1 mpt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 5102 of 2009 Anna Dhane ... Applicant versus The State of Maharashtra ... Respondent ... Mr.A.P. Mundargi with Jaydeep Mane for the applicant. Ms.M.H. Mhatre APP for the State. CORAM : D.G. KARNIK, J. DATED : 15th February 2010 P.C. 1. By this application, applicant seeks bail in connection with C.R.No. 130 of 2009 registered at Kurduwadi, District Solapur. Initially, the FIR was lodged u/s.326 and other sections of the IPC. However on death of the complainant Uttam, an offence has been elevated to be punishable u/s.302 of the IPC. 2. The prosecution case in short is that on 1st August 2009, Uttam (hereinafter referred to as “complainant”) along with his cousin 2 Ramchandra Sahebrao Mote were traveling on a motor cycle at about 9.00 p.m when they were accosted by Anna Dhane (hereinafter referred to as “applicant”) and three other persons. On account of previous quarrel/enmity, the applicants and three persons accompanying him assaulted the complainant and his cousin with sticks. The complainant as well his cousin brother suffered injuries. Some of the injuries of the complainant were grievous. Complainant was admitted to a hospital and his statement was recorded in the hospital by the police which is treated as FIR. The complainant ultimately died on 8th August 2009 and the post mortem report shows probable cause of death as “ due to severe head injury with injury of vital organ brain with multiple injury leading to cardio respiratory arrest and death” 3. Mr.Mundargi, learned counsel appearing for the applicant submitted that Uttam was initially discharged from the hospital on 2nd August 2009 and was re­admitted and ultimately died on 8th August 2009. This shows that there was no direct connection between the injuries suffered at the alleged assault and the death. He also invited my attention to a medical report which showed that complainant was suffering “uremia”. At the stage of bail, one has to look to a prima facie material and the post mortem report which is prima facie material of 3 significance shows the cause of death to be “cardio respiratory arrest due to severe head injury with injury to vital organ brain”. 4. Mr.Mundargi then submitted that statement of Ramchandra Mote, the other injured who was an eye witness and has named all the four assailants. The three assailants other than the present applicant have been granted bail by the Sessions Judge. Therefore, applicant was entitled to bail on the ground of parity. He further submitted that Ramchandra, the injured eye witness had attributed specific acts of assault to specific persons. As per his statement, applicant had only assaulted Ramchandra and had not assaulted the complainant Uttam. In view of this, there was no prima facie material of assault of the deceased complainant at the hands of the applicant. The argument, attractive as it is, cannot be accepted. Firstly, the complainant, since deceased has specifically named the applicant as the person who assaulted him. Three other persons who were the co­assailants are not been named by him. Therefore, the case of three other assailants is different from that of the applicant and the ground of parity cannot apply. Secondly, the statement of the complainant recorded on 1st August 2009 can also be regarded as a Dying Declaration inasmuch as he was injured and made the statement while in the shadow of death 4 and has died soon thereafter on account of the injuries. So far as the statement of Ramchandra is concerned, he has also named the present applicant as one of the assailant who had assaulted both of them. All the assailants had a common intention and therefore, applicant can be held liable for acts of each of the assailant. 5. In my view, there is a prima facie material available against the applicant. Sessions Court also has not extended the benefit of parity to the applicant in the common order. The offence is punishable with death or imprisonment for life and is a serious offence. As such, applicant cannot be granted bail at this stage. Application is accordingly rejected. (D.G. KARNIK,J.)