1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1356/2009 IN CRIMINAL APPEAL NO. 90/2009 Bajrang Dada Bhondawe Applicant Vs. State of Maharashtra & Ors. Respondents Mr.Ranaware for applicant Mr.Pednekar,APP CORAM : SMT.RANJANA DESAI, & SMT.MRIDULA BHATKAR,JJ. DATE : 17th FEBRUARY, 2010. P.C. . The applicant was tried alongwith three others in Sessions Case no.106/2006 for the offences punishable under section 302, 324 ,323,504 r/w 34 of the Indian Penal Code for the murder of one Chang Baba Bhondawe.By the judgment and order dated 15/1/2009 the applicant was convicted for the offence punishable under section 302 r/w 34 of the Indian Penal Code and sentenced to undergo life imprisonment. The applicant was also convicted for the offence punishable under section 324 r/w 34 of the Indian Penal Code and sentenced to undergo rigorous 2 imprisonment for one month. Substantive sentences were to run concurrently. The applicant’s appeal is admitted. This is his application for bail. 2] The case of the prosecution in short appears to be that Complainant Shobha (P.W.3) who is daughter in law of deceased Changdeo was residing with the deceased, her mother in law , her husband , P.W.2, at Ghumat-Vasti at Ranand,Taluka Man, District Satara. According to the Complainant on 27/10/2005 at 7 a.m. she was fetching water from a tap outside her house. Out of their two buffaloes, one buffalo crossed the road and went in the courtyard of accused no.1 Dada Bhondawe. Therefore, accused Dada pelted stone at the said buffalo and also abused the said buffalo. Upon hearing the said abuses, the deceased came out of the house and asked accused Dada as to why he was abusing the buffalo. There was altercation between the two. At that time accused no.1 and the other accused came there armed with sticks,sword and axe. Accused no.2 is stated to have inflicted axe blow on the deceased. The applicant who is accused no.3 is stated to 3 have raised his sword to inflict injury on the deceased, but on account of P.W.2’s intervention the blow did not land on the deceased but resulted in sword injury being caused to the right wrist of P.W.2. Accused no.1 Dada dealt a stick blow on the deceased on his back, leg and hand. Wife of accused no.1 ,i.e. accused no.4 Savabai , who was also armed with a stick beat the deceased. Accused no.1 was injured. A cross complaint was filed by accused no.1. The deceased was shifted to the hospital. On examination he was declared dead. 3] Before we deal with the case of the applicant we must note that an application for bail filed by original accused 1 and 4 has been rejected by the Division Bench of this Court (Justice Mr.Bilal Nazki and Justice Mr.A.R.Joshi) on 24/3/2009. We must also note that learned counsel for the applicant has informed us that in the cross complaint which was filed by accused no.1 ,i.e. one of the appellants in the instant appeal, son and nephew of the deceased have been convicted. 4] We have heard at some length learned counsel 4 for the applicant and learned A.P.P.. Learned counsel for the applicant submitted that so far as the present applicant is concerned his case stands on a different footing from that of the accused who have been denied bail. He submitted that the prosecution case is that the applicant was carrying a sword. However, the injury sustained by the deceased is not consistent with the use of a sword. Learned A.P.P. on the other hand submitted that the accused is charged with the offence punishable u/s 302 r/w 34 of the Indian Penal Code. The F.I. R. indicates that all the accused together assaulted the deceased. Common intention is apparent. Learned A.P.P. further submitted that by order dated 24/3/2009 the application for bail made by accused 1 and 4 has been rejected. He submitted that on the ground of parity the present application may also be rejected. 5] P.W.3, Complainant Shobha has in the FIR stated that accused no.1 and 4 beat the deceased with sticks on his back, hands and head till he fell down. According to her the applicant tried to assault the deceased with a sword. When she tried to intervene the blow landed on her right wrist. In 5 her deposition in the Court she has given the same version. 6] Prima facie, it appears to us that the applicant is not the author of the injury caused to the deceased on his head. Dr. Prashant Pawar, P.W.6 who examined the deceased at Public Health Center and issued medical certificate has stated that the injury caused to the deceased was possible by an axe and a stick. Therefore, the injury prima facie cannot be attributed to a sword. In the postmortem notes cause of death is shown as ‘death due to frontal bone multiple brain lacerations subdural hematoma’ . There is no incised wound indicated in the postmortem notes. Use of a sword is therefore doubtful. Therefore, prima facie we are of the opinion that the present applicant cannot be called the author of the injury sustained by the deceased. Besides, the applicant was on bail throughout the trial. So far as order dated 24/3/2009 passed by the Division Bench of this Court (Justice Mr.Bilal Nazki and Justice Mr.A.R.Joshi) is concerned it pertains to original accused 1 and 4 .They had sticks in their hands . P.W.2 deposed that they beat the deceased with sticks till he fell down. Dr. 6 Pawar, P.W.6 has stated that injury caused to the deceased is possible by an axe as well as a stick. Therefore, prima facie their involvement is made out. Their case stands on a different footing from that of the case of the applicant. Denial of bail to them by this Court would not come in the way of our granting bail to the present applicant. 6] In the circumstances we direct that applicant Bajarang be released on bail in the sum of Rs. 30,000/- ( Rupees thirty thousand ) with one or two sureties to make up the amount . While on bail the applicant shall attend Dahiwadi police station twice a month. Needless to say if the applicant fails to abide by the conditions the State would be at liberty to move for cancellation of bail. Application for bail is disposed of. (Smt.Ranjana Desai,J.) (Smt.Mridula Bhatkar,J.) 7