1 cr-appa-1447-10 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI. APPLN. NO. 1447 OF 2010 IN CRI. APPEAL NO. 642 OF 2010 Ismail Mahamad Petkar ..Applicant Vs. The State of Maharashtra ..Respondent .... Mr. Ramesh Dube-Pail Adv. i/b M/s. Jay and Co. for the Applicant Mrs. A.S.Pai, A.P.P. for the State .... CORAM : B.H.MARLAPALLE AND U.D.SALVI, JJ. DATE : FEBRUARY 25, 2011 P.C.: 1 We have heard Mr. Dube-Patil, the learned advocate for the applicant who was accused no.1 in Sessions Case No. 3 of 2006. By this application, he prays for being released on bail during the pendency of Appeal No. 642 of 2010. Cri. Application No. 1097 of 2010 was made by all the appellants-accused for being released on bail but it was pressed only for accused no.3 and she came to be released on bail as per the order dated 14.9.2010. 2 cr-appa-1447-10 2 This application for bail by accused no.1 is based on old age and ill-health as well as merits. As directed by us, Shri. Nareshkumar Shivajirao Bagul, the Chief Medical Officer, Class-II, Nasik Road Central Prison, Nasik has filed his affidavit and stated that the applicant has been in jail from 29.8.2010 onwards and he had complained of breathlessness and chest pain on 3.11.2010. He was admitted in the Civil Hospital, Nasik from 3.11.2010 to 11.11.2010 for investigations. The medical report indicated that the applicant has no ailment of heart disease and he had only muscular chest pain for which he was given proper medical treatment. As of now, the applicant ’s health is stable. 3 The prosecution examined eight witnesses and claimed that PW 1 Nuruddin Khalape and PW 3 Amina Petkar were the eye witnesses to the incident. The Sessions Court has convicted all the three accused for the offences punishable under Sections 302, 452 and 506 with the aid of Section 34 of the I.P.C. Accused no.3 Abida Khalape is the sister of the present applicant as per the prosecution case and she released on bail on account of old age. She was shown to be of 65 years of age in the year 2005 and at that time, the present applicant ’s age was shown as 60 years. It is thus, obvious that as of now, he is more than 65 years of age. Earlier bail application was not pressed for and therefore, we are required to consider his case on merits. 3 cr-appa-1447-10 4 On perusal of the depositions of PW 1 Nuruddin Khalape and PW 3 Amina Petkar, it appears that the assault by a wooden log on the deceased was attributed to accused no.2 Faiyaj Ismail Petkar and accused no.3 Abida Khalape instigated the attack. The assault attributed to accused no.2 and accused no.3 on the deceased is limited to the extent of fist and kick blows. Though Criminal Appeal No. 642 of 2010 has been admitted about a year back, it is not likely to be heard finally at least for few years. The medical evidence goes to show that homicidal injuries were caused by hard and blunt object such as wooden log/iron rod. The applicant was on bail during the trial. 5 Hence, the application is allowed and it is directed that the applicant Ismail Mahamad Petkar-original accused no.1 be released on bail of Rs. 5,000/- (Rs. five thousand only) with two solvent sureties in the like amount unless required to be detained in some other case. He shall report to the Mandangad Police Station, Dist. Ratnagiri on every Sunday between 3.00 p.m. to 6.00 p.m. during the pendency of the appeal. [ U.D.SALVI, J.] [ B.H.MARLAPALLE,J.]