1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CRI. APPLICAITON (APPA) NO. 377 OF 2010 IN CRI. APPEAL NO. 269 OF 2008. (SACHIN GAJANAN RAUT....VS... STATE OF MAHARASHTRA THR. PSO JALAMB) Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. Shashank Manohar with Mr.A.S.Kilor, Advocates for Applicant. Mrs. K.S.Joshi, A.P.P. for Respondent. CORAM : A.P.LAVANDE & P.D.KODE, JJ. DATE OF RESERVING ORDER : 11.08.2010. DATE OF PRONOUNCING ORDER : 13.08.2010. ORDER : Heard Mr. Shashank Manohar, learned counsel for the applicant and Mrs. K.S.Joshi, learned A.P.P. for respondent. 2. By this application, filed under Section 389 of the Code of Criminal Procedure, the applicant seeks suspension of substantive sentence and bail. The applicant, who was accused No.1 and tried along with his father Gajanan, has been convicted by judgment and order dated 10.04.2008 passed by Additional Sessions Judge, Khamgaon in Sessions Trial No.89 of 2004 for the offence punishable under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life and to pay fine of Rs.five hundred in default to undergo rigorous imprisonment for three months. 2 3. The applicant and his father Gajanan, were tried for the offences punishable under Sections 307, 323 and 506-II read with Section 34 of the Indian Penal Code. By the impugned judgment Gajanan has been acquitted of all the offences and the applicant has been acquitted of all the offences except the offence punishable under Section 302 of the Indian Penal Code. 4. According to the prosecution, Manohar Shivaji Mirge (deceased) was residing at village Matergaon along with his wife Sunanda. He purchased disputed land from Chandrabhagabai Raut from the said village, which was situated about one and half kilometer away from village Matergaon. Accused No.2 Gajanan is nephew of Chandrabhagabai. Younger son of accused No.2 viz. Pravin was adopted by Chandrabhagabai prior to sell of the disputed land to the deceased. The accused persons were in actual and physical possession of the disputed land. After sale of the disputed land to deceased Chandrabhagabai Raut the dispute arose between her and accused and civil proceedings were initiated by accused Gajanan in respect of the disputed land. The accused were not ready to handover possession of the disputed land to the deceased and as such there was dispute between them. 5. It is further case of the prosecution that on 28.08.2004 at about 9.00 a.m. the deceased along with his wife Sunanda and one Suresh Mirge went to the disputed land. At that time both accused and juvenile accused Pravin, who, along with their labours, were present in their land, came to the disputed land and accused asked the deceased and his wife to go out of the disputed land whereupon Sunanda told Sachin that he should let them do their work and he should mind his work. 3 Thereafter altercation ensued. At that time the applicant dealt a blow of an axe on the head of Sunanda. The deceased tried to obstruct the accused and the applicant dealt a blow of the axe on his head and the deceased collapsed on the ground. Suresh, who was accompanying them, ran away to the village. Sunanda was taken to Matergaon. She narrated the incident to Police Sub-Inspector pursuant to which report was registered. She was immediately referred to Primary Health Centre Jalamb. Pursuant to the report offences punishable under Sections 307, 323 and 506- II were registered against the accused. Manohar Mirge(deceased) died on the way to Civil Hospital. Thereafter Section 302 of the Indian Penal Code was added. 6. After completion of the investigation chargesheet was filed against two accused and juvenile in conflict with law was also prosecuted separately. The learned trial Judge, upon appreciation of the evidence, convicted the applicant for the offence punishable under Section 302 of the Indian Penal Code but acquitted both the accused of the offences punishable under Sections 307, 323 and 506-II read with Section 34 of the Indian Penal Code and also acquitted accused No.2 Gajanan of the offence punishable under Section 302 of the Indian Penal Code. 7. Mr. Manohar, learned counsel appearing for the applicant submitted that according to the prosecution itself, the disputed land was in possession of the applicant and the applicant had given one blow of the axe on the head of the deceased with blunt side. Mr. Manohar learned counsel submitted that without going into the merits of the matter even if the prosecution case is accepted in toto the 4 prosecution evidence discloses that the applicant exceeded his right of private defence of his property which was admittedly in his possession. He, therefore, submitted that at the most offence punishable under Section 304(I) of the Indian Penal Code and not under Section 302 of the Indian Penal Code is made out against the applicant. Mr. Manohar, learned counsel, further submitted that the applicant has been in jail for the period of almost six years from 28.08.2004 and as such even if it is held that the applicant has committed offence punishable under Section 302 of the Indian Penal Code the applicant is entitled to be released on bail since the appeal is not likely to come up for hearing for a considerable length of time. He further submitted that there is no evidence of criminal record of the applicant and as such this is a fit case for suspension of substantive sentence imposed on the applicant and release of the applicant on bail. 8. Mrs. Joshi, learned A. P. P. appearing for the respondent submitted that the prosecution has proved the offence punishable under Section 302 beyond reasonable doubt against the applicant and having regard to the nature of the offence committed by the applicant no case is made out for suspension of substantive sentence and grant of bail. She further submitted that even if it is held that at the most offence punishable under Section 304-I is made out against the applicant still no case has been made out by the applicant for suspension of substantive sentence and grant of bail. 9. We have carefully considered the rival submissions and perused the record. As stated above, it is the case of the prosecution itself that accused was in 5 actual and physical possession of the disputed land and the deceased tried to take possession and civil proceedings were pending in respect of the said disputed land. This being the position, prima-facie, we find merit in the submission of the learned counsel for the applicant that the act of the applicant of assaulting deceased Manohar with blunt side of the axe would amount to offence punishable under Section 304-I of the Indian Penal Code and not under Section 302 of the Indian Penal Code since it can be inferred that the applicant exercised the right of private defence of his property. Moreover, according to the prosecution itself the applicant had given only one blow of axe with blunt side on the head of deceased Manohar and therefore, taking into consideration the prosecution evidence and the factual background in which crime was committed by the applicant in our considered opinion even if the prosecution evidence is accepted in toto at the most offence punishable under Section 304-I of the Indian Penal Code is made out against the applicant. 10. The applicant is in jail from 28.08.2004 i.e. almost for the period of six years. Presently we are dealing with the appeals of the year 2004 in which accused are in jail from the year 2000 onwards and as such the appeal filed by the applicant is not likely to come up for hearing for another 4-5 years. Moreover, it is not the case of the prosecution that the applicant has any criminal record. 11. Having regard to the circumstances in which the offence was committed and the nature of offence committed by the applicant, we are of the considered opinion that this is a fit case in which substantive sentence imposed on the applicant deserves to be suspended and the applicant released on bail. 6 12. Needless to mention that the observations made above are prima-facie in nature and have been made for the limited purpose of deciding the application for suspension of sentence and grant of bail. 13. In view of the above, the application is allowed. The substantive sentence of imprisonment imposed on the applicant is suspended and the applicant is ordered to be released on bail on the following terms and conditions : i) The applicant shall execute bail bond in the sum of Rs. twenty thousand with one surety in the like amount to the satisfaction of the learned trial Judge ; ii) The applicant shall deposit fine amount, if not already deposited, before the learned trial Judge, before executing the bail bond ; iii) The applicant shall not leave jurisdiction of this Court without taking prior permission ; iv) The applicant shall not indulge himself in criminal activities ; v) The applicant shall personally remain present in this Court at the time of final hearing of the appeal. JUDGE JUDGE RR.