( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 3607 OF 2010 Gopi @ Gopal Shriniwas Makka APPLICANT VERSUS The State of Maharashtra RESPONDENT .... Mr. R.V. Gore, advocate for the applicant. Mr. V.D. Godbharle, APP for the respondent/State. .... [CORAM : V.R. KINGAONKAR, J.] [DATE : 8th October, 2010] PER COURT : 1. This is an application for bail. 2. The alleged incident occurred on 3rd May, 2010 at about 11 p.m. It appears that deceased Sagar was returning home at the relevant time. Allegedly, the applicant dealt a blow of wooden stick on the head of said Sagar when the latter had reached in front of Laxminarayan Mandir. Thereafter, injured Sagar was picked up by the applicant and other two (2) accused persons and was shifted to some place on a motorcycle. 3. The learned advocate for the applicant would submit ( 2 ) that considering the fact that the stick was only of small size, particularly it being of 4 cms. width, there may not be intention to cause death of the deceased. He argued that the case may come within ambit of Section 304 Part-II of the I.P. Code and, therefore, without touching merits of the case, the applicant needs to be granted bail. It find it difficult to countenance the argument of the learned advocate. The recitals of the post-mortem notes prima facie show that deceased Sagar had sustained multiple injuries, seven (7) in number, including two (2) contusions on forehead and vertex as well as contusion on the backside as well as on the lower limbs. The Medical Officer noticed that there was fracture of tibia-flora of left side. In other words, deceased Sagar was battered to death. Considering the fact that the deceased was dealt with several blows of the stick and the fact that he was taken away from the place of incident on the motorcycle, it is difficult to say that the incident occurred at spur of moment. An eye witness account shows that the deceased was suddenly assaulted while he was going by the road in front of Laxminarayan Mandir. In other words, the deceased had no premonition that the assailants were waiting for him nor there was any prelude to the incident. Had there been quarrel earlier to the incident, then perhaps it could be said that ( 3 ) the incident did occur at spur of moment and, therefore, may not be covered by section 302 of the I.P. Code, but the things are otherwise. Considering these aspects, the application is dismissed. 4. The observations made in this order be not considered while deciding the sessions case on merits. [V.R. KINGAONKAR] JUDGE NPJ/criapln3607-10