Bombay High Court
Samad Salar Sayyad And Anr vs The State Of Maharashtra on 9 August, 2021
Bench: V.K. Jadhav, Shrikant Dattatray Kulkarni
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
22 CRIMINAL APPLICATION NO.306 OF 2021
IN
CRIMINAL APPEAL NO.49 OF 2021
SAMAD SALAR SAYYAD
VERSUS
THE STATE OF MAHARASHTRA
...
Advocate for Applicant : Mr. Narwade Narayan B.
APP for Respondents : Mrs. P V Diggikar
...
CORAM : V.K. JADHAV & SHRIKANT D. KULKARNI, JJ.
Dated: August 09, 2021
...
PER COURT :-
1. Heard.
2. Pending the criminal appeal no.49 of 2021
preferred against the judgment and order of conviction
passed by the learned Additional Sessions Judge,
Ahmednagar dated 22.1.2021 in Sessions Case No.214 of
2018, thereby convicting and sentencing the
applicant/accused to suffer imprisonment for life and to
pay a fne of Rs.10,000/-, in default to suffer R.I. for six
months for the offence punishable under section 302 of
the IPC, the applicant/accused has preferred this
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application for suspension of the substantive part of the
sentence and for bail.
3. Learned counsel for the applicant/accused
submits that, it is a case of single blow. Learned
counsel submits that, PW-1 Shahnaz Ayyub Sayyad is
the only eye witness to the incident, and she has
deposed that, when she saw the incident, scuffe was
going on between the deceased and the accused. In the
said scuffe, the applicant/accused had given a blow of
wooden stick on the head of the deceased and that is a
single blow. No other injuries were found on the person
of the deceased as per column no.17 of the postmortem
report. Learned counsel submits that, the trial court
has discussed exception of section 300 of the IPC and in
paragraph no.37 of the judgment observed that whether
culpable homicide amounting to murder or not needs to
be scrutinized on the basis of the exceptions appended
to section 300 of the IPC. In paragraph no.39 of the
judgment, the trial court has referred all the exceptions
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of section 300 of the IPC and concluded that the case
does not fall under section 304 -II of the IPC.
4. Learned counsel for the applicant has placed his
reliance on a case Ruli Ram and another Vs. State of
Haryana reported in AIR 2002 SC page 3360, wherein in
paragraph no.21 of the judgment, the Supreme Court
has made following observations :-
"21. The plea of the learned counsel for the State that Section
304 Part II applies only when exceptions to Section 300
cover a case is misconceived. The decision in Harendra
Mandal's case (supra) was rendered in a different
context and observations in the same case cannot be
read out of context. That was a case where death itself
had not been caused and therefore, question of applying
Section 304 IPC did not arise. "
5. Learned counsel for the applicant submits that,
there was a dispute in respect of the services to be
offered to Janpeerbaba Darga. There is no antecedents.
There is no evidence that the alleged incident had taken
place by premeditation. The applicant/accused was on
bail during the course of the trial. He may be released
on bail by suspending the substantive part of the
sentence.
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6. Learned APP has strongly resisted the application
on the ground that, though it is a case of single blow,
however, the applicant had used a wooden log and
chosen vital part of the body for inficting the blow.
Learned APP submits that, as per the postmortem
report, particularly, clause no.17 there is CLW behind
left ear on head and during internal examination, the
concerned Medical Offcer, who has conducted the
postmortem examination, has observed intracranial
bleeding present clots. Learned APP submits that, PW-1
Shahnaj is the eye witness to the incident. Prosecution
case rests upon the ocular evidence. The applicant may
not be released on bail.
7. We have carefully gone through the judgment of
the trial court particularly, paragraph no.37 and 39 of
the judgment. It appears that the trial court has only
considered exceptions to section 300 of the IPC to fnd
out as to whether the case of inficting a single blow falls
under section 304-II of the IPC or not. The trial court
has refused to consider any other contingency except by
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way of exceptions to section 300 of the IPC. The
applicant allegedly used a wooden log in a scuffe, which
is witnessed by PW-1 Shahnaz. Said scuffe had taken
place on account of some trifing reason for the services
to be given to Janepeerbaba Darga. Prima facie, we do
not fnd any evidence to indicate that the act of the
applicant was eminently dangerous. In the said scuffe,
applicant had given a single blow on the head of the
deceased. We have perused column no.19 of the
postmortem report to fnd out the internal injuries
corresponding to the injury mentioned in column no.17
of the postmortem report. There is only one injury in
the column no.17 which was in the form of CLW,
wherein the dimension of the injury is mentioned as
7x3x2 cm deep. There is no skull fracture as observed
specifcally by the Medical Offcer, who has conducted
the postmortem examination. There was only clotting
of blood without skull fracture. Said fact also indicates
the force behind single blow.
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8. In a case Ruli Ram and another Vs. State of
Haryana (supra) relied upon by the learned counsel for
the applicant, the Supreme Court in paragraph no.21 of
the Judgment has observed that 'plea of the learned
counsel for the State that section 304 Part-II applies
only when the exceptions to section 300 of IPC cover a
case is misconceived.'
9. Thus, considering the entire aspect of the case, we
are inclined to grant bail to the applicant, who was on
bail during the trial and he has never tried to jump the
conditions of bail. There is no antecedents. Hence
following order.
ORDER
I. Criminal application is hereby allowed.
II. Pending the Criminal appeal No.49 of 2021
preferred against the judgment and order of
conviction passed by the Additional Sessions
Judge, Ahmednagar dated 22.01.2021 in
Sessions Case No.214 of 2018, the
substantive part of the sentence is hereby
suspended, and till then, applicant Samad
Salar Sayyad be released on bail on
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furnishing P.B. of Rs.25,000/- (Rs. Twenty
Five Thousand) with one solvent surety of the
like amount.
III. Criminal application accordingly disposed
off.
( SHRIKANT D. KULKARNI, J. ) ( V.K. JADHAV, J. )
...
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