1. Heard the learned counsel for the parties.
2. The applicant has been convicted for the offences punishable under Section 304 Part-II of the Indian Penal Code ( for short IPC ) for he having allegedly caused fatal injuries to deceased Ashish on his right elbow by means of a broken glass bottle. As per the prosecution case, the deceased Ashish and appellant were friends, and while the witness Dharmesh was down loading ring tone from the mobile phone of the applicant, the deceased intervened, snatched away the mobile phone, which induced heated exchange of words and a challenge to show the might at a S.T. Depot. It is further case of the prosecution that both the friends on same bikes, went to S.T. Depot and while showing the might, the appellant is alleged to have drawn a bottle from Ice Ball Vendor who may present at S.T.Depot with his cart, broke it up and caused injuries on the right elbow of the deceased Ashish, but helped him to the hospital. However, on the way, he succumbed to the injuries. The Ice Ball Vendor was examined as prime eye-witness, according to whose version, the bottle was drawn from his cart and it was broken by the appellant and then both the friends started showing might to each other. He, however, did not see the appellant causing injuries to him. After the incident; the witness also stated that the appellant offered help to the deceased and actually helped him to the hospital. Such statement was made by the appellant also under Section 313 of Code of Criminal Procedure.
3. Dharmesh, who was down-loading the ring tone as above, however, did not go straight to the scene of offence, but, as per his say, he went, along with his other friend Parth to some of his friend s house, which he does not name, and while returning, he claims to have seen the incident but admits that he was on the otherside of the road and it was dark in the night. This testimony of the witness, prima facie doesn t inspire confidence. It is also pointed out by learned counsel for the applicant that this witness i.e. Dharmesh had a scuffle with the deceased for he having teased Dharmesh s sister a week prior to the incident in question. It also transpires from the testimony of this witness that his father had interfered in the investigation by writing a letter to the higher police officials recommending not to falsely implicate Dharmesh. The motive of writing such a letter to the higher police official is however not brought on record. In the light of these facts, the testimony of Dharmesh and Parth is required to be closely scrutinised.
4. Further admittedly the treating doctor was not examined. The only injury alleged to have been caused by the appellant is on the right elbow and not any vital part of the body of the deceased. The question as to whether such injury was directly responsible for causation of death and the question as to whether proper treatment has been given to the deceased and whether he could have been saved if the treatment was proper could have been posed to the doctor treating the deceased, and that opportunity was not given to the applicant, and therefore, it could not be determined as to whether the case was of culpable homicide not amounting to murder or a case of grievous or simple hurt or the case under Section 307 of IPC. Learned APP has vehemently contended that the doctor who was examined to establish the post-mortem report was not posed any such question and therefore the applicant in a bail application cannot argue that he has lost the opportunity as above. In the opinion of this Court, to prove the case beyond reasonable doubt, the examination of treating doctor was necessary. It was not a mere expert opinion that was relevant but even the nature of treatment given by the doctor to the deceased was relevant.
5. Considering the above facts and also the fact that the testimony of Dharmesh and Parth requires a close scrutiny, and considering the nature of injuries sustained by deceased and considering the mitigating circumstance of the appellant himself helped the deceased to the hospital, it is not in the interest of justice to detain the applicant behind the bars during the pendency of this appeal. Under the circumstances, the sentence is required to be suspended and the applicant is required to be enlarged on bail.
6. In above view of the matter, the present application deserves to be allowed and the same is allowed. The conviction and sentence imposed by the learned Additional Sessions Judge, City Civil & Sessions Court No.4, Ahmedabad City in Sessions Case No.73 of 2011 on 30.05.2013 shall remain under suspension till final hearing and disposal of the appeal. The applicant-appellant is ordered to be released on bail on his furnishing a bond of Rs.10,000/- (Rupees Ten Thousand only) with one surety of the like amount to the satisfaction of the trial court and subject to the conditions that the applicant :
(a) shall deposit the passport, if any, with the trial court.
(b) shall not leave the State of Gujarat without permission of this Court.
shall undertake that he will make himself available in this appeal as and when required by the court.
(d) shall not take undue advantage of his liberty or abuse his liberty.
(e) shall maintain law and order.
Rule is made absolute. Direct service is permitted.
(G.R.UDHWANI, J.) syed/ Page 5 of 5