1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO.2555 OF 2011 IN CRIMINAL APPEAL NO.304 OF 2011 Suresh s/o Ghanshyamrao Chopade ... APPLICANT VERSUS The State of Maharashtra ... RESPONDENT ..... Shri S.S. Rathi, Advocate for applicant Shri G.R. Ingole, A.P.P. for State, assisted by Shri R.M. Deshmukh, Advocate for complainant ..... CORAM : U.D. SALVI, J. DATED : 20th September, 2011. PER COURT : 1. Heard. Perused application and the record. 2. The applicant/ accused has been convicted of the offence punishable under Section 304(II) of the Indian Penal Code, 1860 and sentenced to suffer R.I. for the period of five years and to pay fine of Rs.10,000/-, in default to undergo further R.I. for the period of two months. Conviction of the applicant/ accused was the result of the learned trial Court believing the evidence of eye witnesses, P.W.1 Shankarrao Salpe, P.W.2 Surekha Salpe and 2 P.W.3 Bhakti Salpe, father, mother and sister of the deceased Shashikant. All of them have testified that the applicant/ accused started beating the deceased Shashikant who objected to throwing of waste water on his person and upon the intervention of P.W.1 Shankarrao, Shashikant was spared from beating with wire and the applicant/ accused went inside his house, brought a sharp tipped screw driver and stabbed the deceased Shashikant on stomach. This lead to internal haemorrhage and ultimate demise of the deceased Shashikant. 3. Learned Advocate for the applicant/ accused submitted that, the evidence of the eye witnesses was in conflict with each other, and in any case, the incident occurred without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and there was no any display of any cruelty or the offender having taken undue advantage of the situation. He further pointed out from the record that the applicant/ accused was on bail during the trial vide order dated 16.10.2009, passed in Criminal M.A. No. 553/2009, by the Additional Sessions Judge-2, Parbhani and at no point of time any misuse of the bail granted to him was noticed. It is for this reason, he argued, the applicant/ accused deserves bail in the present case. 3 4. Learned A.P.P., assisted by Mr. R.M. Deshmukh, learned Advocate for the original complainant, submitted that the State was planning to prefer an appeal against the acquittal of the applicant/ accused, under Section 302 of the Indian Penal Code and for enhancement of the sentence as there is ample evidence which can be interpreted to say that the applicant/ accused was guilty of murder. According to him, there was no need to procure a sharp edged screw driver to inflict a blow on the vital portion of the body of the deceased. The applicant/ accused, after initial act of assault with wire, went inside the house to procure sharp tipped screw driver, came out and inflicted a blow on the stomach of the deceased Shashikant so heavily that it injured the internal vital organs like spleen. From this, he argued, the intention to kill the deceased Shashikant was manifest. Relying on the judgment delivered by the Hon’ble Supreme Court in (i) Masood Ali Khan Vs. State of U.P. And Ors. (2009 CRI. L.J. 1322) & (ii) Kishori Lal Vs. Rupa and others (AIR 2005 SC 1481(1) ), learned A.P.P. submitted that, mere fact of the accused being on bail during trial and not misused the liberty granted to him is not the deciding factor for granting bail to the accused in the appeal, and it is the reason which exists for suspending the sentence plays vital role in the matter of granting bail in appeal. 4 5. Learned trial Court distinguished the present crime from that of murder on the following observations : “In the present case, admittedly relations between accused and complainant so also deceased Shashikant were cordial. There was no enmity between them. The quarrel erupted unexpectedly and suddenly on account of throwing waste water. It is quite possible that the accused might not have intended to throw it on the person of Shashikant. It might have fallen on the person of Shashikant accidentally. Since there was no reason for the accused to forecast occurrence of such incident, it can be presumed that he may not have prepared himself for assaulting the deceased. Admittedly, he was not possessing any weapon initially when there was exchange of hot words. He was simply attempting to beat Shashikant with the help of piece of wire. Thereafter the complainant intervened and attempted to save Shashikant from the assault of accused. It must be mentioned that there is absolutely no evidence what exact words were used by the deceased to accused and therefore it is quite possible that use of certain words by Shashikant might have enraged the accused. In that heat of passion he appears to have entered in his house and brought screwdriver and pierced it into the stomach of Shashikant. It must be mentioned that screwdriver is ordinarily not used as weapon of assault.” 6. Pertinently, the trial Court was at loss to understand what exact words were used by the deceased to accused. On this background, the act of the applicant/ accused to go inside the house and procure sharp tipped screwdriver and to inflict a blow on the stomach thereby injuring the vital organ like spleen poses a material question regarding the intention of the applicant/ accused 5 in doing so. Prima facie the involvement of the applicant/ accused in the crime is unquestionable and, therefore, there is no reason for suspending the execution of the sentence. The application is, therefore, rejected. ( U.D. SALVI, J. ) fmp/cri2555.11