1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.2051 OF 2010 1. Raju Kishan Bhivsane, Age-35 years, Occu-Business, 2. Digambar Kishan Bhivsane, Age-33 years, Occu-Business, Both R/o.Aloknagar, Satara Parisar, Beed By-pass Road, Aurangabad APPLICANTS VERSUS The State of Maharashtra RESPONDENT Mr.Joydeep Chatterji, learned counsel for applicants. Mr.P.P.More, learned APP for State CORAM : A.V.POTDAR, J. DATE : 15/06/2010 PER COURT : 1. By the present application, the applicants have approached this Court for their release on bail in connection with CR No. 32/2010, registered in Kranti Chowk Police Station for the alleged offence punishable u/s. 302 r/w.3 4 of IPC, which took place in the early hours of 24/01/2010, in which FIR came to be lodged on 25/01/2010. Applicants were arrested on the same day and since then in custody. It appears that after completion of investigation, charge sheet came to be filed on 16/04/2010. Thereafter, their 2 attempts to release on bail became futile below the lower courts, hence this application. 2. Heard learned counsel for applicants followed by the submissions of learned APP for State. 3. It appears that the said offence came to be registered on the complaint of brother of deceased about the alleged incident, which occurred in the early hours at 2.00 a.m. on 24/01/2010, which was reported to him by his friends. Those friends are Rahul Hiwrale and Nilesh Gaikwad. Their statements were also recorded during investigation on 28/01/2010. 4. Perusal of these statements discloses that in the late hours of 23/01/2010, the complainant alongwith these witnesses and the family members of the deceased had been to the residential premises of first applicant as there was dispute about the bill of photographs. Some minor quarrel took place and the incident was reported to one Vijay Salwe on phone, who is claiming to be the close relative. At that time, the said Vijay advised to all not to quarrel further and he will settle the issue early in the morning. Thereafter, the deceased alongwith eye witnesses had been to Punjab Hotel, situated on the station road, of Aurangabad to take their meals. At that time, they have ordered for alcohol. As the deceased was not feeling well, he came out of the hotel. After some time, the hotel owner informed to the eye witnesses that their friend was beaten by two persons. 3 When these eye witnesses came out of hotel, the applicants fled away from the spot on seeing them. Then they noticed that the deceased was assaulted with fist and kick blows by these applicants. After the injured was taken to the hospital, he was reported dead. In this backdrop, it is urged across the bar that the incident of assault on the deceased at the hands of these applicants is the result of the earlier quarrel took place in the late hours of 23/01/2010. Secondly, it is urged that the alleged assault on the deceased at the hands of these applicants was not with any weapon, but by fist and kick blows only, then it can not be inferred that it was an intentional attack to kill the deceased. In the premise, considering this aspect, it is prayed that the applicant be released on bail. 5. Application for bail is opposed by the learned APP on the ground that there is direct nexus between the death of deceased and the role played by these applicants and supported by the eye witnesses. The injuries found in the post mortem notes are also supported by the statements recorded of Rahul and Nilesh. 6. Considering these submissions across the bar, one fact is clear that the assault by these applicants was not with any weapon. The statement of these eye witnesses clearly discloses that there was quarrel prior to the incident. Apart from it, the injuries which are noticed as external injuries, mentioned in coloumn no.17 of the post mortem notes, were shown on the diagram, which is annexed to the post mortem notes. Considering these injuries, it can not be 4 disputed that there was assault on the deceased at the hands of these applicants, but it is also to be noted that this assault was with fist and kick blows and not with any weapon at all. At this juncture, this Court has not to express its opinion whether the attack is intentional or not. But considering the overall effect of the incident occurred in the late night of 23/01/2010, possibility can not be rulled out of sudden provocation. In view of this, as now the investigation is over, it is desirable to enlarge the applicants on bail, hence order : O R D E R 1. Application is allowed. 2. Both the applicants be released on bail on furnishing surety in the sum of Rs.25,000/- each and on executing PR bond in the like amount. 3. After released on bail, applicants are prohibited to enter in the area of Harsh Nagar as well as Vishwas Nagar, labour Colony, Aurangabad till disposal of sessions case pending against them. 4. In case of violation of this condition, the prosecution is at liberty to apply for cancellation of bail today granted. 5. Application stands disposed of accordingly. (A.V.POTDAR, J.) khs/JUNE 2010/cri.appl.2051-10