( 1 ) HEARD learned counsel Mr. A. D. Shah for the petitioners and Mr. BY Mankad, learned APP for the respondent State. The petitioners are the original accused nos. 1 and 2 facing criminal trial before the Sessions Court, Bhavnagar. According to the case of the prosecution, the petitioners have committed an offence punishable under section 302 R/w 114 of the I. P. Code and under Sec. 3 (1) (10) of Scheduled Caste and Schedule Tribes (Prevention of Atrocities) Act (hereinafter referred to as the "atrocities Act" ). The case of the prosecution against the petitioner is that on 9. 8. 1998 between 10. 00 P. M. to 11. 30 A. M. , accused persons applied force on the body of the deceased Jivabhai and because of the force, Jivabhai had fallen down and sustained head injury. Wife of Jivabhai was informed about the incident and Jivabhai was taken at his residence and in the next morning, because of the serious physical condition, a doctor was called at the residence and as per his advise, in the morning of 10. 8. 1998, Jivabhai was removed to the Government Hospital and was admitted in Emergency Ward. At that time, deceased was unconscious. No statement of deceased Jivabhai was recorded. It is the case of the prosecution that, husband of the complainant Champaben was not doing any work. He was aged about 66 years and was in the habit of consuming liquor in the company of his friends near Chabutara at Vadawa Padar Devki of Bhavnagar town. On the day of incident, husband of the complaint had gone to said place where there is a rickshaw stand and had consumed liquor. At about 10. 00 P. M. , there was exchange of words between the deceased and his companion with both these petitioners and during hot exchange of words, some force was applied and deceased had fallen down.

( 2 ) AS the deceased Jivabhai succumbed to head injury sustained at the time of incident, both the petitioners were arrested by the police and are facing trial as stated above. I am told that the case against the present petitioners is registered as Special Case No. 45/98 and Special Judge, Bhavnagar has framed charges against the petitioners accused in the month of April 1999. So, it can be said that the charge is framed for the aforesaid offences pending hearing and final of disposal of this application.

( 3 ) IT is submitted by the learned counsel Mr. AD Shah appearing for the petitioners that ingredients of the offences punishable under sec. 302 of the I. P. Code as well as under sec. 3 (1) (10) of the Atrocities Act are clearly missing on record. At the instance of learned counsel Mr. Shah, papers of investigation including viscera report were called for and are brought before this Court today. I have gone through the same. I am told by ld. APP Mr. Mankad that the presence of Methyl Alcohol was found and percentage is very heavy i. e. more than 57% according to Post Mortem Notes. Therefore, submissions advanced by learned counsel Mr. Shah, in light of the decision of the Apex Court in the case of Jani Gulab Shaikh v/s State of Maharashtra, 1970 SCC (Cri.) 532, require forceful consideration. Mr. Shah has taken this Court through the entire judgment of the Apex Court. The facts of the case before the Apex Court are practically identical to the facts of the case on hand. In the case before the Apex Court, deceased was given a push and as the deceased was under the influence of alcohol, had fallen down on cemented road and sustained injuries on the head. That fall resulted into fracture of occipital bone ( skull) and victim died on the spot. While dealing with the case the Apex Court, in para-3, observed as under :-" the relevant facts as found by the High Court and as appearing on the record are as follows: At about 4. 30 p. m. on 11/08/1965, the deceased, Shankar, was passing by the station road accompanied by Mohan Gujarathi, P. W. 2. When they came near the shop of the appellant- hereinafter referred to as the accused- which is at a distance of about 20