APPA. 1161-11 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION No. 1161 OF 2011 IN CRIMINAL APPEAL No. 335 OF 2011 Naresh Rajaram Shingade & Ors. ... Applicants Vs. The State of Maharashtra ... Respondent *** Mr. Shekhar Naphade, Sr. Counsel with Ayaz Khan, Deepa Bajaj for the Applicants. Mr. K. V. Saste, APP for the Respondent. *** CORAM : V. M. KANADE, & A. M. THIPSAY, JJ. DATE : OCTOBER 5, 2011 PC: 1. Heard the learned senior counsel appearing on behalf of the applicants and the learned APP for the respondent-State. This is an application for bail. The applicants have been convicted for the offences under Section 302 read with Sec. 34, Section 323 read with S. 34, Section 148, 337 read with S. 149 of the I. P. Code and sentenced to suffer rigorous imprisonment for life. 2. The prosecution case in brief is that deceased was assaulted by the applicants/accused Nos. 1, 3 and 4 by fist blows and and also by the sticks. Some witnesses have stated that one of the APPA. 1161-11 - 2 - applicant has used wooden log. The cause of death is stated to be asphyxia due to blunt trauma with congestion of strap muscles and upper chest with bilateral haemothorax and lung congestion. 3. The learned senior counsel Mr. Naphade invited our attention to the evidence of the doctor. He submitted that the said doctor (PW 14) has stated that generally in case of hanging, throttling, smothering asphyxia is possible. Death may be possible by strangulation. In case of resistance for strangulation injury Nos. 1 to 4 in Col. No. 17 are possible. He further submitted that even in examination-in-chief doctor has not stated that the injuries which were found on the person of the deceased could cause asphyxia. It is, therefore, submitted that there is a discrepancy between ocular evidence and the medical evidence. He, therefore, submits that the applicants are entitled to be released on bail. 4. The learned APP, on the other hand, submits that in examination-in-chief the doctor has stated that cause of death was asphyxia due to blunt trauma on account of said injuries. He also submitted by relying on LYUN’s Medical Jurisprudence & Toxicology, Revised by Prof. T.D. Dongra, Lt. Col. Abhijit Rudra, that there may be case of traumatic asphyxia as a result of compression of chest and abdomen. He also submitted that rib fracture could also give rise to a condition called paradoxical respiration. He also pointed out that in case of injuries to the thoracic wall, the effect of the injury would result inadequate air entry into the lungs. He also relied on the judgment of the Apex Court in the case of – State of Maharashtra Vs. Vithal s/o. Namdeo Khanapure [1993(1) LJSOFT APPA. 1161-11 - 3 - 60], more particularly on observations made in paragraph 21, 22 and 23 of the said judgment. 5. In our view, it does appear that prima-facie there is some discrepancy in respect of ocular evidence and the medical evidence. However, apart from this, the statement of eye witnesses reveal that the accused had assaulted the deceased with fist blows and kick blows and sticks and therefore, it is possible, even otherwise, that even if finally it is held that asphyxia can be caused as a result of these injuries, the question which will have to be considered by the Court is whether an offence under Section 302 of I.P.C. is committed or case would fall under S. 304 Part I and II of the I.P.C. This being the position, in our view, the applicants are entitled to be released, particularly, keeping in mind that the applicants have already undergone two and half years sentence of imprisonment and the appeal is not likely to come up for hearing for quite some time. Under these circumstances, and taking an overall view of the matter, we are inclined to release the applicants on bail. 6. The applicants be released on bail, on execution of P.R. bond in the sum of Rs. 15,000/- each with one or two sureties in the like amount. They shall report the Palghar Police Station once in a month. The criminal application is, accordingly, disposed of in the aforesaid terms. [A. M. THIPSAY, J.] [ V. M. KANADE, J.]