1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.1073 OF 2003 Mohmed Amanat Mohmed Hasim Ansari aged 22 years, Occ. Service, resident of Chandani Chowk, Navada, 1st Daud Nagar, Thane-Vaishali, Dist. Vaishali (Bihar), at present in jail, Arthar Road, Maharashtra . ...Appellant (Org Accd.No.1). v. The State of Maharashtra (Borivali Police Station in C.R.No.527 of 98 in C.C.No.131/P/99) ...Respondent. Mr. R.P.Javanjal, adv. For the Appellant. Smt. M.H.Mhatre, APP For the Respondent/State. CORAM : J.H. BHATIA, J. DATED : 5th December , 2009 ORAL JUDGMENT: 1 The appellant, who was accused no.1, was convicted for the offence punishable under Section 302 of the I.P.C. and was sentenced to undergo R.I. for ten years and to pay fine of Rs.5000/- and in default to pay fine, to undergo further R.I. for three months by the impugned judgment and order passed by the learned Additional Sessions Judge, Greater Bombay in Sessions Case No.339/1999. 2 2 Prosecution case, in brief, is that the present appellant, i.e., the accused no.1 Mohmed Amanat and the accused no.2 Arjun Ramashraya Kuril were working with circus at the ground near MHB Colony , Gorai Road, Borivali (West). On 1.12.1998 at about 5.00 p.m. some boys were playing cricket in the open ground near arena of the circus. Twice or thrice their ball went in the circus area and it was retrieved. Thereafter, again cricket ball went inside the area of the circus and one of the boys went inside to bring it back. However, boy did not come back for some time and other boys realised that some tiff was going on inside. Due to this, some other boys also entered into that area and had some arguments with the employees of the circus. That resulted into quarrel. Accused no.1 assaulted on the head of Uday Pandurang Bagave with a bamboo or wooden stick. Another boy, namely Mukesh Prabhakar Budbadker was also assaulted with a stick and was injured by the accused no.2 Arjun. Due to the assault, both the boys collapsed and Uday became immobile. Uday was taken to the hospital and he was declared dead before admission. Mukesh recovered after some time and went to his house. After some time he was also taken to the hospital. Mukesh lodged the report on 2.12.98 at about 00.15 hrs. and Crime No. 527/98 came to be registered under Section 326 read with Section 34 of 3 the I.P.C. Thereafter Mukesh was examined. Post-mortem examination on the body of Uday was conducted and it was revealed that he had died because of fracture and internal injury to the head. Both the accused were arrested. Sticks used as weapons of offence were also seized. Spot panchanama was conducted. Statements of witnesses were recorded and after investigation charge-sheet came to be filed against both the accused. 3 Vide Exhibit 3, charge was framed. While accused no.1 Mohmed Amanat was charged for the offence punishable under Section 302 of the I.P.C. for the murder of Uday, Accused no.2 Arjun was charged for the offence punishable under Section 324 of the I.P.C. for voluntarily causing hurt to Mukesh by means of wooden rod. Accused pleaded not guilty. 4 In all 9 witnesses were examined on behalf of the prosecution. Several documents were placed on record. The learned Additional Sessions Judge convicted both the accused for the charges leveled against them and the present appellant/accused no.1 was convicted for the offence of murder punishable under Section 302 and was sentenced to undergo R.I. for ten years as stated above. 5 The learned counsel for the accused/appellant contended 4 that there are discrepancies in the evidence of P.W.1 Mukesh, P.W.2 Shashank and P.W.3 Mangesh, who were the eye witnesses of the incident. He pointed out that while P.W.1 Mukesh had deposed that accused no.2 had assaulted Uday and accused no.1 had assaulted him. Other two witnesses had deposed that Uday was assaulted by the accused no.1. According to him, in view of this discrepancy, benefit of doubt should have been given to the accused. He also contended that there was no previous enmity nor there is any material to show that accused had any intention to cause death or to cause injury which would be sufficient in the ordinary course of nature to cause death. He also contended that in view of the facts and circumstances , the trial Court could not have convicted accused no.1 for the offence of murder punishable under Section 302 of the I.P.C. On the other hand, the learned APP supports the conviction of the accused but concedes that the trial Court had committed error in passing the order of conviction and sentence as the accused was convicted for the offence of murder, sentence of 10 years could not have been awarded. She concedes that accused could have been held guilty for the offence of culpable homicide not amounting to murder punishable under Section 302 part I or II of the I.P.C. 6 Perused the Record and Proceeding of the trial Court. Out of 5 nine witnesses examined by the prosecution, P.W.1 Mukesh, P.W. 2 Shashank and P.W.3 Mangesh were eye witnesses. P.W.5 Laxminarayan was the panch witness of the spot panchanama and P.W.4 Sambhaji was panch witness about the recovery of sticks, on the basis of information given by the accused. P.W.6 Dr. Vithal had conducted post-mortem on the body of Uday. As the present appellant/accused no.1 was neither charged nor convicted for the offence punishable under Section 324 of the I.P.C. for causing injuries to Mukesh, it is not necessary to consider the medical evidence about the injuries suffered by Mukesh. 7 From the testimony of all the three eye witnesses, it is clear that there was campus of Apolo Circus and by the side of the circus, there was open ground on which some boys were playing cricket. Twice or thrice cricket ball went into the area of circus and the ball was retrieved by the boys. Thereafter, again cricket ball went into that area and one of the boys went there to bring it back. However, he had some arguments with the employees of the circus. Therefore, some other boys also went into the circus area and they had also arguments with the employees of the circus. It resulted into some scuffle and the accused nos.1 and 2 assaulted Uday and Mukesh with the bamboos or wooden sticks. As per the evidence of P.W.2 Shashank and P.W.3 Mangesh, 6 accused no.1 had assaulted on the head of Uday with a stick and due to that Uday collapsed on the ground. They also deposed that accused no.1 had assaulted P.W.1 Mukesh with a stick and due to that Mukesh also collapsed on the ground. Mukesh on the other hand, deposed that accused no.1 had assaulted him and accused no.2 had assaulted Uday. It is common evidence of all the witnesses that after that assault, both the boys collapsed on the ground and became unconscious for some time. P.W.1 Mukesh recovered and went home and later on, he also went to the hospital. It is also proved that Uday became immobile after he had collapsed and he was taken to the hospital but he was declared dead before admission. As far as P.W.1 is concerned, he was himself assaulted and suffered injuries in that incident and became unconscious. He had seen accused persons hardly for a minute or so during that incident. Due to the injury suffered by him and the fact that he had become unconscious for some time, it is possible that he might have been confused as to which accused had assaulted whom. As far as P.W. 2 Shashank and P.W.3 Mangesh are concerned, they were not injured. They were in better position to notice incident, which had occurred in their presence. Taking into consideration this fact, the learned trial Court accepted the evidence of P.W.2 and 3 and concluded that accused 7 no.1 had assaulted Uday and had caused fatal wounds on his head. After perusal of the evidence and reasons given by the trial Court, I do not find any reason to disagree with the same. 8 Evidence of P.W.6 Dr.Vithal shows that on 2.12.1998 between 2.30 to 3.30 p.m., he had conducted post mortem examination on the body of Uday P. Bagawe. He had noted two external injuries on the body, which are as follows: 1 Abrasion on the left side of fore head extending to left side of face lateral to left eye 7 cm x 3 cm 2 Contusion on the scalp right temporal parietal region 4 cm x 4 cm On opening body, he found following internal injuries: 1 Haematoma on right temporal parietal region 7 cm x 5 cm 2 Contusion left side of frontal region 2 cm x 2 cm 3 Fracture skull right temporal bone extended to right parietal region obliquly upwards 7.5 cms. 4 Haemorrhage extradural subdural all over brain 5 Haemorrhage sub archnoid right temporal parietal region He opined that death had occurred on account of head injury and accordingly, he issued post-mortem report, Exhibit 16. On careful 8 perusal of the external and internal injuries, it would become clear that Uday had suffered two injuries on the head. One on the left side of his forehead and another was at right temporal parietal region. There was corresponding fracture of the scull right temporal bone extending to right parietal region. Haemorrhage was also mainly on the side of right temporal region and extradural, subdural haemorrhage all over the brain was seen. These two injuries and particularly external injury no.2, with the corresponding internal injury, was responsible for death. 9 From the facts and circumstances on the record, it is clear that there was no previous enmity between the parties. Possibly even they were not knowing each other. Quarrel had taken place abruptly because cricket ball had gone into the circus area repeatedly between the boys on one hand and the employees of the circus on the other, after some arguments and during that quarrel, present accused had assaulted Uday with stick causing the injuries. In the given circumstances, it is impossible to hold that accused had intention to cause death or cause such injury, which would be sufficient in ordinary course of nature to cause death or the person committing the act know that it was so imminently dangerous that it must in all probability cause death. Therefore, even though it was culpable homicide, it could not be murder 9 punishable under Section 302 of the I.P.C. In view of the nature of weapon, i.e., stick and the blow given on the head, it could be inferred that he had intention of causing such bodily injury as was likely to cause death. Even if it is held that accused had intention to cause such bodily injury, which was sufficient in the ordinary course of nature to cause death, case would fall under exception 4 to Section 300 and, therefore, it must be held that accused could be held guilty for the offence of culpable homicide not amounting to murder. Therefore, he could be convicted with Section 304 Part I of the I.P.C. The learned Additional Sessions Judge, who passed the impugned order of conviction and sentence was quite Senior Judicial Officer and he was expected to know that in case of conviction for the offence of murder under Section 302 of the I.P.C., only sentence, which could be awarded is either death or imprisonment for life. There is no provision to award sentence of lesser imprisonment under Section 302 of the I.P.C. The learned Judge appears to have ignored or forgotten provisions of Section 302 while passing the impugned order. 10 Before concluding, it may be noted that accused was arrested on 1.12.1998 and he was in custody during the trial. On 7.7.2003, he was convicted and sentenced. He was sentenced to 10 undergo imprisonment for 10 years with fine and in default to undergo further R.I. for three months. Thus, total period of imprisonment could be 10 years and three months and that is subject to some remission period. Eleven years have passed after the date of his arrest. He must have been released after undergoing sentence as awarded by the trial Court. Thus, hearing and disposal of this appeal has become just a formality. 11 For the aforesaid reasons, while the appeal stands dismissed, the order of conviction and sentence stands modified as follows: Accused No.1 Mohmed Amanat Mohmed Hasim Ansari is convicted for the offence of culpable homicide not amounting to murder under Section 304 Part I of the I.P.C. and sentenced to undergo R.I. for ten years and to pay fine of Rs.5,000/- and in default to undergo R.I. for three months. He would be entitled to set off to the extent of period in custody as undertrial under Section 428 of the Cr.P.C. (J.H. BHATIA,J.)