1 Cri.Appeal No.437/2010 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPEAL NO.437 OF 2010 Manoj s/o Suresh Shirsath, Age 21 years, Occu.Nil, R/o Shastrinagar, Kedgaon, Taluka and District Ahmednagar .. APPELLANT VERSUS The State of Maharashtra .. RESPONDENT Smt.Sadhana S.Jadhav, Advocate for appellant Mr S.D.Kaldate, Assistant Public Prosecutor for respondent-State CORAM : P.V. HARDAS AND A.V. POTDAR, JJ. DATE : 1st August 2011 ORAL JUDGMENT (PER P.V. HARDAS, J.) 1. The appellant, who stands convicted for an offence punishable under Section 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs.1,000/-, in default to undergo further simple imprisonment for three months, by the judgment of Sessions Judge, Ahmednagar, dated 27.9.2010, in Sessions Case No.245/2009, by this appeal questions the correctness of his conviction and sentence. 2 Cri.Appeal No.437/2010 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus. P.W.5 Anil Bharati, a Police Naik, who was attached to the Kotwali Police Station, Ahmednagar on 10.8.2009, recorded the complaint of P.W.3 Kanaram at 5.00 p.m. On the basis of the aforesaid complaint of Kanaram at Exh.39, offence came to be registered vide Crime No.267 of 2009 under Section 302, 342, 143, 147, 149 of the Indian Penal Code against the appellant and others. P.W.5 Anil Bharati thereafter contacted the Police Inspector and as per his directions handed over the investigation to the Investigating Officer. P.W.6 P.I. Jadhav, who was posted at Police Station, Kotwali, Ahmednagar as an A.P.I., received information at about 3.40 p.m. from P.W.5 Anil Bharati about the assault on deceased Ratansingh who was a Security Guard at the Kinetic Company, Ahmednagar. He accordingly proceeded to the scene of the offence along with the Police staff and contacted P.W. 3 Kanaram and instructed him to proceed to Kotwali Police Station for lodging his complaint. He, therefore, took over the investigation and recorded the statement of P.W.4 Ajitsingh. He drew the scene of the offence panchnama in the presence of witnesses at Exh.28. From the scene of the offence, a wooden plank and a stick which are Articles 1 and 2 respectively came to be seized. On 16.8.2009 he arrested accused No.2 Ashok and on 22.8.2009 arrested the appellant vide arrest panchnamas at Exhs.22 and 23, respectively. Deceased had 3 Cri.Appeal No.437/2010 succumbed to his injuries and, therefore, inquest panchnama at Exh.24 came to be drawn in the presence of witnesses. Dead body of deceased Ratansing was referred for post mortem examination. Post mortem on the dead body of deceased Ratansingh was performed by P.W.2 Dr.Ashok Karale. P.W.2 Dr.Ashok Karale noticed the following external injuries: (i) Scratch abrasion and C.L.W.having size 3 x 0.5 cm over left cheek; (ii) C.L.W. having 3 x 1 cm with bleeding through it near the same area; On internal examination he noted huge bleeding anterior to sternum and also retro sternal bleeding. Bleeding was also noted in manibrium. Lunges were found congested. Haematoma was noted in upper lobe of right lung and in lobes of left lung. About 500 ml blood was noted in left thoracic cavity. There was huge clot in right atrium of heart and rest of cavities were found containing blood. According to him, all the injuries were ante mortem and might have been caused within 8 to 10 hours. He, therefore, opined that cause of death was due to cardio-respiratory arrest due to haemorrhagic and rasoragal shock due to haematoma in both lungs and ante sternal / retro sternal bleeding. The post mortem report is at 4 Cri.Appeal No.437/2010 Exh.36. He has further stated that the injuries were possible by assault by a wooden plank and stick, Articles 1 and 2. Further to the completion of investigation a charge-sheet came to be filed against the present appellant. 3. On committal of the case to Court of Sessions, trial Court vide Exh.16 framed charge against the appellant and original accused No.2 for an offence punishable under Section 143, 147, 148, 341 read with sec.149, 120-B, 302 read with sec.149 of the Indian Penal Code and alternatively Section 302 read with sec.34 of the Indian Penal Code. The accused denied their guilt and claimed to be tried. Prosecution in support of its case examined six witnesses. The entire prosecution case revolves round the testimony of P.W.3 Kanaram and P.W.4 Ajitsingh. The trial Court accepted their evidence and convicted and sentenced the appellant as afore stated while acquitting original accused No.2. 4. In order to effectively deal with the submissions advanced before us by Smt.Sadhana Jadhav, learned Counsel for the appellant, it would be useful to refer to the evidence of the prosecution witnesses. 5. P.W.3 Kanaram, an eye witness and the first informant, states that since 1984 he is serving as a Security Guard in the Kinetic Company at Ahmednagar. He further states that the working of the Company is divided in three shifts. The timings of the first shift is from 5 Cri.Appeal No.437/2010 7.00 a.m. to 3.30 p.m and the second shift is from 3.30 p.m. to 12.00 midnight while third is from 12.00 midnight till 7.00 of the next morning. He states that on 10.8.2009 he was on duty i.e. from 7.00 a.m. to 3.30 p.m. According to him deceased Ratansingh, P.W.4 Ajitsingh and one Dharampal were on duty. On that day at about 3.30 p.m. Security Guards were leaving the Company and were proceeding to their respective houses. Ratansingh was about 35 to 40 ft. ahead of P.W.3 Kanaram. When he was near the canteen gate of the Company, he noticed six to seven persons assaulting Ratansingh and, therefore, P.W.3 Kanaram shouted loudly. He saw accused No.2 Manoj Shirsath assaulting Ratansingh with a wooden plank and one Sonya Shirsath assaulting Ratansingh by pelting stones. On hearing the cries P.W.4 Ajitsingh and Dharampal who were ahead of Ratansingh returned back running. One Dharamveer Puniya who was on duty at that time as a Security Guard also arrived there. P.W.3 Kanaram states that he tried to prevent the assailants from assaulting deceased Ratansingh and the assailants on seeing the arrival of the Security Guards fled from the scene. Kanaram states that he had noticed accused No.1 Manoj giving blows on the head and right side of abdomen of deceased Ratansingh by wooden plank. He states that Ratansingh also tried to prevent them and had chased accused No.1 Manoj and one Sonya Shirsath and another. While running, deceased fell down on the ground on his back. Kanaram states that when he went near Ratansingh he noticed bleeding injuries below the right eye and chin of deceased Ratansingh. Ratansingh at that time was unconscious. Meanwhile, a Maroti Car 6 Cri.Appeal No.437/2010 came from the Daund side and the driver of the car was requested to stop. Ratansingh was carried to the Anand Rishiji Hospital, Ahmednagar in the said car. The Medical Officer, upon examining Ratansingh, declared him dead. Thereafter the dead body of deceased Ratansingh was taken to the Civil Hospital, Ahmednagar. He states that the Police recorded his complaint at Exh.39. He further states that the assailants were employees of the company, who had been working on daily wages. He further states that he was knowing the assailants since about 4 to 5 days prior to the incident, as they were daily coming to the company for working on daily wages. He has also stated that the employees of the company were not permitted to carry mobile phones with them inside the company premises. He has further stated that the assault on Ratansingh was on account of the dispute between him and the assailants over carrying on mobile phones by the assailants in the company. In cross-examination he has admitted that the motive for the assailants was learnt by him from the other Security Guards. He has denied to have stated portion marked “A” in his supplementary statement, which is to the effect that Ratansingh had not permitted one Amol Varma to carry mobile phone in the company. Omission has been duly proved that he had not stated in his statement at Exh.39 that as soon as he had seen the persons assaulting Ratansingh, he shouted loudly. Omission has been duly proved that he had not stated that he had seen accused No.1 Manoj assaulting Ratansingh with a wooden plank. Similarly, omission has been duly proved that he had not stated that accused Sonya was 7 Cri.Appeal No.437/2010 assaulting Ratansingh with a stick while the other assailants were pelting stones. Omission has been duly proved that he had not stated that P.W.4 Ajitsingh, Dharampal and Dharamveer rushed there. Omission has been duly proved that he had not stated that he also rushed towards Ratansingh and prevented the assailants from assaulting Ratansingh. Omission has been duly proved that he had not stated that appellant Manoj gave two blows of wooden plank, one on the head and the other on the right side of abdomen to deceased Ratansingh. Similarly, omission has been duly proved that he had not stated that deceased Ratansingh chased the assailants and while chasing them, fell on his back. From out of the omissions, it is seen that the omission in respect of assault to deceased Ratansingh by a wooden plank is only in respect of number of blows given by the appellant. 6. Prosecution has also examined P.W.4 Ajitsingh as another eye witness. P.W.4 Ajitsingh states that he has been serving in the Kinetic Company, Ahmednagar as a Security Guard since last 25 years. On 10.8.2009 he was on duty in the first shift i.e. from 7.00 a.m. to 3.30 p.m. at the first gate i.e. the canteen gate. He further states that at 3.30 p.m. he handed over his charge to Dharamveer, a Security Guard and after about five minutes went outside the gate and was proceeding towards his house. He states that when he reached near the gate of the colony, which is about 75 to 80 feet from the canteen gate, he heard the shouts of Kanaram as “Catch-Catch”. On hearing 8 Cri.Appeal No.437/2010 the cries of Kanaram, he turned back and saw that some persons were assaulting deceased Ratansingh. According to him the assailants were employees of the company, who had been working on daily wages. He states that he saw the appellant assaulting Ratansingh with a wooden plank while the other were assaulting Ratansingh with sticks and some were pelting stones. He then states that as soon as he saw the assailants assaulting Ratansingh, he rushed towards Ratansingh and on seeing him the assailants fled towards Shastri Nagar. P.W.4 Ajitsingh further states that Kanaram also rushed there and Dharamveer also arrived there. Ratansing was unconscious and a Maroti which had come from the Daund side was stopped in which Ratansingh was carried to the Anand Rishi Hospital. A doctor examined Ratansingh and pronounced him dead. In cross-examination he was confronted with portion marked “A” from his previous statement in which he stated that Ratansingh had fallen on his face and he was turned by Ajitsingh. He has further admitted that he learnt from Kanaram in the hospital about the quarrel between Ratansing and the other employees over carrying the mobile phones inside the company by the employees. 7. Smt.Sadhana Jadhav, learned Counsel for the appellant, by referring to the muster roll at Exh.53, has urged before us that the name of the appellant is not recorded in the muster roll and, therefore, the appellant cannot be said to be an employee. The appellant has been named in the first information report by P.W.3 Kanaram and the 9 Cri.Appeal No.437/2010 name of the appellant is also disclosed by P.W.4 Ajitsingh as an employee, who had been appointed recently on daily wages. The fact that the appellant was known to P.W.3 Kanaram and P.W.4 Ajitsingh cannot be disputed by the appellant in the light of paucity of material elicited in the cross-examination. Even if the name of the appellant is not recorded in the muster roll, it would not mean that the appellant was unknown to both these eye witnesses. Therefore, according to us the identity of the appellant has been established by the prosecution in the evidence of P.W.3 Kanaram and P.W.4 Ajitsingh. 8. Prosecution has examined P.W.2 Dr.Ashok Karale, who had conducted the post mortem. P.W.2 Dr.Ashok Karale does not state that the injuries, to which we have adverted to above, were sufficient in ordinary course of nature to cause death. P.W.2 Dr.Karale has admitted in the cross-examination that the injuries could be possible due to assault by any hard and blunt object. He has also admitted that the injuries sustained by the deceased were possible by a fall on hard surface while running. He has also admitted that the internal injuries could be possible by fall on hard and rough object. Deceased had principally died on account of the haematoma, which was found in the right and the left lung. Huge clot was noted in the right atrium of the heart. Neither P.W.3 Kanaram nor P.W.4 Ajitsingh have stated anything about the exact place of the assault by a wooden plank. However, the injuries sustained by the deceased can certainly be attributed to the appellant. The injuries by themselves were not sufficient in ordinary 10 Cri.Appeal No.437/2010 course of nature to cause death. The appellant cannot be attributed with the intention to commit murder of deceased Ratansingh. It appears that there was a quarrel over the issue of not allowing employees to carry mobile phones in the factory premises. The assault also cannot be said to be a premeditated assault, as the weapon, which was chosen was a wooden plank, which could possibly be lying near the scene of the offence. In such circumstances, therefore, according to us the conviction of the appellant for offence punishable under Section 302 of the Indian Penal Code cannot be justified and the appellant would be liable to be convicted for an offence punishable under Section 304 (Part II) of the Indian Penal Code. 9. We, therefore, are inclined to partly allow the appeal and alter the conviction from Section 302 of the Indian Penal Code to a conviction for an offence punishable under Section 304 (Part II) of the Indian Penal Code. 10. Accordingly, Criminal Appeal is partly allowed and the conviction of the appellant for an offence punishable under Section 302 of the Indian Penal Code and sentence of imprisonment for life and to pay fine of Rs.1,000/-, in default to undergo simple imprisonment for three months, is set aside and instead the appellant is convicted for an offence punishable under Section 304 (Part II) of the Indian Penal Code and is sentenced to suffer rigorous imprisonment for five years and to 11 Cri.Appeal No.437/2010 pay fine of Rs.1,000/-, in default to undergo further rigorous imprisonment for three months. The appellant shall be entitled to set off for the period of imprisonment already undergone by the appellant. Appeal is thus partly allowed. ( A.V. POTDAR, J.) ( P.V. HARDAS, J.) (vvr/437.10criapeal)