1 (crim appln 862 of 2010) IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 862 OF 2010 IN CRIMINAL APPEAL NO. 436 OF 2010 Gyansagar Rajkaran Pandey ..Applicant Vs. The State of Maharashtra ..Respondent ----- Mr.Samir A.Vaidya i/b. Mr.R.B. Mokashi for Applicant Mr.S.A. Shaikh -APP for the State ----- CORAM: V.M. KANADE J. DATED: 16TH AUGUST, 2010 P.C. 1. Heard the learned Counsel appearing on behalf of the Applicant and the learned APP for the State. 2. The Applicant has been convicted by the Trial Court for the offence punishable under section 304 Part II of the Indian Penal Code and sentenced to suffer R.I. for seven years and to pay a fine of Rs.1,000/- and, in default to suffer further R.I. for one month. 2 (crim appln 862 of 2010) 3. The prosecution case in brief is that the Applicant herein was working as a Head Constable and was posted in a railway yard for the purpose of guarding the railway property situated at Railway Scrap Yard, Haji Bunder, Sewree, Mumbai. 4. Admitted facts are that on 25.4.2005 at about 5.30 in the evening, one Deonath Yadav along with Faizal Kunda entered the Railway Scrap Yard with the help of rope by scaling down from the wall of the adjacent property. After they had come half way, the head constable and his colleague noticed them. Since they had come half way, the said Deonath Yadav and Faizal Kunda sought permission to come down. Accordingly after permission was granted, they came down and they were taken in custody by the head constable and constable. While they were being taken to the office, the other constable one Kailashnath Mishra assaulted Deonath Yadav with a stick twice. Being annoyed, the said Deonath Yadav caught the said stick and 3 (crim appln 862 of 2010) attacked the said Kailashnath Mishra and there was scuffle between the Applicant herein, Kailashnath Mishra and the said Deonath Yadav and Faizal Kunda. At that point of time, the Applicant with the service rifle opened fire, as a result of which Deonath Yadav sustained bullet injury and died on the spot. Two cases were registered, one against the Applicant and Kailashnath Mishra for causing death of the said Deonath Yadav and other against the Faizul Kunda for the offences punishable under sections 447, 353, 504, 307 r/w. 34 of the Indian Penal Code. The Sessions Court convicted the Faizul Kunda for the aforesaid offences and sentenced him to suffer R.I. for three month. So far as the present Applicant is concerned, he has been convicted for the offence punishable under section 304 Part II of the IPC and sentenced to suffer R.I. for seven years. 5. After having heard the learned Counsel appearing on behalf of the Applicant and the APP for the State, 4 (crim appln 862 of 2010) in my view, this is a fit case for grant of bail to the Applicant. Firstly, because the appeal is not likely to come up for hearing immediately in near future taking into consideration the pendency of the cases in this Court. Secondly, taking into consideration the peculiar facts and circumstances of the case, in my view, this is a fit case for grant of bail. The Applicant was posted in the said Railway Scrap Yard to guard the railway property and it is an admitted position that the deceased and other accused Faizul Kunda had entered the said railway yard illegally and while they were being taken to the office, they assaulted the Applicant and Kailashnath Mishra and the Applicant now has been convicted. There is evidence on record to indicate that the Applicant and Kailashnath Mishra had suffered injury with the said assault by the deceased and other co- accused. The Applicant, therefore, has good chance in succeeding in the appeal and a short question is as to whether he had exceeded his right of private defence. 5 (crim appln 862 of 2010) Under these circumstances, therefore, Applicant deserves to be released on bail. 6. The Applicant be released on bail on execution of a P.R. Bond of Rs.5,000/- with one or two sureties in the like amount. 7. Application is disposed of. (V.M. KANADE J.)