Bombay High Court
Ramji Kanji vs The Union Territory Of Daman And ... on 12 January, 2023
Bench: S. V. Kotwal
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 3514 OF 2022
IN
CRIMINAL APPEAL NO. 1040 OF 2022
Ramji Kanji ..Applicant.
Versus
The Union Territory of Daman & Diu
and Dadra & Nagar Haveli & Anr. ..Respondents
__________
Mr. Pawan Mali for applicant.
Mr. H. S. Venegavkar for Respondent No.1
Mr. S. R. Agarkar, APP for State/Respondent No.2.
__________
CORAM : SARANG V. KOTWAL, J.
DATE : 12 JANUARY 2023
PC :
1. This is an application for bail pending the Appeal. The
applicant was the original accused No.1 in Sessions Case No.4 of
2015 before the Sessions Judge, Diu. Learned Trial Judge vide his
Judgment and order dated 30/09/2022 convicted the applicant for
commission of offence punishable U/s.304 (part II) of the I.P.C.
and sentenced him to suffer R.I. for 10 years and to pay a fine of
Rs.50000/-. The amount of fine was directed to be paid to the
Digitally
signed by
VINOD
VINOD
BHASKAR
BHASKAR GOKHALE
widow of the deceased Babu Rama.
GOKHALE Date:
2023.01.13
10:55:58
+0530
Gokhale
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2. Heard Shri. Pawan Mali, learned counsel for the
applicant, Shri. Venegavkar, learned counsel for the Respondent
No.1 and Shri. Agarkar, learned APP for the State/Respondent
No.2.
3. The prosecution case is that, on 02/05/2015 there was
some fire near the house of the deceased Babu Rama Bariya. He
came to know that the fire was a result of bursting of crackers
when some people were celebrating a birthday in the nearby
locality. Babu Rama was proceeding towards them to tell them to
be careful. On the road, the applicant stopped him, abused him
and gave a blow on his right hand. In the meantime, Babu Rama's
wife and daughter in law came there. The applicant's son also
came there. There was further quarrel. The applicant gave a blow
with wooden stick on Babu Rama's head. He fell down. He was
taken to Government hospital, Diu and then he was referred to
Lifecare hospital, Una for better treatment. In the hospital at Una
his statement was recorded on the next day and the F.I.R. was
lodged at Diu police station. The applicant faced the trial along
with his son for commission of offence punishable U/s.302 of I.P.C.
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His son was acquitted. The applicant was convicted and sentenced,
as mentioned earlier.
4. Learned counsel for the applicant submitted that the
prosecution case is not clear. The genesis of the incident is not
clear. There was no reason mentioned as to why this incident has
started and resulted in the blow on the head of Babu Rama. He
further submitted that the F.I.R. was not lodged immediately. The
circumstances in which the F.I.R. is lodged are also doubtful.
Learned counsel further submitted that the deceased died on
12/05/2015; that could be a result of complications during
treatment, but for that the applicant was not responsible. He
submitted that the applicant was on bail during trial and he has
not misused that liberty.
5. Learned counsel for the Respondent No.1 submitted that,
there is consistent version of the two eye witnesses i.e. wife and
daughter in law of the deceased with the dying declaration of the
deceased himself which was treated as an F.I.R. There is no doubt
that the injury was caused by the applicant which ultimately led to
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Babu's death. He, therefore, opposed this application.
6. I have considered these submissions. I have also perused
the notes of evidence annexed to this application. Learned counsel
for the applicant also produced a translated copy of the F.I.R.
which was treated as dying declaration. Said report was produced
on record by PW-11 vide Exhibit 58. This version in the
F.I.R./dying declaration is supported by the evidence of the
deceased's wife and daughter in law who are examined as PW-5
and PW-6. Therefore, it does appear that the applicant caused the
head injury. However, there was no skull fracture. There was
internal hemorrhage. The deceased survived for 10 more days. He
was taken to three different hospitals. Therefore, whether it would
be an offence U/s.304 (part II) of the I.P.C. or if it is a lesser
offence, will have to be determined at the final hearing stage. The
applicant was on bail during trial for a long period and he has not
misused that liberty. The incident had taken place in May 2015.
Almost 8 years have passed and in between there are no
allegations of any antecedents against the applicant. Considering
these factors, the applicant can be granted bail during pendency of
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his appeal.
7. Hence, the following order:
ORDER
i) During pendency and final disposal of Criminal
Appeal No.1040 of 2022, the Applicant is directed
to be released on bail on his furnishing P. R. bond
in the sum of Rs.30000/- with one or two sureties
in the like amount.
ii) The Application is disposed of.
(SARANG V. KOTWAL, J.)
