IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

BAIL APPLICATION NO.212 OF 2021

AKSHAY BAPU POTGHAN

VERSUS

THE STATE OF MAHARASHTRA

...

Mr. N.B. Narwade, Advocate for the applicant

Mr. M.M. Nerlekar, APP for the respondent

...

CORAM : SMT. VIBHA KANKANWADI, J.

RESERVED ON

:

22^nd MARCH, 2021

PRONOUNCED ON :

06^th APRIL, 2021.

ORDER :

1

Present applicant is original accused No.3, who came to be

arrested on 13.06.2020, in connection with Crime No.104/2020 by Supa

Police Station, Dist. Ahmednagar, for the offence punishable under Section

307, 337 read with Section 34 of the Indian Penal Code, to which later on

Section 302, 188, 269, 270, 120-B, 143 of the Indian Penal Code have been

added. Present application has been filed under Section 439 of the Code of

Criminal Procedure, 1973.

2

Heard learned Advocate Mr. N.B. Narwade for the applicant and

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learned APP Mr. M.M. Nerlekar for the respondent.

3

It has been vehemently submitted on behalf of the applicant that

perusal of the First Information Report, lodged by the brother of the

deceased, would show that allegations against the present applicant are that

he was pelting stones towards deceased Manoj. When Manoj was asked by

the informant Tushar, he told that he had suggested a match for the sister of

accused and after those persons had seen the sister when Manoj had caught

hold of the hand of that girl, the accused persons got annoyed and then he

was assaulted by iron rod by accused No.1 Guddu @ Saurav Ganesh Potghan,

accused No.2 Vicky Dinesh Potghan and applicant Akshay had pelted stones.

The probable cause of death as per Post Mortem Report is head injury, and

therefore, the present applicant cannot be said to be the author of the fatal

blow, which resulted in death. The discovery of iron pipe is by accused

Saurav. Statements of witnesses would also show the allegations against the

present applicant as pelting of stones. In fact, on 09.06.2020 offence under

Section 354, 504, 506 of the Indian Penal Code was lodged against the

deceased, for the incident dated 07.06.2020 by the mother of accused No.2.

Deceased Manoj was under the influence of liquor and he had misbehaved

with the lady. Therefore, with this kind of evidence the applicant deserves to

be released on bail. He is 25 years old person doing private job.

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4

Per contra, the learned APP strongly opposed the application and

submitted that in FIR itself it is stated that present applicant and Vicky

Potghan were pelting stones towards Manoj and they were hitting his chest.

If injuries mentioned in column No.17 of P.M. report are noted, then apart

from other injuries there is mention of injury – 1) Contusion present on

middle of chest over an area of size (10 x 7) c.m., 2) Contusion present on

lateral aspect of right side of chest adjacent to right area of sixe (8 x 7) c.m.

and 3) Multiple contusion present over right upper chest below right

shoulder over an area of size (10 x 7) cm. Further, the stone, which was

found at the spot, was sent for examination by the Medical Officer and he has

given opinion on 31.01.2020 stating that the injuries mentioned in column

No.17 of P.M. Report can be caused by hard and blunt object i.e. with such

kind of weapon and the injury Nos.1 and 2 mentioned in column No.17 along

with internal damage mentioned in column No.19 are sufficient in ordinary

course of nature to cause death. Such opinion is given in respect of two

stones and the third opinion is in respect of iron rod and pipe. There are eye

witnesses to the incident, and therefore, this is not a fit case where the

discretionary power should be exercised.

5

The prosecution story has been reproduced earlier, and

therefore, it is not proper to reproduce it once again. However, it is to be

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noted that the incident is stated to have taken place on 08.06.2020 around

6.30 p.m. Informant Tushar states that when he heard loud noise of Manoj,

he along with his mo