1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.207 OF 2010 IN CRI. APPEAL NO.1179 OF 2008 Sachin Damu Ubale & Anr. .. Applicants V/s State of Maharashtra .. Respondent Mr..A.H.H.Ponda for the Applicants. Mrs.P.P.Shinde, APP for the State. CORAM : P.B.MAJMUDAR & R.G.KETKAR, JJ. DATE : 26TH FEBRUARY, 2010 P.C. : 1. Mr.Ponda, learned counsel for the applicants submits that this Bail Application is filed in view of the changed circumstances. The earlier Bail Applications preferred by the present applicants viz.Criminal Application No.1156/2009 & Criminal Application No.926/2009 were rejected by the Division Bench of this Court on November 9, 2009. The said order dated November 9, 2009 reads as under:- One of the prayers made in these applications is for recall of “ certain witnesses for cross-examination. After hearing the other side, request for grant of bail may be considered. At this stage, the learned Addl.Public Prosecutor states that she has no objection if the witnesses mentioned in the applications are recalled for cross- examination. Therefore, we direct the learned Sessions Judge to recall the witnesses and afford an opportunity to the accused to cross-examine the witnesses as they have not been cross-examined at the time of trial. After cross-examination is recorded, the statements so recorded be remitted to this Court. Request for bail shall be considered thereafter. The records, if received, be sent back to the trial Court. The trial Court shall try to record the statements as directed within three months.” 2 2. On the basis of the said order, the learned trial Court granted permission to cross-examine the witnesses and the said evidence is remitted to this Court. Mr.Ponda submits that in view of the subsequent development i.e.evidence which is available on record, it is clear that the applicants herein who were as Accused Nos.1 and 2 had not given any fatal injury to the deceased. The allegation against the applicants is that both of them gave fist blows to the deceased and the fatal blow was given by Accused No.3 by means of a stick. 3. Learned APP Mrs.Shinde submits that it is true that so far as the allegation against both the applicants is concerned, it is of fist blows. 4. Considering the evidence which is available on record after calling the same from the trial Court, we are prima-facie of the opinion that it is not possible to believe that there was common intention of all the accused to commit murder of the deceased. Considering the evidence which is now placed before us, it is clear that the present applicants gave fist blows, whereas, the fatal blow was given by Accused No.3 to the deceased. Hence, we are of the opinion that the present applicants are required to be released on bail. However, it is clarified that we are releasing the Applicants herein on the basis of their individual rolls they played in committing the crime, and release of these applicants should not be taken as a ground of parity in case in future the bail application of Accused No.3 comes before the Court. Learned Counsel Mr.Ponda has submitted that he is also appearing for Accused No.3 in the appeal, 3 however, he will not claim any parity in case in future the bail application is made before the Court by Accused No.3. 5. Application of the applicants is allowed. Both the Applicants are released on their furnishing of cash bail in the sum of Rs.10,000/- each, with one surety of the like amounts. Both the Applicants may report to the Kurar Police Station which is located in Kandivali area on 1st day of every month, between 11.00 am to 02.00 pm. Application stands disposed of accordingly. 6. We make it clear that the observations made by us in this order, are only of a tentative nature and are made only for disposal of this application, and the same will not come in the way of the appeal, which will be disposed of on its own merits. (R.G.KETKAR, J.) (P.B.MAJMUDAR, J.)