1 jpc/­ IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 419 OF 1992 1. Salim Mohammadsabh Momin 2. Raju Bahumiya Momin 3. Ajij Ahmad Jamadar 4. Dadu Abdulkadar Momin .. Applicants Vs. The State of Maharashtra .. Respondent Shri R. D. Suryawashi, for the Applicant CORAM :SMT. MRIDULA BHATKAR, J. DATE :2nd September, 2009. P. C. 1. This Appeal is filed against the judgment and order dated 31st July, 1992 passed by 4th Additional Sessions Judge Sangli convicting all the four accused for the offence punishable under section 304 Part­II of Indian Penal Code (IPC) and sentencing them to suffer R.I. 10 years and fine of Rs.3000/­ each, so also accused Nos. 1 and 2 are convicted for the offence under Section 323 read with Section 34 of the Indian Penal code and sentenced them to suffer S.I. for six months and to pay fine of Rs. 300/­. All the four accused challenging this order have filed appeal. 2 However, during the pendancy of this appeal, accused Nos. 1 , 3 and 4 expired and therefore, this appeal is heard only against accused No.3. 2. The facts of the case, in brief, are summarized as follows: The incident had taken place in the morning at 10.30 on 1st October, 2009 near one shop of Country Liquor at Miraj. Accused Nos. 1 and 2 used to sell Bhel near the said country liquor shop. Accused Nos. 3 and 4 “ ” were working in the Scrap shops which were adjacent to the said country liquor shop. The complainant and his son­in­law (deceased) had come to the country liquor shop. At the time of consumption of liquor they ordered snacks i.e. Bhel . Thereafter dispute in respect of “ ” the payment of the charges of Bhel arose. Accused Nos. 1 and 2 caught hold the complainant and started beating him. The deceased came out of the liquor shop and tried to intervene. The accused Nos. 3 and 4 also came out of their shops and started beating the deceased with the blows on chest, abdomen and head. They pushed him on the wooden pole. Accused Nos. 1 and 2 left the complainant and started giving blows to the deceased. The deceased fell down and the accused left lying him and stopped beating. One the same day, the complainant lodged the FIR. Police arrived and arrested all the accused. After investigation they filed charge sheet. The accused were charged under Section 302, 325 read with 3 Section 34 of the Indian Penal Code. The learned Sessions Judge convicted the accused not under Section 302 but under Section 304 Part II of the IPC. Accused Nos. 1 and 2 were convicted for the offence under Section 323 read with section 34 of IPC. Being aggrieved with this judgment and order, this appeal is filed. 3. Cause of the death of the deceased, as per the medical evidence is subdural heamotoma. For such death it is necessary that some head injury should have been caused to the deceased. Sub­dural heamotoma can be due to the impact on hard substance or beating on head. In the present case, the prosecution examined three eye witnesses. PW­4 and PW­5 have deposed about the beating by accused No. 3 to the deceased. They have stated the parts of the body i.e. abdomen and chest where the blows were given. When the specific portion of the body is mentioned by the witnesses, then it is not to be read a statement about the assault on the body generally. In the present case, they are silent whether blows were hit on the head. They did not say specifically that blows were given on the head of the deceased. So, the evidence of PW­4 and PW­5 does not help the prosecution on the point of cause of death and role attributing to Accused No.3 though the presence of accused no.3 is admitted, on the spot. 4 4. PW 2 is the complainant and he has deposed that accused Nos. 3 and 4 hit him on the head. They gave fist blows over the chest stomach and also on the head and they pushed Maruti against the wooden pole of the compound wall. Specific overt act is not attributed to accused nos. 3 and 4. 5. The complainant i.e. PW­2, at the relevant time, was drunk. Secondly, he himself was beaten up by accused Nos. 1 and 2. The credibility of the evidence of this witnesses is in question. He may not have an opportunity to look at the deceased he was beaten up by accused Nos. 3 and 4. Such uncorroborated evidence of witness­PW­2 who was drunk and himself was beaten up is not sufficient o sustain conviction under Section 304 Part II of the Indian Penal code 6. Hence, the appeal is allowed. Conviction given by the learned Sessions Court udder Section 304 Part II of the IPC is set aside. (MRIDULA BHATKAR, J.)