AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.120 OF 2010 IN CRIMINAL APPEAL NO.939 OF 2009 1. Sandeep Uttam Gavare, Age : 19 years, Occu. Student. ) ) 2. Sachin Uttam Gavare, Age : 22 years, Occu. Business, Both, residing at, Sant Dnyaneshwarnagar, Thergoan, Pune (at present Yerwada Central Jail, Pune). ) ) ) ) ) ) ... Applicants Vs. The State of Maharashtra, (At the instance of Inspector of Police, Nigadi Police Station, Pune). ) ) ) ... Respondents Mr. Shirish Gupte, senior counsel with Mr. K.S. Patil for the applicants. Ms. P.H. Kantharia, A.P.P. for the State. CORAM: MRS. RANJANA DESAI & MRS. V.K. TAHILRAMANI, JJ. DATE ON WHICH THE ORDER IS RESERVED : 25TH MARCH, 2010. DATE ON WHICH THE ORDER IS PRONOUNCED: 30TH MARCH, 2010. AJN 2 P.C. :- (Per: Smt. Ranjana Desai, J.) 1. Original accused 1 and 5 have preferred this application for bail. 2. We have heard Mr. Gupte, learned senior counsel appearing for the applicants. He submitted that the case of the present applicants stands on par with that of original accused 2, who was released by this court on bail on 18/1/2010. He submitted that the present applicants have not assaulted deceased Nitin. Apart from parity, contended Mr. Gupte, even on merits the applicants have a good case. He submitted that the allegation against the applicants is that they assaulted prosecution witnesses Suresh and Avinash. He drew our attention to the evidence of PW-11 Dr. Sanjiv Date, who had examined Avinash. He pointed out that injured Avinash had received simple injuries. The doctor has stated that these injuries could be caused by hard and blunt object. AJN 3 3. It is not possible for us to accept Mr. Gupte's submission. It is true that evidence on record does not prima facie indicate that accused 1 and 5 attacked deceased Nitin. But, attack levelled by them on injured witnesses Avinash and Suresh is brutal. PW-4 Suresh has stated that accused 1 dealt a blow on the head of Avinash with chopper. According to him, accused 1 also dealt a blow of chopper on his head. He stated that his head injury was sutured by 25 stitches PW-1 Avinash has stated that accused 1 and 5 assaulted on his head with weapons i.e. choppers. PW-11 Dr. Sanjay Date had examined Avinash on 8/2/2006. He has stated that Avinash had two CLWs on occipital and sub-occipital region and one contusion over shoulder, elbow and abdomen. He has stated that though these injuries were simple and could be caused by hard and blunt object, it is also possible that they could be caused by sharp edged weapons. 4. PW-5 Dr. Sanjay Deodhar has stated that on 8/2/2006, he examined Suresh. As regards his injuries, AJN 4 Dr. Deodhar has stated as under : “13. I examined him at about 2.30 a.m. of 8/2/2006 and noticed the following injuries. 1] CLW over parieto occipital region, 10 x 2 c.m. 2] Swelling and haematoma over left leg. 3] swelling and haematoma on left forearm and ulna was injured. 14] The CT scan of brain revealed in subdural haematoma, (maximum thickness 4 mm) in right temporo parietal region. Thin subdural haematoma was seen in left temporal region. Subarachnoid haemorrhage was seen. 15] The MRI of the brain showed pituitary macro-adinoma with fluid level probably old pituitary apoplexy. Right temporal low contusion was seen with bilateral parietal sub-arachnoid haemorrhage. The X-ray showed the fracture of left ulna fixed with metallic. This was post operative X-ray. Metallic plate was placed in our hospital. 16] The patient was admitted as indoor patient for 8-15 days. 17] The patient was operated for fracture on left ulna. For fixing metallic plate. 18] All the injuries were fresh, within 24 object. They were caused by sharp, hard and blunt object. I have issued the certificate now shown to me. It bears my signature. Its contents are correct. It is at AJN 5 Exh-32. 19] The injury Nos.2 and 3 of the patient are possible by iron rod, article No.3 now shown to me. The injury No.1 is possible either by sickle, article No.1 and article No.2 the chopper known as Sattur marked Article No.17. The injuries had they been not attending in time, could have resulted in the death of patient in ordinary course of nature.” 5. It must be remembered that according to PW-4 Suresh, accused 1 and 5 had dealt blows with chopper on his head. With the above state of evidence, the applicants cannot be released on bail. So far as accused 2 is concerned, apart from the fact that he had not assaulted the deceased, what was taken into consideration was the prima facie inconsistency in the evidence of witnesses as to whether he had any weapon in his hand. When accused 1 and 5 armed with choppers brutally assaulted prosecution witnesses and caused one of the witnesses an injury which could have caused his death as stated by doctor their case cannot be called similar to that of accused 2, who has been released on AJN 6 bail. They might not have attacked the deceased but their aggressive role in the entire incident prima facie establishes common intention qua the offence of murder. 6. Hence bail application is rejected. [MRS. RANJANA DESAI, J.] [MRS. V.K. TAHILRAMANI, J.]