( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO. 749 OF 2008 Kisan s/o Ukhadya Pawara, R/o Shirpur, Dist. Dhule (presently in Central Prison, Nashik Road, Nashik) APPELLANT VERSUS The State of Maharashtra, through Police Station Officer, Shirpur Police Station, Tq. Shirpur, Dist. Dhule. RESPONDENT ..... Mr. D.B. Pawar, advocate (appointed), for the appellant. Mr. K.S. Patil, APP for the respondent/State. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 1st September, 2009] ORAL JUDGEMENT : 1. Challenge in this appeal is to judgement rendered by learned Sessions Judge whereby the appellant is convicted for offence punishable under section 304 Part-II of the I.P. Code and is sentenced to undergo rigorous imprisonment for ten (10) years and to pay fine of Rs. 1000/-, in default to suffer simple imprisonment for one (1) month. ( 2 ) 2. The appellant is said to have caused death of his cousin by name Harsing Pawara in the night of 8th March, 2007 during course of a brawl which had ensued between them in the proximity of holi-fire while extinguishing the fire as a part of religious ceremony. The appellant allegedly gave 3-4 kicks on private parts of Harsing at the material time. Resultantly, Harsing fell down in unconscious condition. He was taken to a private medical practitioner who declared that he was no more. The post-mortem examination revealed that death of Harsing was result of shock following intra-abdominal and scrotal injuries. 3. Heard learned advocate Mr. D.B. Pawar (Pathrakar), appointed to defend the appellant, who is in jail and learned APP Mr. K.S. Patil for the State. 4. On consideration of the eye witness account tendered by PW4 Chhagan and PW5 Guman, it is amply clear that in the relevant night between 7th and 8th March, 2007, they alongwith the appellant and deceased Harsing were engaged in traditional ceremony of extinguishing ( 3 ) the holi-fire. Their versions purport to show that a quarrel ensued between the appellant and deceased Harsing regarding share demanded by the appellant in the agricultural land. Then, deceased Harsing declined to give any share on the ground that already the land was partitioned. In the course of such altercations, all of sudden, the appellant gave 3-4 kicks on abdomen and private part of Harsing. Harsing fell down and became unconscious. When he was taken to a private medical practitioner by name Dr. Anandrao Pawara, then it was revealed that Harsing was no more. Their versions are not shattered during cross-examination. It is duly proved that the appellant mounted assault on abdomen and private part of the deceased. The post-mortem notes are duly corroborated by PW2 Dr. Agrawal. His version sufficiently proves that there was contusion and swelling over abdominal region as well as over equi- gastric region of deceased Harsing. His version would establish that the death of Harsing occurred as a result of shock which followed the intra-abdominal and scrotal injury. The deceased was aged about 45 years at the relevant time. ( 4 ) 5. The only material aspect to be considered whether the conviction for offence punishable under section 304 Part-II of the I.P. Code is legal and proper. Mr. Pawar invited my attention to certain observations in “Re Marana Goundan” A.I.R. 1941 Madras 560. In a similar case, it has been held by a Single Bench of Madras High Court that when the injuries were caused on the abdominal part, the conviction could be only under section 323 and not under section 304 (Part- II) of the I.P. Code. 6. In the fact situation of the present case, it may be gathered that traditionally, the members of Pawara tribal consume liquor and have evening meals of chicken. This fact is explicit from cross-examination of PW Chhagan Pawara. He admitted that such custom prevails in the Pawara community. He further admitted that the appellant had privilege to offer prayers of the “holi” since 35 years. His version would show that the appellant and deceased both were in drunken condition ( 5 ) during the odd hours of the night while performing the ceremony of extinguishing the fire of “holi”, before they indulged in the brawl. 7. Considering the peculiar facts of the present case, it is amply clear that the incident occurred at spur of moment. The appellant was not former himself and so also was the physical condition of the deceased. Needless to say, the appellant could not have any intention to cause particular injury on the private part of the deceased. He gave kicks to the deceased due to sudden annoyance caused in the course of brawl and he may not be knowing that the kicks would prove to be fatal. His drunkenness as well as the drunkenness of the deceased might have dis-associated themselves from the reasonable thinking about their acts. Under these circumstances, the only deducible inference would be that knowledge could not be attributed to the appellant that his acts may result in death of the victim. Considering this probable hypothesis derived from the circumstances of the present case, I hold that the appellant is guilty for the offence punishable under ( 6 ) section 325 of the I.P. Code and not under section 304 Part-II of the I.P. Code. 8. For the reasons stated above, the appeal is partly allowed. The impugned judgement to the extent of conviction of the appellant for offence punishable under section 304 (Part-II) of the I.P. Code and the sentence of ten (10) years’ rigorous imprisonment and fine of Rs. 1000/- for such offence is set aside. Instead, the appellant is convicted for offence punishable under section 325 of the I.P. Code and is sentenced to suffer rigorous imprisonment for two (2) years and to pay fine of Rs. 1000/-, in default to suffer further rigorous imprisonment for three (3) months. The appellant is entitled to set-off under section 428 of the Criminal Procedure Code and shall be released immediately if the term of the sentence is completed. [ V.R. KINGAONKAR ] JUDGE NPJ/CRIAPL749-08 ( 7 )