1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 2906 OF 2009 In CRIMINAL APPEAL No. 406 OF 2009 Sambhaji S/o Deorao Gabare, ... Petitioner. Versus The State of Maharashtra ... Respondent. -------- Shri. S.S. Deve (Appointed) Advocate for the Applicant. Shri. S.D. Kaldate, Additional Public Prosecutor, for the Respondent/ State. -------- CORAM: NARESH H PATIL & SHRIHARI P DAVARE,JJ. DATE: 10th September 2009 ORAL ORDRER (PER SHRIHARI P DAVARE,J): 1) Heard learned counsel for the parties. 2) This is an application preferred by Applicant, (Original Accused No.4) requesting for suspension of substantiative sentence awarded to him by learned Additional Sessions Judge, 2 Vasmathnagar by way of judgment and order 24-04-2008 in Sessions Trial No. 20/2006 and for enlargement on bail during the pendency of the appeal. 3) We have perused the orders passed by earlier Division Benches on the applications preferred by other accused persons i.e. Accused No. 1,2,3,5,13 & 15 which were rejected and also order passed on bail applications preferred by Accused No. 11 & 12 which were granted earlier. The present application has been preferred by the applicant / Accused No. 4 for the grant of bail. 4) In all, twenty two (22) accused persons were charged and tried by the learned Additional Sessions Judge, Vasmathnagar, out of which nine (9) accused persons were convicted by way of judgment and order dated 24-04-2008, and applicant / Accused No. 4 was convicted for the offence punishable under section 148 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for one year vide Section 235(2) of Criminal Procedure Code. He was also 3 convicted for offence punishable under Section 302 read with Section 149 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for life and to pay a fine of Rs. 1,000/-, in default to suffer rigorous imprisonment for six months vide Section 235(2) of Criminal Procedure Code. He was also convicted for the offence punishable under Section 324 read with 149 of Indian Penal Code and sentenced to suffer rigorous imprisonment for one year, vide Section 235(2) of Criminal Procedure Code. 5) We have perused the record and proceeding ocular evidence, and documentary evidence as well as medical evidence found to substantiate the charges levelled against the accused persons. Prosecution has examined in as much as 15 witnesses. The incident allegedly occurred on 08-04-2006 on the political rivalry i.e. between the complainant party on one side and the accused party on the other. Out of 15 witnesses, there are about four eye witnesses namely PW 1- 4 Jankabai who is wife of victim Madhavrao i.e. Complainant, PW-4 Kamalbai, PW-5 Govind and PW-8 Ganesh. The learned counsel for the applicant invited our attention to the aspect that except PW-4 Kamalbai, no other eye witness i.e. PW 1 Jankabai, PW-5 Govind & PW 8 Ganesh have attributed any role to the applicant during the occurrence of the incident. Moreover, although PW-4 Kamalbai has stated in her deposition that, applicant Sambhaji gave blows of sticks to the deceased Madhavrao during occurrence of incident, there is vital omission in respect of the said contention of PW-4 Kamabai. It is further submitted by the learned counsel appearing for the applicant that PW-4 Kamalbai stated in her deposition that Sambhaji gave stick blows to Jankabai i.e. PW 1 complainant during the occurrence of the incident but PW-1 Janakabi does not say so in her deposition. 6) Learned counsel for the applicant further submitted that the afore said eye witnesses PW-1 5 Jankabai,PW-4 Kamalbai, PW-5 Govind, PW-8 Ganesh are the interested witnesses who are the relatives and friends of the victim Madhavrao and PW-1 Janakabai. It is further submitted that although independent witnesses were available they were not examined by the prosecution for the reasons best known to it. The learned counsel for the applicant further submitted that there was darkness at the time of occurrence of the incident between 7.30 to 8.30 PM, and further there was load shedding at the relevant time. Accordingly, it is submitted that, there are lacunae and infirmities in prosecution case and hence applicant is entitled to be released on bail. 7) Mr. S.D. Kaldate, APP opposed the present application and submitted that, PW-5 Govind has stated in his deposition that all the accused persons were holding sticks and started beating the deceased, and hence, made submission that, PW-5 Govind has attributed role to the applicant / Accused No. 4 during the occurrence of 6 incident. The learned APP also submitted that victim Madhavrao sustained five (5) serious injuries and cause of death given as head injury. The probable cause of death is head injury, irracranial haemorrhage, multiple fracture, which is homicidal, but Viscera has been preserved and has been sent for chemical analysis to know the exact cause, and therefore, learned APP submitted that victim Mahadhavrao succumbed to the injuries and expired on the spot. 8) Considering the rival submissions advanced by the learned respective counsel for the parties anxiously, and after considering eye witnesses account, apparently it appears that, except PW-4 Kamalbai no other eye witnesses i.e. PW-1 Jankabai, PW-5 Govind and PW-8 Ganesh have attributed specific role to the applicant during the occurrence of the incident, and further apparently, there is omission in the testimony of PW-4 in respect of alleged role of applicant during the occurrence of incident. Moreover that PW-5 Govind also has not attributed specific 7 role to the applicant during the occurrence of the incident. Hence, prima facie, we are of the view that this is a fit case for grant of bail. 9) In the result, present application is allowed, and applicant / accused NO. 4 be released on bail in sum of Rs. 15,000/- (Rs. Fifteen thousand only) with one solavent surety in like amount and bail be furnished before learned Additional Sessions Judge, Vasmathnagar. Learned Additional Sessions Judge, Vasmathnagar shall fix at least a day in the quarter for appearance of the applicant / Accused No. 4 before him till the disposal of the Criminal Appeal. Present Criminal Application stands disposed of accordingly. Legal expenses / fees shall be paid to Shri S.S. Deve, Advocate for the applicant, as per Rules. (SHRIHARI P. DAVARE, J.) (NARESH H PATIL, J.) sdm/2906.09