1 appa29.11 ast IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.29 OF 2011 IN CRIMINAL APPEAL NO.93 OF 2009 Ravindra Kashinath Mhatre. ....Applicant. Vs. The State of Maharashtra. ....Respondent. Mr.Nitin Pradhan i/b. S.D.Khot and Ameeta Kuttikrishnan, advocate for applicant. Mr. A.S.Gadkari, APP for State. CORAM:- A.M.KHANWILKAR AND A.R.JOSHI, JJ. DATED:- JANUARY 27, 2011. P.C. 1. This is second bail application filed by the Accused No.4. On the earlier occasion he had filed application for bail alongwith Accused No.3 being Criminal Application No.233 of 2009, which however, was dismissed as withdrawn. The Order dated 18th March, 2009 does not indicate that the earlier bail application was withdrawn because the Court was not inclined to grant the said application. In the circumstances, this application will have to be considered on its own merits. 2 appa29.11 2. The incident in question occurred on 20th August, 2003 in the wee hours at around 3.45 a.m. From the prosecution evidence it is noticed that P.W.7 was attempting to park his rickshaw near the house of Accused No.1. Accused No.1 told him not to do so. Soon thereafter altercation took place and the Accused No.1 started assaulting P.W.7. When the assault was going on the other accused maternal uncle of Accused No.1 arrived on the scene. The P.W.7 as well as P.W. 8 have stated that it is the Accused No.1 and Accused No.2 assaulted the deceased by stumps/bamboos. The injury caused to the deceased has been mentioned by the doctor P.W.5, which evidence indicates that three external injuries were caused to the deceased. Out of the said three injuries only one injury was serious being on left parietal scalp CLW 8 x 5 cm scalpdeep. The other two injuries were swelling and tenderness to the left leg and left forearm. The cause of death is attributed to first injury, which was the only fatal blow suffered by the deceased. That blow was obviously caused on account of assault by Accused Nos. 1 or 2 with bamboos/stumps. Insofar as assault on P.W.7 is concerned, that can be described as covered by section 324 of I.P.Code. The fact remains that the incident took place on the spur of the moment. The accused No.4/applicant before this court arrived on the scene after the altercation between accused No.1 and the deceased had already commenced. The role attributed to Accused No.4 is only of giving fist blow to the P.W.7. 3 appa29.11 Indeed, Section 34 has been applied. But as aforesaid from the evidence it appears that the incident took place at the spur of the moment and was not premeditated. Besides, the role of accused No.4 is limited to assaulting P.W.7 and the fatal blow was given by the accused Nos. 1 or 2 on the deceased by bamboo/stump. Merely because the accused No.4 joined the fray, any intention to murder the deceased cannot be attributed to the applicant. There is nothing on record that the applicant has any antecedent or criminal track record in the past. Taking over all view of the matter, therefore, the applicant accused No.4, in our opinion, is entitled to be released on bail on following condition. (i) The applicant is released on bail in connection with the above offences on executing bond in the sum of Rs. 25,000/- with one or two sureties in the like amount. (ii) The applicant shall report once in a month to Santacruz Police Station on first Monday of every English Calender month between 10 a.m. to 1 p.m. (iii) The applicant shall furnish his latest residential address to the local police station and shall not travel outside Mumbai without prior intimation of 48 hours in writing to the local police station 4 appa29.11 and also disclose his travel programme and the contact place where he would visit. (A.R.JOSHI, J.) (A.M.KHANWILKAR, J.)