10crn3090-09 1 IN THE HIGH COURT OF JUDICATURE AT MUMBAI CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.3090 OF 2009 The State of Maharashtra. ..Applicant Versus 1. Santosh Rajaram Kale, & 2. Sharda Rajaram Kale. ..Respondents. [Orig.Accused Nos.2 & 3] .... Mr.P.S.Hingorani, A.P.P. for the Applicant­State. Mr.M.S. Mohite, Advocate for the Respondents. .... CORAM : A.R.JOSHI, J. DATED : 10th JUNE, 2010 P.C. 1. Heard rival arguments at length on earlier date and also on today's date. 2. Directions were given on previous date for presence of the Investigating Officer and for production of chargesheet papers. Such papers are brought before the Court. Perused the said papers including the statements of the witnesses. 10crn3090-09 2 There are six witnesses, namely, (1) Amol Bhosale, (2) Anil Bhosale, (3) Rajendra Awalkar, (4) Suraj Mirajkar, (5) Babubai Mirajkar & (6) Salubai Patil. All the said witnesses speak regarding presence of the respondents (accused Nos.2 & 3) on the spot during the incident which took place on 18th March, 2009 in which the victim was murdered. 3. This Court has also gone through the postmortem report produced by the Investigating Officer and found that there are injuries like abrasions on the face of the victim. However, the main injury is of knife allegedly used by co­ accused original accused No.1 who has already been arrested and is still in custody as his bail application was rejected by the Sessions Court at Karad. 4. Present application for cancellation of bail granted in favour of the original accused Nos.2 & 3 i.e. present respondents is preferred by the State. It was filed on 30th June, 2009, whereas the order granting bail to original 10crn3090-09 3 accused Nos.2 & 3 was passed by the Additional Sessions Judge, Karad on 18th May, 2009. 5. At this juncture it may be mentioned that, according to the statement made by the learned A.P.P. on instructions from I.O., the chargesheet was filed before the committing Court on 5th June, 2009. On this, it is submitted on behalf of the respondents that the said chargesheet was ready on 5.5.2009 as there is such date mentioned in the papers which are supplied to the accused persons. By pointing out this, it is tried to submit on behalf of the respondents that if at all actual filing of the chargesheet was considered as done on 5th June, 2009 still by the time of granting of bail by the Sessions Court the investigation was virtually over. 6. At any cost, it appears that the chargesheet was not filed before the committing Court and bail order was granted on 18th May, 2009. It is significant to note certain factual positions apparent from the chargesheet papers and also 10crn3090-09 4 certain facts as to how the incident occurred on the fateful date. On account of the previous quarrel and earlier incident dated 15th March, 2009, there was some hot exchange of words at Kolewadi, Taluka ­ Karad infront of the house of Suraj Pandurang Mirajkar. Said Suraj Mirajkar is one of the eye witnesses and whose statement has been recorded by the police. The incident on 18th March, 2009 took place in broad day light when original accused No.1 along with original accused No.2 assaulted one Prabhakar ­ the victim. Accused No.1 used knife to inflict blow on the chest and back of the victim. Accused No.2 i.e. present respondent No.1 was present on the spot along with a sword in hand. During the incident, he also assaulted the victim on his face by means of a stone. Original accused No.3, who is mother of accused Nos.1 & 2 was also present on the spot and assaulted the deceased by her hands. It is still significant to note that the said incident of assault was witnessed by various persons who had gathered there and infact statements of six witnesses, as 10crn3090-09 5 mentioned above, were recorded by the police and which go to show that accused Nos.1 & 2 were present on the spot. Accused No.1 gave knife blow on the person of the victim and accused No.2 was armed with open sword in hand. After the incident, when the injured Prabhakar fell down, the mob who had gathered on the spot tried to apprehend the assailants. However, in the said commotion, accused No.1 ran away. However, the mob caught hold of accused Nos.2 & 3 i.e. present respondents. During the incident, the sword fell on the ground and it was also recovered during the panchanama by the police. Accused Nos.2 & 3 (present respondents) were given in the custody of the police then and there as they were apprehended on the spot. Subsequently, during investigation accused No.1 was arrested. Bail application was preferred by all the three accused. However, the Additional Sessions Judge, Karad rejected the prayer of bail of accused No.1, however, granted bail to the present respondents ­ accused Nos.2 & 3. 10crn3090-09 6 7. In the present matter for cancellation of bail, learned A.P.P. did not press for his prayers so far as respondent No.2 (orig.accused No.3) who is mother of accused Nos.1 & 2, is concerned, she being a woman and aged about 45 years and gave only fist blows to the deceased. 8. In view of the above, now it is to be ascertained as to whether there are such overwhelming circumstances which will prompt this Court to set aside the order of bail as granted in favour of respondent No.1 (accused No.2). For this purpose, it is significant to note that accused No.2 was arrested on the spot by the mob and there are almost six eye witnesses whose statements have been recorded by the police. On this aspect, it must be said that implication of Section 34 of IPC has been lost sight of by the Additional Sessions Judge, Karad and it appears that the Sessions Judge was influenced by the arguments advanced on behalf of accused No.2 inasmuch as he was present on the spot only 10crn3090-09 7 with a sword in hand and has not used the said sword in order to inflict any injury on the victim. During the arguments, it is further submitted on behalf of the respondents that had it been an intention of accused No.2 to do away with the victim, he could have used the said sword and could have inflicted injuries however he had not done so indicating that he was not having the same intention as carried by accused No.1. 9. In the opinion of this Court, this argument can not be accepted as accused No.2 was holding sword and was all along present and was apprehended on the spot by the mob and his real brother had assaulted the victim with the help of knife and caused several bleeding injuries on the front of the chest and also on the back. 10. Under these circumstances, considering the presence of respondent No.1 (accused No.2) with open sword in hand and accused No.1 giving fatal blows to the deceased, the 10crn3090-09 8 arguments advanced on behalf of the respondents cannot be accepted as in any way helping respondent No.1 (accused No. 2) and to substantiate the order passed by the Additional Sessions Judge, Karad. 11. In any event, when the factual position was very clear as to six eye witnesses and apprehension of respondent No.1 (accused No.2) on the spot armed with a sword thought actually not used to inflict any injury, in the opinion of this Court there could not have been any different standard to have been applied to respondent No.1 (accused No.2) than that for accused No.1, more so, considering implication of Section 34 of IPC. 12. At any rate, in the opinion of this Court, there are cognate and overwhelming circumstances in order to cancel the bail granted to respondent No.1 (accused No.2) by Sessions Judge, Karad and hence present application is allowed with the following order : 10crn3090-09 9 :: O R D E R :: [i] Criminal Application No.3090 of 2009 is partly allowed. [ii] The order of bail passed by the Additional Sessions Judge, Karad, District ­ Satara dated 18.5.2009 in Criminal Misc. Application No.110 of 2009, so far as grant of bail to respondent No.1 (orig.accused No.2), is set aside; [iii] Present application for cancellation of bail is not allowed so far as respondent No.2 (orig.accused No. 3) as the prosecution did not press for any orders as against the said respondent No.2 (orig.accused No.3). 13. At this stage, on request of learned Advocate for the respondents, operation of this order is stayed for a period of four weeks from today. (A.R.JOSHI,J.)