1 APEAL 15 OF 2009 vks IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.15 OF 2009 Mahendra More Dhotre age: 20 years, Occn. Caterer r/o Vijay Nagar, J. N. Road, Near Wani Vidyalaya, R.No.116, Mulund (W), Mumbai 400 080 .. Appellant. -versus The State of Maharashtra .. Respondent. Mr. Kuldeep S. Patil, for the Appellant. Mrs. V. R. Bhosale, APP for the Respondent State. CORAM: R.C. CHAVAN, J. DATED: 8th November, 2011 Oral Judgment 1. This appeal is directed against the appellant’s conviction by the learned Additional Sessions Judge, Mumbai, for the offence punishable under Section 304 part II of the Indian Penal Code and sentence of R.I. 7 years with fine of Rs. 1,000/- or in default S.I. for 3 months, imposed upon the appellant, on conclusion of Sessions trial No.295 of 2008. 2. Facts which are material for deciding this case are as under:- The appellant was friend of victim Ankush Bankar. 2 APEAL 15 OF 2009 Both of them were gambling with playing cards on 2.2.2008. There was some dispute between the two on account of recovery of Rs.20/-. This led to scuffle. The appellant is alleged to have strangulated the victim. Victim died as a result of strangulation. Victim’s brother Anand gave report on which an offence was registered. In course of investigation, the police performed panchnama of spot, arrested the appellant, performed inquest on the body of the victim, sent it for the postmortem examination, recorded statement of witnesses, caused the appellant to be examined by the Medical Officer and on completion of investigation filed the chargesheet. 3. The learned Metropolitan Magistrate, in whose Court, chargesheet was filed, committed the case to the Court of Sessions. The learned Additional Sessions Judge to whom case was made over, charged the appellant of offence under Section 302 of the Indian Penal Code. Since the appellant pleaded not guilty, he was put on trial at which the prosecution examined in all 12 witnesses in its attempt to bring home guilt of the appellant. 4. After considering the prosecution evidence in the light of defence of denial raised, learned Additional Sessions Judge, held the appellant guilty of offence under Section 304 part II of the Indian Penal Code i.e. culpable homicide not 3 APEAL 15 OF 2009 amounting to murder in an act where there was no intention to cause death. He sentenced the appellant to R.I. for 7 years with fine of Rs.1,000/- against which the appellant is before this Court. 5. I have heard learned counsel for the appellant and learned Additional Public Prosecutor for the State. With the help of learned counsel I have gone through the record. Learned counsel at the very outset stated that he has instructions to pursue this appeal only on the question of sentence and his client does not want to question the conviction recorded by the learned trial Judge, even so I have gone through the record, in order to find out the circumstances in which the illegal act was committed. 6. P.W.1- Anand Bankar, the victim’s brother who gave report at Exhibit 9 and P.W. 3 Sarubai Bankar the victim’s mother are eye witnesses to the incident. Both stated that the incident occurred on account of dispute between victim and the appellant about sum of Rs.20/- which was possibly due when the duo were gambling with playing cards. While P.W.-2 Shankar stated that the appellant was asking victim to pay Rs. 20/-. P.W.3 Sarubai stated that the victim wanted appellant to pay Rs.20/- to him. There was no motive or enmity and the incident appears to have occurred at the spur of moment 4 APEAL 15 OF 2009 because of dispute of Rs.20/-. Learned trial Judge has, therefore, rightly concluded that offence was not one punishable under Section 302 of the Indian Penal Code, but one under Section 304 part II of the Code. 7. Learned counsel, for the appellant submits that as per chargesheet as well as panchnama of arrest of the appellant, appellant was shown to be 20 years old. Since learned trial Judge had chosen to hold appellant guilty of offence punishable under Section 304 part II of the Indian Penal Code, according to learned counsel, learned trial Judge, ought to have first considered whether the appellant was entitled to the benefit of provisions of Probation of Offenders Act, in view of section 6 of the Act. He submits that the appellant was a person less than 21 years in age and had not been found guilty of offence punishable with imprisonment for life. Therefore, according to him the appellant should have been given the benefit of probation. 8. The learned Additional Public Prosecutor submitted that though the chargesheet and the arrest panchnama, mentions the appellant as 20 years of age the F.I.R. and some other documents show that the appellant was 23 years old and therefore, learned trial Judge may not have considered it necessary to refer to the provisions of Probation 5 APEAL 15 OF 2009 of Offenders Act. In such marginal cases it should have been necessary for the learned Judge to first ascertain the age of the convict before considering the sentence. Be that as it may. Since there is doubt as to whether the appellant was indeed under 21 years of age at the relevant time and since the appellant is in jail since 2.2.2008, when he was arrested no useful purpose would now be served in finding out the correct age of the appellant or deciding whether he was entitled to benefit of provisions of Probation of Offenders Act. 9. Learned counsel for the appellant submitted that even if the appellant is considered to be above 21 years of age, he was just marginally above 21 years. He had no previous criminal history. Incident was not premeditated. No weapon was used. There was no excessively aggressive conduct on the part of the appellant. Appellant and the victim were scuffling. According to P.W.1-Anand Bankar, victim’s brother, both were trying to strangulate each other. Therefore, according to learned counsel, in these circumstances the sentence of R.I. for 7 years is extremely harsh. 10. Learned APP could not point out that the appellant has any previous criminal history or that the incident occurred in a manner indicative of use of excessive force on the part of the appellant. Considering the evidence of P.W.1 Anand 6 APEAL 15 OF 2009 Bankar, the victim's brother, that both the appellant and the victim were trying to strangulate each other and the appellant seems to have succeeded. Sentence of R.I. for 7 years in these circumstances deserves to be reduced to R.I. for five years. 11. In view of this the appeal is partly allowed. The conviction of the appellant for offence punishable under Section 304 part II of the Indian Penal Code is maintained. Sentence of R.I. for 7 years, is however, reduced to R.I. for five years and fine of Rs.1,000/- or in default S.I. for further period of three months. (R. C. CHAVAN, J.)