IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1207 OF 2008 IN CRIMINAL APPEAL NO.1111 OF 2008 Popat Husain Khamkar & Ors. .. Applicant Versus State of Maharashtra .. Respondent Mr.N.R.Bubna for the applicant. Mr.Y.S.Shinde, A.P.P for the respondent. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 23rd January 2009. : 23rd January 2009. : 23rd January 2009. P.C.: . Heard advocate for the applicants and learned A.P.P for the State. The applicants have been convicted for offences punishable under section 304 (Part II) read with section 34 as well as under section 324 read with section 34 of the Indian Penal Code. The maximum substantive sentence is seven years. 2. The contention of the learned advocate for the applicants is that the applicants were on bail throughout the trial and therefore the applicants are entitled to be enlarged on bail pending the final disposal of the appeal. He has invited my attention to the evidence on record as well as the findings recorded (2) by the learned Judge. He pointed out that evidence on record shows that all the concerned parties including the complainant (husband of the deceased) and his relatives proceeded on the footing that the injuries sustained by the deceased were not at all serious and in fact the complainant proceeded to register N.C with the concerned police station. He submitted that considering the prosecution story, section 304(II) of the Indian Penal Code is not at all attracted. He submitted that the learned trial Judge has erroneously relied upon the version of the interested witnesses. He submitted that even the medical evidence and the post mortem notes and especially the cause of death mentioned therein does not support the prosecution case. 3. I have carefully considered the submissions. The prosecution witnesses appear to be consistent that the 1st applicant (1st accused) lifted the deceased Indubai and threw her on the ground and thereafter the 1st appellant assaulted the deceased by kicks and stone. The witnesses have consistently stated that the 2nd appellant (2nd accused) assaulted deceased Indubai by sickle in her hand. One of the witnesses have stated that the appellant no.3 (accused no.3) made assault by using the stick on both the deceased as well as her (3) husband. However, version of other witness is that he assaulted the husband of the deceased by stick. The medical evidence on record shows that there were 11 external injuries on the person of the deceased. The relevant external injuries are: "1. There was CLW over frontal bone, extending over right supra orbital region over eye brow and it was obliquely placed 1 inch X 1 1/2 inch. 2. CLW over base of nose 1 1/2 inch X 1/2 inch. 3. CLW over right lower leg, below knee, obliquely placed running from medical side of the knee to anterior tibia shin 2 inches X 1/2 inches. 4. 2nd CLW over right lower leg, half inch X half inch two small CLW on the middle part of right lower leg both half X half inch. 5. Abrasion over right lower leg on the lower part of tibial shin anteriorly and it is (4) transversly placed. 1 inch in length. 6. Multiple CLW over left lower leg, anterior on the tibial skin, half X half inch and upper 1/3rd, middle 1/3rd and lower 1/3rd of tibia. 7. Fracture of right tibia fibula in the upper 1/3rd part." 8. Fracture of left fibula in lower 1/3rd part. 9. Contusion on right side of chest at the level of 3rd and 4th rib. 2 inch X 2 inch. 10. Contusion on left side of chest, at the level of ribs 4th and 5th. 2 inch X 1 inch in size. 11. Contusioin on right arm in the middle part of right and 2 inch X 1 inch." The internal examination of deceased showed that there (5) was a fracture of the frontal bone on the left side on supra orbital region and there was a fracture of nasal bone on the left side. There was a large subdural haematoma over the frontal lobe. The size of the same is stated to be 2" in diameter. Number of ribs were fractured and there was a tear on the right lobe of the liver having 2" length and 1 and 1/2" in depth. 4. Considering these aspects and considering the oral evidence, there is sufficient evidence of complicity of the 1st and 2nd appellants. As far as the appellant no.3 is concerned, his present age is stated to be 20 years. The role ascribed to the appellant no.3 is different from the role ascribed to the 1st and 2nd appellants. Therefore, though no case is made out for granting bail in favour of the appellant nos.1 and 2, a case is made out for enlarging the 3rd appellant on bail. 5. Hence, application is disposed of by passing following order: (i) Application is rejected in so far as the appellant nos.1 and 2 are concerned. (6) (ii) The appellant no.3 (Mr.Sajan Popat Khamkar) shall be enlarged on bail in the sum of Rs.10,000/- with one or two sureties in the like amount. (iii) Bail is granted to the 3rd appellant subject to condition of the 3rd appellant reporting to the concerned police station once in every calendar month. (iv) Hearing of the appeal is expedited. (v) Liberty to the appellants to file private paper-book. (A.S.Oka,J)