High Court
Legal Reasoning
963-ba-1778-2024.odt(1)IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADBAIL APPLICATION NO. 1778 OF 2024WITH CRIMINAL APPLICATION NO.4338 OF 2024Vaibhav Vishnu FundeVERSUSThe State Of Maharashtra...Advocate for Applicant : Mr. Narwade Narayan B.APP for Respondent/State : Mr. A.S. Shinde Advocate for Complainant/Victim : Mr. Sandip R. Andhale ... CORAM : S.G. MEHARE, J. DATED : OCTOBER 16, 2024PER COURT:-1. Heard learned counsel for the applicant, learned APP for the State and particularly learned counsel for the victim at length.2. The applicant seeks bail in Crime No.948 of 2024registered with Rahuri Police Station, District Ahmednagar forthe offences punishable under Sections 105, 118(1), 115(2), 352,351(2), 351(3), 3(5) of the Bharatiya Nyaya Sanhita, 2023.3. Both parties were fighting since long. The policeconstable at Rahuri had illicit relationship with the mother of thepresent applicant. The deceased was retired policemen. On thereport of this applicant, the offence of attempt to murder wasregistered against the deceased. 963-ba-1778-2024.odt(2)4.The prosecution has a case that on the day of theincident, the deceased had been to Ahmednagar to attend the trial.When he was going to Sangamner for his heart treatment, in themidway, there was Shanishingnapur Phata. He was sitting in canejuice center. The applicant and his mother reached there. Theystarted beating the deceased with helmet on his legs. The applicantwas recording the incident in his phone. They were uttering that thedeceased had teased the applicant’s mother. The entire incident wasrecorded in the mobile handset of the applicant. They were makingallegations against each other. The deceased was calling the motherof the applicant as prostitute and saying that she has blackmailed himfor last 15 years and extracted a huge money. The deceased wassaying that he has been suffering from heart disease, so leave him.However, in the fit of quarrel, he fell down. The mother of theapplicant asked the applicant to call the ambulance. The applicantcalled the ambulance. People put him into the ambulance. As per theFIR, the applicant himself admitted the deceased to Rahuri Hospital.He has died of heart attack. 5.Learned counsel for the applicant would submit that thedeceased was troubling the applicant and his mother. He wasconsistently following them. The deceased was intending to eliminatethe applicant and his mother. He had lodged many reports againstthe deceased. After the crime for attempt to murder was registered 963-ba-1778-2024.odt(3)against him, the deceased was harassing them. Learned counsel forthe applicant argued that the video was deliberately recorded to pointout that the deceased teased the mother of the applicant and to createthe evidence against him. Had it been their intention to kill him, hewould not have recorded the said incident in his own mobile handset.He would submit that on the day of the incident, there was a weeklymarket at Shanishingnapur. Hence, the applicant and his motherwere there. The deceased knew it was a weekly market day. Hence,he went there deliberately. Otherwise he had no reason to stay nearthe Phata. The deceased had teased the mother of the applicant.Hence, they became aggressive and assaulted him. The applicantnever gave a blow to the deceased on his chest knowing well he wassuffering from heart disease. He was not beaten on his chest.Therefore, it cannot be said that the offence under Section 105 of theBharatiya Nyaya Sanhita is made out. He has referred to the reportlodged by the applicant to the police authorities and N.C.’s registeredagainst the deceased. He would argue that since he was troubling theapplicant and his mother consistently, an application for cancellationof his bail is also filed and it is pending. He would submit that thepost incident conduct of the applicant is material. He himselfadmitted the deceased to the hospital. His conduct shows that henever had an intention to kill the deceased. He was just protectinghim from the acts of the deceased. He would submit that the 963-ba-1778-2024.odt(4)applicant is languishing in jail since August 2024. The materialinvestigation has been completed. There are no antecedents to hisdiscredit. It was the deceased who created the situation. He did notimprove and stopped stalking his mother. No weapon is used in thecrime. Hence, he may be granted bail. 6.Learned counsel for the victim has vehemently arguedthat there are many eyewitnesses to the incident. The N.C.’s werefiled against the deceased with a view to create the material forcancelling the bail. He admitted that an FIR was registered againstthe deceased on the report of the applicant. His bail conditions wererelaxed. The applicant was suffering from heart disease. On readingthe transcription from the video recording, he has vehemently arguedthat the deceased was repeatedly saying the applicant that he shouldnot trouble him. He is suffering from the heart disease. However, theapplicant was aggressive. He also argued that the words used by theapplicant and his mother shows that they were not listening thedeceased and going on beating him. He was 68 years old. He alsoread the material from the charge sheet with the help of the learnedAPP and argued that no incident of teasing at petrol pump happened.He also argued that the applicant had deliberately beat the deceasedas they wanted to teach him a lesson. They were consistentlyharassing the deceased. The mother of the applicant caught hold hiscollar and fell him down. The applicant and his mother were 963-ba-1778-2024.odt(5)knowing well that he may die, if he is harassed and beaten. Theiracts were intentional. The offence is serious. The investigation is inprogress. Hence, he may not be granted bail. 7.Learned APP read over Illustration (b) of Section 101 ofthe Bharatiya Nyaya Sanhita, 2023. The illustration speaks about thata person knowing that another is labouring under such a disease thata blow is likely to cause his death, strikes him with the intention ofcausing bodily injury and another person dies in consequence of theblow, in such circumstances, the person giving blow is guilty ofmurder, although the blow might not have been sufficient in theordinary course of nature to cause the death of a person in a soundstate of health.8.Perused the papers. A quarrels between the applicantand the deceased had a checkered history. The deceased was facingthe criminal trial for attempt to murder. Though it has been arguedthat the applicant and his mother were also present in that trialbefore Ahmednagar Court, at this juncture, there is no material.However, the fact remains that the incident happened. The applicantand his mother were beating the deceased. The deceased was sayingthat he is not well, even then the applicant was beating him. Onreading the Illustration (b) of Section 101 of the Bharatiya NyayaSanhita, 2023, the prosecution should have case that the applicantgave a blow deliberately on his chest. The deceased fell down during 963-ba-1778-2024.odt(6)the quarrel. The post incident conduct of the applicant has somerelevance. Though they were angrily beating the deceased, they wereconscious with the fact of falling of the deceased down and they werecalling the police as well as the ambulance. On the call of theapplicant, the ambulance came and the applicant and his motheradmitted the deceased to the hospital. They themselves intimated thepolice about the incident. This post incident conduct mitigates thecrime. Admittedly, the deceased did not die of the injuries caused tohim. He has died of Coronary Artery disease. The cause of death isnot direct effect of the assault at the hands of the applicant. In the fitof anger, both were abusing each other and loudly quarelling. Theinvestigation papers placed before the Court shows that the materialinvestigation against the applicant has been completed. There are noantecedents to his discredit. He is a young boy of 24 years. Nothingis to be recovered from him. Hence, he deserve bail. Hence, thefollowing order :O R D E R(i)Bail Application is allowed.(ii)Applicant, Vaibhav Vishnu Funde, be released onbail on furnishing P.B. and S.B. of Rs.50,000/- (RupeesFifty Thousand only) with one solvent surety of the likeamount in the above crime, on the conditions that ;
Decision
963-ba-1778-2024.odt(7)(a)The applicant should not tamper with the prosecutionwitnesses.(b)The applicant should attend the police station as andwhen called on written notice by the investigation officer tillfiling the charge sheet.(iii)Criminal Application No.4338 of 2024 stands disposed of. (S.G. MEHARE, J.)Mujaheed//