APPA. 1126-11 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION No. 1126 OF 2011 IN CRIMINAL APPEAL No. 824 OF 2011 Deepak Dattatraya Patil & Ors. ... Applicants Vs. The State of Maharashtra & Ors. ... Respondents *** Mr. A. H. H. Ponda , for the Applicant. Mr. K. V. Saste, APP. for the Respondent-State. Mr. Nitin Sejpal & Pooja Bhojne, for the original Complainant. *** CORAM : V. M. KANADE, & A. M. THIPSAY, JJ. DATE : OCTOBER 5, 2011 PC: 1. Heard the learned counsel appearing on behalf of the applicants and the learned counsel appearing on behalf of the original complainant and the learned APP appearing on behalf of the State Applicants are original accused Nos. 10, 11 and 14. They have been convicted by the Sessions Court, at Raigad in Sessions Case No. 81 of 2009, under Section 302 read with Section 149 of the Indian Penal Code and have been sentenced to suffer for life imprisonment. 2. The prosecution case in brief is that the applicants along APPA. 1126-11 - 2 - with other accused assaulted the deceased with lethal weapons, and as a result the deceased sustained 17 injuries which resulted in his death. The incident took place on 11-3-2009 at about 10.45 p.m. A cross complaint was filed against the complainant, herein which was lodged prior in time. Thereafter FIR in this case was lodged at 1.10 A. M.. In the First Information Report the names of 18 accused were mentioned. The prosecution filed the charge-sheet and examined number of witnesses, out of whom four witnesses are alleged to be the eye witnesses. The trial court, however, disbelieved the statements of PW 2 and PW 4. However, it convicted the applicants along with others on the basis of statements of PW 1 and PW 3 and the other evidence on record.. 3. The learned counsel appearing for the applicants submits that presence of the present applicants has not been established conclusively. It is submitted that a general statement is made by PW 1 and PW 3 after naming the first four accused that all accused assaulted deceased with sticks, swords and sickle; secondly, it is submitted that there was no recovery at the instance of present applicants; thirdly, it is submitted that there were no street lights where the incident had taken place and as such it was not possible for the complainant and the eye witness to have seen the assailants. Lastly, it was submitted that there was no recovery of blood stained clothes. It is submitted that the applicants were on bail during the trial. 4. On the other hand, the learned counsel appearing on behalf of the original complainant while assisting this Court submitted APPA. 1126-11 - 3 - that names of the applicants are specifically mentioned in the FIR ,and though specific overt act, role is not attributed by PW 1 and PW 3, they have mentioned that all the other accused including the present applicants had assaulted the deceased. He submitted that there were 17 injuries on the person of the deceased and these injuries were possible only when 18 persons had simultaneously assaulted the deceased. It was then submitted that when the offence under Sec. 149 of I. P. Code was included in the charge-sheet, it was not necessary to mention an overt act of all the accused. He submitted that even though there were no street lights, all the accused were known to the complainant and merely absence of street lights could not be the reason for recognizing the assailant, even at night, since they were known to the complainant. Reliance was placed on two judgments of the Apex Court, in the case of – (i) Yunis alias Kariya, Appellant Vs. State of M.P., Respondent 1 ; and (ii) Mahamood & Anr., Appellants Vs. State of Uttar Pradesh, Respondent2. 5. The learned APP appearing for the State adopted the submissions advanced on behalf of the original complainant. 6. After having gone through the statements of the eye witnesses i.e. PW 1 and PW 3, in our view, it does appear that presence of the applicants is not conclusively established by the prosecution. The applicants were on bail during the trial; they have not misused the liberty which was given to them; there is no recovery of either any weapon or blood stained clothes, at the instance of the 1 2003 Supreme Court Cases (Cri) 341 2 (2009) 1 Supreme Court Cases (Cri) 763 APPA. 1126-11 - 4 - applicants . The PW 1 in his evidence has claimed that he was present at the site and that he had taken deceased Rajesh after he was assaulted and his clothes were blood stained, which were not seized by the police. This creates doubts about his presence at the scene of offence. Taking an over all view of the matter, we are of the view that the applicants are entitled to be released on bail. 7. The applicants, therefore, be released on bail, on execution of P.R. bond in the sum of Rs.25,000/- each with one or two sureties in the like amount. The applicants shall report to the concerned police station once in a month. 8. The learned counsel for the original complainant submits that a further condition may be imposed that the applicants should not enter the jurisdiction of village Ulva, since after the accused were acquitted, the applicants have assaulted the wife of the complainant and also some media persons. The learned counsel for the applicants submits that there is no basis for making these statements, since there is no materials on record to prove this fact. In our view, if any complaint is received against the applicants, the prosecution is entitled to file application for cancellation of bail. . The criminal application is disposed of in the aforesaid terms. [A. M. THIPSAY, J.] [ V. M. KANADE, J.]