1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. CRIMINAL APPLICATION NO. 2895/09 IN CRIMINAL APPEAL NO. 786 OF 2008 Mohammad Imran Sheikh s/o Unus Sheikh .vs. State of Mah. ________________________________________________________________ Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Court's or Judge's orders. Registrars orders. CORAM : D.D. SINHA & P.B. VARALE, JJ. DATED : JULY 30, 2009. Heard Mr. R.M. Daga, learned Counsel for the applicant and Mr. S.J. Jichkar, learned Additional Public Prosecutor for the respondent. The applicant is original accused no.2 and appellant no.2 in the Criminal Appeal No. 786/08, who has filed the present Criminal Application for grant of bail. The learned Counsel for the applicant has submitted that the charge was framed under Section 302 read with Section 149 of Indian Penal Code against the applicant along with six others. The trial Court acquitted 4 accused out of 7 and convicted the present applicant and 2 others for the offences charged. It is contended that so far as the present applicant is concerned, there is absolutely no evidence and, therefore, the applicant is entitled to be released on bail. It is contended that the prosecution has examined PW.1 Indrapalsingh Thakur, PW.2 Rahaman as eye-witness to the incident as well as PW.3 Mohammad Sarfaraz. It is 2 contended that the evidence of PW.1 Indrapalsingh Thakur has been discarded by the trial Court itself on the ground that his testimony does not show that he was eye-witness to the incident. It is further submitted that so far as evidence of PW.2 Rehaman is concerned, for the first time in his substantive evidence he has disclosed that the applicant assaulted the deceased with the pipe along with the other co-accused whereas there is a material omission in this regard in the First Information Report. Mr. R.M. Daga further contended that so far as the evidence of PW.3 Sarfaraz is concerned, there is a material omission in respect of pipe and, therefore, the evidence of these witnesses does not establish the complicity of the applicant in the crime in question for want of an overt act. Mr. S.J. Jichkar, learned APP for the respondent, on the other hand, submitted that the conviction of the applicant/appellant is sustainable with the aid of Section 34 of the Indian Penal Code for the offence of murder since he was present on the spot armed with pipe and assaulted the deceased along with the other co-accused. It is contended that the evidence of PW. 1, 2 & 3 shows the presence of the accused on the spot along with the other co-accused and, therefore, the conviction awarded by the trial Court is sustainable in law. We have considered the rival contentions and also perused the judgment of the trial Court. It appears that the trial Court has discarded the evidence of PW.1 Indrapalsingh as an eye-witness to the incident. Similarly, PW.2 Rehaman for the first time has stated in his substantive evidence that the applicant was armed with 3 pipe and assaulted the deceased. However, in the First Information Report which is lodged by him, he omitted to mention the same. Similar is the situation so far as the evidence of PW.3 Sarfaraz is concerned. It is in these peculiar circumstances as well as evidence on record, we are of the view that the applicant has made out a case for grant of bail. The case of the appellant cannot be equated with other co-accused, since their case stands on different footing. In the circumstances, the Criminal Application No. 2895/09 is disposed of with a direction to the respondent to release the applicant on bail on furnishing a P.R. Bond in the sum of Rs.10,000/- and one surety in the like manner. We further direct the applicant to report to Police Station, Gondia City once in a month, i.e. on first of every month between 11.30 A.M. and 1.30 P.M. until further orders after the date of release. JUDGE JUDGE. J.