1 mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1619 OF 2009 Kishore Pandurang Agavane and others Applicants versus State of Maharashtra Respondents C.Bocorro i/by Vivek Sharma for applicants. Ms.S.V.Gajre, APP for State. CORAM : A.S.OKA, J. DATE : 17th July 2009 PC :- 1. The submissions of the learned counsel appearing for the parties were heard on the earlier date. The parties were put to notice that the criminal application will be decided finally at the stage of admission. 2. The applicants are the accused shown in the FIR which was initially lodged for the offences punishable under sections 323, 338 read with section 34 of the Indian Penal Code. The incident occurred in Suburban Local Train of Western Railways. The first informant Dinesh was travelling by a Suburban Local Train. He was travelling by the train from Ville Parle Railway Station towards Churchgate in a second class compartment. Around at 3.00 p.m. the train reached Mahim Railway Station. There was one person standing near the door of the compartment. Close to him 2 there was another person standing. His age was about 40 years. At Mahin Station one person entered the compartment having the age of about 27 years. He was talking on his cellular phone. Inadvertently his hand touched the person standing inside 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 by fist blows and kicks. Another person accompanying the said younger person came there and he also started assaulting the said person. In the fight the said person who was being assaulted near door fell down from the running local train. He succumbed to the injuries. Later on, the Police completed the investigation and filed charge sheet alleging commission of offence under section 304 read with section 34 of the Indian Penal Code. the case was committed to the Court of Sessions. The applicants made an application at Exhibit-11 before the Sessions Court contending that the charge under section 304 cannot be framed and charge will have to be framed under section 304-A of the Indian Penal Code. There was an application made by the learned Public Prosecutor contending that the charge may be framed under section 302 read with section 34 of the Indian Penal Code. The said two applications were decided by identical orders passed on 20th February 2009. The learned Ad-hoc Sessions Judge came to the conclusion that the charge deserves to be framed for the offence under section 302 read with section 34 of the Indian Penal Code. 3. By this criminal application under section 482 of the Code of 3 Criminal Procedure, 1973, an exception is taken to the said order. The learned counsel appearing for the applicant has invited my attention to the documents forming part of the charge sheet, the statement of the first informant and the relevant findings recorded by the learned Judge in the impugned judgement. His submission is that taking the prosecution case as it is, there was complete absence of intention on the part of the applicants. He pointed out that even the ingredient of knowledge is completely missing. He submitted that there was a scuffle which admittedly took place in the suburban train and further part of the incident namely that the deceased fell down from the running train is the consequence of the fact that the persons involved in the scuffle were travelling by a local train. His submission is that by no stretch of imagination section 302 of the Penal Code can be invoked. Learned APP justified the impugned order by pointing out that whether there was an intention and/or knowledge is a fact which can be determined only on the basis of evidence and at this stage no interference is called for. 4. I have carefully considered the submissions. The first informant is one Dinesh who was sitting in the said railway compartment at the relevant time when the incident took place. The English translation of the relevant part of his statement reads thus :- "... ... When our local approximately at 15.00 pm came at the Mahim Railway Station some of the commuters got down and some of the commuters got in that time one unknown person was standing near the door and near to him one more unknown person of approximately 40 years 4 was also standing. That time the said unknown person who climbed in the train age approximately 27 years was talking on mobile phone that time the corner of his hands got touched to the persons standing inside of the door when the person standing inside of the door asked to the said person as to why he pushed by hand and since the said person talking on the phone got angry by the same the said person started beating with kicking and cuffing and when along with the said person talking on the mobile other elderly person traveling also came at the said place and they also started beating the said person. During the said sharp clashing the said unknown person by loosing his balance fall down and since the said person fall down I and other commuters caught the persons beating and as the train stopped at the Matunga Station gave the said both persons to the custody of the police present at the said station and thereafter we along with the said police came to the Mumbai Central Railway Police Station. ... ..." 5. Taking the statement as true what is brought on record is that the accused assaulted the deceased by kicks and fist blows. The version of the first informant is that during the said fight the deceased lost his balance and fell down from the running local train. Initially an offence was registered under sections 323, 304-A read with section 34 of the Indian Penal Code and at the time of filing the charge sheet, the investigating officer applied for framing additional charge under section 304 read with section 34. There are statements of other witnesses forming part of the charge sheet. One such witness is Shivdarshan Sonaji Khandare. He has also stated that there was scuffle between the deceased and the accused and during the fight the deceased fell down. The same is the version of other eye witnesses Ms.Sunita Bali Sukhdev and Mangesl Suresh Sirsath. 6. It will be necessary to refer to section 299 of the Indian Penal 5 Code. Section 299 reads thus :- "299. Culpable homicide.- Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offrence of culpable homicide." As far as offence under section 302 of the Penal Code is concerned, it will be necessary to refer to section 300 :- "300. Murder : Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or 2ndly.- If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or 3rdly.- If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or 4thly.- If the person committing the act knows that it is so immiently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid." In order to make out a case of offence of murder the act by which death is caused must be caused with an intention to cause death. The offence of murder will be attracted if there is an intention to cause such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused. The offence of murder is made out if the act is done with an intention to cause bodily injury to any person and the bodily 6 injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. On plain reading of the statements of prosecution witnesses, none of the three ingredients are made out. The fourth ingredient is that if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury. For applicability of the said ingredient there has to be a knowledge on the part of the applicants-accused that their act was so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death. While one of the accused was talking on cellular phone inadvertently his hand touched the deceased. When questioned, the said accused along with other co-accused assaulted the person who raised the objection. The acts attributed to the applicants are of giving kicks and fist blows. Taking the statements of the prosecution witnesses as it is it cannot be said that the accused know that their act of giving fists and kicks blows was so imminently dangerous that it must in all probability cause death or such bodily injuries which will cause death. 7. In the circumstances, the learned Judge has committed an error by directing framing of charge under section 302 of the Indian Penal Code. 8. A perusal of the impugned orders show that the learned Sessions Judge has not applied his mind to the issue raised by the applicants as to whether section 304 will apply or section 304-A will apply. The learned 7 Judge on the basis of the application made by the Public Prosecutor has simply proceeded to apply section 302. In the light of the observations made in this order, the learned Judge will have to consider the application made by the applicants at Exhibit-11 and will have to pass appropriate order thereon. 9. Hence, I pass following order :- (a) The impugned judgements and orders passed below Exhibits-11 and 12 are quashed and set aside; (b) The application made by the learned Public Prosecutor at Exhibit-12 stands dismissed; (c) The learned Sessions Judge will proceed to hear and decide the application made at Exhibit-11 by the applicants in accordance with law in the light of the observations made by this Court. (A.S.OKA, J.)