cr-appa-84-11.doc jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI. APPLICATION NO. 84 OF 2011 IN CRI. APPEAL NO. 765 OF 2009 Munna @ Munir Siraj Pathan ..Applicant (Ori. Accused No.2) Vs. The State of Maharashtra ..Respondent Mr. Rishikesh Mundargi along with Mr. Jayant Bardeskar for Applicant Mrs.A.J.Jhaveri A.P.P. for the State CORAM : S.A.BOBDE AND SMT. V.K.TAHILRAMANI, J J. RESERVED ON : NOVEMBER 17, 2011 PRONOUNCED ON: NOVEMBER 21, 2011 P.C. [PER V.K.TAHLIRAMANI,J.]: 1. Heard the learned advocate for the applicant-original accused No.2 and the learned A.P.P. for the State. 2. By judgment and order dated 25.5.2009, the applicant along with 11 other accused has been convicted by the learned Additional Sessions Judge, Solapur in Sessions Case No. 168 of 2004. By the said judgment and order the applicant was mainly convicted under Section 302 of the I.P.C. for causing death of Vitthal and under Section 307 of 1 cr-appa-84-11.doc I.P.C. for causing injuries to P.W. 9 Vinayak who is also the complainant in the present case. 3. The applicant had earlier preferred an application for bail which came to be rejected by this Court (Coram: R.P.Desai and V.K.Tahilramani, JJ.). The applicant has again preferred this application for bail on the ground that accused no.3 Siraj Ibrahim Pathan has been granted bail by this Court and the case of the applicant is similar to that of Siraj Ibrahim Pathan. He further submitted that though there are four eye witnesses in the case i.e. P.W. 9 Vinayak, P.W. 6 Rahul, P.W. 8 Balasaheb and P.W. 10 Shankar, none of these witnesses have attributed any role of assault to Vitthal (deceased) by the present applicant. He also pointed out that role attributed to accused no.3 was only that of assault on P.W. 9 Vinayak. 4. The learned advocate for the applicant further pointed out that role attributed to the present applicant is that he assaulted P.W. 9 Vinayak on the head with iron zari and the evidence on record shows that iron zari was broken into two pieces. He drew our attention to the evidence of P.W. 12 Dr. Dodmani who examined P.W. 9 Vinayak. He pointed out that Dr. Dodmani has categorically stated that there is no injury on the head of Vinayak and if a blow is given by iron zari on the head with such force that the iron zari broke into 2 cr-appa-84-11.doc two pieces, then it can be said that the blow was given by great force. He also drew our attention to the evidence of Dr. Dodmani wherein he has stated that on examination of Vinayak, he found the following injuries on his person: i) Incised wound 2 x ½ cms. over right leg; ii) CLW right hand ½ x ½ cm over right hand above middle finger; iii) Abrasion 4 cms. on left side back; iv) Contusion 6 x ½ cms. over right side of back; v) Abrasion ½ cm. right index finger; vi) Abrasions ½ cm each over chest. 5. After drawing our attention to the injuries found by Doctor, the learned advocate for the applicant pointed out that the Doctor did not notice any injuries on the head of Vinayak. He submitted that this clearly shows that the witnesses have falsely implicated the applicant by stating that he assaulted Vinayak with an iron zari. On going through the evidence of the witnesses and specially evidence of P.W. 12 Dr. Dodmani, prima facie, we find much merit in this submission. Even otherwise, it is not the case of any witness that the applicant had assaulted deceased i.e. Vitthal. 6. The learned advocate for the applicant further submitted that the applicant was on bail during the trial and he has 3 cr-appa-84-11.doc not misused the liberty granted to him. This statement has not been controverted by the prosecution. 7. Looking to all the above facts, we are inclined to grant bail to the applicant. Hence, the following order. O R D E R (i)The applicant Munna @ Munir Siraj Pathan be released on bail in the sum of RS.20,000/- (Rs. twenty thousand only) with one or two sureties to make up the said amount; (ii) The applicant shall report to Jail Road Police Station, Solapur once in a month i.e. in the last week of every month till the disposal of the appeal; (iii)Before being released on bail, the Jail Road Police Station Solapur shall be informed the address at which the applicant will reside during the period that he is on bail. Any change in address, shall be intimated within two days to the concerned police station. Application is allowed in above terms. [ SMT. V.K.TAHILRAMANI,J.] [ S.A.BOBDE, J. ] 4