sanjay 1 365.11-appa IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 365 OF 2011 IN CRIMINAL APPEAL NO. 93 OF 2009 Anil Kashinath Mhatre. ... Applicant. V/s. The State of Maharashtra. ... Respondent. Nitin Pradhan with Ms.S.D.Khot for the applicant. Mrs.A.S.Pai, A.P.P. for the respondent- State. CORAM : B. H. MARLAPALLE & A. M. THIPSAY, JJ. DATED : 26th April 2011. P.C. : Heard Mr.Pradhan with Ms.Khot, learned counsel appearing for the applicant- accused No.3. Mrs.Pai, learned A.P.P. appears for the State of Maharashtra. 2. The applicant prays for being released on bail during the pendency of Criminal Appeal No.93/2009 which has been filed by four accused who have been convicted and sentenced for life for the offence sanjay 2 365.11-appa punishable under section 302 read with section 34 of I.P.C. in Sessions Case No.817/2003 by the learned Additional Sessions Judge for Greater Mumbai. 3. As per the prosecution case, the complainant- Brijeshkumar R. Mishra, an auto rickshaw driver is the resident of Bodke Chawl, Chunabhatti, Santacruz (West) and his two brothers Rakeshkumar and Akhileshkumar were staying with him. On 20th August 2003, while the complainant was proceeding towards Kurla terminus at about 5.30 a.m. so as to catch the Saket Express train going to Allahabad, he suddenly heard the shouting of his younger brother. Accused Nos.1 and 2 assaulted Brijeshkumar by bamboo sticks and stump and in the presence of P.W.7- Akhileshkumar who tried to intervene and accused Nos.3 and 4 assaulted him as well as Brijeshkumar with fist blows. Brijeshkumar was declared dead at Cooper Hospital. 4. The prosecution in support of its case examined 9 witnesses. Apart from the complainant, P.W.7- Akhileshkumar was examined as an eye witness. The trial Court on assessing the evidence of the prosecution held all the accused guilty of the offence punishable under section 302 read with 34 and section 324 read with section 34 of I.P.C. 5. Accused Nos.3 and 4 had initially filed Bail Application No. 233/2009 and it was dismissed as withdrawn on 18th March 2009. Thereafter Criminal Application No.29/2011 came to be filed by accused No.4 for bail who is the brother of the present applicant and the said sanjay 3 365.11-appa application came to be allowed by a reasoned order dated 27th January 2011. 6. By referring to the evidence of P.W.7, this Court noted in the order dated 27th January 2011 passed in Criminal Application No.29/2011 that the main assailant of the deceased was accused No.1 and/or accused No.2 and the incident had taken place on the spur of moment and without premeditation. The accused No.4 arrived on the scene after the altercation between accused No.1 and the deceased. This Court also noted that the assault on P.W.7 was covered by section 324 of I.P.C. and the role of accused No.4 was limited to the assault caused on P.W.7 whereas fatal blow to the deceased was given either by accused No.1 or accused No.2 by bamboo stick and/or stump. The accused No.4 came to be released on bail on certain conditions. 7. Having heard Mr.Pradhan and Mrs.Pai, we are of the opinion that the present applicant deserves the benefit of parity and being released on bail on the same conditions as accused No.4 because his role in the incident appears prima facie to be on the same lines that of accused No.4. Hence this application succeeds and the same is allowed on the following conditions: (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. sanjay 4 365.11-appa (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 and also disclose his travel programme and the contact place where he would visit. Application is disposed off accordingly. (A. M. THIPSAY, J.) (B. H. MARLAPALLE, J.)