1 APPLN 5265 OF 2010 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 5265 OF 2010. Daulat Ali Sabir Ali Shaha .. Applicant -versus The State of Maharashtra .. Respondent. Mr. Subhash Jha, i/b M/s Law Global, for the Applicant. Mrs. G.P. Mulekar, APP for the Respondent State. CORAM: R.C. CHAVAN, J. DATED: 20th December, 2010 P.C. 1. This is an application for bail by a person who himself did not have quarrel with the victim. The person who had a quarrel has been admitted to bail. The victim allegedly was climbing the drivers cabin where the applicant and one Yadav with whom the victim had quarrel were sitting. The victim was climbing with stone in his hand. Therefore, according to learned counsel for applicant, applicant might have acted in exercise of his right of private defence without premeditation and since it was a dark night, though the applicant would not have aimed blow at the head of the victim, but it did hit his head. Therefore, according to him the case would fall under Section 304 Part II of the Indian Penal Code rather than one under Section 302 of the Indian Penal Code. He has 2 APPLN 5265 OF 2010 placed reliance on the judgment in case of Mavila Thamban Nambiar -vs- State of Kerala (1197 Supreme Court Cases (cri) 726) and Prabhu -vs- State of Rajasthan (1994 Supp (3) Supreme Court Cases 320), where too the Court had found that assault was without premeditation and therefore conviction was altered to one under Section 304 Part II, of the Indian Penal Code. 2. The learned trial Judge would undoubtedly consider all these aspects when the trial commences. However, there are two witnesses who have seen the applicant hitting with tommy on the head of the victim leading to victim’s death. Even if the applicant was was to be convicted for the offence punishable under Section 304 II part, considering the benchmark, the applicant’s being in jail for just about 15 months may not be enough. Therefore, rather than admitting the applicant to bail now and making him revisit the jail years hereafter, it would be appropriate to reject the application with direction to the learned trial Judge to dispose of the case as early as possible and preferably within a period of six months. (R. C. CHAVAN, J.)