1 crap1496.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 1496 OF 2011 IN CRIMINAL APPEAL NO. 188 OF 2011 Madhukar Ramrao Jumade ...Applicant/Appellant (original accused no.1) VERSUS The State of Maharashtra ...Respondent ..... Shri S.S.Jadhav advocate h/f Smt. Sadhana Jadhav, advocate for applicant/appellant Shri B.V.Wagh, A.P.P. for respondent ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 9 th June, 2011 PER COURT : 1 Heard learned counsel for the respective parties. 2 This is an application preferred by the applicant/appellant 2 crap1496.11 (original accused no.1), seeking bail, pending hearing and final disposal of Criminal Appeal No. 188 of 2011, suspending the substantive sentence inflicted upon him by the learned Additional Sessions Judge, Basmathnagar, by judgment and order, dated 28.6.2011, in Sessions Trial No. 8 of 2006, thereby convicting him for the offence punishable under Section 304 Part II of the Indian Penal Code and sentencing him to suffer R.I. for five years and to pay fine of Rs. 1,000/-, in default to suffer S.I. for three months. 3 The applicant has questioned the said conviction and sentence by filing Criminal Appeal No. 188 of 2011 before this court and same has been admitted by me by passing order separately therein on 8.4.2011. 4 Learned counsel for the applicant submitted that the accused faced the trial for the offence punishable under Section 302 of the Indian Penal Code, but ultimately was convicted for the offence punishable under Section 304 Part II of the Indian Penal Code and was sentenced as afore stated. 5 The brief facts of the case are that on 4.12.2005 deceased Shrawan Munjal had been to Jawala Bazar for weekly market and at about 4.00 p.m. on the said date, he met accused, 3 crap1496.11 who demanded Rs.400/- from the deceased. However, deceased refused to return the said amount saying that he was not having the amount. Thereupon, accused gave slap on the face of the deceased and after proceeding to some steps, gave forcible blow of kick on the waist of the deceased. Accordingly, deceased fell down on the ground and sustained bleeding injuries to his head and nose. He was taken to the Government Hospital at Parbhani and his wife was intimated about the said fact by Raghoji alias Bandu. Therefore, she accompanied with him in the jeep. She found that her husband was in unconscious condition. The doctor at Parbhani advised that deceased be taken to the Government Hospital at Aurangabad. Accordingly, he was taken at Government Hospital at Aurangabad on the same night. However, he succumbed to the injuries at about 1.00 p.m. on 5.12.2005. After performing last rites, the complainant lodged report with the police on 6.12.2005 and C.R. No. 199 of 2005 was registered accordingly. 6 On the face of the afore said facts of the case, learned counsel for the applicant submitted that even knowledge cannot be attributed towards the applicant that deceased would fell on the ground and sustain bleeding injuries by the slap and kick blow given by him, since the said act was committed by the applicant on the 4 crap1496.11 spur of the moment. 7 Learned counsel for the applicant also further submitted that the blow given by the applicant to the deceased was not on the vital part of the body of the deceased. Moreover, it is also canvassed that the incident took place on the flimsy ground of demanding Rs. 400/- by the applicant from the accused and there was absolutely neither intention nor knowledge attributable to the applicant/accused in respect of the head and nose injuries sustained by the deceased. In the said context, learned counsel for the applicant relied upon the judgment delivered in Appeal No. 89 of 1959 in the case of Urmese vs State of Kerala, reported at 1959 Law Suit (Ker) 61, more particularly para no.4 thereof, which reads as follows :- “(4) It was strenuously contended on behalf of the appellant that the offence would not amount to culpable homicide not amounting to murder. The learned Judge held that the blow was on a vital part of the body and that the accused must have known that it was likely to cause death. I am unable to agree. The assailant and the victim were facing each other when the blow was given with the open hand by the accused. No weapon was used and the blow was not followed by other acts of violence. I do not think the offence amounts to even one of grievous hurt. It is true that the blow caused fracture of the vertebrae but that could not have been intended or anticipated 5 crap1496.11 when giving a blow with the open palm on the neck. So long as the intention or knowledge to cause grievous hurt has not been proved, the offence is only one under section 323, even though, death ensued. The conviction must therefore be altered into one under section 323. ” 8 Morever, learned counsel for the applicant canvassed that the applicant was on bail during the pendency of Trial and there is no grievance of the respondent that the applicant has misused said liberty granted to him. It is further submitted that the substantive sentence awarded to the applicant is short term sentence i.e. for five years and relied upon the ratio laid down in the judgment of Kiran Kumar vs State of M.P. reported at 2001 AIR SCW 5130. Moreover, it is also submitted that the applicant is the only earning member in the family and his entire family is dependent upon him and they are on the verge of starvation. Accordingly, learned counsel for the applicant urged that the applicant be enlarged on bail during the pendency of appeal. 9 Learned A.P.P. countered the said arguments and opposed the said application vehemently and submitted that to substantiate the charge levelled against the applicant, the prosecution has examined as many as 7 witnesses and the learned 6 crap1496.11 Trial Court has rightly convicted the applicant for the offence punishable under Section 304 Part II of the Indian Penal Code and sentenced him accordingly and the learned A.P.P. supported the said judgment. It is also submitted that there are two eye witnesses to the occurrence of the incident and the evidence of the Medical Officer Dr. Sudhir Deshmukh and postmortem notes Exh.52 connect the applicant with the crime, since the deceased sustained head injury and suffered intracerebral hemorrhage due to blow given by the applicant herein. 10 It is also canvassed by learned A.P.P. for the respondent that the applicant was in the habit of remaining absent even before the Trial Court and even on the date of judgment he remained absent before the Trial Court, and therefore, standing non-bailable warrant was issued against him and observations have been made by the learned Trial Court in respect of conduct of the applicant in para no. 24 of the impugned judgment. Accordingly, learned A.P.P. urged that present application bears no substance and same is devoid of any merits, and therefore, same be dismissed. 11 I have perused the impugned judgment and order, rendered by the learned Additional Sessions Judge, Basmathnagar, on 28.6.2011, in Sessions Trial No. 8 of 2006, as well as perused 7 crap1496.11 the R. and P. with the assistance of learned counsel for the parties. Admittedly, considering the facts of the case, it is apparent that the applicant did not use any weapon at the time of assault by him upon the deceased. Moreover, it is also apparent from the facts of the case that the applicant gave slap on the face of the deceased, as well as gave a blow on the waist of the deceased and the situs of the said blows does not appear to be vital part of the body of the deceased. As regards the other submission made by the learned counsel for the applicant in respect of the blow given by the applicant on the spur of moment and knowledge cannot be attributed to the applicant, etc., can be considered at the time of hearing of the appeal finally. 12 Moreover, the applicant has questioned the conviction and sentence by filing the appeal and same has been admitted and there is no likelihood that the said appeal would be taken up for final hearing in near future. So also, the substantive sentence inflicted upon the applicant is of five years, which appears to be short term sentence, and in the said context, reliance can be placed on the judgment of Kiran Kumar (supra) in the said context. Besides, sight cannot be lost of the fact that the applicant was on bail during the pendency of the trial and there is no grievance of the respondent that the applicant misused the said liberty. 8 crap1496.11 13 As regards the alleged conduct of the applicant, as canvassed by the learned A.P.P., although the applicant was not present on the date of judgment and standing non-bailable warrant was issued against him, the fact cannot be ignored that thereafter the applicant surrendered himself and presently he is in custody. 14 Having the comprehensive view of the matter, I am inclined to accept submissions advanced by learned counsel for the applicant and the applicant deserves to be enlarged on bail during the pendency of the appeal, and therefore, present application is required to be allowed. 15 In the result, present application is allowed and it is directed that the applicant Madhukar Ramrao Jumade be released on bail, pending hearing and final disposal of Criminal Appeal No. 188 of 2011, in the sum of Rs.15,000/- with one surety in the like amount, before the Trial Court, suspending the substantive sentence inflicted upon him, by way of judgment and order, dated 28.6.2011, rendered by the learned Additional Sessions Judge, Basmathnagar, in Sessions Trial No. 8 of 2006, on the condition that the applicant shall report to the in charge of concerned police station once in six months, till the final disposal of the appeal and present application 9 crap1496.11 stands disposed of accordingly. R. and P. be sent back to the concerned court. (SHRIHARI P. DAVARE, J.), dbm/crap1496.11