1 APPEAL-597-08.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL APPEAL NO. 597 OF 2008 Dalbir Balwant Sote ) Age 48, Convict No.C/4193, Kolhapur ) Central Prisoon, Kalamba, Amboli Naka, ) Seezor Rd., Valmiki Chawl, Amboli, Mumbi) .. Appellant (Orig. accused) vs. The State of Maharashtra ) (Notice to be served on the Public ) Prosecutor, High Court (Appellate ) Side), Bombay. ). .. Respondent Ms. Sonia Miskin Appointed Advocate for the appellant. Mr.Y.M.Nakhwa, APP for the respondent - State. CORAM: J.H.BHATIA,J. DATE : 19th October, 2011. JUDGMENT : 1. The accused has preferred this appeal against the Judgment and order passed by the Adhoc Addl. Sessions Judge, Sewree, Mumbai, in Sessions Case No.860 of 2006 whereby he was convicted for the offence punishable under Section 304 Part I of IPC and was sentenced to R.I. for ten years and to pay fine of Rs.1,000/- and in default to undergo further R.I. for six months. 2. Prosecution case, in brief, is that the accused, deceased Mintu 2 APPEAL-597-08.odt Ramkishan Mandotiya, Naresh Phularia, Ramesh Lashkari and Shishwal were friends. The accused and the deceased Mintu were working as sweepers. On 8.5.2006, all these friends had gathered on the footpath in front of Bombay Cambridge School and had a chicken party. They had cooked chicken on the fireplace prepared at the footpath. At about 12.30 hrs., when they were enjoying the feast, the deceased Mintu took a piece of chicken from the plate of accused due to which the accused got annoyed and he began to beat the deceased. The deceased tried to pacify the accused, but the accused suddenly stabbed him with a knife on the abdomen due to which he suffered a bleeding injury. During the said incident, he also suffered injury on the left hand thumb. Immediately Mintu was taken to Cooper Hospital from where a report was sent to D.N. Nagar Police Station. Mintu was admitted in the hospital and he was also given treatment. At the Hospital itself, his FIR was recorded and Crime No.212/2006 was registered under Section 326 of IPC. On the same day, the blood stained knife was seized from the spot of the incident under the spot panchnama. The statement of eye- witnesses were recorded. On 24.5.2006, Mintu died in the Hospital while taking treatment. Thereafter, inquest panchnama was conducted. Post-mortem examination was also performed. After investigation, charge-sheet was filed under Section 302 of IPC and the case was committed to the Court of Sessions and the accused was put to trial for the offence of murder punishable under 3 APPEAL-597-08.odt Section 302 of IPC. He pleaded not guilty. According to him, he was innocent. He contended that the stab was not the cause of death as the deceased had died due to Bronco-pneumonia which he had developed while he was indoor patient at the hospital. 3. On behalf of prosecution, in all nine witnesses were examined. Several documents were also placed on record. Incidentally, the prosecution did not examine the Medical Officer, who had first examined the injured Mintu on his admission. The said doctor and one more doctor who had treated said Mintu when he was indoor patient, were examined as defence witnesses to show that the cause of death was not due to stabbing but due to Bronco-pneumonia. 4. Heard the learned Counsel for the accused/appellant and the learned APP. Perused the R & P of the trial Court. 5. PW-2 Rajkumar Sukatram Tak and PW-3 Naresh Chandaliya were the eye-witnesses. They have deposed the prosecution story. According to them, deceased Mintu, the accused and these witnesses were the friends. There were some more friends in the group. They had all assembled to have a chicken party at the footpath by the side of the Cambridge School. They prepared chicken on 4 APPEAL-597-08.odt the fireplace on the footpath and began to enjoy. When they were eating, the deceased Mintu took a piece of chicken from the plate of the accused due to which the accused got annoyed, and it resulted in scuffle. During the scuffle, the accused lifted a knife from the spot and stabbed on the abdomen of Mintu. Immediately, Mintu was taken to hospital where he was admitted. The evidence of these witnesses also shows that all of them had consumed liquor along with chicken. The evidence of DW-1 Dr. Yapamakalu Prabhakar Shrinivasanu reveals that on 8.5.2006 at about 1.20 p.m. injured Mintu was brought to Cooper Hospital. On examination, he found the following injuries :- “(i) Contused Lacerated Wound 3 x 1 cm over abdomen parietoneum breached and omentum seen through the wound. There was no other external injury on his body.” He deposed that the injury was on the vital part and parietonium was breached. Therefore, he was taken to operation theatre where he was given treatment. He also deposed that the decesed was chronic alcoholic, but he was not the patient of bronco pneumonia. 6. Evidence of PW-8 Dr. Vijay Tasgaonkar, who performed the post- mortem examination on 25.5.2006 shows that he had noticed stitches on the small intestine, large intestine as well as ilium. He collected the internal organs 5 APPEAL-597-08.odt and referred to hysto-pathology. According to him, cause of death was due to Peritoritis with Broncho Pneumonia and accordingly he issued post mortem report Exh.22. In the cross-examination, he deposed that if the deceased would have been a patient of bronco pneumonia, death could be accelerated by the stab. 7. Taking into consideration the evidence on record, it is clear that the incident of this case had occurred abruptly during the scuffle between the old friends who had gathered there to enjoy a chicken party. Neither there was a previous enmity nor there was any predetermination to cause death or to cause injury which could result in death. During the abrupt scuffle, the accused gave a single blow on the abdomen resulting in the injuries to the small and large intestine for which he was operated upon. It appears that when he was taking treatment, he developed broncho-pneumonia which accelerated his death. Of course the accused cannot be absolved from the responsibility of causing death merely because had the patient not developed broncho-pneumonia, he could have been saved. Taking into consideration the facts and circumstances, I find no fault with conviction of the accused for culpable homicide not amounting to murder punishable under Section 304 Part I of IPC as the accused had stabbed the deceased with a knife on the vital part of the body resulting in death. 6 APPEAL-597-08.odt 8. However, taking into consideration the facts and circumstances in which the incident occurred abruptly and at the spur of moment, in my opinion, the sentence of R.I. for ten years is excessive and harsh. The accused was arrested on 8.5.2006 and since then he is continuously in jail. Thus, he has been actually in jail for a period of about 5½ years. As per the report frm the Superintendent, Kolhapur Central Jail, till 30.9.2011, he was also entitled to remission of one year four months and eighteen days and including that he has already undergone the sentence of six years, nine months and twelve days. By this time, he has already undergone the sentence of more than six years and ten months. Taking into consideration the facts and circumstances, the sentence as already undergone is sufficient to meet the ends of justice. 9. Therefore, the Appeal is partly allowed. While the conviction of the accused for the offence under Section 304 Part I of IPC is maintained, he is sentenced to undergo the imprisonment as already undergone and be released forthwith, if not required in any other case. (J.H.BHATIA,J.)