1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR CRIMINAL APPLICATION NO.1376/2009 IN CRIMINAL APPEAL NO.226/2009 (Prakash Eknath Khawale and another vs. State of Maharashtra) __________________________________________________________________ Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : D.D. SINHA AND P.B. VARALE, JJ. DATED : AUGUST 20, 2009 Heard Shri Gandhi, learned Counsel for the applicant no.1, and Shri Deshpande, learned Additional Public Prosecutor for the respondent. Criminal Application No.1376/2009 is moved by applicant no.1/original accused no.5 Prakash for grant of bail. Shri Gandhi, learned Counsel for the applicant no.1, states that initially five accused were prosecuted for the murder of Shrikrushan and those were Eknath, Sau. Muktabai, Rameshwar, Ishwar and Prakash. It is submitted that trial Court has held 2 that prosecution did not prove any offence against Eknath, Sau. Muktabai and Ishwar and, therefore, they were acquitted of the charge. Accused no.3 Rameshwar was convicted for the offence punishable under Section 323 of Indian Penal Code and present applicant Prakash alone was convicted for the offence punishable under Section 302 of Indian Penal Code. Learned Counsel Shri Gandhi submits that in para (40) of the impugned judgment, the trial Court on the basis of evidence of PW 1 Sandip (eye witness) has concluded that present applicant Prakash though according to prosecution was armed with axe, however, the injuries sustained by deceased Shrikrushan were not caused by the axe since they were not incised. It is contended that the said observation of the trial Court clearly shows that injuries sustained by deceased Shrikrushan were not caused by the axe and as per prosecution case, present applicant Prakash was armed with axe. It is further contended that present applicant Prakash had also sustained injuries on his skull and right leg. It is submitted that even as per the trial Court, the injuries 3 sustained by deceased Shrikrushan were caused by hard and blunt object like stick, etc. It is further submitted that in view of evidence of prosecution coupled with the finding recorded by the trial Court, if it is presumed that the present applicant has committed crime, even then, it would be exceeding the right of private defence, which will not be punishable under Section 302 of Indian Penal Code. Shri Deshpande, learned Additional Public Prosecutor for the respondent, states that injuries sustained by deceased Shrikrushan were serious. It is submitted that skull of deceased Shrikrushan was fractured and there were injuries to his brain also. It is contended that injuries sustained by deceased Shrikrushan were five and, therefore, intention of the present applicant to commit murder of Shrikrushan was writ large. It is, therefore, contended that the present applicant is not entitled to be released on bail. We have considered the rival contentions of the learned Counsel for the parties. From the observations made by the trial Court in the impugned judgment, it appears that trial Court ruled out 4 possibility that injuries sustained by deceased Shrikrushan were caused by axe. It is also not in dispute that the present applicant sustained injuries during assault. It is not possible at this stage to conclude one way or the other whether the present applicant had a right of private defence and he had exceeded the same. This issue will be considered at the time of final hearing of the criminal appeal on merits. Taking into consideration overall view of the matter, we are of the view that the present applicant has made out a case for grant of bail. Applicant no.1 Prakash is directed to be released on bail on furnishing P.R. Bond of rupees ten thousand with one surety of like amount. With the above observations and directions, the criminal application is disposed of. JUDGE JUDGE khj