1 srk IN THE HIGH COURT OF JUDICATURE AT BOMBAY Appellate Side Criminal Application No.999 of 2009 In Criminal Appeal No.1210 of 2006 Shri Mohan Amruta Ghorpade Applicant Vs. The State of Maharashtra Respondent Mr.M.S.Mohite with Mr.Dilip Bodake for applicant. Mrs.V.R.Bhosale, APP for State. CORAM: B.H.MARLAPALLE & SMT.ROSHAN S. DALVI,JJ. September 16, 2009. P.C. 1. Heard Mr.Mohite with Mr.Bodake, the learned counsel for the applicant – accused no.8 and Mrs.Bhosale, the learned APP for the State. 2. In Sessions Case No.112 of 1996 in all eight accused were tried and as per the judgment and order dated 9/11/2006 2 accused nos.5 to 7 came to be acquitted whereas accused nos. 1 to 4 and 8 came to be convicted for the offences punishable under Section 302 read with Section 149, Section 324 read with Section 149 and Sections 143, 147 and 148 of IPC. The said order of conviction and sentence has been challenged by the present applicant in Criminal Appeal No.1210 of 2006 which has been admitted. Accused nos.1 to 4 have filed Criminal Appeal No.1206 of 2006 and the same also has been admitted. Accused nos.1 to 4 had filed Criminal Application No.1262 of 2006 for bail and the said application was allowed. 3. Mr.Mohite, the learned counsel for the applicant submitted that the role attributed to accused no.8 is in no way different than what was alleged against accused nos.1 to 4 and in any case the medical evidence, prima facie, shows that the fatal injury could not be said to have been caused by a weapon like sword. He also submitted that the applicant is an EX- Serviceman and at the time of the incident he was on leave and, therefore, was present in the village. The incident had occurred on account of a minor incident of grazing of cow and there was no pre-plan. Mrs.Bhosale, the learned APP has opposed the application and submitted that accused no.1 was 3 the person who assaulted the deceased with a sword which he was hiding on his person (article no.10). 4. We have gone through the evidence of PW 3 – Subhadrabai Ghorpade (the widow of the deceased), PW 4 – Chandrakant Ghorpade (son of the deceased) and PW 5 – Sambhaji Jadhav, the owner of the neighbouring land. We have also perused the oral depositions of PW 6 – Dr. Varsha Prakash Kulkarni and PW 8 – Dr. Pravin Mahajan. The medical evidence does show that Sarjerao died on account of the fracture injury sustained by him on his forehead and the said injury could have been caused by weapon like sword. As per the prosecution PW 4 was the injured eye witness and PW 3 and PW 5 were present at the spot. 5. Having considered the evidence of all these five witnesses and also keeping in mind that the applicant himself had sustained an injury on his head, we are not inclined to release the applicant on bail by suspending the order of sentence under Section 389 of Cr.P.C. and despite the fact that accused nos.1 to 4 have already been released on bail. Hence the application is rejected. 4 6. The applicant is at liberty to apply for early hearing of the criminal appeal as soon as it is ready. (SMT.ROSHAN S. DALVI,J.) (B.H.MARLAPALLE,J.)