1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR CRIMINAL APPLICATION NO. 44 OF 2011 IN CRIMINAL APPEAL NO. 685 OF 2006 (Sheshrao s/o Ganbaji Bagde & Ors. vs. State of Maharashtra) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Shri E.W. Nawab, Advocate for the applicant. Mrs. Ketki Joshi, Advocate for the respondent. ….. CORAM : MRS. V.K. TAHILRAMANI & PRASANNA B. VARALE, JJ. MARCH 17, 2011. Heard Shri Nawab, learned counsel for the applicant (original accused No. 3) and Mrs. Joshi, learned APP for the respondent. The applicant is seeking bail. The applicant has been convicted under Section 302 of Indian Penal Code. The prosecution case is that there was a dispute on account of cutting of bamboo trees. PW -1 – Rajendra is an eye witness to the incident. He has stated that Prakash is his brother and present applicant is his cousin brother. On the day of incident i.e. on 15.03.2007 at about 8 O' clock in the morning, the applicant along with two accused came to the spot. Accused Nos. 1 & 2 were armed with axe and present present applicant was armed with a stick. They started abusing. Thereafter, the accused persons 2 assaulted Prakash. Prakash received 27 injuries in the incident, out of which 22 injuries are sharp edged wounds or incised wounds and rest are contusions and abrasions which are multiple in number. The learned counsel for the applicant submitted that as per the prosecution case, the applicant was armed with stick and cause of death is head injury. He drew our attention to the fact that the injuries on the head were incised wounds thus he submitted that the applicant could not have caused the injuries which led to the death of Prakash. He submitted that in such case, the applicant could not have been convicted under Section 302 and he ought to have been convicted under Section 324 or at the most he could have been convicted under Section 326 of Indian Penal Code. To support his contention, he placed reliance on two decisions of the Hon'ble Apex Court in the case of Bansropan Singh vs. State of Bihar, reported in AIR 1983 SC 166, wherein the Supreme Court held that the accused who caused the fatal blow is liable to be convicted under Section 302 of I.P.C. but the other accused who did not cause fatal blow were liable to be convicted only under Section 326 of I.P.C. The second decision on which reliance is placed is in the case of Rajagopalswamy Konar vs. State of Tamil Nadu, reported in 1995 SCC (Cri) 184. The learned counsel for the applicant pointed out that in this case, accused No. 1, who stabbed deceased with sharp 3 edged weapon was convicted under Section 302 of I.P.C., which according to the Doctor caused the death of the deceased. However, the other accused persons were convicted under Section 324 of Indian Penal Code. As far as both the above decisions are concerned, they deal with the aspect that the accused who has caused lesser injuries did not share the common intention with the accused who caused the fatal injuries and therefore, they were not convicted under Section 302 of I.P.C. but were convicted for a lesser offence. However, as far as present case is concerned, it is noticed that there are more than six injuries which are attributable to a stick. As stated earlier, the deceased sustained 27 injuries in the incident. Looking to the evidence of the eye witness and Medical evidence, in the present case, it cannot be said that the applicant did not share the common intention with the other accused who used sharp edged weapon. Hence, these decisions would not be applicable to the present case. Thereafter the learned counsel for the applicant placed reliance on the decision of the Supreme Court in the case of Takht Singh & Ors. vs. State of M.P., reported at 2003 SCC (Cri.) 800. He pointed out that in the said case, the accused was in jail for over three years in such case the Supreme Court observed that as there was no possibility of early hearing of appeal, the accused be released on bail. The learned counsel submitted that in the present case, the applicant is in the custody for 4 over four years and hence, he is entitled to be released on bail. Looking to the evidence of eye witness and nature of injuries, we are not inclined to grant bail. As far as the aspect of early hearing is concerned, we expedite the hearing of the appeal. The office is directed to prepare the paper book expeditiously and as soon as the paper book is ready the matter be placed for final hearing. Criminal Application is disposed of accordingly. JUDGE JUDGE *GS.