: 1: appln.938.11 ata IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 938 OF 2011 IN CRIMINAL APPEAL NO. 119 OF 2011 Bhima Eknath Mhatre ..APPLICANT vs State of Maharashtra ..Respondent Mr. P. R. Arjunwadkar, for the Applicant. Smt. V. R. Bhosale, APP for State. CORAM: V. M. KANADE & A. M. THIPSAY, JJ. DATED : SEPTEMBER 6, 2011. P.C. : Heard learned Counsel appearing on behalf of the Applicant. The learned Counsel states that the Applicant was convicted by the Trial Court for an offence punishable under Section 302 of the Indian Penal Code and sentenced to suffer rigorous imprisonment. 2. The Appeal is admitted and is not likely to come up for final hearing for quite some time. The prosecution case, in brief, is that the deceased Ashok Whage was brother-in-law of the Applicant. Admittedly, he was an alcoholic and used to consume liquor every day. The Applicant used to help him and trying to see that he was rehabilitated. Initially, the deceased and sisters of the Applicant used to stay in Pune. However, on account of frequent quarrel between the sister of the Applicant and Deceased, the Applicant, in order to rehabilitate the deceased and his sister, brought them to his house. According to the prosecution, there was quarrel between the deceased and the applicant and others and the deceased was : 2: appln.938.11 assaulted by all the members of the applicant family and on the next day again, when the deceased had abused the applicant, he took a rope and strangulated him, as a result of which he died. The prosecution has examined five witnesses. One of the witness is daughter of the deceased Jayshree, who has, in her evidence, stated that deceased was strangulated by the Applicant. The Trial Court has relied on the said evidence of Jayshree and on the medical evidence and has held that prosecution has proved case beyond reasonable doubt. The learned Counsel appearing on behalf of the Applicant submitted that the Applicant never had any intention of committing murder of the deceased. He submitted that said incident had taken place on the spur of the moment on account of sudden provocation, which was given by the deceased. He submitted that the Applicant throughout assisted the deceased and tried to rehabilitate him. He, therefore, submitted that the Applicant had a good chance of succeeding in the Appeal or in the alternative, there was a possibility that the case of the Applicant maybe converted from Section 302 to 304 (part ( I or II). He submitted that the Applicant is already in custody since 2007 and, for a period of about three months only, he was released on temporary bail on account of ailment of his wife. He submitted that the Appeal, even if it is fixed for final hearing, is not likely to be taken up for hearing for quite some time. He submitted that therefore,under these circumstances, this was fit case for grant of bail. He submitted that, the Applicant is not hardened criminal & has permanent place of residence and he is the only earning member of the family. 3. The Learned APP Mrs. Bhosale, however, opposed application for grant of bail. She invited our attention to the statement of the child witness PW-3 Jayshree and also the medical evidence and submitted that the Trial Court had given cogent reasons while holding that the case had been established beyond reasonable doubt. 4. Ordinarily, in the cases where an accused is convicted for an offence punishable under Section 302, this Court is slow in giving bail to such accused particularly after an order of conviction has been passed by the Trial Court. : 3: appln.938.11 However, in the present case the entire case of the prosecution hinges on the testimony of the child witness. Apart from that, it is an admitted position that the Applicant himself had gone to the Police Station and had reported the incident. The FIR discloses that the incident had taken place on account of the abuses given by the deceased to the Applicant and also the threat given by the deceased to the applicant that he would ensure that his other younger sisters would not get married. It is not disputed that the applicant tried to help the deceased in every possible way and the suggestions have been made by the applicant in the cross- examination. Even from the statement of the child witness Jayshree, she had admitted that her father was in the habit of picking up quarrel with his mother and used to consume liquor and on such occasion used to come and stay with the Applicant in his house and even prior to the day of the incident after the deceased had quarrel with his wife, he came and stayed at the house of the applicant. 5. Taking into consideration all these facts and circumstances and the peculiar circumstances, under which the incident had taken place, in our view, the applicant deserves to be released on bail, particularly, since he had already under- gone more than four years of actual sentence and, secondly, since the Appeal, even if it is fixed for final hearing, may not be heard for at least couple of years. The Applicant, therefore, deserves to be released on bail. i) The Applicant be released on execution PR Bond in the sum of Rs.15,000/- with one or two sureties in the like amount. ii) The Applicant shall report to the concerned Police Station once in three months. iii) The Criminal Application is, accordingly, disposed of. iv) Hearing of the Appeal is expedited. v) Liberty is granted to the Applicant to apply for fixed date of hearing. ( A. M. THIPSAY, J.) ( V. M. KANADE, J.)