(1) CRI. APLN. 4625.2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.4625 OF 2010 Sambhaji S/o Vithoba Khandare Age : 75 years, Occu.: Agri., R/o. Pimpalkhuta, Dist. Hingoli Applicant VERSUS The State of Maharashtra Through P.S. Basamba Tq. Hingoli, Dist. Hingoli Respondent ..... Mr. N.N. Chitlange, Advocate for the Applicant. Mr. B.J. Sonawane, A.P.P. for the Respondent/State. ..... CORAM : V.R. KINGAONKAR, J. DATED : 10TH DECEMBER, 2010 ORAL ORDER:- 1. The Application is for bail. 2. The applicant is old aged father of deceased Vitthal. 3. The applicant is arrested in connection with crime no.80 of 2010 registered at Basamba Police Station for offence punishable under section 302 of the Indian Penal Code. (2) CRI. APLN. 4625.2010 4. Briefly stated, case of the prosecution is that deceased Vitthal was demanding the property and was addicted to liquor. He had also kept a mistress by name Vandanabai. He was in habit of coming home in drunken condition. He used to address filthy abuses to his parents and his wife. He had terrorised them due to his regular habit of visiting the home in drunken condition, abusing them and troubling them. In the relevant night of 9.10.2010, the parents and wife of deceased Vitthal returned home after the days work. They had toiled in the agricultural land throughout the day and were naturally tired. The old couple was sleeping after the evening meals. Around 10.00 pm. Vitthal, as usual, came in front of the house and started creating scene. He threatened that if the door of the house was not opened, he will eliminate someone. He threatened that he will drop a big stone on the head of the father and will ensure that the mother will become widow. While he was kicking the front entrance door, the tired father i.e. the applicant opened the door. The deceased struck something on his head. The applicant was thereafter injured. He (3) CRI. APLN. 4625.2010 suddenly picked up an axe from near the entrance door and dealt a blow thereof on the right knee of Vitthal. The applicant got injured Vitthal by giving a blow of axe and therefore Vitthal fell down on a nearby drainage (nali). The applicant was taken to the hospital. Vitthal died on the spot. 5. Having heard learned Advocate for the applicant and learned A.P.P. and on perusal of the investigation papers, it prima facie appears that the applicant was fed up with the daily nagging by the drunkard son (Vitthal). One cannot be oblivious of the fact that the applicant is old aged person being approximately of 75 years age. The deceased, however, was aged about 40-45 years. The deceased was wayward, drunkard and trouble maker. The applicant did not give any blow of axe on vital part of the body of the deceased Vitthal. The reaction of the applicant was due to the conduct of Vitthal and, therefore, it can be gathered that the applicant acted on account of sudden provocation. The only fact that deceased Vitthal died as a result of injuries by itself does not make offence punishable (4) CRI. APLN. 4625.2010 under section 302 of the Indian Penal Code. The learned A.P.P. would submit that there are eye witnesses and if the applicant is released on bail then there is possibility of tampering with the evidence. The learned Advocate for the applicant submits that the applicant is ready to abide by the conditions which may be imposed on him. 6. It prima facie appears that the applicant acted on impulse, due to sudden provocation on account of the conduct and assault mounted by Vitthal and probably there may be no intention to cause death of the son. The deceased son of the applicant, however, was challenging the applicant to open the door and was telling that he will commit murder of the father or anyone from the family. The deceased also had kept a mistress and was therefore not a person of good character. It is probable that the applicant may pick up defence of protecting himself because Vitthal had immediately struck something on the head of the applicant when the door was opened and earlier to that he was loudly crying that he was going to kill someone. (5) CRI. APLN. 4625.2010 7. Considering these aspects of the matter, I am inclined to grant liberty to the applicant. 8. In the result, the Application is allowed. The applicant is directed to be released on bail, if bail bonds in sum of Rs.15,000/-(Rs.Fifteen Thousand) with a solvent surety bond in the like sum to be furnished before the Sessions Court alongwith an undertaking to the effect that he will not enter village Pimpalkhuta (Tq. and Dist. Hingoli) during pendency of the investigation and the trial and will not contact any of the prosecution witness. 9. The observations in this order be not considered by the Court of Sessions while deciding the Sessions case on merits. Sd/- [V. R. KINGAONKAR, J.] arp