1 crap2200.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 2200 OF 2011 IN CRIMINAL APPEAL NO. 266 OF 2011 1 Anna Bhau Waman, age 45 years, occ. Agriculture, 2 Shiwaji Dattu Wagh, age major, occ. Agriculture, Both R/o Pimpalgaon Ujainni, Tq. & Dist. Nandurbar. ...Applicants/Appellants (Original Accused Nos. 3 and 4) VERSUS The State of Maharashtra ...Respondent ..... Smt. Sadhana Jadhav, advocate for applicants/appellants Shri V.D.Rakh, A.P.P. for respondent ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 27 th July, 2011 PER COURT : 1 Heard learned counsel for the parties. 2 crap2200.11 2 This is an application preferred by the applicants/appellants (original accused nos. 3 and 4), seeking bail pending hearing and final disposal of Criminal Appeal No. 266 of 2011, suspending the substantive sentences inflicted upon them, by way of judgment and order, dated 3.5.2011. 3 It appears that applicant nos. 1 and 2 faced the trial for the offences punishable under Sections 3 and 4 of the Explosive Substances Act and also for the offences punishable under Sections 304 r/w 34 and 427 r/w 34 of the Indian Penal Code in Sessions Case No. 161 of 2004 and they were convicted for the offence punishable under Section 3 (a) of the Explosive Substances of Act and were directed to suffer R.I. for 10 years each and to pay fine of Rs. 1,000/- each, in default to suffer R.I. for 6 months each; and were also convicted for the offence punishable under Section 4 of the Explosive Substances of Act and were directed to suffer R.I. for 3 years each and to pay fine of Rs. 1,000/- each, in default to suffer R.I. for 6 months each ; and also were convicted for the offence punishable under Section 304 Part II r/w Section 34 of the Indian Penal Code and directing them to suffer R.I. for 5 years each and to pay fine of Rs. 1,000/- each, in default to suffer R.I. for 6 months each; as well as they were convicted for the offence punishable 3 crap2200.11 under Section 427 r/w Section 34 of the Indian Penal Code and were directed to suffer R.I. for 1 year each and to pay fine of Rs. 1,000/- each, in default to suffer R.I. for 3 months; and it was also directed that all the afore said substantive sentences to run concurrently. 4 The applicants herein have questioned the said convictions and sentences by filing Criminal Appeal No. 266 of 2011 in this court, which has been admitted by me by passing order therein separately on 16.6.2011 and said appeal is pending. 5 The factual matrix of the matter is as follows :- The applicants herein, namely Anna Bhau Waman and Shiwaji Dattu Wagh, who are the brothers of each other were the residents of village Pimpalgaon Ujainni and were residing at a Wasti in the agricultural land besides the village. Both had a house with common wall adjacent to each other. It is alleged that on 8.6.2002 at about 6.00 p.m. to 6.30 p.m. Vastalabai w/o Ambadas Wagh went inside the house for lighting lamp in front of God generally called as “Devhara” and Ambadas Wagh had gone to the cattle shed for milching buffaloes. At that time, there was explosion and the tin of the cattle shed fell on Ambadas Wagh and the adjacent house of 4 crap2200.11 Dattatraya was collapsed due to the said explosion. There was smoke and dust in the atmosphere and Vastalabai was found under the debris, succumbed due to the injuries. The information of such sudden death was given to the M.I.D.C. Police station under A.D. No. 29 of 2002 on the same day i.e. on 8.6.2002, and consequently, first information report was registered on 27.6.2002 under Crime No. 113 of 2002. 6 On the afore said background, learned counsel for the applicants canvassed that the prosecution case mainly rests upon the evidence of PW1 Ambadas Maruti Wagh, wherein he deposed that on 8.6.2002 Anna Bhau Waman, Balu Dattu Wagh and his 2 to 3 unknown colleagues came to the house of Dattu Maruti Wagh and while coming, Anna Bhau Waman was holding a big bag. They went in side the house of Dattu Maruti Wagh and when they were inside they were holding the bag. Thereafter they took tea and went away and they were not having the bag while going away. When they again went in the village, they were informed that the procession to be taken in the morning was postponed till evening. Thereafter at 6.45 p.m. the explosion had taken place. They had brought that bag from the jeep and kept inside the house. The persons from the house of Dattu Wagh had the knowledge as to what is kept in the house, and therefore, none of them were present in the house at the time of 5 crap2200.11 explosion. Hence, it is submitted that the testimony of witness Ambadas nowhere discloses about the contents of the said bag. It was also argued that even assuming for the sake of assumption without admitting, the said bag was kept by the applicants, but said bag was not kept in the house of Ambadas, but it was kept in the house of Dattu Wagh i.e. in the house adjacent to the house of Ambadas, and therefore, it is canvased that no intention/knowledge can be attributed against the applicants. According to the learned counsel for the applicants, the testimony of PW1 Ambadas is full of contradictions and omissions and there is vital omission in respect of the contents of the bag, which goes to the root of the matter. 7 As regards the explosion, learned counsel for the applicants submitted that it was a mere accidental explosion and the applicants even were not remotely involved therein. To substantiate the said arguments, learned counsel for the applicants relied upon the report of the Chemical Analyser Exh.25, which discloses that articles 1 to 5 i.e. (1) Torn deformed metallic pieces, 6 crap2200.11 (2) Slightly burnt yellow colour cloth pieces, appear to be of saree (3) White and gray coloured plastic pieces (4) Earth wrapped in paper (5) Earth (control), wrapped in paper were sent to the Chemical Analyser’s office for examination purpose and the result and analysis thereof, as stated in the said report of the Chemical Analyser Exh.25, shows that no explosive residues were detected on Exhs. 1 to 5. Hence, learned counsel for the applicants submits that the said Chemical Analyser’s report shatters the case and theory advanced by the prosecution regarding explosion. 8 Besides, learned counsel for the applicants prays to enlarge the applicants on bail on parity and submitted that the accused nos. 1 and 2 were convicted by the judgment and order, dated 23.12.2005, by the learned III Ad hoc Additional Sessions Judge, Ahmednagar in Sessions Case No. 161 of 2004 for the offences punishable under Sections 3 of the Explosive Substances Act and were sentenced to suffer R.I. for 5 years each; and for the offence punishable under Section 4 of the Explosive Substances Act and were sentenced to suffer R.I. for 3 years each. They were also 7 crap2200.11 convicted for the offence punishable under Sections 304-II r/w 34 of the Indian Penal Code and were sentenced to suffer R.I. for 5 years each and to pay fine of Rs.500/- each; as also they were convicted for the offence punishable under Sections 427 r/w 34 of the Indian Penal Code and were sentenced to suffer R.I. for one year each and to pay fine of Rs.300/- each, and even they were enlarged on bail by this court after filing Criminal Appeal No. 23 of 2006; whereas applicant nos. 1 and 2 herein were convicted for the offence punishable, under Sections 3(a) and 4 of the Explosive Substances Act and under Sections 304-II and r/w 34 and under Sections 427 r/w 34 of the Indian Penal Code and were sentenced to suffer R.I. for 10 years under Section 3(a) of the Exlosive Substances Act, and learned counsel for the applicants contended that considering the date of offence i.e. 8.6.2002, the sentence awarded to the applicants under the Amended Explosive Substances Act, more particularly, under Section 3(a) thereof, is erroneous. 9 In substance, it is canvassed that accused nos. 1 and 2 were sentenced to suffer R.I. for five years; whereas applicants herein were sentenced to suffer R.I. for ten years for the same offence and it was canvassed that the said disparity is unsustainable and it is urged that since accused nos. 1 and 2 have been enlarged on bail, the applicants herein also are entitled to be released on bail 8 crap2200.11 on the principle of parity. 10 Learned Additional Public Prosecutor countered the said argument and opposed the present application vehemently and submitted that prosecution has examined as many as 12 witnesses to substantiate the charges levelled against the applicants herein. 11 It is also canvassed that the prosecution case is based upon circumstantial evidence and the prosecution has established the link of the said circumstantial evidence unerringly and connected the applicants herein with the crime and learned Trial Court has rightly convicted and sentenced the applicants. It is also canvassed that evidence of PW1 Ambadas is material, who has last seen the applicants herein while keeping the bag in the house of Dattu Wagh, and subsequently, explosion took place and the said circumstances clinchingly connects the applicants with the crime. 12 Learned A.P.P. supported the judgment and order under challenge and submitted that the applicants have failed to make out any case for grant of bail, and therefore, urged that present application deserves to be rejected. 13 I have perused the impugned judgment and order under 9 crap2200.11 challenge and the R. and P. with he assistance of the learned counsel for the parties. 14 After considering the rival submissions advanced by the parties, there appears to be substance in the submissions advanced by the learned counsel for the applicants. Moreover, the applicants were on bail during the pendency of the trial and there is no grievance of the respondent that they have misused the said liberty. Besides, the applicants have challenged the conviction and sentence imposed upon them by way of Criminal Appeal No. 266 of 2011 and there is no likelihood that the said appeal would be taken up for final hearing in near future. Moreover, reliance also can be placed on the judicial pronouncement in the case of Kiran Kumar vs State of M.P., reported at 2001 AIR SCW 5130 in respect of substantive sentence inflicted upon the applicants herein. 15 Having the comprehensive view of the matter, I am of the opinion that the applicants deserve to be enlarged on bail, but by imposing condition upon them as mentioned below. 16 In the result, present application is allowed and it is directed that applicant no.1 Anna Bhau Waman and applicant no.2 Shiwaji Dattu 10 crap2200.11 Wagh be released on bail on their furnishing P.R. Bond in the sum of Rs. 20,000/- each with one surety in the like amount by each of them, before the trial Court, pending hearing and final disposal of Criminal Appeal No. 266 of 2011, suspending the substantive sentences imposed upon them, on the condition that applicant nos. 1 and 2 shall give attendance before the learned Trial Court once in a quarter till disposal of said appeal. 17 R. and P. be sent back to the concerned court. (SHRIHARI P. DAVARE), JUDGE. dbm/crap2200.11