JUDGMENT - VISHNU SHAHAI, J.:---Heard Mr. R.Y. Mirza for the petitioner and Mr. S.L. Kapse for the respondent.

By means of this application, preferred under section 439(2) of Cr.P.C. the petitioner (State of Maharashtra) seeks to impugn the order dated 2-12-1991 passed by the Metropolitan Magistrate, 34th Court, Vikroli, Bombay granting bail to the respondent in a case under section 302 I.P.C.

2. The prosecution case in brief is that on 24-9-1991, at about 5 p.m. the respondent, co-accused Ladu, Balu and Rajesh @ Pappu Suvarna assaulted the deceased Shivaji with knives. Complainant Sanjay Kamble who was an eye witness of the incident thereupon shouted and thereafter respondent and others ran away.

After the incident, complainant removed Shivaji, who was still alive, to Rajawadi Hospital for treatment. He then lodged a F.I.R. on the basis of which a case under section 326/114 I.P.C. was registered against respondent and others.

3. It appears that Shivaji succumbed to his injuries on 25-9-1991 (next day) at Rajawadi Hospital. After his death, the case was converted to one under section 302 I.P.C.

4. The contention of the learned A.P.P. is that in-as-much as the respondent was being pros

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