IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.42781 of 2009 1.SK.KANASIA @ SHAH KANASIA, son of Kacharu 2.Sk. Sarra @ Shah Sarra, Son of Late Gafar Both are resident of villazge Saidabad, P.S. Sikty, District Araria. Versus STATE OF BIHAR ----------- 2 15/12/2009 Heard counsel for the petitioners and counsel for the State. The two petitioners, father-in-law and the co- brother of the deceased, facing prosecution for the offence under sections 302/120B/34 of the Indian Penal Code have their defence that the deceased, not only son-in-law of petitioner no.2 but a respected person of their family, could not been have killed by or at the instance of the family members of his Sasural including the petitioners and the whole case has been in fact filed only by way of vengeance by the father of the deceased. Counsel for the petitioner in this context has referred to the allegation made in the First Information Report suggesting indiscriminate assault by the accused persons including the petitioners in their own house, but no corresponding injuries to have been found in the postmortem report of the deceased. Counsel also submits that the petitioners have got no criminal antecedent and that the petitioner no.2 is aged about 80 years. In the opinion of this Court, when the doctor 2 conducting the postmortem has not found any apparent and noticeable injury on the person of the deceased and the main cause for the death in absence of viscera report is yet to be established, the confinement of petitioner no. 2 a person aged about 80 years cannot be justified. In that view of the matter, this Court, for the time being, would direct for the petitioner no.2 to be released on bail only by taking into account the advance age of 80 years (approximately). The prayer for bail of petitioner no.1 is however rejected for the present till submission and appreciation of the viscera report in the court below. Counsel for the petitioner would however submit that he is not aware as to whether viscera has been sent to the Forensic Science Laboratory for an expert opinion. This Court would accordingly direct the Investigating Agency to ensure that the viscera of the deceased if not already sent, must be sent within a period of one month, to Forensic Science Government Laboratory and the report thereon is also submitted to the trial court in the next two months of the receipt of viscera of the deceased so that the prayer for bail of petitioner no.1 can be reconsidered by the court below, i.e, the court of District & Sessions Judge It is also made clear that if from viscera report of the deceased it is found that the death of the deceased was 3 not on account of any poisoning, the court below itself will grant bail to petitioner no.1. If however the cause of death in the viscera report is found on account of poisoning, prayer for bail of petitioner no.1 shall be rejected and thereafter the petitioner no.1 may renew his prayer for bail. That being so, the petitioner no.2, namely, Sk. Sarra @ Shah Sarra is only directed to be released on bail on furnishing bail bond of Rs.10,000/- (Ten thousand) with two sureties of the like amount each to the satisfaction of Chief Judicial Magistrate, Araria in Sikty P.S. Case No.25 of 2009. Abhay Kumar (Mihir Kumar Jha, J.)