Bombay High Court
David Anthony Kaundar vs The State Of Maharashtra And Anr on 14 February, 2022
Bench: Prakash Deu Naik
4. Apeal-84-2022-with- Ia-354-2022-w- Ia-353-2022.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 353 OF 2022
WITH
INTERIM APPLICATION NO. 354 OF 2022
IN
CR. APPEAL NO. 84 OF 2022
David Anthony Kaundar ...Applicant/
Appellant
Versus
The State Of Maharashtra And Anr. ...Respondents
....
Mr. Rishi Bhuta i/by Ms. Ankita Bamboli, Advocate for the
Applicant/Appellant.
Mr. Ajay Patil, APP for the Respondent - State.
CORAM : PRAKASH D. NAIK, J.
DATE : 14th FEBRUARY, 2022.
PER COURT:
1. These are the applications for suspension of
sentence and grant of bail. The applicant is convicted for
offence punishable under Section 325 Indian Penal Code (for
short "IPC") and sentenced to suffer imprisonment for a term
of seven years with fine of Rs.1,00,000/-. The appeal
preferred by the applicant has been admitted by this Court
and it is pending for final disposal.
2. Learned counsel for the applicant submitted that
the applicant was on bail during the trial. He has not misused
the facility of bail. Although he was charged for offence under
Digitally signed
by SAJAKALI
SAJAKALI LIYAKAT Sajakali Jamadar 1 of 4
LIYAKAT JAMADAR
Date:
JAMADAR 2022.02.15
18:25:08 +0530
4. Apeal-84-2022-with- Ia-354-2022-w- Ia-353-2022.doc
Section 302 of IPC, he was convicted for offence under
Section 325 of IPC. There are discrepancies in the evidence.
The sentence is of 7 years. The assault is by wooden log. He
is in custody from 28th December, 2021. The incident is of
10th August, 2012. The victim died on 21st August, 2012.
3. Learned APP submitted that, on account of
assault attributed to the applicant the victim has died. The
offence is serious. There is sufficient evidence to convict the
applicant. The trial Court has assigned reasons for conviction
under Section 325 of IPC.
4. The incident in question had occurred on 10 th
August, 2012. The case of the prosecution is that the accused
initially assaulted the deceased by fist and kick blows. PW-5
intervened to resolve the quarrel. The accused picked up
wooden bamboo lying at the spot and inflicted the blow on the
front side of the head causing bleeding injury to his head.
5. The deceased was admitted to hospital on 10 th
August, 2012 and after undergoing treatment he was
discharged on 17th August, 2012. He was again admitted to
hospital on 20th August, 2012 and he died on 21st August,
2012. The trial Court has observed that there is medical
opinion on record to show that the injuries were sufficient to
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4. Apeal-84-2022-with- Ia-354-2022-w- Ia-353-2022.doc
cause death in ordinary course of nature. The accused
cannot be expected to have knowledge that death was likely
to be caused due to single blow of the stick. The accused
cannot be said to have even performed the act with the
knowledge of likelihood of causing death. Thus, the act of the
accused cannot fall within the ambit of either Section 300 or
Section 299 of IPC. The prosecution could not establish either
causing of murder or the causing of culpable homicide, not
amounting to murder. It was further observed that even
Section 326 of IPC would not be applicable and the case would
at the most within the ambit of Section 325 of IPC. The
applicant was on bail during the trial. In the light of the
factual aspects of this matter, the sentence of imprisonment
can be suspended.
6. Hence, I pass the following order:
ORDER
i. Interim Application Nos. 353 of 2022 and 354 of
2022 are allowed;
ii. During the pendency of Criminal Appeal No.84 of
2022, the sentence of imprisonment imposed vide
Judgment and order dated 28th December, 2021 passed
by learned Additional Session Judge, Borivali Division,
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Dindoshi, Mumbai in Sessions Case No.186 of 2012 is
suspended and the applicant is directed to be released on
bail on executing P.R. Bond in the sum of Rs.25,000/-
with one or more sureties in the like amount;
iii. The applicant is permitted to furnish cash bail in
the sum of Rs.25,000/- for a period of ten weeks in lieu of
surety.
iv. The applicant shall attend the trial Court once in
six months on first Saturday of the month till the final
disposal of the appeal;
v. In the event, there are two consecutive default in
attending the trial Court, the said fact may be brought to
the notice of this Court and in such eventuality, the
prosecution will be at liberty to prefer an application for
cancellation of bail.
vi. Interim Applications are disposed of accordingly.
(PRAKASH D. NAIK, J.)
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