that due to internal injury which was caused to the deceased which could have been caused by sharp instrument which was used was the cause of death. It is no doubt true that the complainant has stated that he had not made statement before the police that the accused no.2 had assaulted with the broken bottle. However, the other witnesses have stated that all the accused were armed and one of them was armed with broken bottle. PW8 in his evidence has stated that original accused no.6 had threatened him to give evidence as told to him by accused no.6 and PW 8 had filed a NC complaint against accused no.6. Taking into consideration all these facts and circumstances, in my view, no case is made out for grant of bail. 5. Application for bail is rejected. Hearing of - 5 - the appeal is expedited. The appellant is permitted to file a private paper book and apply for a fixed date of hearing. Liberty is granted to the applicant to file a fresh application for bail if the appeal is not heard within a reasonable period of time. 6. Application is disposed of. (V.M. KANADE, J.) (V.M. KANADE, J.) (V.M. KANADE, J.)