1 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 748 OF 2010 IN CRIMINAL APPEAL NO. 443 OF 2010 1. Dattatray Vitthal Dhamal Age 30 Yrs. Occ: Driver 2. Vitthal Maruti Dhamal Age 45 years Occ: Agri. 3. Dnyaneshwar Keshav Khadasare Age 22 years, Occ: Driver 4. Mrs.Shalan Vitthal Dhamal Age 45 years, Occ: Household 5. Mrs.Chaya Dattatray Dhamal Age 27 years, Occ: Household All residents of Kesurdi, Tal. Khandala, Dist. Satara. ..Applicants Vs. The State of Maharashtra (At the instance of Dy.S.P. of Khandala Police Station) ..Respondent .... Mr.S.M.Sakhare Adv. i/b Mr.Dilip Bodake Adv. for Applicants Ms.P.H.Kantharia, APP for State .... 2 CORAM : SMT.RANJANA DESAI AND SMT.V.K.TAHILRAMANI, JJ. DATE OF RESERVING ORDER : JUNE 22, 2010 DATE OF PRONOUNCING ORDER : JUNE 29, 2010 P.C.(PER V.K.TAHILRAMANI,J.): 1 By judgment and order dated 17.5.2010, the applicants- original accused nos. 1 to 5 have been convicted by the learned Sessions Judge, Satara in Sessions Case No. 38 of 2009. The applicants are now seeking bail. 2 We have heard the learned counsel for the applicants and the learned APP for the State. 3 The prosecution case briefly stated, is that the appellants are residents of Kesurdi. Prakash (deceased) and the witnesses are also residents of the same village. There was some dispute regarding some pending amount of money between Prakash and applicant no.3 Dnyaneshwar. On 17.9.2008 at about 10 p.m. quarrel ensued between accused nos. 1 to 3 and Prakash in respect of the pending dues. At that 3 time, accused no.1 Dattatray assaulted Prakash with Gupti on the chest and arm of Prakash. The other accused also assaulted Prakash. 4 There are four eye witnesses to the incident i.e. PW 1 Sunil, PW 2 Ananda, PW 3 Sonam and PW 7 Nitin. PW 1 Sunil who is an injured witness has stated that on 17.9.2008 at about 10 p.m. he heard sound of abuses, hence, he came to the spot. He saw Gupti in the hand of accused no.1 Dattatray. Accused nos. 2 and 3 had sticks in their hands. Accused no.1 stabbed Prakash with Gupti in the chest and on his left arm. This witness has not attributed any role of assault on the deceased to any of the other accused. As far as assault on other witnesses is concerned, he has only attributed some role to accused no. 3. He has stated that accused no.3 assaulted him i.e. Sunil on his back with stick. It may be stated here that PW 1 Sunil had sustained only one contusion on his back. Thus, it is clear that Sunil has not sustained any grievous or serious injury in the incident. 5 PW 2 Ananda has stated that he head sound of loud arguments, hence, he came out of his house. He saw the accused assaulting Prakash, thereafter Dattu i.e. accused no.1 assaulted Prakash with Gupti on his chest and arm. Thereafter accused no.2 who 4 was armed with Danda and accused no.3 who was armed with stick assaulted Sunil and accused nos.4 and 5 assaulted Prakash by kick blows. 6 PW 3 Sonam has stated that she heard loud sound of arguments between Prakash and accused no.1 hence, she came out of her house. She saw all the accused assaulting Prakash. She has further stated that accused no.3 assaulted Sunil with a stick and accused no.2 assaulted Sunil with handle of spade. As far as assault on Prakash is concerned, she has stated that thereafter accused no.1 Dattatray assaulted Prakash on his chest and arm by Gupti and accused nos. 4 and 5 assaulted her husband with fist and kick blows. 7 PW 7 Nitin has stated that on hearing shouts, he came out of his house and he saw all accused were assaulting Prakash. Thereafter, he has not attributed any role of assault by accused nos.2 and 3 to Prakash. This witness has stated that thereafter accused nos.2 and 3 assaulted Sunil with stick and handle of spade, accused no.1 Dattatray assaulted Prakash with Gupti on his chest, and accused nos.4 and 5 gave fist and kick blows to Prakash. 5 8 As far as accused nos.2 and 3 are concerned, after accused no.1 Dattatray assaulted Prakash with Gupti, no witness has attributed any role of assault on Prakash by accused nos.2 and 3. PW 1 Sunil who is the injured witness, has not attributed any role at all of assault on deceased Prakash by these two accused. So also, PW 2 Ananda does not attribute any role of assault to accused nos.2 and 3 after accused no. 1 Dattatray assaulted him with Gupti. Same is the case with PW 3 Sonam and PW 7 Nitin. Thus, prima facie we find merit in the submission of the learned advocate for appellant that as far as accused nos.2 and 3 are concerned, they did not share any common intention with accused no.1 to murder Prakash. If they had shared his intention, they would have continued to assault Prakash after assault by Dattatray but the fact that they did not, shows that they did not share the intention of Dattatray of killing Prakash. 9 As far as accused nos. 4 and 5 are concerned, PW 1 Sunil has not attributed any role of assault either on Prakash or on Sunil to both these accused persons. He has not attributed any role of assault to both the accused nos.4 and 5. However, PW 2 Ananda, PW 3 Sonam and PW 7 Nitin have stated that both the accused persons assaulted Prakash with kick blows. The learned advocate for the applicants 6 submitted that there is no medical evidence to show that the accused nos.4 and 5 assaulted Prakash. In support of his contention, he drew our attention to the evidence of PW 6 Dr. Shedge. As far as injuries on Prakash are concerned, Dr.Shedge has clearly stated that all the injuries are possible with a sharp weapon like Gupti or knife. Thus, it is seen that no injury was found on body of Prakash which can be attributable to accused nos.4 and 5. 10 It is also pertinent to note that PW 1 Sunil does not attribute any role of assault on Prakash or Sunil to accused nos.4 and 5. Moreover, applicant nos.4 and 5 are ladies. Looking to these facts and the fact that applicant nos.2 to 5 were on bail during the trial and no untoward incident has taken place during the period that they were on bail, we are inclined to grant bail to the applicant nos.2 to 5. As far as application of applicant no.1 Dattatray Vitthal Dhamal is concerned, he is the person who gave the fatal blow with a gupti on the chest of Prakash and in view of the fact that the account of all four eye witnesses is consistent on this aspect, we are not inclined to grant him bail. His application for bail is rejected. Hence, the following order: ORDER Each of the applicant nos.2 to 5 i.e. applicant no.2-Vitthal Maruti 7 Dhamal, applicant no.3 Dnyaneshwar Keshav Khadsare, accused no.4 Mrs. Shalan Vitthal Dhamal and accused no.5 Mrs. Chaya Dattatray Dhamal be released on bail in the sum of Rs.25,000/- (Rs. Twenty five thousand only) each with one or two sureties to make up the said amount. The applicant nos. 2 to 5 shall report to Khandala Police Station, once in a fortnight till disposal of the Criminal Appeal No. 443 of 2010. 1) Application for bail of the applicant no.1-Dattatray Vitthal Dhamal is rejected. 2) Application disposed of accordingly. [SMT. RANJANA DESAI, J.] [ SMT. V.K.TAHILRAMANI, J.]