1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR CRI.APPLICATION (APPA) NO.217 OF 2009 IN CRI.APPEAL NO. OF 2009. STATE OF MAHARASHTRA, THR. PSO, FREZARPURA, AMRAVATI .. VERSUS .. RAVINDRA, SATISH AND HITESH SONS OF LAHUJI BANSOD, R/O. WADALI, AMRAVATI. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Shri T.A.Mirza, A.P.P. for Appellant/State. Shri. S. Joshi, h/f. Shri Amol Mardikar, Adv. for Respondents. CORAM : A.P.LAVANDE & R.C.CHAVAN, JJ. DATE : APRIL 13, 2010. 1. This is State’s application seeking leave to file appeal questioning acquittal by learned 2nd Additional Sessions Judge, Amravati of accused No.1 of the offence punishable under Section 302 of the Penal Code and other accused persons for the same offence, restricting their complicity to offence, punishable under Section 304-II of the Penal code, on conclusion of Sessions Trial No.60 of 2008. 2. We have heard learned Additional Public Prosecutor and also gone through the record of the trial which has been received. 3. As rightly observed by the learned trial Judge in paragraph 74 of his judgment, there was not a shred of evidence about complicity of accused No.1. The victim had 2 himself gone to the house of accused No.1 on 11th December, 2007 and he had reportedly told his mother that accused No.1 had assaulted the victim by stick on his head and left leg. There is no witness who had seen this incident. Evidence of his mother about narration by the victim cannot qualify as oral dying declaration since it did not relate to circumstances leading to victim's death. Accused No.1 then went and gave a report to the Police about this incident. Therefore, the learned Additional Sessions Judge rightly held that there was no shred of evidence against accused No.1 who was not present at the subsequent incident. 4. It seems that the victim, after some time, went to the house of accused Nos. 2 and 3, where altercations led to a fight in which the victim was hit by sticks, kicks and iron rod, resulting in several injuries, one of which was on the head of victim. The injuries on maxilla and mandible cannot be termed as injuries on vital parts of the body. Considering the nature of assault and injuries caused, and also the fact that the victim had himself gone to the house of accused persons, the learned trial Judge had rightly observed that accused Nos.2 and 3 had not known that the deceased will come to their house. The Medical Officer did not state that any of the injuries was in itself sufficient in ordinary course of nature to cause death. The learned Judge, therefore, rightly came to the conclusion that the offence that was made out against accused Nos. 2 and 3 was one punishable under Section 304- II of the Penal Code, and not one punishable under Section 302 of the Penal Code. 3 5. There is no infirmity in the view taken by the learned Judge. As far the contention of the learned A.P.P. that accused have also challenged their conviction, this cannot be a reason for admission of this appeal. 6. Observation made while disposing of this appeal would not come in the way of the accused in prosecuting their own appeal. 7. Leave refused. The appeal is therefore, dismissed. JUDGE JUDGE RR..