IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.8712 of 2008 DINA NATH YADAV Versus THE STATE OF BIHAR ----------- 3. 18/07/2008 Heard learned counsel for the petitioner, learned counsel for the State and learned counsel for the informant. Case is under sections 323, 324, 302/34 of the Indian Penal Code. As per F.I.R. there was a panchayati with regard to a passage in the village which failed. Thereafter, it is said that this petitioner blocked the said passage and assaulted the deceased with an iron rod on his head which was kept there for opening of oil drums while he was taking water from the tubewell, on account of which he fell down and subsequently died. Some other persons were also assaulted by the accused persons by lathi and farsa. An F.I.R. has been annexed by the petitioner as Annexure-3, on the basis of which learned counsel for the petitioner submits that there was a free fight and the persons from the defence side were also assaulted and received various injuries, out of which three persons received grievous injuries and the petitioner - 2 - received simple injury. They were admitted in the hospital for treatment where their statements were recorded and F.I.R. was drawn up on that basis against the prosecution side. Learned counsel for the petitioner has also drawn the attention of the Court to the injury report of the defence side which is annexed as Annexure-2 series. Learned counsel for the petitioner submits that two persons, who are said to have been assaulted by lathi and farsa by the accused persons actually did not sustain injury as they were never examined by the doctor. He has further submitted that the deceased was assaulted by iron rod which is not a conventional weapon and the assault was not in fact intended to murder the deceased. He submits that at best it can be said that in the heat of moment due to free fight petitioner assaulted the deceased by iron rod. He submitted that even if the case of the prosecution is taken on the face value, it amounts to an offence under section 304 part-2 of the Indian Penal Code and not a case under section 302 of the Indian Penal Code. He submits that all the accused persons of both the cases have been granted bail. - 3 - Petitioner is in custody since 30.10.2007. Considering the fact that there is a case and counter case instituted on the same day from which prima facie it appears that there was free fight and the prosecution side has not disclosed in the F.I.R. with regard to any assault upon the accused persons from their side or the fact with regard to the free fight between both the sides and the fact that there was only single assault by the petitioner upon the deceased with an iron rod which is not a conventional weapon from which it appears that his intention was not to murder the deceased and the fact that the petitioner is in custody since 30.10.2007, this application is allowed. Let petitioner Dina Nath Yadav be enlarged on bail on furnishing bail bond of Rs.10,000/- (Rupees ten thousand) with two sureties of the like amount each to the satisfaction of Chief Judicial Magistrate, Gopalganj in Kateya P.S.Case No.129 of 2007. Pradeep/ (J. N. Singh, J.)