{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 4427 OF 2009 1. Ramesh s/o Baliram Shinde Age-40 years, Occ-Labour 2. Tatyaram s/o Baliram Shinde Age-45 years, Occ-Labour 3. Avinash s/o Baliram Shinde Age-27 years, Occ-Labour All R/o Moha, Tq-Parli Dist-Beed APPLICANTS VERSUS The State of Maharashtra RESPONDENT ....... Mrs.S.S.Jadhav, Advocate for applicants Mr.N.R.Shaikh, APP for the State ....... [CORAM : A.V.POTDAR, J.] DATE: 13 th January 2010 PER COURT: 1. By the present application, the applicants have approached this Court for their release on bail in connection with CR No.93/2009 registered with Shirsale police station for an offence punishable u/s 302, 323, 504 r/w 34 of the Indian Penal {2} Code, as now the charge sheet is filed and after passing necessary order the case is committed to the Court of Sessions. 2. Heard learned counsel for the applicants followed by the submissions of learned APP. Perused the papers of investigation. 3. It appears that the said offence came to be registered on the complaint of one Kiran Shinde, brother of the deceased Shivaji. It is alleged that a meeting of the villagers was organized wherein resolution came to be passed, at the initiation of deceased Shivaji, to ban sale of liquor in the village. It is further alleged that the applicants, who sale country liquor, got annoyed due the said resolution and in the night of 01.08.2009 they attacked Shivaji. It is alleged that at the time of assault, applicant Avinash was holding a stick in his hand and gave blow of the same to the deceased and the remaining applicants assaulted deceased with kick and fists blows. It is stated in the complaint that thereafter, other witnesses saw the deceased proceeding towards his house, situated at the other end of a hill. On the next day dead body of the deceased was found. The applicants came to be arrested on 02.08.2009 and since then they are in jail. 4. Learned counsel for applicants has drawn my attention towards the PM notes. It is urged that only one contuse lacerated wound was noticed on the shoulder of the deceased and one anti {3} mortem injury was found on his left side over 9th and 12th ribs, which was the suspected fracture. It is also pointed out that when the body was open, smell of alcohol was noticed and the spleen was found ruptured. It is also opined by the medical officer that the incident might have been occurred after about 6 hours of taking meal by the deceased. The probable cause of death, as per the PM notes, is due to hemorrhage shock due to rupture of spleen. By pointing out the said facts, it is urged that though it is alleged in the statements of the eye witnesses that the blow was given by applicant Avinash with a stick, yet no external injury was noticed on the body of the deceased and hence it cannot be inferred that blow was given by the applicant on the abdomen of the deceased resulting in rupture of the spleen. In the premise, according to learned counsel for the applicants, even if the statements of the eye witnesses are accepted, yet no prima facie case is made out for an offence punishable u/s 302 of the IPC. It is also urged that in view of the fact that investigation is over the applicant be released on bail. 5. While opposing the application, attempts are made by the learned APP to point out from the statements of the witnesses, who are relatives of the deceased, that they have witnessed the attack. Hence, according to him, there is direct nexus between the cause of death and the alleged role played by the applicants. 6. Considering the rival submissions, it is clear that {4} though some witnesses have witnessed the alleged attack, yet they have not taken the deceased to hospital for treatment, however it is revealed that they have allowed him to go alone to his home. It is to be noted that due to the attack, the deceased was not collapsed at the spot, however he climbed the hill for a considerable distance, where his body was found on the next day. It has to bear in mind the the alcohol found in the large intestine of the deceased has also to be taken into consideration in the light of the probable cause of death, i.e. hemorrhage shock due to rupture of spleen. If the deceased is a habitual drunkard, then there is every possibility that his spleen might have been affected. Rupture of the spleen is due to the attack or due to fall can be ascertained during the trial only. However, considering that fact that now the investigation is over and statements of the witnesses are recorded, there are no chances of tampering of evidence. In the premise, case is made out to enlarge the applicants on bail. 7. In the result, the application is allowed. The applicants be released on bail on their furnishing surety in the sum of Rs. 15,000/- each and on executing PR bond in the like amount. The applicants are directed not to contact or tamper with the prosecution witnesses. [A.V.POTDAR, J.] drp/A10/criapln4427-09