1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. CRIMINAL APPLICATION NO. 2799/09 IN CRIMINAL APPEAL NO.269 OF 2009 Ashok Bhagwandin Vimal & Kisan Pal @ Badka Jagdeo Prasad .vs. State of Maharashtra _________________________________________________________ Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Court's or Judge's orders. Registrars orders. CORAM : D.D. SINHA & P.B. VARALE, JJ. DATED : SEPTEMBER 14, 2009. Heard Mr. S.V. Sirpurkar, learned Counsel for the applicants/appellants and Mr. S.J. Jichkar, learned Additional Public Prosecutor for the respondent. The present application is moved by the appellants for grant of bail. Mr. S.V. Sirpurkar, learned Counsel for the applicants/appellants, at the outset states that he does not want to press the case of appellant no.1 Ashok and, therefore, so far as appellant no.1 Ashok is concerned, the bail application is disposed of as not pressed. Mr. S.V. Sirpurkar, learned Counsel for the applicant/appellant no.2, has submitted that in the instant case, the prosecution has examined two eye-witnesses, namely, Ramesh PW.5 and Shivprasad PW.6. It is contended that there is a material inconsistency in the evidence of these two eye-witnesses so far as the complicity of the appellant no.2 Kisan is concerned. It is submitted 2 that the evidence of Shivprasad (PW.6 eye-witness) clearly shows that the appellant no.2 Kisan did not participate in the incident of assault on deceased Pramod except that he caught hold of witness Shivprasad. It is, therefore, contended that the evidence of Shivprasad does not implicate appellant no.2 Kisan so far as the incident in question is concerned. It is further submitted that Ramesh PW.5 another eye-witness to the incident in his evidence has stated that the appellant no.2 caught hold of the hands of Pramod and appellant no.1 inflicted injury by means of knife/gupti. It is contended that if the evidence of both these eye-witnesses is read together, in view of the material inconsistency, the appellant no.2 is entitled to be released on bail since the injury found on the person of the deceased was only one. Mr. S.J. Jichkar, learned Additional Public Prosecutor for the respondent, has submitted that Shivprasad PW.6 has not specifically implicated the appellant no.2 so far as the assault on Pramod made by appellant no.1 is concerned. However, the presence of the appellant on the spot was established by PW.6 Shivprasad. It is contended that so far as the evidence of Ramesh is concerned, in his testimony it has come that the appellant no.2 caught hold of the hands of Pramod and appellant no.1 Ashok inflicted one blow with the weapon on the person of deceased Pramod. Considered the rival contentions and perused the deposition of Ramesh as well as Shivprasad. In the present case, though PW.5 Ramesh has mentioned in his testimony that the appellant no.2 caught hold of the hands of the deceased at the time of assault committed by appellant no. 1, however, the other eye-witness Shivprasad PW.6 has not 3 stated anything whatsoever against the appellant no.2 so far as the incident of assault committed by appellant no.1 on the person of deceased Pramod is concerned. Considering the nature of inconsistency, we are of the view that the appellant no.2 has made out a case for grant of bail. At this stage, we do not want to observe anything on merits of the matter. It is also not in dispute that during the course of trial, the appellant no.2 was on bail. So far as applicant/appellant no.2 Kisan is concerned, the Criminal Application is disposed of with the direction to release him on bail subject to furnishing a P.R. Bond in the sum of Rs.10,000/- with one surety in the like amount. JUDGE JUDGE. J.