APPA. 1544-11 - 1 - VPH IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION No. 1544 OF 2011 IN CRIMINAL APPEAL No. 546 OF 2008 Kallapa Arba Kattigar ... Applicant Vs. The State of Maharashtra ... Respondent *** Dr. Yug Mohit Chaudhry , for the Applicant. Mr. J. P. Kharge, APP for the Respondent. *** CORAM : V. M. KANADE, & M. L. TAHALIYANI, JJ. DATE : DECEMBER 15, 2011 PC: 1. Heard the learned counsel appearing on behalf of the applicant and the learned APP for the respondent-State. The applicant has been convicted for the offence punishable under Section 302 read with Section 34 of the I. P. Code and sentenced to suffer rigorous imprisonment for life, along with other co-accused. 2. The prosecution case is that applicant and the deceased were brothers. There was enmity between the applicant/accused and the deceased. On the date of the incident, the deceased and his son had cut the grass on the common bund. The accused rushed there with a APPA. 1544-11 - 2 - sickle and assaulted the deceased in the incident. As a result, the deceased succumbed to the injuries, which he had received. The prosecution has relied on the evidence of his son of the deceased who is the sole witness to the said incident. 3. The learned counsel for the applicant submitted that the accused also received incised wound over the back and right side, admeasuring 6 x 7 x ½ cm. He has received bite mark over the chest and incision over scalp. It is submitted that prosecution has not explained the injuries on the person of the applicant. He further submitted that the said injuries were not superficial and therefore, it is the duty of the prosecution to explain those injuries. It is submitted that there was a sudden scuffle, which went on for 30 minutes. 4. The learned APP, however, on the other hand, invited our attention to the statement of eye witness. He submitted that the eye witness in the evidence had stated that the accused initially gave blow to the deceased on the leg with sickle and thereafter chased him and inflicted other blows. It is submitted that therefore, this clearly reveals the intention of the applicant to commit murder of the deceased. He further submitted that it had come on record that there was enmity between the applicant and the deceased, and there used to be altercations between the two brothers on number of occasions and that his son had resolved the said dispute on earlier occasion. Therefore, he further submitted that this is not a fit case for grant of bail. 5. In our view, taking into consideration the facts and APPA. 1544-11 - 3 - circumstances of the case, it does appear that the prosecution has failed to explain the injuries on the person of the accused and as such the genesis of the said offence has not been brought on record. From the evidence of PW 10, who is a doctor, who examined the accused, it has come on record that the accused/applicant herein has received three injuries; two injuries were incised and one bite mark over the chest it cannot be said that these injuries are superficial. Apart from that, even from the statement of the eye witness, the assault had suddenly taken place and on the spur of the moment. The applicant, therefore, has raised arguable points and it is possible that the case of the applicant may fall under Section 304, Part-I of I.P.C. The applicant has already undergone six years of sentence of imprisonment. The applicant, therefore, deserves to be released on bail. 6. The applicant is directed to be released on bail, on execution of P. R. bond in a sum of Rs. 5,000/- with one or two sureties in the like amount. The applicant shall report to the concerned police station once in two months; he shall, however, not threaten son of the deceased. [M. L. TAHALIYANI, J.] [ V. M. KANADE, J.]