cra5433.10 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.5433 OF 2010 IN CRIMINAL APPEAL NO.503 OF 2010 1) Dnyaneshwar s/o Ramji Puyed, Age-30 years, Occu:Agri, 2) Gajanan s/o Abaji Puyed, Age-26 years, Occu:Agri., R/o-Punegaon, Dist-Nanded, 3) Keshav s/o Tukaram Pawar, Age-61 years, Occu:Agri., 4) Shivraj s/o Keshav Pawar, Age-26 years, Occu:Agri., Appellant Nos.11 & 12 are R/o-Amdura, Dist-Nanded, (Accused Nos.1 to 4 are in Jail) ...APPLICANTS. (Original Accused) VERSUS 1) The State of Maharashtra, ...RESPONDENTS. ... Shri.R.N. Dhorde Advocate h/f. Shri. V.R. Dhorde Advocate for Applicants. Shri.K.G. Patil, A.P.P. for Respondent-State. cra5433.10 2 ... CORAM: NARESH H. PATIL AND T.V. NALAWADE, JJ. DATE : 29TH MARCH, 2011. PER COURT : 1. Heard learned counsel for the parties. 2. The present Application is filed for bail by the Applicants/original accused, who were convicted and sentenced for life imprisonment by the learned Additional Sessions Judge-1, Nanded in Sessions Case No.123 of 2006, by Judgment and Order delivered on 6th December, 2010. 3. In brief, the prosecution case is, that on 25th April, 2006 the persons belonging to complainant party and accused persons decided to meet at one place after they attended engagement ceremony of Miss. Subhada. The meeting was in respect of allotment of work of delivery of cra5433.10 3 marriage invitation card and to look after necessary arrangement for the marriage. They decided to gather at Wajegaon on the Fertilizer shop of Parsewar and thereafter proceeded towards Wajegaon. The deceased Marotrao Puyed was riding on motor cycle and was ahead of other motor cycles. Deceased Devidas Datta Bhandarwar was a pillion rider behind Maroti Puyed. It is alleged that at about 3.45 to 4.00 p.m. when they reached farm house of one Wani, Jeep No. MH-24/C-832 intercepted the deceased. Therefore deceased Maroti Puyed stopped his motorcycle. He saw that one white coloured Mini-Door vehicle stopped there and the accused persons stepped out of the vehicle. They were armed with deadly weapons like swords, iron bars, sticks, tommy, axe, stones, chilly powder etc. It is alleged that complainant Sambhaji Puyed and others apprehended serious consequences. Deceased Marotirao started running towards the field. At that time, it is alleged that, all the accused persons chased him. The cra5433.10 4 accused Balaji Abarao Puyed fired in the air from his revolver and terrorized the persons who were present there. Thereafter deceased Maroti was assaulted with dangerous weapons. The prosecution alleges that deceased Devidas Datta Bhandarwar was standing near the motorcycle belonging to Marotrao, he saw the incident and was in a frightened condition. He too was assaulted with dangerous weapons like iron bars. The witnesses saw that Devidas and Maroti collapsed and died on the spot. 4. It is alleged that after the incident, complainant Sambhaji Puyed rushed to Nanded (Rural) Police Station and lodged oral information to P.S.O. on duty, who recorded his report and took entry No.47 in the station-diary at 17.00 p.m. and registered crime No.85/2006, for the offences punishable under Section 302, 147, 148, 149, 427 and 120-B of Indian Penal Code, under Section 3 read with 25 and 4 read with 25 of cra5433.10 5 Indian Arms Act and under Section 135 of Bombay Police Act and the case was transferred to Mr. Perke, P.I. for investigation. 5. It is alleged that the investigation officer arrested 17 accused persons on the same day. Arrest panchnama was prepared, their clothes were seized and further investigation started. The accused were charge sheeted. Charges were framed against 27 persons. The trial Court convicted 12 persons for offence punishable under Section 302 read with 149 of the Indian Penal Code and sentenced to suffer imprisonment for life. 6. The Applicants filed Appeal along with the other accused persons, bearing Criminal Appeal No.503 of 2010, which came to be admitted on 11th January, 2011. 7. The learned counsel Shri. Dhorde appearing for the Applicants submits that cra5433.10 6 Applicant Shivraj Pawar was released on bail during trial by 3rd Ad-hoc Additional Sessions Judge, Nanded on 8th January, 2007 by an order passed below Exhibit I in Misc. Civil Application No.903 of 2009. He was on bail during trial. 8. The learned counsel further submitted that Applicant Gajanan Puyed was released on bail by the learned Single Judge of this Court (CORAM: V.R. KINGAONKAR, J.) by order dated 7th February, 2008 passed in Criminal Application No.4447 of 2007, pending trial. . Applicant Keshav Pawar was released on bail by the learned Single Judge of this Court (CORAM: B.R. GAVAI, J.) by order dated 21st December, 2006 passed in Criminal Application No. 3701 of 2006. 9. The learned counsel submits that there were counter cases filed against each other cra5433.10 7 between the complainant side and the accused in the past. They had strained relationship. The Applicant No.4 Shivraj raised plea of alibi. The counsel referred to the evidence of the investigation officer, in support of his submissions. It was submitted that report under Section 169 of the Code of Criminal Procedure was filed during investigation in respect of Applicant No.4, but inspite of the same, Applicant No.4 was charge-sheeted. The counsel further submits that Applicant Gajanan Puyed is having disability and therefore his case is required to be considered sympathetically. In respect of Applicant Dnyaneshwar Puyed, the prosecution failed to connect him with crime. No blood stains were found on his clothes. The complainants have alleged against the accused with a view to involve entire family. Many of the accused persons are related inter-se. The prosecution failed to establish that the weapons seized from the accused persons had any blood stains to connect them with crime. The cra5433.10 8 trial Court has wrongly convicted the Applicants for offence punishable under Section 302 read with Section 149 of the Indian Penal Code. The counsel submits that in the light of the evidence recorded and considering the fact that some of the Applicants were on bail during trial, their case deserves to be considered favourably. 10. Shri. Patil, the learned A.P.P. submits that both the sides i.e. complainant side and accused were on inimical terms. There were counter cases against each other. Some of the members of the complainant side were convicted for a serious offence punishable under Section 307 of the Indian Penal Code, wherein some of the accused persons were witnesses. It would be hazardous, considering past history and relations between the complainant side and accused party, to release the Applicants on bail. Learned A.P.P., on instructions, submits that Applicant Gajanan is accused of serious offence which was lodged against him during the cra5433.10 9 period when he was on bail. It is submitted that defence of accidental death was totally discarded by the trial Court and it is not sustainable in the light of the evidence brought on record by the prosecution. The learned A.P.P. submits that it is a serious case wherein two persons lost their life. There are four eye witnesses of the incident, whose evidence is credible and the trial Court has scanned evidence reasonably and properly. The A.P.P. submits that due to past history on record, in case the Applicants are released on bail, they are very likely to be involved in serious crime. Therefore the learned A.P.P. prayed for rejection of bail Application. 11. We have perused the original record placed before us, for the purposes of consideration of this Application, along with the material placed on record. We have considered the submissions advanced by the learned counsel for the parties. cra5433.10 10 12. We find that the Applicants are accused of serious offence wherein two persons lost their life. From the injuries suffered by deceased Maruti and Devidas, it can be gathered that they were assaulted severely, with deadly weapons. Prima facie we have noticed that there is strong prima facie case against the Applicants who were convicted for an offence punishable under Section 302 read with Section 149 of the Indian Penal Code. At this stage, it will not be proper to re- appreciate the evidence, as the said exercise would be done at the time of final hearing of the Appeal. There are said to be four eye witnesses to the incident. The trial Court had appreciated the evidence and thereafter convicted and sentenced the accused. Considering the past history and relations between the complainant side and accused party, it would be hazardous and dangerous to release the Applicants on bail. Even otherwise, there is no case made out on merits, for release cra5433.10 11 of the Applicants on bail. This Court is hearing Jail Appeals of the year 2009 and according to the information supplied by the Registry, hardly 8 - 10 Jail Appeals are pending for final hearing. For the reasons stated above, the Application stands rejected. [T.V. NALAWADE,J.] [NARESH H. PATIL,J.] asb/MAR11/cra5433.10