ARFAT ALLAUDDIN KHAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Applicant had preferred this application under Sec. 439 of Cr.P.C. and prayed for bail. He is arrested on 16 th September, 2018, in connection with C.R.No.644 of 2018, registered with Malvani Police Station, Mumbai, for the ofence punishable under Sec. 302 of Indian Penal Code ("IPC", for short).

(2.) First Information Report ("FIR", for short) was lodged on 16/9/2019, by the uncle of the deceased. According to him, information was received from one Altaf that complainant's nephew has been assaulted by some person and he is lying injured at Sadesath naka. The complainant reached the spot. The sister of the injured and the complainant came there. They took the injured to hospital. While the injured was being shifted to hospital, the complainant asked him as to who has assaulted him. The injured disclosed that there was a fght between him and Arfat Khan at plot no.58 and that Arfat had assaulted him on his chest with the help of knife, causing injuries to him. Subsequently, injured was declared dead in the hospital. The applicant was arrested. Statements of witnesses were recorded. Weapons allegedly used in commission of crime is recovered. On completing of investigation, charge - sheet is fled.

(3.) Learned advocate for the applicant submitted that taking the prosecution case as it is, the statements of witnesses would indicate that there could not be any intention to cause death. The incident had occurred at the spur of moment. There is no premeditation. There was provocation from the deceased. It can be said that the applicant has exercised his right of private defence. The injured had attacked the applicant with the wooden log. This fact is borne out from the statements of witnesses as well as the medical examination of the applicant. There is no progress in trial. Applicant is in custody for a period of 2 and 1/2 years.