IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.22249 of 2009 SUBODH MANDAL, Son of Narayan Mandal, resident of village Khaira, P.S. Falka, District Katihar Versus STATE OF BIHAR ----------- 3. 31.8.2009 Heard counsel for the petitioner and the counsel for the State. A direct allegation of assault against the petitioner on the head of the deceased by spade leading to fatal injury is being sought to be explained by the counsel for the petitioner on the ground that in the postmortem report there was only one injury and therefore, there being no repeated blow the case was at best one under section 304 part II I.P.C. It has further been submitted that there was previous land dispute between the parties and therefore, it cannot be said that the petitioner was an aggressor or had any premeditation to do away the life of the deceased. It has been finally submitted that the petitioner is in custody since 16.1.2009. In the opinion of this Court the postmortem report as called for and is part of the case diary would go to show that the deceased had already been treated at some 2 other place and thereafter the stitched wound was found to be there on his person and that too at the head where the fatal injury was said to be caused by the petitioner. It would thus be difficult for this Court to accept that 2” stitched injury there was only one blow of spade so as to make out a case of section 304 Part II or there was no mens rea to kill him. The version of the informant at the moment is quite crucial and is sufficient for direct allegation against the petitioner. The plea that the petitioner had any land dispute or he is in custody for the last seven months are not sufficient to make this Court inclined to grant bail to the petitioner. That being so, the prayer for bail of the petitioner on the basis of his being main assailant is hereby rejected. If all the accused persons have already surrendered and/or are before the court, the court below shall proceed to expedite the trial. (Mihir Kumar Jha,J.) Surendra/ 3