1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINALAPPLICATION NO. 2621 of 2009 IN CRIMINAL APPEAL NO. 349 OF 2009 Sitaram Tukaram Masulkar ..Applicant (Orig.accused no.1) VERSUS State of Maharashtra ..Respondent ..... Shri S.S.Bora, advocate for the applicant Shri S.D.Kaldate, APP for the respondent/State.s ..... CORAM : NARESH H. PATIL AND SHRIHARI P.DAVARE, JJ. DATE OF RESERVING THE ORDER : 09.9.2009 DATE OF PRONOUNCING THE ORDER : 11.9.2009 O R D E R : (Per Shrihari P.Davare, J.) 1 Perused. Heard learned counsel for the parties. 2 2 The applicant/accused no.1 has preferred the present application for suspension of the substantive sentence and for enlargement on bail during the pendency of the appeal, filed by the applicant/accused no.1 challenging the judgment and order passed by the learned Additional Sessions Judge, Parbhani on 1.7.2009. By the said judgment and order, the applicant/accused no.1 was convicted for offence punishable under Section 302 of the Indian Penal Code and was inflicted imprisonment for life and also fine, as well as he was convicted for offence punishable under Section 324 r/w Section 34 of the Indian Penal Code and was sentenced to suffer S.I. for two months and also fine. 3 The factual matrix are that the work of construction of road/supply of murum was given by Grampanchayat, Pokharni to applicant/accused no.1 Sitaram and accused no.4 Shivaji, which was in progress. On 19.8.2007 PW1 Uttam while proceeding by the side road instructed the workers to construct the road properly. Thereafter at about 5.30 p.m. applicant/accused no.1 Sitaram and accused no.4 Shivaji approached said Uttam and asked him what right he had got to instruct to construct the road properly and thereupon altercation took place and applicant/accused no.1 Sitaram and accused no.4 Shiwaji 3 assaulted PW1 Uttam with kick and fist blows. By the intervention of Bhausaheb Wagh, Sheshrao Wagh and Tukaram Wagh, Uttam was rescued and thereafter he went to his house at about 6.30 p.m. 4 It is further alleged that at about 7.00 to 7.30 p.m., on the same day, all accused formed unlawful assembly to assault PW1 Uttam and abused him in filthy language. Thereafter victim Tukaram i.e. the brother of PW1 Uttam went near accused and informed that quarrel was already over and asked them why they had come again. Thereupon, applicant/accused no.1 Sitaram gave blow of wooden log/stick on the head of Tukaram who sustained bleeding injury and collapsed on the spot. Accused no.2 Shivaji also gave blow of stone on the leg of Tukaram and accused no.3 Laxman gave blow to the femur of Tukaram. Thereupon witness PW1 Uttam intervened. Thereafter all the accused ran away from the spot. Victim Tukaram was removed to the Civil Hospital, Parbhani and thereafter further shifted to private hospital i.e. Lotus Hospital, Nanded, but during the treatment he succumbed to the said injuries and expired on the next day at about 3.00 p.m. and complaint came to be lodged against in all 7 accused persons. 4 5 Accused nos. 1 to 7 were charged and were tried for the offences punishable under Sections 148, 323, 336, 504, 302 r/w 149 of the Indian Penal Code and also under Section 135 of the Bombay Police Act. Accused no. 1 and accused nos. 2 to 4 were convicted under the different Sections of the Indian Penal Code by the learned Additional Sessions Judge, Parbhani by way of judgment and order rendered on 1.7.2009. Being aggrieved and dissatisfied by the said judgment and order, applicant/accused no.1 has preferred the afore said appeal assailing the same and prayed for the grant of bail by way of present application. 6 Learned counsel for the applicant/accused no.1 submitted that the prosecution has examined only interested witnesses and so-called witnesses i.e. PW1 Uttam, PW2 Bhausaheb, PW3 Kishan, PW4 Girjabai and PW6 Raosaheb are not truthful witnesses and their testimonies are hit by contradictions and omissions. It is also submitted that although independent witnesses were available, the prosecution has failed to examine the said witnesses. Moreover, it is further submitted that there is inordinate and unexplained delay of 24 hours in lodging the complaint, which creates reasonable doubt about the same. It is also submitted that deceased Tukaram sustained head injury due 5 to pelting of stones in the stampede without intention or motive on the part of the accused persons. It is further submitted that there was darkness at the time of occurrence of the alleged incident and nobody could witness the incident or role played by each of the accused or the prosecution witnesses therein. Hence, it is submitted that injury sustained by deceased Tukaram on the head is most probably of a stone injury and not injury due to wooden log/stick as urged by the prosecution and if the evidence of PW10 Dr. Shubhangini is read in proper perspective, the said aspect would be clear. Hence, the learned counsel for the applicant submitted that there is no prima facie case against the applicant/accused no.1 and hence, he is required to be enlarged on bail during the pendency of the appeal. 7 Learned A.P.P. Shri Kaldate vehemently opposed the present application and submitted that to substantiate the charges levelled against the accused persons, the prosecution has examined in as much as 15 witnesses and evidence of PW10 Dr. Shubhangini categorically discloses that deceased Tukaram sustained fracture of left parietal bone 2 x 1 c.m. brain deep, fracture of occipital bone 2 x 1 c.m. brain deep and internal injury was corresponding to first external injury and there was evidence of intracerebral hemorrhage and cause of death was given shock 6 due to intracerebral hemorrhage due to head injury. Accordingly she prepared postmortem notes which are at Exh.62. It is further submitted in the said context that applicant/accused no.1 gave blow with stick on head of deceased Tukaram who sustained bleeding injury and hence, it is submitted that the nexus can be established between the said blows given on the head of deceased Tukaram and injuries sustained by him, which consequently led to his death. 8 Learned A.P.P. Further submitted that the theory of defence advanced by the applicant/accused in respect of free fight, pelting of stone and stampede is improbable, and inconsistent, and same is not digestible. 9 We have perused the record and proceedings which was made available to us and we also perused the oral and documentary evidence, as well as we have perused the medical evidence on record and PW10 Dr. Shubhangini, who carried out the autopsy on the corpse of deceased Tukaram has categorically stated that there was fracture of left parietal bone 2 x 1 c.m. brain deep, fracture of occipital bone 2 x 1 c.m. brain deep and internal injury was corresponding to external injury mentioned in column no.17 of the postmortem notes prepared by her and which are 7 produced at Exh.62 and cause of death is given therein as shock due to intracerebral hemorrhage due to head injury. 10 Keeping in mind the said aspects and coming to the occurrence of the incident which was witnessed by two eye witnesses i.e. PW4 Girjabai and PW6 Raosaheb, we have stated that the applicant herein gave blow with wooden log/stick on the head of deceased Tukaram who sustained bleeding injury and collapsed on the spot. 11 After giving anxious consideration to the submissions advanced by the learned counsel for the parties, we are of the considered view that there is prima facie evidence against the applicant and this is not a fit case to grant bail to the applicant herein and hence, the present application deserves to be rejected and same stands rejected accordingly. (SHRIHARI P. DAVARE, J.) (NARESH H. PATIL, J.) dbm/crap2621.09