1 rma IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 342 OF 2009 IN CRIMINAL APPEAL NO. 864 OF 2009 Somnath Vitthal Kadam .. Applicant Vs The State of Maharashtra .. Respondent Mr. Dilip Bodake for the Applicant Mr. V.B. Konde-Deshmukh, APP for the Respondent CORAM : SMT. RANJANA DESAI & SMT. V.K. TAHILRAMANI, JJ DATE : 16th June, 2010 P.C.(PER SMT. V.K. TAHILRAMANI, J): 1. By judgment and order dated 31.12.2008, the applicant - original accused no. 2 has been convicted by learned Additional Sessions Judge, Karad under section 302 read with 34 of I.P.C. and under section 323 read with section 34 of I.P.C. By this application, the applicant is now seeking bail. 2. Heard learned counsel for the applicant and learned APP for the State. 3. The case of the prosecution is that the applicant is the son of Vitthal (original accused no. 1). Vitthal is the appln342-09 2 cousin brother of deceased Lalasaheb. There was some dispute between Lalasaheb and Vitthal - original accused no. 1 relating to some land. Vitthal wanted to sell the land, however, Lalasaheb was not allowing him to sell the land. It is the case of the prosecution that the applicant along with his father went to the house of Lalasaheb and abused and assaulted him. Applicant Somnath assaulted Lalasaheb with wooden stump and Vitthal (Original accused no. 1) assaulted Lalasaheb with a knife. On account of assault, Lalasaheb died. 4. The learned counsel for the applicant submitted that it was not the applicant but Vitthal (original accused no. 1) who gave the fatal blows to Lalasaheb. He submitted that medical evidence does not bear out that the Applicant gave any blows with wooden stump to Lalasaheb. He has drawn our attention to the postmortem notes and evidence of PW6 Dr. Dhondiram Jadhav. PW6 Dr. Jadhav who conducted the postmortem found seven injuries on the body of Lalasaheb. All the injuries are attributable only to assault by sharp cutting weapon. No injuries were found on the body of Lalasaheb which can be attributable to assault by wooden stump. Dr. Jadhav has also stated that all the injuries mentioned in postmortem report are possible by knife. The evidence shows that only Vithal assaulted with a knife. On appln342-09 3 going through the postmortem notes and evidence of Dr. Jadhav, we find some merit in the contention raised by the learned counsel for the applicant. 5. The learned counsel for the applicant further submitted that there is no material to show that the applicant shared any common intention with original accused no. 1 - Vitthal to cause the death of Lalasaheb. In support of this contention, he has placed reliance on evidence of PW2 Laxmi who is the sole eye witness to the incident. Laxmi has stated that at about 7.30 pm, her brother in law i.e original accused no.1 - Vitthal came in front of her house and he was abusing Lalasaheb. Vitthal was saying that who is Lalasaheb to say that the land cannot be sold. Thereupon, fight ensued between Vitthal and her husband. At that time, original accused no. 2 Somnath came there with wooden stump and he gave blows of wooden stump to Lalasaheb. Then, one Kanta came there and she took the wooden stump from Somnath i.e present applicant and pushed him back. At that time, Vitthal suddenly took out a knife and gave blows with it on stomach, chest and head of Lalasaheb. Laxmi had stated that her husband and Vitthal had gone to the house of one Sampat Kadam and there, her husband was stabbed with knife. Her husband shouted and fell down. The learned counsel for the applicant submitted that the applicant came to the spot only appln342-09 4 after fight erupted between Vitthal and Lalasaheb. If the applicant had shared any common intention with Vitthal, he would have come to the spot along with Vitthal but the fact that he reached the spot later on only after quarrel started between Vitthal and Lalasaheb shows that in the beginning, the applicant did not share any common intention with Vitthal. Moreover, after the wooden stump was taken from the applicant and he was pushed back by Kanta, the Applicant did not again assault Lalasaheb. Thereafter, it was only Vitthal who suddenly took out a knife and gave blows with the knife to Lalasaheb. These blows were also not given at the spot itself but when Vitthal and Lalasaheb had gone to the house of one Sampat Kadam where Lalasaheb came to be stabbed with knife. From the evidence, it is clear that the assault with knife has been attributable only to Vitthal and not to the present applicant. Looking to the evidence of the sole eye witness, prima facie we find some merit in the contention that as far as the actual incident is concerned, the applicant did not share any common intention with Vitthal to cause death of Lalasaheb. In this view of the matter, we are inclined to grant bail to the applicant. Hence, the following order : O R D E R 1. The Applicant - Somnath Vitthal Kadam be released on bail in the sum of Rs. 25,000/- [Rs. Twenty Five Thousand Only] appln342-09 5 with one or two sureties to make up the said amount. The Applicant shall report to Karad Police Station once in a fortnight till disposal of the appeal. 2. Application is disposed of. 3. It is made clear that the observations in the order are only prima facie and are restricted to this bail application. [SMT. RANJANA DESAI, J.] [SMT. V.K. TAHILRAMANI, J.] appln342-09