1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. CRIMINAL APPA NO.129/2009 IN CRIMINAL APPEAL NO.457/2009 (Vijayshankar @ Munna Chaibar Yadav .vrs. State of Maharashtra) ------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders. and Registrar's orders CORAM : A.P. LAVANDE & P.D. KODE, JJ. DATED : MARCH 04, 2010. Mr. S.D. Dharaskar, learned counsel for the applicant and Mr. A.M. Deshpande, learned APP for the non-applicant. By this application the applicant, who has been convicted for the offence punishable under Section 302 of the Indian Penal Code by 3rd Additional Sessions Judge, Amravati in Sessions Trial Case No.198/2007, seeks suspension of sentence and bail pending disposal of Criminal Appeal No.457/2009. The applicant has been convicted for committing murder of deceased Chintamani by assaulting him with a stick on 3.8.2007 near Nala where the applicant had taken his cattle for grazing. It is the case of the prosecution itself that the deceased had come to the 2 spot for answering nature’s call and when the applicant came there along with his cattle, deceased questioned him and, thereafter, the applicant assaulted deceased with a stick causing him the following injuries : [1] lacerated wound on fronto parietal junction, size 4 cm x 2 cm, [2] contusion over left temporal region area of the skull, size 6 cm x 4 cm, and [3] contusion on left arm 3.5 cm x 3 cm. The prosecution examined ten witnesses out of which six claimed to be eyewitnesses. Some of the eyewitnesses deposed that the applicant had given one blow whereas some of the eyewitnesses deposed that the applicant had given two or more blows on the deceased. Mr. Dharaskar, learned counsel for the applicant, submitted that the incident occurred on account of petty dispute in which the deceased who had gone to answer nature’s call questioned the applicant as to why the applicant had came there with his cattle. He further submitted that the assault was all of a sudden and there was no intention on the part of the applicant to commit murder of the deceased. He further submitted that having regard to the nature of the incident and the injuries caused to the deceased, at the most, offence of culpable homicide and not murder is made out against the applicant. He further submitted that the applicant was on bail pending trial and he did not misuse the liberty granted to him. He further submitted that the applicant 3 has to support his wife, who is housewife and two minor children aged about 8 and 4 years respectively. Per contra, Mr. Deshpande, learned APP submitted that the offence under section 302 of Indian Penal Code is clearly made out against the applicant and, therefore, this is not a fit case for suspension of sentence and bail. It is the prosecution case itself that the incident occurred all of a sudden on account of petty dispute in which the deceased who had gone to answer nature’s call questioned the applicant as to why he had come there with his cattle. No doubt, the applicant was carrying a stick but it was quite natural for the applicant who had taken his cattle to the spot to take a stick with him. Moreover, from the perusal of the injuries found on the deceased, it is clear that the applicant had not give several blows on the vital parts of deceased. Moreover, Mr. Deshpande, learned APP has not seriously disputed that the applicant was on bail during trial and he did not misuse the liberty granted to him. No doubt, mere fact that the applicant was on bail pending trial by itself is not a ground for suspension of sentence and bail in appeal after the conviction under Section 302 of Indian Penal Code is recorded by the trial court. But this fact coupled with the above referred facts clearly makes out a case in favour of the applicant. We are therefore of the opinion that this is a fit case in which the substantive sentence of imprisonment imposed on the applicant deserves to be suspended and the applicant deserves to be released on 4 bail by imposing certain conditions. In view of the above, we pass the following order : Pending hearing of final disposal of Criminal Appeal No.457/2009, the applicant is ordered to be released on bail upon executing bail bond in the sum of Rs.10,000/- (Rs. Ten thousand only) with one surety in the like amount to the satisfaction of the trial court and subject to the following conditions. (i) the applicant shall deposit the fine amount before executing the bail bond, (ii) the applicant shall not leave the jurisdiction of this court without prior permission, (iii) the applicant shall report at Frezarpur Police Station, Amravati on first of every month between 10.00 to 11.00 AM and, (iv) the applicant shall remain personally present in the court at the time of final hearing of appeal without any separate notice. The application stands disposed of accordingly. JUDGE JUDGE GULANDE