1 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 251 OF 2010 IN APPEAL NO. 765 OF 2009 1 Yunnus Mehaboob Nadaf ] 2 Munir Siraj Pathan ] 3 Siraj Ibrahim Pathan ] All residing at Post Dahitane ] Dist.Solapur ]..Applicant (Ori.accused Nos.1 to 3) Vs. The State of Maharashtra ] At the instance of Jail Road Police St. ] Dist.Solapur ]..Respondent .... Mr.S.R.Chitnis Senior Advocate with Mr.Hrishikesh Mundargi i/b Ms.Vaishali Navale Adv. for Applicants Mr.V.B.Konde-Deshmukh APP for State .... CORAM : SMT.RANJANA DESAI AND SMT.V.K.TAHILRAMANI, JJ. DATE OF RESERVING THE ORDER: MAY 07, 2010 DATE OF PRONOUNCING THE ORDER: JUNE 11, 2010 P.C. (PER SMT.V.K.TAHILRAMANI,J.): 2 1 Heard. 2 This is an application for bail filed by the applicants original accused 1 to 3 who along with other accused have been convicted for the offence under Sections 143, 147, 148, 302, 307, 324, 336, 337, 435, 427 r.w. 149 of the Indian Penal Code by the learned Additional Sessions Judge, Solapur in Sessions Case No. 168 of 2004 by his judgment and order dated 25th May, 2009. 3 The case of the prosecution is that on 8.5.2004 at about 8 to 8.30 p.m. the complainant PW 9 Vinayak along with his friends i.e. Vithal Hanmant Gaikwad (deceased) and PW 8 Balasaheb Sarvagod were proceeding on motor cycle towards Vadje village. When they reached near Hanuman temple at Village Dahitane, some boys started pelting stones towards them and there was an altercation. It is the case of the prosecution that Applicant No.1 Yunnus rushed towards the complainant Vinayak and gave a blow with knife on the left leg of the complainant. Thereafter, applicant no.1 Yunnus was going to give a blow with knife in the stomach of the complainant, however, the complainant caught the knife with his hands due to which Vinayak sustained injury on the hand. Applicant No.2 Munna Pathan gave a blow on the head of the 3 complainant by an iron zari. Thereafter, applicant no.1 Yunnus handed over the knife to some other person and took a sword from that person and stabbed deceased Vithal Gaikwad by sword in the abdomen and other parts of the body. 4 There are four eye witnesses to the incident i.e. PW 9 Vinayak who is also complainant in the present case, PW 6 Rahul, PW 8 Balasaheb, PW 10 Shankar. Role attributed by PW 9 Vinayak to the present applicant nos.1 and 2 is that applicant no.1 Yunnus assaulted him with knife on his leg and thereafter, Yunnus was going to assault him in the stomach, however, Vinayak averted the blow by catching the knife. Thereafter, applicant no.1 Yunnus gave his knife to another person and took sword from him and gave blows by sword in the stomach and other parts of the body of Vithal Gaikwad. Vithal sustained bleeding injuries and fell down. Due to assault by applicant no.1 Yunnus on the complainant, he also sustained bleeding injuries on his legs and his hand. The injuries on the hand were sustained while trying to avert the blow of applicant Yunnus on the stomach of the complainant. PW 6 Rahul, PW 8 Balasaheb and PW 10 Shankar fully corroborate the evidence of PW 9 Vinayak in respect of role attributed to applicant no.1 Yunnus. 4 5 As far as applicant no.2 Munna is concerned, all the four eye witnesses have stated that Munna had zari in his hand with which he gave a blow on the head of the complainant Vinayak. Due to this, Vinayak sustained bleeding injuries. 6 The evidence of the above four eye witnesses is also supported by the medical evidence. The evidence of PW 12 Dr. Dodmani who examined PW 9 Vinayak, shows that he found injuries on the body of Vinayak including incised wound on his leg and injury to his hand near the middle finger. In view of the role attributed to the applicant nos.1 and 2 by the eye witnesses, we are not inclined to grant bail to the applicant nos.1 and 2. 7 As far as applicant no.3 Siraj Ibrahim Pathan is concerned, Mr.Chitnis, the learned counsel for the applicants submitted that no role is attributed to him of direct assault on deceased or any of the witnesses. Moreover, he submitted that the case of applicant no.3 is similar to that of original accused no.4-Maulali Mahiboobsab Nadaf and accused no.4 Maulali has been granted bail by this Court by order dated 20th November, 2009. Shri.Chitnis submitted that as role attributed to 5 applicant no.3 Siraj is similar to that of accused no.4 Maulali who has been granted bail, he may be granted bail on the ground of parity. The learned APP has not controverted that the role of applicant no.3 Siraj and original accused no.4 Maulali is similar and that Maulali has been granted bail. 8 In view of the above, application for bail of applicant nos.1 and 2 is rejected. However, we are inclined to grant bail to the applicant no.3- Siraj Pathan. Hence, the following order: ORDER (1) Applicant no.3-Siraj Ibrahim Pathan be released on bail in the sum of Rs.25,000/- (Rs. Twenty five thousand only) with one or two sureties to make up the said amount. He shall report to Jail Road Police Station, Solapur once in a fortnight during the pendency of the appeal. (2) Application is disposed of. [SMT. RANJANA DESAI, J.] [ SMT. V.K.TAHILRAMANI, J.]