108appln71.09.odt 1 . IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application No. 71 of 2009 in Criminal Appeal No.425 of 2006 Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Registrar's orders. Court's or Judge's orders Coram: D.D.Sinha & P. B. Varale, JJ. Date : 10/08/2009. Heard Mr. S.G.Loney, Adv. for appellant/applicant and Mr.A.S.Fulzele, Additional Public Prosecutor for respondent/State. Counsel for applicant is seeking bail on the ground of parity. It is contended that originally 14 accused were prosecuted; out of which 7 were convicted, out of them, six are granted bail by this Court. It is contended that there are five eye witnesses to the incident : those are Trimbak (PW2), Manohar (PW 3), Namdeo (PW- 5), Pramod (PW 7) and Sumnata Dhage (PW 9). It is contended that, as per the evidence of Manohar (PW 3), present applicant (accused no.1) along with other co-accused participated in the assault. Present applicant was armed with an axe as well as Original accused no.5 Vikas also was armed with an axe. It is further contended that the said witness has specifically stated that the 108appln71.09.odt 2 . present applicant and other co-accused Vikas gave a blow by axe on the person of deceased. However, in the cross-examination, he has specifically admitted that present applicant did not give blows by an axe on the head of deceased. It is contended that, as per the opinion of Medical Officer, death of deceased was caused due to head injury. It is submitted that, it has come in the evidence that other co-accused Vikas gave blow by an axe on the head of deceased. It is contended that other co-accused Vikas has been granted bail by this Court and therefore, the learned counsel for applicant seeks bail on the ground of parity. The Additional Public Prosecutor does not dispute the factual aspect of the matter. However, he has contended that there are five eye witnesses those who have deposed against the applicant and therefore, complicity of the applicant in the crime is established and hence, the applicant is not entitled to be released on bail. In the present case, learned counsel for the applicant is seeking bail on the ground of parity. We have considered the testimony of Manohar (PW3) which is corroborated by other eye witnesses. Perusal of the testimony of Manohar shows that, the blow which proved fatal, was given on the head of deceased by other co-accused Vikas and not by the present applicant and the 108appln71.09.odt 3 . cause of death of deceased was due to head injury. Since the other co-accused has been granted bail by this Court, in our opinion, the applicant has made out a case for grant of bail on the ground of parity and State has neither challenged the said order nor moved the Court for cancellation. Hence, the Criminal Application is allowed. The appellant/applicant namely Dnyaneshwar s/o. Atmaram Dhage be released on bail on furnishing a P.R. Bond of Rs.10,000/- with one surety in the like manner. JUDGE JUDGE jais