IN THE HIGH COURT OF BOMBAY AT GOA CRIMINAL APPLICATION ( BAIL ) NO. 6 OF 2009 MR. CORNELIO FERNANDES THROUGH WIFE RESURREICAO @ ROSY FERNANDES ... Applicant Versus POLICE INSPECTOR CALANGUTE POLICE STATION AND ANR., ... Respondents Mr. Nitin Sardessai, Advocate for the Accused/Appellant. Mr. C. A. Ferreira, Public Prosecutor for the State/Respondent. Coram:- C. L. PANGARKAR, J. Date:- 12th January, 2009 P.C. This is an application for bail. 2. The accused and the deceased are brothers. There were disputes between them and the matters were reported to the police on a number of occasions. It is alleged that on 25.11.2008, the deceased had gone to the bar and while he was having drinks, he fell down. It is alleged that the deceased was found in a serious condition and he was bleeding. The deceased was removed to the Hospital. On 26.11.2008,when the wife of the deceased reached to the Hospital, she inquired with him and it is alleged that the deceased made a statement before her that he was assaulted by the accused and he, therefore, suffered injuries. Before such statement was recorded, the sister of the deceased had already lodged the complaint and offence under Section 307 was registered against accused. The deceased died on 27.11.2008 while under going treatment in the Hospital and the case was converted to one under Section 302 of the I.P.C.It is not in dispute that the accused voluntarily went to the police station on 28/11/2008. 3. The learned Counsel for the accused submits that there is no evidence whatsoever against accused to connect him to crime.. There is also no eye witness who had actually seen the incident nor any weapon was recovered at the instance of the accused which is allegedly used at the time of offence. 4. The learned Counsel for the respondents, on the other hand, submitted that there is a dying declaration which connects the accused to the crime and the post mortem report suggests that the cause of death was due to haemorrlinegic presmerites associated with haemo peritoneum consequent to blunt abdominal trauma, with liver disease, which was fatal in the ordinary course of nature. Prima facie, there is evidence that the deceased sustained injuries on that part of the body and died. 5. The question is whether such an injury sustained could fall under Section 302 of the IPC. The learned counsel for the accused/appellant submits that the injuries sustained by the deceased in the assault even if are accepted to be caused by the accused that does not go to show his intention nor can knowledge be attributed to him. 6. After having gone through the case diary I find that the deceased was suffering from liver disease. Even if the accused had given a blow on that particular part of the body of the deceased, it could not be said prima facie that he had knowledge that the deceased was suffering from liver disease . If such knowledge or intention cannot prima facie be attributed to accused the case must fall in II part of Section 304 of I.P.C. Second part of illustration (b) of Section 300 would be relevant. 7. The offence under Section 304 part II is not punishable with death and, in the circumstances, I find that the accused is entitled to bail. He is permanent resident of Goa, holding property and is not likely to abscond. 8. The accused, therefore, shall be released on a personal bond of Rs.25,000/- with one surety in the like amount. He shall report at the Police Station on every Sunday at 9.00 a.m. to 11.00 a.m., he shall not go beyond the jurisdiction of police station without intimation to the Police Station. Surety be furnished before the Sessions Court, Panaji. C. L. PANGARKAR, J. ah