1 Apeal 830-05 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.830 OF 2005 Nandu Kundalik Chavan ..Appellant Age : 40 yrs, Occu : service, R/o.Achakdani, Taluka  Sangola, District  Solapur. V/s. The State of Maharashtra ..Respondent Mr.A.G.Toraskar, Advocate, for the Appellant Mr.S.A.Shaikh, APP, for the Respondent - State CORAM : R.C.CHAVAN, J. DATE : 28TH JUNE, 2011 ORAL JUDGMENT . This Appeal is directed against conviction of the appellant for the offences punishable under Sections 304-II and 201 read with Section 34 of the Indian Penal Code and sentence of rigorous imprisonment for ten years with a fine of Rs.1000/- and rigorous imprisonment for three years with a fine of Rs.500/- imposed on two counts by the learned Additional Sessions Judge, Pandharpur, 2 Apeal 830-05 District Solapur. 2. Facts which are material for deciding this Appeal are as under :- Apellant Nandu Kundalik Chavan was Kotwal of village Achakdani, Taluka  Sangola, District  Solapur. He was not residing with his wife Mangal. He was residing with the victim Kalpana, who had a daughter from her first husband. There used to be quarrels between the appellant Nandu and Kalpana. On 4th September, 2004, the appellant Nandu is alleged to have beaten up the said Kalpana and then taken her to Doctor Badiger. Doctor Badiger found that she was virtually dead though she was still breathing. He asked Nandu to take his wife to hospital. Nandu is then alleged to have taken the victim to the hospital of PW-8 Sopan Narayan Babar in Auto rickshaw with PW-13 Dattatraya Bapu Shirtode. However, it seems that the victim died and with the help of co-accused Ramchandra Chavan, 3 Apeal 830-05 appellant Nandu concealed body of the victim in the heap of fodder in the field of PW-3 Machindra Boby Sathe. Machindra found dead body on 10th September, 2004. He informed police patil, who informed the police. Police registered an accidental death and then commenced investigation. 3. In course of investigation, it was revealed that the victim was the second wife of Nandu. The Post Mortem was conducted. Since the body was found in decomposed condition, cause of death could not be ascertained. Police recorded statements of witnesses, conducted necessary panchanama and on completion of investigation, arrested and charge sheeted Nandu as well as Ramchandra for the offences punishable under Sections 302 and 201 read with Section 34 of the Indian Penal Code. The learned JMFC, Sangola committed the case to the Court of Sessions at Pandharpur. The learned Additional Sessions Judge charged 4 Apeal 830-05 Nandu and Ramchandra of the offence punishable under Sections 302 and 201 read with Section 34 of the Indian Penal Code. Since they pleaded not guilty, they were put on trial at which the prosecution examined in all 13 witnesses in its attempt to bring home guilt of the accused. Upon consideration of evidence tendered, in the light of defence of denial, the learned Additional Sessions Judge convicted Nandu for the offence punishable under Sections 304-II and 201 read with Section 34 of the Indian Penal Code and sentenced him as indicated earlier. Accused Ramchandra was convicted for the offence punishable under Section 201 read with Section 34 of the Indian Penal Code and sentenced to suffer rigorous imprisonment for three years with a fine of Rs.500/-. 4. Aggrieved thereby, appellant preferred this Appeal. While appellant Ramchandra was admitted to bail, appellant Nandu was denied 5 Apeal 830-05 bail and he is in jail since the date of his arrest. Appellant Ramchandra expired during the pendency of the Appeal and hence, by Order dated 24th January, 2011 appeal by Ramchandra was held as abated. 5. I have heard the learned Counsel for the appellant and the learned APP for the respondent  State and with the help of both the learned Counsel I have gone through the entire evidence on record. The learned Counsel for the appellant submitted that even the learned Additional Sessions Judge had found that the appellant Nandu did not harbour any intention to cause death of the victim. As the body was decomposed and the injuries which the victim had suffered are not known. But, considering the evidence of PW-1 Virpaksh Durdundeppa Badiger the injuries do not seem to have been bleeding or serious. Therefore, the learned Judge rightly refused to attribute to the appellant any intention of causing 6 Apeal 830-05 death or such bodily injuries as were likely to cause death. The learned Judge, therefore, held Nandu guilty of the offence described in part II of Section 304 of the Indian Penal Code i. e. doing an act with the knowledge that it is likely to cause death. For this offence, punishment prescribed is one which may extend to ten years or with a fine or both. The learned Judge seems to have imposed the maximum punishment prescribed without considering that even according to the prosecution case, appellant Nandu had tried to have the victim treated & that he had taken his wife to two Doctors for medical treatment. The learned Judge should have seen this circumstance and should not have been distressed by the conduct of concealing dead body in heap of fodder. Such concealment could have been the reaction out of fear of the consequences. Thus, considering the mitigating circumstance, that the appellant had tried to ensure that the wife, though 7 Apeal 830-05 beaten by him, received medical treatment, the learned Judge should not have imposed punishment of ten years rigorous imprisonment, which was maximum punishment for the offence for which Nandu was convicted. Considering the facts and circumstances of the case, sentence of rigorous imprisonment for seven years with a fine of Rs.100/- or in default rigorous imprisonment for six months should be sufficient to meet ends of justice. 6. Appeal is, therefore, partly allowed. Conviction of the appellant for the offence punishable under Section 304-II and 201 read with Section 34 of the Indian Penal Code is maintained. Sentence of rigorous imprisonment for ten years with a fine of Rs.1000/- imposed for the offence punishable under Section 304- II of the Indian Penal Code is reduced to rigorous for seven years with a fine of Rs. 1000/- or in default rigorous imprisonment for six months. Sentence of rigorous imprisonment 8 Apeal 830-05 for three years with a fine of Rs.500/- or in default simple imprisonment for three months imposed for the offence punishable under Section 201 read with Section 34 of the Indian Penal Code is maintained. Both the sentences shall run concurrently as directed by the learned Judge. The appellant shall be entitled to set off the period of detention in custody prior to conviction against the sentences imposed and the prison authority would obviously count as sentence suffered of the period of imprisonment after the sentence was inflicted. (R.C.CHAVAN, J.)