1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR CRIMINAL APPLICATION NO.594/2011 IN CRIMINAL APPEAL NO.402/ 2011. Netlal Fulchand Damahe ..vs.. The State of Mah.through P.S.O.P.S.Gondia (R). =-=-=---=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Office Notes, Office Memorandum of Coram appearances, Court's orders or directions & Registrar's orders. Court's or Judges Order =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=- Mr.R.B.Gaikwad, Adv. for the appellant. Smt.Maldhure, A.P.P. for the respondent. C ORAM : P.V.HARDAS AND S.B.DESHMUKH, JJ. DATED : 14th OCOTBER, 2011. 1. By this application, the applicant seeks suspension of the substantive sentence of the imprisonment and enlargement on bail pending the decision of the appeal. 2. The applicant stands convicted for an offence punishable under Section 302 of the Indian Penal Code on the allegation that the applicant had committed murder of one Zamsingh on 04/7/2010 in between 4.30 and 5.00 p.m. The conviction rests upon the testimony of four eye witnesses, who are PW.Nos.1,2,3 and 6. During the course of the investigation, an axe came to be discovered at the behest of the applicant/accused, which, when examined by the Chemical Analyser, was found stained with blood matching the blood group of deceased. The 2 Trial Court accordingly convicted and sentenced the applicant. 3. Mr.Gaikwad, learned counsel for the applicant, has urged before us that the applicant would be liable to be convicted for an offence punishable under Section 304-II of the Indian Penal Code and not under Section 302 of the Indian Penal Code. It is urged by the learned counsel for the applicant that the applicant had no intention to commit murder of deceased and the injuries came to be inflicted in sudden quarrel in a heat of the moment without applicant taking undue advantage of the deceased and without acting with any cruelty. 4. The Additional Public Prosecutor has opposed this application on the ground that the injuries inflicted by the applicant/accused were sufficient in the ordinary course of nature to cause death and by virtue of clause 3 of Section 300 of the Indian Penal Code and by relying on the decision in the case of Virsa Singh ..vs.. State of Punjab, AIR 1958 SC 465 an offence would be one punishable under Section 302 of the Indian Penal Code. 5. The submissions advanced before us by the respective counsel pertain to reappreciation of the evidence which cannot be done at this stage. Suffice it to state that there is strong prima facie material justifying the conviction of the applicant. Ultimately, the question whether an offence is proved under Section 302 or 304-II of the Indian Penal Code is a matter to be dealt with by the court at the time of the final hearing of the appeal and not at the preliminary hearing of the bail application. 3 6. In that light of the matter, therefore, we dismiss the application. Additionally, we find that the applicant was not on bail during the trial and hence hearing of the appeal is expedited. JUDGE JUDGE. chute