1 cr-apln-746-10 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRI.APPLN. NO. 746 OF 2010 Kishore Pandurang Agavane and Anr. ..Applicants Vs. The State of Maharashtra ..Respondents .... Mr.Vivek Sharma and Smt. Charmaine Bocarro Adv. for Applicants Mr.S.A.Shaikh APP for State .... CORAM : SMT.V.K.TAHILRAMANI, J. DATE : SEPTEMBER 15, 2010 P.C.: 1 Heard the learned advocate for the applicants-original accused and the learned APP for the State. 2 The applicants are facing prosecution in Sessions Case No. 453 of 2007 which is pending before the learned Ad-hoc Addl. Sessions Judge, Sewri, Mumbai. The said case pertains to FIR No.113 of 2006 of Mumbai Central Railway Police Station. 3 The prayer of the applicants is that the charge under Section 2 cr-apln-746-10 304 of IPC be altered to Section 304A IPC. 4 The brief facts of the case are as under: The incident occurred on 22.10.2006 in Suburban Local Train on Western Railways. The first informant Dinesh was traveling by a Suburban local train from Vile Parle towards Churchgate. At 3 p.m. the train reached Mahim Railway Station, at that time one person was standing near the door of the compartment. Another person aged about 40 years was standing close to him. At Mahim Station, one person aged about 27 years entered the compartment. He was talking on his cellular phone. Inadvertently his hand touched the person standing at the entrance door of the compartment. The said person questioned the person who was talking on the cellular phone. There was altercation between the two. The person who was speaking on the cellular phone started assaulting the person standing at the door by fist blows and kicks. The older person accompanying the younger person came there and he also started assaulting the said person. In the fight the said person who was being assaulted near the door fell down from the running train. He succumbed to his injuries. The name of the injured person is Anant Kashinath Chavan. FIR came to be lodged by a passenger Dinesh Nigade who was travelling in the very same compartment. After completion of investigation, the police filed charge 3 cr-apln-746-10 sheet under Section 304 read with Section 34 of IPC and the case came to be committed to the Court of Sessions for trial. 5 The applicants preferred an application (Exh.11) before the Sessions Court contending therein that charge under Section 304 of IPC cannot be framed and at the most the charge could be framed under Section 304-A of IPC. The said application came to be rejected by the learned Sessions Judge by the order dated 8.12.2009. 6 The learned counsel for the applicants drew my attention to the statement of the first informant and submitted that there is complete absence of intention on the part of the applicants. She further submitted that even the ingredient of knowledge is completely missing. She submitted that on going through the FIR and the entire charge sheet, there is no material to show that the applicants had any intention to cause death of Anand or even had any knowledge that is their act was likely to cause death of Anand. She further submitted that it is not the prosecution case that the applicants had pushed Anand from the train but during the scuffle between the applicants and Anand, Anand fell down from the train and sustained injuries due to which, he died. She submitted that in such circumstances by no stretch of imagination a case under Section 304 of IPC could be said to be made out, hence, charge could not be framed under Section 304 of IPC. 4 cr-apln-746-10 7 I have carefully considered the submissions. On perusal of the FIR, it is seen that at the relevant time, the deceased was standing at the entrance of the compartment. The incident had not occurred inside the compartment but it occurred at the entrance of the compartment. The deceased was standing at the door of the compartment, when both the applicants started beating him. As the deceased was standing just near the entrance of the compartment in my opinion, knowledge can be attributed to the applicants that if they assaulted him at the door, he may fall down during the scuffle. Hence, in my prima facie opinion, knowledge can be attributed to the applicants that during the assault by them on the deceased, the deceased who was standing at the door is likely to fall down from the train and sustain injuries which can cause his death. 8 Looking to the statement of the complainant, prima facie it is difficult to hold that the act is a simple rash and negligent act. I find that there is sufficient material to proceed under Section 304 of IPC, hence, no case is made out for interference. Application is rejected. [ SMT. V.K.TAHILRAMANI, J.]