1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 538 OF 2010 IN CRIMINAL APPEAL NO. 56 OF 2010 1 Hupdya s/o Tedgya Naik 2 Surupsing s/o Tedgya Naik ...Applicants Versus The State of Maharashtra and others ...Respondents ..... Mr. C.R. Deshpande, advocate for the applicants Mr. N.R. Shaikh, A.P.P. for respondent No. ..... CORAM: S.B. DESHMUKH & S.S. SHINDE, JJ. DATED: 5TH MAY, 2010 PER COURT:- 1 We heard Mr. Deshpande, learned counsel for the applicants and Mr. Shaikh, learned A.P.P. for the respondent-State. 2 The appeal filed on behalf of the present applicants has been admitted by this Court. Record is also called for. We have seen the evidence adduced on behalf of the prosecution. Indisputably, the 2 present applicants were charged and tried for the offences punishable under Sections 452, 302 r.w. 34 of I.P.C. On behalf of the prosecution, around 10 witnesses were examined. Mr. Shaikh, learned A.P.P. submits that there are three eye witnesses viz. P.W.2 Arvind, brother of deceased, P.W.4 Mr. Jayawant, father of deceased and P.W.5. Mr. Deshpande, learned counsel for the applicants points out that P.W.5, in fact, has turned hostile and accordingly has been declared and cross examined by the State. The date of occurrence is 30.8.2008. According to the complainant, the incident has taken place at about 7.30 p.m. in the courtyard of the house of the deceased. 3 With the assistance of learned counsel for the parties, we have seen the evidence adduced on behalf of the prosecution. We have considered the evidence of P.W.2 Arvind (informant). Counsel for the applicants Mr. Deshpande, points out para 35 of the judgment of the trial court. Mr. Shaikh, learned A.P.P. points out that the case is of direct evidence (eye witnesses) and thus, absence of motive is irrelevant. Mr. Deshpande, learned counsel for the applicants fairly points out the evidence against applicant No.1 Hupdya. According to the prosecution witnesses, applicant No.1 Hupdya, dragged deceased Yashwant, out of the house and stabbed/pierced his spear in the chest of Yashwant. Yashwant fell on the ground. He succumbed to the injuries within a short span of time. 3 4 We have considered the prosecution evidence and/or material against the applicant No.2 Mr. Surupsing. According to the learned counsel appearing for the applicants, role attributed to the applicant No.2 is an assault by Dengara (wooden stick) on the legs of the deceased Yashwant. He also points out that Post mortem note, placed on record. According to him, corresponding injury was not found by the Medical Officer, who conducted the autopsy on the dead body of Yashwant. 5 In the context of the submissions of the learned counsel for the applicants, Mr. Shaikh, learned A.P.P. submits that both the accused have entered in the house of deceased with an intention to commit the crime. According to him, even if the role attributed to applicant No.2 is concerned, it prima facie can be said to be accountable for the overt act attributed to applicant No.1. In view of Section 34 of I.P.C. the applicant No.2 can be said to have committed the offence punishable under section 302 of I.P.C. Therefore, he submits that the application needs to be rejected. Mr. Shaikh, points out that on the next date i.e. 31.8.2008 both the applicants have been arrested and they are under trial prisoners during trial. 6 We have given due consideration to the submissions of the learned counsel for the parties. We are not inclined to release the applicant No.1 viz. Hupdya, whose overt-act, according to the 4 prosecution is established. In our view, the case for bail of applicant No.2 can be considered. 7 i) In the result, criminal application filed on behalf of the applicant No.1 Hupdya Tedgya Naik, stands rejected. ii) Applicant No.2 Surupsing Tedgya Naik, is directed to be released on furnishing bail bond of Rs.15,000/- with one surety in the like amount. Learned A.P.P. Mr. Shaikh seeks attendance of the applicant No.2 once in a fortnight. We direct the applicant No. 2 Surupsing Tedgya Naik to attend Taloda police station twice in a month preferably on 2nd and 4th Sunday of every month from June, 2010 between the period from 10.00 a.m. to 2.00 p.m.. 8 Criminal application is therefore, partly allowed and disposed of. ( S. S. SHINDE. J.) (S.B. DESHMUKH, J.) rlj/