( 1 ) cria4876.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 4876 OF 2010 Rajendra s/o. Kacharu Ingle .. Applicant Versus The State of Maharashtra .. Respondent Mr. R.N. Dhorde h/f. Mr. S.B. Jadhav, Advocate for the applicant. Mr. D.V. Tele, A.P.P. for respondent/State. CORAM : V.R. KINGAONKAR,J. DATED : 16.12.2010 P.C. :- 1. This is an application for bail. 2. The applicant is arrested in connection with Crime No. I-58/2010 registered at Deogaon Rangari Police Station, for offence punishable under Section 302 read with Section 34 of the Indian Penal Code. 3. The applicant is arrested in connection with the ( 2 ) cria4876.10 alleged crime which is said to have occurred on 12.10.2010 in the evening around 5.00 - 5.30 p.m. The F.I.R. purports to show that there took place quarrel between the applicant and his brother Ramdas on one side and their uncle deceased Mukundrao on the other side, over the dispute regarding common bandh (bund). The applicant and his brother Ramdas allegedly assaulted the deceased – Mukundrao by means of sticks. While latter was running away towards raw cotton crop standing in the agricultural land of one Sheshrao Waghchoure, they battered him to death. It is alleged that they lifted the dead body from the agricultural land and reached it to the house of the deceased. 4. Having heard the learned advocate for the applicant and learned A.P.P. and on perusal of the investigation papers, it transpires that the F.I.R. is lodged by son of deceased Mukundrao. He and his wife along with children had gone out of the village on that day. They returned home in the next morning and thereafter he came to know about the alleged incident. Obviously, the F.I.R. is based upon hearsay information. The investigation papers prima facie ( 3 ) cria4876.10 show that three eye witnesses were present in the proximity of the place of the incident. The eye witness account prima facie shows that there took place quarrel between the applicant and his brother on one side and deceased Mukundrao on the other side. The quarrel ensued on account of obliteration of the common bandh. It was noticed by the eye witnesses that the applicant and his brother were assaulting deceased Mukundrao by means of stick and sickle. The applicant and his brother immediately narrated to the eye witness that deceased Mukundrao had assaulted the applicant by means of sickle and also had assaulted Ramdas and both of them were having bleeding injuries. They also noticed that Mukundrao had fallen down in injured condition in the agricultural land where the raw cotton crop was standing. What prima facie appears from the versions of the eye witnesses is that the applicant was armed with a stick whereas co-accused Ramdas was armed with a sickle. The eye witness account further shows that the applicant and said Ramdas were also injured during the course of same incident. There are injury certificates which primary show that Ramdas had sustained two abrasions on right ring finger and on right ( 4 ) cria4876.10 elbow joint, whereas the applicant had received multiple injuries including contusion on the right forearm, abrasions etc. Thus, there is prima facie reason to infer that both the applicants were also injured in the course of same transaction. It can be gathered, therefore, that the incident occurred at spur of moment and the applicant was also assaulted by deceased Mukundrao, which was followed by counter assault mounted by the applicant and his brother Ramdas. The genesis of the incident is not explicit. It is pertinent to notice that deceased Mukundrao was aged about 65 years. It is probable that due to old age he could not suffer the multiple injuries caused by the applicant and Ramdas and as such died. The cause of death as per the post mortem notes is “cardiac-respiratory arrest due to intra- cardiac hemorrhage”. Needless to say, the death was proximate result of the external trauma caused due to beating. Considering the relevant aspects, it is prima facie, clear that the offence may not come within ambit of Section 302 read with Section 34 of the Indian Penal Code, because the incident had occurred at spur of moment and deceased himself was also armed with sickle and had inflicted ( 5 ) cria4876.10 injuries on person of the applicant and said Ramdas and probably infuriated due to such assault mounted by deceased – uncle of the applicant, he and Ramdas counter assaulted the deceased. 5. In view of foregoing reasons, the application is allowed. The applicant is directed to be released on bail on furnishing of bail bond in sum of Rs. 20,000/- (Rupees Twenty Thousand Only) with a solvent surety bond in like sum and on further condition that he shall not enter village Gavhali during period of pendency of the investigation into crime and during the period of Trial and shall not contact any of the prosecution witnesses and shall make no attempt to tamper with the evidence of the prosecution. He shall submit an undertaking to such an effect along with bail bonds. [V.R. KINGAONKAR,J.] snk/2010/DEC10/cria4876.10