AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.845 OF 2010 IN CRIMINAL APPEAL NO.33 OF 2010 Nanaso @ Gangaram Balwant Khude. ... Applicant Vs. The State of Maharashtra ... Respondents Mr. Sanjeev P. Kadam for the applicant. Ms. P.H. Kantharia, A.P.P. for the State. CORAM: MRS. RANJANA DESAI & MRS. V.K. TAHILRAMANI, JJ. DATED : 8TH JULY, 2010. P.C.:- 1. The applicant is original accused 1. He was tried along with original accused 2 in Sessions Case No.89 of 2004 by Ad-hoc Additional Sessions Judge, Satara. By judgment impugned in the instant appeal, he is, inter alia, convicted AJN 2 for offence punishable under Section 302 of the Indian Penal Code (for short, “the IPC”) and sentenced to suffer life imprisonment. The applicant has prayed for bail in this application. 2. At the outset, it must be noted that the applicant along with original accused 2 had earlier filed a bail application. However, on 7/4/2010, the said application was allowed to be withdrawn with liberty to file a fresh bail application only on behalf of the applicant. Hence, the present bail application. 3. We have heard learned counsel for the applicant and learned A.P.P. for the State. 4. The deceased is one Shantaram. The case of the prosecution is that due to previous enmity, the applicant along with original accused 2 assaulted the deceased on 18/1/2004 opposite the kirana shop of the deceased situate at Village Kavathe and the deceased succumbed to the AJN 3 injuries caused during the assault. There are three eye- witnesses to the incident in question viz. PW-1 Somnath, PW-5 Vijay and PW-6 Sudhir. We have been taken through the evidence of the eye-witnesses. PW-1 Somnath is the son of the deceased. We notice that PW-1 Somnath has stated in his examination-in-chief that there was indeed altercation between the applicant and accused 2 and the deceased. PW-1 Somnath has stated that both the accused started assaulting his father. He has further added that after assaulting his father, the applicant started running away on his motor cycle. His father caught him and the scuffle started between them. PW-1 Somnath has further stated that at that time, accused 2 assaulted him with empty milk can on his head. Due to the assault, his father fell down. Thereafter, the applicant and accused 2 ran away. 5. PW-5 Vijay and PW-6 Sudhir have reiterated the same story. Thus, it is quite clear that though initially both the accused were assaulting the deceased, the applicant at one AJN 4 point of time, wanted to go away from the scene of offence and it is the deceased who caught him and again a scuffle started between the two. None of the eye-witnesses have stated that the fatal blow was given by the applicant. They have clearly stated that it is accused 2 who hit the deceased with the empty milk can on his head. 6. Learned A.P.P., however, has submitted that PW-1 Somnath has stated that both the accused brought the deceased out of the kirana shop by dragging and both of them were assaulting the deceased. She further submitted that due to the scuffle between the applicant and the deceased, the deceased fell down. Learned A.P.P. drew our attention to the evidence of PW-4 Dr. Madhukar Late, who had done postmortem on the deceased. She pointed out that Dr. Madhukar Late has stated that injury Nos.1 and 2 are possible if a person falls while catching another person and if other person pushes him with force and if the said person falls on ground on his left hand side. Learned A.P.P. submitted that inasmuch as during the scuffle between the AJN 5 applicant and the deceased, the deceased fell down, the injuries suffered by the deceased could also be attributed to the applicant. Prima facie, we find that this argument is far- fetched. It is not possible for us to come to such conclusion on a general statement made by PW-4 Dr. Madhukar Late that too, in his cross-examination. The evidence on record clearly indicates that it is accused 2 who gave the fatal blow on the deceased. Prima facie, it appears to us that when the applicant wanted to leave the place of incident at that stage, he had dissociated himself from the alleged common intention. In the circumstances, we feel that this is a case where bail should be granted to the applicant. We may also note that the applicant was on bail during trial. His case stands on a different footing from that of accused 2. Hence, we pass the following order : 7. The applicant - Nanaso @ Gangaram Balwant Khude, is ordered to be released on bail on furnishing bail bond in the sum of Rs.30,000/- with one or two sureties to make up the amount. While on bail, the applicant shall report to the AJN 6 Bhuing Police Station once in the first week of every month. Application is disposed of. [MRS. RANJANA DESAI, J.] [MRS. V.K. TAHILRAMANI, J.]