drp {1} Cri. Appeal No.597/2009 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO.597 OF 2009 Gulab Punjaram Mane APPELLANT Age-34 years, Occ-Agriculture R/o Amba, Tq-Partur, Dist-Jalna VERSUS The State of Maharashtra RESPONDENT ....... Mr.A.R.Borulkar, Advocate for appellant (Appointed) Mr.K.G.Patil, APP for respondent State ....... [CORAM : P.V.HARDAS, AND A.V.POTDAR, J.J.] DATE : 18th February 2011 ORAL JUDGMENT (PER A.V.POTDAR, J.) : 1. The appellant, who stands convicted for an offence punishable u/s 307 of the Indian Penal Code and sentenced to suffer imprisonment for life and to pay a fine of Rs.1,000/-, in drp {2} Cri. Appeal No.597/2009 default, to suffer further RI for 30 days, in Sessions Case No. 40/2005, by Second Adhoc Additional Sessions Judge, Jalna, vide judgment and order dated 29.08.2005, has challenged the judgment of conviction and sentence. 2. Such of the facts, as are necessary for the decision of this appeal, may briefly be stated thus - On the basis of complaint (Exhibit-16) lodged by PW-2 Dnyaneshwar, Crime No.94/2004 was registered by PSI Munshi Malangshah Madar at Partur Police Station against the appellant for an offence punishable u/s 307 of the Indian Penal Code. Thereafter, the Investigating Officer had visited the place of offence and had drawn the Spot Panchanama (Exhibit-22). Statements of certain witnesses were recorded by the police and the appellant was arrested. After completion of the investigation, charge sheet was filed against the appellant before JMFC, Partur. 3. On committal of the case to the Court of Sessions, the trial court framed charge (Exhibit-5) against the appellant for an offence punishable u/s 307 of the Indian Penal Code. The appellant abjured his guilt and claimed to be tried. 4. To substantiate the charges levelled against the appellant, the prosecution had examined in all 7 witnesses. The trial court, after appreciating the evidence on record, held the drp {3} Cri. Appeal No.597/2009 appellant guilty for an offence punishable u/s 307 of the Indian Penal Code and convicted him accordingly and sentenced to suffer imprisonment for life. 5. Heard learned counsel for the appellant followed by learned APP. For better appreciation of the rival submissions, advanced on behalf of the appellant and by learned APP, it may be useful to advert to the evidence of material witnesses examined by the prosecution. 6. It appears that the conviction of the appellant is based on the evidence of two eye witnesses, the medical evidence and statement of the appellant recorded u/s 313 of the Criminal Procedure Code. 7. It transpired from the evidence of PW-2 Dnyaneshwar that on the day of the incident he was in his house and around 11.00 a.m. he saw the appellant had held the legs of his son Sandeep, aged about 2 and half years, and the appellant was striking the head of Sandeep against stone. He rushed there and on seeing that the appellant had threw Sandeep and tried to flee, however he was caught at the spot. Sandeep had sustained bleeding injuries on his head and hence he was taken to hospital. Thereafter PW-2 had lodged the complaint. His evidence that he saw the appellant was striking the head of his son against stone by holding his legs, is not at all shattered in his cross examination. drp {4} Cri. Appeal No.597/2009 The only suggestion given to this witness was that the spot of incident was a platform in front of the house of the accused. There was no cross examination on material aspects. 8. Evidence of PW-4 Appa Pote, is on the similar lines of the evidence of PW-2 Dnyaneshwar. He has stated that the incident took place in the morning in front of the house of PW-2 Dnyaneshwar. He had reached at the spot on hearing the commotion. He saw that the appellant was striking Sandeep against a stone by holding his legs. Thereafter injured Sandeep was taken to hospital. Evidence of PW-4 Appa is also not shaken in his cross examination as he was not cross examined on material aspects. 9. It is deposed by Dr. Prashant Ambhore (PW-7) that Sandeep, aged about 2 and half years, was brought in Rural Hospital Partur on 21.10.204 at about 12.00 noon, by his mother Vandana (PW-3). PW-3 Vandana had given history that father of the victim had dashed his head against stone. At the time of admission in the hospital, Sandeep was unconscious with convulsion and frothing. Thereafter the minor was advised to refer to Janla, as he had sustained head injury. Thereafter injury certificate (Exhibit-26) was issued. The Medical Officer has deposed that the injuries found on the person of Sandeep were of such a nature that had the medical treatment been not provided to him immediately the same would have caused death of the patient. drp {5} Cri. Appeal No.597/2009 He has admitted in his cross examination that if a boy falls on stony object, such injuries are possible. Perusal of Medical Certificate (Exhibit-26) indicates that Sandeep had sustained head injury, which was in the nature of fracture to the right temporal occipital region on the skull bone. There was contusion and abrasion on the back side. There was Subdural hematoma on the right side and on right tempo partial skull bone. The nature of injury was grievous. 10. Evidence of the eye witnesses is not shaken in their respective cross examinations. Moreover, the evidence of the eye witnesses is corroborated from the medical evidence. The appellant, in unequivocal terms, has admitted the incriminating circumstances put to him, at the time of recording of his statement u/s 313 of the Criminal Procedure Code. 11. Learned counsel appointed on behalf of the appellant has urged that perusal of Medical Certificate (Exhibit-26) indicates that Sandeep had sustained only one fracture below the skull and had sustained head injury and in view of the medical evidence, the evidence of eye witnesses does not inspire confidence for the simple reason that had the head of Sandeep been dashed repeatedly then multiple injuries might have been caused to him and not a single head injury. It is also urged that even the Medical Officer has admitted in his cross examination that if the child falls on a stone, then such injury is possible. We are afraid to accept the said drp {6} Cri. Appeal No.597/2009 submissions on the sole ground that this case is not put to the eye witnesses, neither the same is stated by the appellant in his statement recorded u/s 313 of the Criminal Procedure Code. Therefore, according to us, the submission advanced by learned counsel for the appellant are devoid of any substance. 12. Ultimately, it is urged by learned counsel for the appellant that the sentence awarded to the appellant is very harsh and prayed for leniency on the ground that the appellant is the sole earning member in the family and his father of advanced age, his wife and sons are dependent on the income of the appellant. Learned counsel appointed on behalf of the appellant has also urged that due to paucity of funds, the appellant could not defend his case properly by engaging advocate during the trial. Therefore, it is urged that leniency may be shown towards the appellant and the sentence may be reduced. Learned counsel for the appellant further urged that the trial court has not assigned special reasons for awarding sentence of imprisonment for life and, therefore, requested to reduce the sentence awarded to the appellant. 13. We have heard learned APP on the point of conviction. On perusal of the impugned judgment as well as on re- appreciation of the evidence on record, we are of the considered view that the conviction has rightly been recorded by the trial court and hence the same does not require any interference. Therefore, we maintain the conviction recorded by the trial court drp {7} Cri. Appeal No.597/2009 for an offence punishable u/s 307 of the Indian Penal Code against the appellant-accused. 14. However, on perusal of the impugned judgment, we do not notice that any special reasons are given by the trial court while awarding sentence of imprisonment for life to the appellant- accused. It appears that the trial court might have been impressed by the tender age of the victim and hence had awarded the sentence of imprisonment for life. Since no special reasons are assigned by the trial court for imposing sentence of imprisonment for life to the appellant, according to us, the impugned judgment requires interference so far as the sentence part is concerned. In the premise, we are inclined to accept the request of learned counsel appointed on behalf of the appellant that the sentence of the appellant be reduced. We accordingly, maintain the conviction of the appellant recorded by the trial court for an offence punishable u/s 307 of the Indian Penal Code, however we reduce the sentence of the appellant. 15. The Criminal Appeal is partly allowed. The conviction of the appellant / accused for the offence punishable under Section 307 of the Indian Penal Code is maintained. However, since the appellant has undergone six and half years of actual imprisonment, the appellant be released on the sentence already undergone by him. Sentence of fine remains un-altered. drp {8} Cri. Appeal No.597/2009 16. Fees payable to the learned counsel (amicus curiae) for the appellant is quantified at Rs.5,000/- (Rupees Five Thousand Only). 17. Since the appellant is in jail, he be released forthwith if not required in any other case. [A.V.POTDAR, J.] [P.V.HARDAS, J.] drp/A11/criapel597-09