1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JUTISDICTION CRIMINAL APPLICATION NO. 3097 OF 2009 Vishwanath s/o Sahaba Kamble .... Applicant. V/s The State of Maharashtra .... Respondent. Mr. Prashant Patil i/b Mr. Satyajit Ligade & Sachin S. Panale for the applicant. Mr. H.J. Dedhia, APP for the State. CORAM: V.M. KANADE, J. DATE : 10TH NOVEMBER, 2009 P.C.: 1. Heard the learned Counsel for the applicant and the learned APP for the State. 2. Applicant was arrested on 2/11/2008 for the offence punishable under sections 302, 143, 147, 148 read with sections 149, 504 and 506 of the Indian Penal Code, which is registered with Kalawa Police Station, Thane vide C.R. No. I-247 of 2008. 3. Counsel for the applicant submits that the applicant 2 is 81 years old and is suffering from old age ailments. It is submitted that he is in jail since last one year and the only role attributed to the applicant is that he was throwing stones at the deceased. It is submitted that trial is not likely to commence immediately in the near future and on account of his age, his ailments and the alleged role which is attributed to him, applicant deserves to be released on bail. 4. On the other hand, the learned APP appearing on behalf of the State invited my attention to the FIR and the statement of witnesses who have stated that the deceased was assaulted by the sons of the applicant and by other assailants on account of their previous enmity and the applicant was also throwing stones at the deceased. He submitted that cause of death given in the postmortem report was head injury and fracture of multiple skull bones caused by heavy sharp weapon. It is, therefore, submitted that testimony of witnesses was corroborated by the medical evidence. He further submitted that the applicant and the other assailants were assaulting the deceased since he had refused to withdraw the case which was filed against the present applicant and others. He, therefore, submitted that this is not a fit case for grant of bail. 3 5. It is an admitted position that the applicant is 81 years of age and is in jail since last one year. In his application, the applicant has stated that he is suffering from various ailments and requires medical treatment of specialist and he was admitted in the civil hospital twice since last four months and if treatment is not given to him in a good hospital, he is likely to expire. This fact is not even controverted by the prosecution by filing an affidavit. The witnesses also have stated that the applicant was merely throwing stones. None of the witnesses, however, has stated that the deceased had suffered injury as a result of the stones which were thrown by the applicant herein. It is no doubt true that the cause of death of the deceased was head injury and fracture of skull. However, other accused also were assaulting the deceased with sticks and iron rods on his head and other parts of the body. Taking into consideration these facts and more particularly age of the applicant and his ailments, in my view, applicant deserves to be released on bail as the trial is not likely to commence immediately in the near future. It has to be noted that the applicant, therefore, is not being released on bail on the basis of merits but on account of his age and ailments. 6 Applicant, therefore, be released on bail in C.R. 4 No.I-247/2008 registered with Kalawa Police Station, Thane in the sum of Rs 5000/- with one or two sureties in the like amount. He shall report to the concerned Police Station as and when called. 7. Application is disposed of. (V.M. KANADE, J.)