1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.781 OF 2008 The State of Maharashtra ..Applicant V/s. Isaq Babalal Attar Age : 30 years, Occu : Service R/o.Near Gram Panchayat Ambap ..Respondent Taluka Hatkanangale District Kolhapur Mrs.V.R.Bhosale, A.P.P, for the State None for the respondent CORAM : F.I.REBELLO & SMT.V.K.TAHILRAMANI, JJ. DATE : 10TH APRIL, 2008 JUDGMENT (PER SMT.V.K.TAHILRAMANI, J.) . The applicant/the State of Maharashtra has filed this application for leave to file an appeal against the Judgment and Order dated 31st December, 2007 passed by the Iind Ad-hoc Additional Sessions Judge, Kolhapur in Session Case No.61 of 2007. By the Judgment and Order, the learned Sessions Judge acquitted the respondent/accused of the offence punishable under Section 302 of 2 the Indian Penal Code for causing murder of Hasan Mubarak Mulla. It may be stated here that instead of the offence under Section 302 IPC the learned Sessions Judge convicted the respondent of the offence punishable under Section 324 of the Indian Penal Code. 2. The prosecution case briefly stated is as under :- That the deceased Hasan Mulla and the respondent/accused knew each other. On the day of the incident P.W.3 Subhana Saheblal Bedag and Hasan Mulla (deceased) were proceeding to take dinner. At that time P.W.4 Subhash Bapuso Jadhav and the respondent/accused came there and they said that they would also accompany Hasan Mulla and Subhana Bedag for dinner. Accordingly, all of them went to Pratikraj Hotel for dinner. There Hasan Mulla and the respondent/accused started consuming beer. While consuming beer there was sudden exchange of words between Hasan Mulla and the respondent/accused. During this sudden quarrel the respondent struck Hasan Mulla with a beer bottle on the left side of his forehead. Due to this, Hasan Mulla sustained injuries. P.W.4 Subhash Bedag and other customers intervened in 3 the quarrel and they sent respondent/accused out of the Hotel. After finishing dinner P.W.3 Subhana Bedag, P.W.4 Subhash Jadhav and Hasan Mulla returned back to the village. P.W.3 Subhana Bedag and P.W.4 Subhash Jadhav were intending to leave Hasan Mulla at his house but Hasan Mulla told them that they will go to the house of P.W.4 Subhash Jadhav as liquor had fallen on his clothes and due to smell of liquor there might be quarrel in his house. Hence, P.W.3 Subhana Bedag left Hasan Mulla and P.W.4 Subhash Jadhav at the house of P.W.4 Subhash Jadhav and he went home. On the next day morning at about 6.00 to 6.30 A.M. Subhana Bedag came to the house of P.W.4 Subhash Jadhav and he tried to wake up Hasan Mulla. However, Hasan Mulla was not responding. Both P.W.3 Subhana Bedag and P.W.4 Subhash Jadhav found that Hasan Mulla was not responding, hence, P.W.3 Subhana Bedag brought the mother of Hasan Mulla on his motorcycle. Thereafter, mother of Hasan Mulla also tried to wake up Hasan Mulla but in vain. They took Hasan Mulla to the house of Dr.Ashok Patil, who examined Hasan Mulla and declared him dead. Thereafter, the mother of Hasan Mulla lodged her F.I.R. 4 3. We have heard the learned A.P.P. for the State. We have perused the Judgment and Order passed by the learned Sessions Judge as well as the evidence which has been produced by the learned A.P.P. After carefully considering the matter we are of the opinion that the view taken by the learned Sessions Judge is a reasonable and possible view. 4. In the present case, the prosecution has examined three eye witnesses i.e.P.W.3 Subhana Bedag, P.W.4 Subhash Jadhav and P.W.5 Krishnat Gaikwad. All these witnesses were in Pratikraj Hotel at the relevant time and from their evidence it is seen that deceased Hasan Mulla and the respondent/accused along with P.W.3 Subhana Bedag and P.W.4 Subhash Jadhav were having dinner in Pratikraj Hotel. The deceased Hasan Mulla and the respondent/accused were having beer. There was a sudden quarrel between Hasan Mulla and the respondent/accused. During this sudden quarrel the respondent/accused hit Hasan Mulla on the left side of his forehead with beer bottle. Thereafter, the respondent/accused was made to 5 leave the Hotel. Deceased Hasan Mulla along with P.W.3 Subhana Bedag and P.W.4 Subhash Jadhav had dinner in the said Hotel. Thereafter, they left for their village. At night deceased Hasan Mulla slept in the house of P.W.4 Subhash Jadhav. However, in the morning it was found that he was dead. 5. The evidence of these three eye witnesses is corroborated by the medical evidence. P.W.9 Dr.Ramchandra Latavadekar conducted the Post Mortem and he found the following external injuries on the body of Hasan Mulla. “CLW over left parietal region size 5 cm x 2 cm margins of the injury were irregular everted signs of bleeding present.” In the opinion of the Doctor the injury was caused by hard and blunt object. Dr. Latavadekar did not find any other injury except the above referred injury. On opening the stomach the doctor found smell of alcohol. Hence, the viscera was preserved and it was sent for chemical analysis. At the initial stage the opinion of the doctor was that death was caused due to the head injury. However, it is seen that final opinion was not given by the doctor and it was 6 observed by the doctor that the final opinion was reserved till receipt of the report relating to viscera. C.A.report relating to viscera was received which showed that the viscera contained 97 miligrams and 80 miligrams of ethyl alcohol per 100 grams in sample 1 and 2 respectively. In view of the viscera report the Doctor opined that death might be due to consumption of acute Alcohol. 6. It is pertinent to note that in internal examination Dr. did not find any injury under skull. However, there was intra cerebral hemorrhage. It is clear that the external injury was only CLW. P.W.9 Dr.Ramchandra Latavadekar admitted during his cross examination that CLW cannot be termed as severe injury. Moreover, the doctor has not stated the location of intra cerebral hemorrhage and the doctor has also admitted that some times, hemorrhage may not occur at the time of violence but it may appear later. He has also admitted that hemorrhage can be caused naturally by disease, hypertension or, if a person consumes heavy liquor. So the medical evidence shows that there was possibility that excessive consumption of alcohol resulted in intra cerebral Hemorrhage. Looking to the viscera report 7 and other facts and circumstances as brought out in the evidence of the witnesses, the learned Sessions Judge held that the prosecution failed to prove the case under Section 302 of the Indian Penal Code. 7. We have already observed that the respondent/accused had given only one blow to the deceased. The said blow was given during a sudden quarrel. The blow was given on the left side of the forehead. From the facts brought on record, it does not appear that the accused intended to cause death of Hasan Mulla or even that he had knowledge that his act would result in death. It is seen that after the assault also Hasan Mulla had continued to have dinner. Thereafter, he went with his friends to the village and in the morning he was found dead. Looking to all these facts we are of the opinion that the conclusion reached by the learned Sessions Judge that the prosecution has failed to prove that the accused has committed murder of Hasan Mulla is a reasonable and possible view. Hence, we are not inclined to interfere in the application for leave to file an appeal. 8 8. Application is rejected. (F.I.REBELLO, J.) (SMT.V.K.TAHILRAMANI, J.)