.[1]. IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.205 OF 2006 CRIMINAL APPEAL NO.205 OF 2006 CRIMINAL APPEAL NO.205 OF 2006 Shri.Vicky Ganpat Lad, ] Age : 22 years, ] R/at : Balkumb, Devramnagar, ] Adjacent to Trupti Mutton Shop ] Thane. ] ..Appellant. (orig.Accused No.1) Versus The State of Maharashtra. ] ..Respondent. . . . Mr.Niranjan Mundargi, Adv. i/b. Smt.Asmita Sarangdhar, Adv. for the Appellant. Smt.M.M.Deshmukh, APP, for the Respondent-State. . . . WITH CRIMINAL APPEAL NO.1233 OF 2005 CRIMINAL APPEAL NO.1233 OF 2005 CRIMINAL APPEAL NO.1233 OF 2005 Shri.Jitu Lalchand Sonkar, ] Age : 21 years, ] R/at : Waman Nagar, Dongripada,] Ghodbundar Road, Thane. ] ..Appellant. (orig.Accused No.2) Versus The State of Maharashtra. ] ..Respondent. . . . Mr.Manoj J. Bhatt, Adv. for the Appellant. Mr.P.S.Hingorani, APP, for the State. . . . CORAM : CORAM : CORAM : F.I.REBELLO AND F.I.REBELLO AND F.I.REBELLO AND SMT.V.K.TAHILRAMANI, JJ. SMT.V.K.TAHILRAMANI, JJ. SMT.V.K.TAHILRAMANI, JJ. .[2]. DATED : APRIL 04, 2008. DATED : APRIL 04, 2008. DATED : APRIL 04, 2008. ORAL JUDGMENT (PER SMT.V.K.TAHILRAMANI, J.) : ORAL JUDGMENT (PER SMT.V.K.TAHILRAMANI, J.) : ORAL JUDGMENT (PER SMT.V.K.TAHILRAMANI, J.) : 1. Appellant-orig.accused No.1 Vicky Ganpat Lad has preferred Criminal Appeal No.205 of 2006 and appellant-orig.accused No.2 Jitu Lalchand Sonkar has preferred Criminal Appeal No.1233 of 2005. 2. In both these appeals, the appellants have challenged the judgment and order dated 17th December, 2005 passed by the learned IIIrd Additional Sessions Judge, Thane in Sessions Case No.30 of 2004. By the said judgment and order, the learned Sessions Judge, convicted both the appellants under Section 302 read with 34 of Indian Penal Code and sentenced them to imprisonment for life and to pay fine of Rs.1000/-, in default, RI for three months. 3. The prosecution case, briefly stated, is as under : . The incident took place on 17.9.2003 at .[3]. about 10:30 p.m.. The said incident took place near the shop of the complainant PW-2 Shivaji Chavan. The accused persons were known to the complainant. Accused No.1 Vicky Lad was armed with iron pipe (article 9) and accused No.2 Jitu Sonkar was armed with iron rod (article 10). Accused No.1-Vicky assaulted Lalchand Prajapati (deceased) on his head with iron pipe and accused No.2-Jitu also assaulted deceased Lalchand Prajapati. At the time of the incident, accused No.2-Jitu was also abusing Lalchand and saying "Maro, Usko Jada Charabi Ho Gai Hai". Lalchand sustained injury on his head. Thereafter, the complainant and others took Lalchand to Civil Hospital. Lalchand was admitted in the hospital. However, on the next day at about 6:00 a.m., Lalchand died in the hospital. During the course of investigation the body of Lalchand was sent for post-mortem. Two injuries were found on the body of deceased Lalchand i.e. : (1) sutured CLW over occipito-parital region semicircular seven stitches & (2) small contusion over right anterior chest wall 2 cms X 2 cms.. After conclusion of the investigation, charge-sheet came to be filed. .[4]. In due course, the case was committed to the Court of Session. 4. The charge came to be framed against both the appellants under Section 302 read with 34 of IPC. Both the appellants pleaded not guilty to the said charge and claimed to be tried. The defence of the appellants is that of total denial and false implication. After going through the evidence adduced by the prosecution, the learned Sessions Judge convicted and sentenced the appellants, as stated in Para 1 above. Hence, these Appeals. 5. We have heard Mr.Manoj Bhatt learned Advocate for the appellant-orig.accused No.2 Jitu Sonkar in Criminal Appeal No.1233 of 2005, Mr.Niranjan Mundargi learned Advocate for the appellant-orig.accused No.1 Vicky Lad in Criminal Appeal No.205 of 2006, and learned APPs for the State. We have also perused the judgment and order passed by the learned Sessions Judge as well as the record pertaining to the present case. After giving our anxious consideration to the .[5]. matter, we have reached to the conclusion that the appellants ought to have been convicted under Section 304-II IPC and their conviction under Section 302 IPC cannot be sustained. 6. So far as the involvement of the appellants in the incident is concerned, we are satisfied that it has been established to the hilt through the credible ocular account rendered by the complainant PW-2 Shivaji Chavan and PW-4 Sonu Chavan. The complainant PW-2 Shivaji has stated that on 17.9.2003 at about 10:30 p.m. he was closing his fish shop. At that time he saw that accused No.1-Vicky assaulted Lalchand (deceased) by means of iron pipe on his head and accused No.2-Jitu assaulted Lalchand by means of iron rod. At that time accused No.2-Jitu was also abusing Lalchand and saying "Maro, Usko Jada Charabi Ho Gai Hai". Lalchand sustained injury on his head. Thereafter, the complainant and others took Lalchand to Civil Hospital. PW-2 Shivaji has identified both the accused before the Court as well as he has identified the weapons before the Court. The evidence of PW-4 Sonu is on the same .[6]. line as that of PW-2 Shivaji PW-4 Sonu has also identified the accused persons as well as the weapons before the Court. 7. We have closely examined the ocular accounts furnished by PW-2 Shivaji and PW-4 Sonu and we find that it inspires confidence. The manner of assault as disclosed by these witnesses is corroborated by the external and internal injuries found on the person of deceased Lalchand by PW-5 Dr.Tejaswini Bhagat. Dr.Bhagat has stated that during the post-mortem she noticed two external injuries on the body of deceased Lalchand which are as under : (1) sutured CLW over occipito-parital region semicircular seven stitches; and (2) small contusion over right anterior chest wall 2 cms X 2 cms. Dr.Bhagat has further stated that on internal examination she found the following injuries on the body of deceased Lalchand : (1) haematoma under the scalp at occipetoparital region - 6 cms x 4 cms, (2) left temporal bone fracture, and (3) intracranial haemorrhage with subdural haematoma of size 3 cms x 2 cms with pontine haemorrhage is noted. In the .[7]. opinion of PW-5 Dr.Bhagat the cause of death is due to haemorrhagic shock due to intracranial haemorrhage with subdural haematoma with fractured skull. Dr.Bhagat has categorically stated that if anybody gives blow of iron pipe on the head then injury no.1 mentioned in column no.17 is possible. She has further stated that injury no.1 mentioned in column no.17 is sufficient to cause the death of person. In the opinion of PW-5 Dr.Bhagat the injuries sustained by the deceased are possible by iron pipe (article 9) and iron rod (article 10). 8. In the present case, there is recovery of iron pipe (article 9) at the instance of accused No.1-Vicky. Panch witness PW-8 Rajeshkumar Gupta has deposed about the recovery of iron pipe at the instance of accused No.1-Vicky. The said weapon was sent to Chemical Analyser and the CA report shows that it was stained with blood of "O" group i.e. blood group of the deceased Lalchand. There is also recovery of iron rod (article 10) at the instance of accused No.2-Jitu. Panch witness PW-7 Anil Jagtap has deposed about the said recovery. However, it may be stated here that no blood was .[8]. detected on the said weapon. Both the accused came to be arrested on the very next day of incident. Clothes of the accused persons came to be seized under panchnama (Exh.41). Clothes were sent to CA. T-shirt of accused No.2-Jitu was found to have stains of blood of "O" group. Finding of stains of "O" blood group on the T-shirt of accused No.2-Jitu and the iron pipe would also be a circumstance which would go against the appellants. 9. Thus it is seen that the evidence of eye witnesses PW-2 Shivaji and PW-4 Sonu is corroborated not only by the medical evidence, but, it also receives some support from the CA report. 10. This leaves us with only one question viz., that of the offence. The learned Sessions Judge has convicted both the appellants for the offence under Section 302 read with 34 of IPC. However, the learned Advocates for the appellants have stated that the learned Sessions Judge erred in convicting the appellants under Section 302 IPC, .[9]. instead the appellants ought to have been convicted under Section 304-II IPC. In support of their contentions, reliance is placed on various decisions. The first decision on which reliance is placed is in the case of Mavila Thamban Nambiar Mavila Thamban Nambiar Mavila Thamban Nambiar v. State of Kerala v. State of Kerala v. State of Kerala, reported in 1997 Cri.L.J. 1997 Cri.L.J. 1997 Cri.L.J. 831 831 831. The learned Advocates for the appellants submitted that in the said case though the accused had given a blow with a pair of scissors on the vital part of the body, yet the conviction under Section 302 was altered to one under Section 304-II. We have carefully perused the said decision and we find that in the said case the accused had given just one blow on the body. The learned Advocates also placed reliance on the decision of this Court in the case of Gopal Gopal Gopal Sakharam Jadhav v. State of Maharashtra Sakharam Jadhav v. State of Maharashtra Sakharam Jadhav v. State of Maharashtra, reported in 2000 (1) Mh.L.J. 242 2000 (1) Mh.L.J. 242 2000 (1) Mh.L.J. 242. In the said case, the accused had inflicted fist blow and kick blows on the deceased and thereafter he picked up a brick and assaulted the deceased with the brick on the chest. In such circumstances, it was held that the case would not fall under Section 302 of IPC but would fall under Section 304-II of IPC. In .[10]. this connection, it would be pertinent to refer to the observations of the Supreme Court in the case of Jawahar Lal and another v. State of Punjab Jawahar Lal and another v. State of Punjab Jawahar Lal and another v. State of Punjab reported in AIR 1983 SC 284 AIR 1983 SC 284 AIR 1983 SC 284. In the said case, the facts were that the appellant gave one dagger blow on the chest of the latter when he passed by the front of his shop and the resultant injury in the opinion of the Autopsy Surgeon, was sufficient in the ordinary course of nature to cause the death of the deceased. The trial court, convicted Jawaharlal for an offence under Section 302 IPC, and the High Court dismissed his appeal. It was urged by the prosecution that the act of Jawaharlal would fall squarely within the ambit of clause thirdly of Section 300 IPC. The Supreme Court in para 15 observed thus :- "Merely because the blow landed on a particular spot on the body, divorced from the circumstances in which the blow was given, it would be hazardous to say that the 1st appellant intended to cause that particular injury." .[11]. . The Apex Court took the view that there was no intention on the part of Jawaharlal to inflict the injury which he inflicted and that being so, his act would not fall within clause thirdly of Sec.300 IPC but instead would fall under Section 304(II) IPC. 11. In the present case, as far as accused No.2-Jitu is concerned, no role is attributed to him of assault on the head of the deceased Lalchand. Lalchand died only on account of assault on the head. The medical evidence shows that there was only one injury on the head. Thus, from the evidence it is seen that only one blow was given by the accused and that blow landed on the head of deceased Lalchand. Lalchand did not die on the spot, but he expired on the next day. If accused No.1-Vicky intended to cause death of Lalchand, he would have continued to give blow to Lalchand till Lalchand died. However, accused No.1-Vicky had given only one blow. This shows that accused No.1-Vicky did not intend to cause death of Lalchand and at the most it can only be said that he had the knowledge that his act may .[12]. cause death of Lalchand, however, he did not have the intention to do so. In view of these facts, in our opinion, the case would fall under Section 304-II IPC. 12. The learned APP has placed reliance on two decisions of the Supreme Court in support of her contention that even though one blow was given by the accused person, the case would still fall under Section 302 IPC. The said decisions are in the case of State of U.P. v. Premi and others State of U.P. v. Premi and others State of U.P. v. Premi and others reported in AIR 2003 SUPREME COURT 1750 AIR 2003 SUPREME COURT 1750 AIR 2003 SUPREME COURT 1750 and in the case of State of Rajasthan v. Dhool Singh State of Rajasthan v. Dhool Singh State of Rajasthan v. Dhool Singh reported in (2004) 12 SUPREME COURT CASES 546 (2004) 12 SUPREME COURT CASES 546 (2004) 12 SUPREME COURT CASES 546. In the case of Premi Premi Premi (supra) nodoubt only one blow was inflicted on the head of the deceased, however, it is seen that the accused persons had entered into the house of the deceased at midnight and they were armed with country-made pistol and thereafter they had inflicted injury on the head. The very fact that the accused persons in the said case entered the house of the deceased armed with deadly weapon and thereafter caused him injury, shows that their intention was to cause death of .[13]. the person. In the present case, the accused were walking by road and thereafter on seeing Lalchand they have assaulted him in the manner stated above. The circumstances in the case of Premi Premi Premi (supra) being quite different from the facts of the present case, the said decision would not apply to the facts of the present case. . In the case of Dhool Singh Dhool Singh Dhool Singh (supra) a single blow was given, however, the said blow was given with a sword on the neck of the victim. The sword measured 3 ft in length and though the blow was solitary blow it resulted in almost instantaneous death. In the present case we have already observed above that Lalchand expired on the next day of the incident. The nature of the weapon and the other circumstances in the case of Dhool Singh Dhool Singh Dhool Singh (supra) being entirely different, the said decision also would not apply to the facts of the present case. Hence, it would of no help to the prosecution. 13. In view of the discussions in the foregoing paras, we are of the opinion that the case falls .[14]. under Section 304-II of IPC. 14. In the result, Appeals are partly allowed. The conviction and sentence of both the appellants i.e. orig. accused No.2 Jitu Lalchand Sonkar and orig.accused No.1 Vicky Ganpat Lad under Section 302 read with 34 of IPC is set-aside. Instead the appellants are convicted under Section 304-II read with 34 of IPC and they are sentenced to the period of imprisonment already undergone by them. (SMT.V.K.TAHILRAMANI,J.) (F.I.REBELLO,J.) (SMT.V.K.TAHILRAMANI,J.) (F.I.REBELLO,J.) (SMT.V.K.TAHILRAMANI,J.) (F.I.REBELLO,J.)