/ 1 / IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1423 OF 2008 Chhotu @ Rajendra Kashinath Sangale ...Applicant Vs. The State of Maharashtra ...Respondent --- Shri S.K. Shinde for Applicant Shri S.S. Pednekar APP for the Respondent ---- CORAM: V.M. KANADE J. DATED 17TH DECEMBER, 2008 P.C. 1. Heard the learned Counsel appearing on behalf of the Applicant and the learned APP for the State. 2. The Applicant has been convicted for the offence punishable under section 304-II and sentenced to suffer R.I. for five years. 3. The prosecution case is that the Applicant had given hand-loan of Rs.2,000/- to the Complainant prior the said incident. On the date of the incident, the Applicant had gone to the residence of the Complainant to demand the said amount which he had given as a loan. At that time, the Complainant was carrying his child by name Laxmi, who was six years' old on his shoulder. Further the prosecution case is that the Complainant informed the Applicant that he would be returning the money within a short period of / 2 / time and that he had also prepared a document which was kept with his nephew, indicating the time within which the said amount will be returned. Despite repeated pleas made by the Complainant, the Applicant had started scuffle and pushed him towards the wall. The Complainant requested to the Applicant that he should not assault him since his six years child was on his shoulder. However, the Applicant had ignored his request and gave feast blows to the Complainant. One of the blows given by the accused was received by Laxmi and, as a result, she died instantly. A case was registered under sections 302 and 323 of the Indian Penal Code against the Applicant. The Trial Court has accepted the prosecution case. However, it has reduced the charge from section 302 to section 304-II of the Indian Penal Code. 4. The learned Counsel appearing on behalf of the Applicant submitted that some improvement has been made by the Complainant in his evidence. He invited my attention to the FIR,which was lodged and the improvement which was made by the Complainant regarding assault by the Applicant to the child. He secondly submitted that the child was not well and in the postmortem report it is stated that the child was died due to enlargement of / 3 / spleen and the liver on account of malnutrition and the death could not have been caused due to the alleged injury of feast blow. He submitted that in the postmortem report some alteration has been made while noting down the cause of death. He also invited my attention to the cross examination of the doctor, who had performed the postmortem. He further submitted that there was no injury to the second vertical column, which was possible in the case of injury to spine. He submitted that, therefore, in view of these discrepancies in the prosecution case, the Applicant be released on bail. 5. In my view, the submission made by the learned Counsel for the Applicant cannot be accepted. The FIR clearly indicates that a specific complaint was filed and that the Applicant had assaulted the Complainant while he was carrying the child in his arm. He has also stated in the FIR that after the blow was received by Laxmi, he had kept her on the floor and he noticed that she was no more. The Applicant appears to be the moneylender. He had gone to collect the loan which he had given to the Complainant. The Complainant is an adivasi belonging to the Tribal Community. His daughter Laxmi was six months old, who was already suffering from some ailment and despite the plea of the Complainant not to assault since he was carrying his / 4 / child on his shoulder, the Applicant appears to have mercilessly assaulted the Complainant for the sake of paltry sum of Rs.2,000/-. 7. Taking into consideration these facts, in my view, no case is made out for grant of bail at this stage. The application for bail is, therefore, rejected. 8. Liberty is granted to the Applicant to apply for bail after expiry of six months. Application is, accordingly, disposed of. Appeal is admitted. V.M.KANADE J.