1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 421 OF 2003 1. Shri Munna @ Shivprakash ) Ramdhani Sharma, aged 27 years, ) Indian Inhabitant residing at Hutment) Savitgribai Phule Nagar, Appa Pada, ) Kurar Village, Malad (East), ) bombay 400 097. ) 2. Shri Mahesh Shivaji Divate, ) Aged 27 years, Indian Inhabitant ) residing at Marwadi Chawl No.2, ) Room No.1, Ambewadi, G.D.Ambekar) Marg, Kalachowki, Bombay 400 033.) At present both appellants are ) detained in Central Prison, Kalamba,) Dist. Kolhapur. ). Appellants (No.1 orig.accused No.1 & No.2 orig.accused No.3) Vs. 1. The State of Maharashtra, ) At the instance of Kalachowki ) Police Station). ) 2. The Hon'ble Additional ) Sessions Judge, 39th Court at Bombay)..Respondents Mr. Jeevan Savant, Advocate, and Mr. S.P. Kadam, Advocate for accused - Absent. Ms. S.V.Gajare, APP, for the Respondent No.1 - State. CORAM: J.H.BHATIA,J. DATE : 8th July, 2010. JUDGMENT: 2 1. The appellants before this Court are the original accused Nos. 1 and 3, who have in this Appeal taken exception to the judgment and order passed by the learned Additional Sessions Judge, Greater Mumbai in Sessions Case No.426 of 1992 convicting the accused persons for the offence punishable under Section 304 Part-II and awarding sentence of rigorous imprisonment of five years and to pay fine of Rs.1,000/- each. 2. To state in brief, PW-1 Nalawade, PW-2 Ashok, deceased Ravindra and some other persons were members of Sarvajanik Ganesh Mandal, Jijamata Nagar, Kala Chowky, Mmbai for a long time. They used to celebrate Ganesh festival every year. They also used to arrange a film show for entertainment during the said festival. On 25.9.91, at about 10.30 p.m., the film "Aahuti" was being exhibited. During the interval of the film, at about 00.15 hrs, function of prize distribution was undertaken. After that, the exhibition of the film was again commenced. At that time, accused No.1 - Munna, accused No.2 Sudha and accused No.3 Mahesh came there and stood in front of the other boys, who were in the audience. This was objected by the boys. This resulted into exchange of hot words between the deceased Ravindra and the accused persons. At that time, all the accused persons left the place, but within 5 minutes i.e. 00.20 hrs. on 3 26.9.91, they again came back. They were then armed with bamboo sticks, wooden plank,etc. Accused No.2 Sudha gave a blow on the head of deceased Ravindra with a bamboo stick due to which he fell down. Accused No.3 Mahesh gave blows on the left side of his neck with a wooden plank having nails. Accused No.1 Munna gave stick blows on his neck and their unknown associate gave a stick blow on the hand of the Operator of the Projector. After the incident, the accused persons ran away from the spot. P.W.1 Mahendra, P.W.2 Ashok and others immediately arranged to take the injured Ravindra to KEM Hospital. However, on examination, the Medical Officer declared him dead before arrival. P.I. Pandurang Shinde got message that deceased Ravindra was brought to Hospital. He immediately rushed to the Hospital. The clothes of the dead body were seized. Post-mortem examination was conducted. During the investigation, all the three accused persons were arrested. Their clothes were seized. A bamboo stick and wooden plank were recovered on the basis of information given by accused No.2. Blood samples of accused persons were also taken. All these muddemal properties were referred to C.A. After investigation, police filed charge-sheet before the Metropolitan Magistrate,17th Court, Mazgaon. The case was committed to the Court of Sessions. 3. During the pendency of the trial, accused No.2 died and therefore, 4 the case against accused No.2 abated and trial proceeded against accused Nos. 1 and 3 only. On 6.8.2002, charge was framed against accused Nos. 1 and 3 for the offence punishable under Sections 302, 323 read with Sec. 34 IPC. They pleaded not guilty. They took plea of complete denial. 4. On behalf of the prosecution, in all six witnesses were examined. Several documents were placed on record. The learned trial Court held that the charges under Sections 302 and 323 IPC were not established, but it was proved that accused Nos. 1 and 3 had caused death of the Ravindra and the offence of culpable homicide not amounting to murder punishable under Sec. 304 Part II IPC was proved. He convicted and awarded sentence to both the accused as stated earlier. 5. Heard the learned APP for the State. I have to record with a great anguish that Mr. Jeevan Savant, Advocate, who had filed appeal and Mr. S.P. Kadam, Advocate, who later on filed Vakalatnama for appellant No.2 i.e. accused No.3 did not turn up whenever this case was called for hearing. The matter was on board during the last week and is also on board this week. Their names were also flashed on the screen, but inspite of that they did not turn up either yesterday or today. Anyhow, I have carefully read the evidence led by prosecution, defence 5 of the accused and heard the learned APP. 6. PW-1 Mahendra and PW-2 Ashok are the eye-witnesses of the incident. Their evidence show that they had arranged exhibition of a film "Aahuti" on 25.9.91 as part of Ganpati festival programs at Jijamata Nagar. at about 12.15 in the midnight during the interval of the film, the prize distribution programme was undertaken. At that time, all the 3 accused persons including deceased Sudha came there and stood in front of deceased Ravindra and PW-1 Mahender. Due to this, they could not watch the film. Deceased Ravindra asked the accused persons to sit down. That resulted into exchange of hot words between accused persons and deceased. At that time, accused persons left the place, but within 5 minutes, they came back armed with bamboo sticks and wooden plank and began to beat deceased Ravindra. As per evidence of PW-1 Mahendra, accused No.1 and 2 were armed with bamboo sticks and accused No. 3 was holding a wooden plank with nails. Accused No.2 Sudha gave a blow on the head of deceased with bamboo stick due to which Ravindra fell down. Then accused No.3 Mahesh gave blows on neck of the deceased with wooden plank having nails and accused No.1 Munna gave stick blows to Ravindra. Evidence of PW-1 Mahender is fully corroborated by the evidence of PW-2 Ashok, who was also sitting just near the deceased. On perusal of the evidence, it appears that 6 barring a few inconsequential discrepancies in the evidence of these witnesses, there is no material discrepancy, omission or contradiction. There was no reason for any of those two witnesses to falsely implicate any of the accused in the present case. 7. The evidence of PW-1 and PW-2 reveals that after the incident, they had taken the deceased Ravindra to KEM Hospital where he was declared dead. PW-3 - Dr. Subhash Khanolkar performed the post mortem examination on the dead body of Ravindra and issued post mortem report, ex.19. On examination, he found the following external injuries :- "1) Lacerated wound on top of head, in fronto parietal region. Transverse 2.5 x 0.1 cm. muscle deep. 2) Lacerated wound 2 cm. behind injury no.1 transverse dimension 1.0 x 0.1 cm. x muscle deep. 3) Contusion on left side of face and neck. Contusion extended from back of left side of neck on to the middle part of neck and over left mandibular area. Dimensions 17.0 x 9 cm. 4) Incised wound over left mandible middle part, 7 Antero-Posterior.. Anterior end 3.0 cm. from left angle of mouth. dimensions 1.8 x 0.5 cm. deep upto mandibular bone which was chipped. 5) Incised wound on left mandibular area middle 1/3, 6.0 cm. from left angle of mouth. 0.5 x 0.1 cm. x skin deep. 6) Incised wound on lower margins of left mandibular shaft middle 1/3, near injury no.5. Transverse wound 1.5 x 0.5 cm. x skin deep. 7) Multiple small abrasion over contused area. 8) Abrasion top of left shoulder 1.5 cm. x 2.0 cm." On internal examination, he found the following injuries. :- "1) Extensive haemorrhage in layers of scalp mainly in right frontal, parietal region and left frontal region. 2) Cacked fracture of vault of skull extending from right temporal and right parietal over left parietal and left frontal bones. Base of skull - fracture continued in right middle cranial fossa. 8 3) Extensive haemorrhage in muscles and tissues on left side. Left mandibular shaft chipped due to injury no.4." The Doctor opined that all the injuries were ante-mortem and cause of death was head injury with contusion in neck. The death was caused due to extensive haemorrhage in the right frontal, parietal and left frontal region as well as fracture of the skull bones. External injuries Nos. 4, 5 and 6 could be caused with wooden plank, while external injuries 1, 2 and 3 could be possible with bamboo stick and wooden plank. External injuries 1 to 3 corresponded to the internal injuries. Dr opined that these injuries were sufficient to cause death.He was cross-examined at length but nothing had come on record. to disbelieve the evidence of the autopsy surgery. 8. The evidence on record reveals that the bamboo and the wooden plank were seized on the basis of information given by accused No.2. The clothes of all the three accused persons were collected and the muddemal property was referred to the C.A. The C.A. report reveals that the blood on the clothes of the deceased was of AB Group. The blood group of accused No.1 and accused No.2 was B while blood group of accused No.3 was A. The blood stains on the clothes of accused Nos. 2 and 3 as well as on the bamboo stick Article A were of AB 9 Group. In view of the C.A. report, it is clear that none of the accused had blood with Group AB, but the blood stains on their clothes was found to be of AB Group which appears to be the blood group of the deceased. The C.A. report thus provides corroboration to the testimony of both the eye-witnesses. Taking into consideration the oral testimony of both the eye-witnesses, discovery of clothes and weapons and C.A. reports as well as the post-mortem report, I am convinced that the prosecution has proved that accused Nos. 1, 2 and 3 have assaulted with bamboo sticks and wooden plank with nails which caused several injuries, including the injuries on the head, which proved to be fatal. 9. Even though the charge was under Section 302 IPC and the Autopsy Surgeon had opined that the injuries were sufficient in the ordinary course of nature to cause death, the learned trial Court held that the accused persons had no intention to cause death and convicted the accused persons for the offence punishable under Section 304 Part II IPC and sentenced them. The State never preferred any appeal against acquittal for the offence under Sec. 302 IPC. It is reported that accused Nos. 1 and 3 both have already undergone their complete sentence as awarded by the trial Court and have also been released from jail. In view of the facts and circumstances, I find no merit in the present Appeal and therefore the Appeal is liable to be dismissed. 10 10. For the aforesaid reasons, the Appeal stands dismissed. (J.H.BHATIA,J.) 11