14.cr appa 787-10.doc RMA IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 787 OF 2010 IN CRIMINAL APPEAL NO. 458 OF 2010 Dattu Shivaji Mhetre .. Applicant Vs The State of Maharashtra .. Respondent Mr. Milind Deshmukh for the Applicant Mr. J.P. Kharge, APP for the State CORAM : SMT. V.K. TAHILRAMANI, J DATE : 14th SEPTEMBER,2010. P.C.: 1. Heard learned advocate for the applicant and learned APP for the State. 2 The applicant-original accused is convicted under Section 304 Part-II and sentenced to suffer RI for 10 years. He is also convicted under Section 326 of IPC and sentenced to suffer RI for 10 years. The appeal preferred by the applicant is pending. Now the applicant is seeking bail. 3. The evidence of PW 2 Kalpana and the evidence of the complainant PW 1 Sachin Rajguru shows that on 8th February 1 14.cr appa 787-10.doc 2004, quarrel took place between the applicant and Zahira (deceased). The applicant had beaten Zahira with chappal. In turn, Zahira had abused the applicant. On 10th February 2004 at about 11.00 am, when the accused was taking goats for grazing, one of them went towards the house of Zahira. Zahira drove out the she-goat whereupon the accused started abusing Zahira and pelting stones on Zahira which hit her on the head. Thereafter, accused who was armed with axe crossed the road and gave blows to Zahira with the axe on her neck, face and shoulder . Zahira sustained injuries and fell down. Zahia died on account of the said injuries. Meanwhile, PW 2 Kalpana who was watching the incident rushed towards the accused. The accused then gave blow on the head and other parts of body of Kalpana. Kalpana sustained serious injuries in the incident. The evidence of PW 9 Dr. Ramesh Bhoite shows that Kalpana was admitted in hospital in critical condition and if immediately, expert treatment would not have been given to Kalpana, she would have died. 4. The learned advocate for the applicant submitted that the applicant has an old mother and he is the only earning member in the family, hence the applicant be granted bail. The learned advocate for the applicant further states that in fact Zahira and Kalpana had both abused the applicant in very foul words due to which, the applicant lodged complaint 2 14.cr appa 787-10.doc at police station. He further submitted that the act of the applicant was not pre-planned or pre-meditated but it occurred on the spur of moment. Because the act occurred during sudden fight without any previous plan or any pre- meditation, the accused has not been convicted under Section 302 but he is convicted under Section 304 II. Had there been any pre-meditation or pre-planning on his part, the act would squarely fall under Section 302 of IPC. 5. It is seen that the accused had assaulted two defenseless women with an axe. Zahira died on the spot on account of injuries caused by the applicant to her and Kalpana was seriously injured in the incident. Looking to these facts, I am not inclined to grant bail to the applicant at this stage. 6. Application is rejected. [SMT. V.K. TAHILRAMANI, J.] 3 14.cr appa 787-10.doc 4