JUDGMENT
S.S. Niijar, J.
1. On 1st January, 1995, there was a fight between the rival gangs. The deceased was friend of the injured eye witness Faridulla. The deceased is said to have intervened in the fight and tried to put an end to it. While so doing, he received some injuries. The applicant is said to have injured the deceased with gupti. The post-mortem report revealed that there were 5 external injuries and corresponding internal injury. The cause of death is shown as haemorrhagic shock due to rupture of left internal eliac leading to haemoperitonium. It also appears that the aforesaid incident was witnessed by one Faridulla and Dadu Gaikwad. Gupti has also been recovered at the instance of the applicant under memorandum of discovery panchanama. The applicant was arrested on the spot on 1st January, 1995. Thereafter, the applicant is remanded to jail. An application for bail was moved before the Sessions Court, Thane, which was rejected on 7th October, 1997. The facts narrated above have also been narrated in the order dated 7th October, 1997.
2. The learned Counsel appearing for the applicant submits that even if the facts as narrated above are accepted to be true, at best, the applicant would be guilty of offence under Section 304 part 2 of the I.P.C, In support of this submission, the counsel relies on a Division Bench Judgment of this Court reported in 1995 Cri. L. J. 93. In the said Judgment in paragraphs 14, 15 and 16 it is observed as follows :
14. In our opinion looking to the ante-mortem injuries suffered by the deceased and the circumstance that the death of the deceased appears to have been caused as a result of right artery being punctured at ilium the learned trial Judge was in error in convicting the appellant under Section 302, IPC. In our view, the appellant could not be fastened with the intention of puncturing right artery at ilium. That being so, he could not in terms of Section 300, IPC, be said to have intended causing the death of the deceased or intended causing such injury which he knew was likely to cause his death, or intended causing such injury which was sufficient in the ordinary course of nature to cause his death. It could not be said that the appellant had the requisite intention contemplated by the first three clauses of Section 300, IPC or the knowledge contemplated by the fourth clause of Section 300, IPC to the effect that his act was so imminently dangerous that it must in all probability cause death or such bodily injury as was likely to cause death. He could only be saddled with the knowledge of causing the death of the deceased, as contemplated by Section 299, IPC. When he assaulted the deceased with a knife on abdomen he could be fastened with the knowledge that by his act he could rupture an artery thereby killing him. Hence the offence would fall within the ambit of Section 304, Part II, IPC and not under Section 302, IPC.
We are fortified in our view by the decision of the Apex Court in the case of Laxman Kalu Nikalji v. The State of Maharashtra , In the aforesaid case, the appellant Laxman Kalu Nikalje with a knife had assaulted the deceased on chest resulting in his auxiliary artery being cut. As a result of that artery being cut and consequential bleeding, the deceased is alleged to have died. The contention advanced on behalf of the State was that the offence committed by the appellant Laxman Kalu Nikalje would squarely fall within the ambit of Clause 3 of Section 300, IPC which reads thus :
Section 300.
If it is done with the intention of causing such bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.
Repelling the aforesaid submission Chief Justice Hidayatullah, observed that for the application of clause-thirdly not only the intention to inflict the external injury (that intention was certainly there) was required but the intention to inflict the internal injury was also required. He observed that the appellant could not be fastened with the intention of cutting the auxiliary artery. In his opinion, however, when the appellant assaulted the deceased on his chest region he had the knowledge contemplated by Section 299, IPC, that by his act he was likely to cause his death. in that view of hie matter he set aside the conviction of the appellant under Section 302 IPC and converted it into one under Section 304, Part II IPC.
“15. The proposition laid down in the aforesaid case has been followed by the Supreme Court in the case of Gokul Parashram Patil v. State of Maharashtra . In that case the superior veriacava which was situated on the left clavicle was cut and the Apex Court on the reasoning advanced by Hidayatullah, Chief Justice, referred to above set aside the conviction of the appellant under Section 302, IPC and sentenced him under Section 304, Part II IPC.”
” 16 In our opinion the ratio laid down in the aforesaid two cases of the Apex Court, squarely applies to the facts of the instant case and consequently 011 a parity of reasoning we fell that the conviction of the appellant under Section 302, IPC is unsustainable and should be converted to one under Section 304, Part II, IPC. We may mention that the aforesaid view which we have taken is also strengthened by the circumstance that the motive suggested by the prosecution was too paltry to infer any intention to kill the deceased and if the appellant really wanted to kill the deceased, he could have given him another blow on any vital organ of his body. The evidence on record does not show that any hindrance was caused to him by the witnesses, in doing so.”
3. As observed in paragraph 16 of the aforesaid Judgment, here also it cannot be at this stage stated that the applicant had the necessary intention to commit murder. The deceased had merely intervened at the last minute whilst the two rival groups were fighting. These are, however, the matters which will ultimately be decided by the trial Court. Any observations made on the facts In this order are to be treated purely prima facie and having been made for the purposes of decision of the bail application. These observations will not at all be taken into consideration at the time when the matter is finally tried. Another fact which is kept: in view is that the applicant is in jail for over three years. It is also to be noticed that the three other co-accused have been released on bail. Hemant Pawar was released on 12th October, 1995. Mehboob Kasam Shaikh was directed to be released on 29th February, 1996, The third accused has also been released on bail and this fact is not disputed by the learned A.P.P.
4. In view of the above, the applicant is directed to be released on bail on his furnishing PR Bond in the sum of Rs. 10.000/- with two sureties in the like amount to the satisfaction of the Sessions Judge, Thane, subject to the condition that twice a week for a period of six months from today, he will report to Ambernath Police Station and thereafter once every week during the pendency of the trial.
The application is allowed accordingly.
Certified copy expedited.