1 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.29 OF 1997 Ganpat Tayappa Jadhav ..Appellant Adult, Resident of Matushree Chawl, Teli Galli, X-Road, Andheri (E), Mumbai  400 069 V/s. The State of Maharashtra ..Respondent Mr.S.V.Kotwal, Advocate, for the Appellant Mrs.R.V.Newton, APP, for the Respondent - State CORAM : R.C.CHAVAN, J. DATE : 25TH NOVEMBER,2010 JUDGMENT . This is an Appeal by a convict, who has been convicted for the offence punishable under Section 304 part-II of the Indian Penal Code and sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs.1,000/- or in default to suffer further rigorous imprisonment for six months by the learned 2 Additional Sessions Judge, Greater Bombay on conclusion of Sessions Case No.341 of 1984. 2. Facts which are material for deciding this Appeal are as under :- On 20th November, 1983, there was some dispute between the Appellant and children, who were playing cricket. The victim Ulhas, who was about 16 years old at that time was hit by the Appellant with cricket bat on the crown of his head. This led to fracture of both sides of his face. The victim was taken to Dr.Thakkar at about 11:45 a.m. and Dr.Thakkar was told the victim was vomitting since morning. Dr.Thakkar seems to have given tratment of gastritis. Thereafter, the victim was taken to Cooper Hospital, Andheri where he was treated by P.W.8  Dr.Arvind Kulkarni. History was given to Dr.Arvind Kulkarni as head injury on being hit by cricket bat. The victim was in coma at that time. Dr.Arvind Kulkarni gave necessary 3 treatment but eventually the victim died on 22nd November, 1983 at 5:30 p.m.. On a report, police registered an offence caused inquest to be performed and sent the dead body for a post - mortem examination. Police recorded statement of witnesses and completion of investigation, charge sheeted the Appellant. 3. Upon commitment of case to the Court of Sessions, the learned Additional Sessions Judge charged the Appellant for the offence punishable under Section 302 of the Indian Penal Code. Since Appellant pleaded not guilty, he was put on trial. At the trial, the prosecution has examined as many as ten witnesses. After considering prosecution evidence in the light of defence of denial, the learned Additional Sessions Judge convicted the Appellant and sentenced him as afore mentioned. Aggrieved thereby, Appellant has preferred this Criminal Appeal. 4 4. I have heard the learned Counsel for the Appellant and the learned APP for the State. 5. P.W.1 Krishnabai Bhagwat is victim's aunt. She had seen the incident and she had stated that the Appellant hit the victim with a bat. P.W.4 Arvind More is also an eye witness to the incident, who supports the prosecution case. P.W.3 Ramesh Bhosale is hostile eye witness. P.W.2 Shantabai Taralkar is victim's mother, who came to know of the incident and when victim was taken to the Cooper Hospital, Andheri gave a report about the incident. P.W.5 Dr.Laxmikant Thakkar and P.W.8 Dr.Arvind Kulkarni have treated the victim. P.W.7 Bharat Joshi was panch at panchanama of seizure of bat. P.W.6 Dr.Kumar Nanaware conducted a post-mortem examination and P.W.9 Ambaji Gaikwad, PSI & P.W. 10 Manohar Shirodkar, ACP conducted investigation. 5 6. P.W.6 Dr.Kumar Nanaware, Autopsy Surgeon stated that he had found contusion of the under surface of scalp over the vertex 3 cm x 3 cm and fracture of the left and right temporal bones. He had found that lungs had collapsed. No other injury was found on the body of the victim. Dr.Kumar Nanaware had found the victim was in drunken condition before his death. He had deferred his opinion as to cause of death and he had sent the lung for histo-pathological examination. After receipt of opinion from the histo-pathological department, he certified cause of death as Acute Cardio respiratory failure due to head injury aggravated by collapse of lung . Dr.Kumar Nanaware stated in his cross examination that percentage of Alcohol in the blood of deceased was 0.1%. He had also admitted that brain of the deceased Ulhas was intact and was functioning when he was alive. Therefore, though Dr.Kumar Nanaware had referred to the head injury, that does not seem 6 to be the cause which led to victim's death. He admitted that if a person of the age 15 to 16 consumes liquor, there is possibility of his falling on the ground. 7. Dr.Arvind Kulkarni, who had treated the victim stated that the papers from the Casuality department did not disclose that victim had consumed Ehthyl Alcohol. He stated that if injury is caused on the rear side of the head i.e. at the base of the skull, the injury could be serious and patient could die. Thus, his opinion too would rule out injury on the head as having contributed to the victim's death. Thus, it is doubtful whether the victim could be said to have died as a result of injury inflicted on his head. This is specifically so because victim was found to have consumed considerable quantity of Ethyl Alcohol whose percentage in blood was as high as 0.1% and cause of death was mainly due to collapse of lung. Therefore, the 7 finding, that the injury caused by the Appellant led to death of victim, becomes doubtful. In any case, as rightly submitted by the learned Counsel for the Appellant even if the prosecution case is taken as it is, the Appellant had merely hit the victim with a bat due to some altercation about playing cricket. There is no enemity or any reason for the Appellant to hit the victim. P.W.1 Krishnabai Bhagwat, who is victim's aunt had stated that there was no enemity between her family and family of Ganpat or between victim's family and that of Ganpat. She states that victim used to call Ganpat uncle (Mama). 8. In these circumstances, it would be difficult to attribute any intention or even knowledge to the Appellant that his blow by bat on the victim's head could led to victim's death and therefore, the assault does not at all come within a scope of even Section 299 of the Indian 8 Penal Code. Therefore, the learned Additional Sessions Judge should not have held the Appellant guilty of offence punishable under Section 304  part II of the Indian Penal Code. The Appellant would at worst be held of inflicting a blow causing grievance hurt to the victim since the victim had sustained two fractures on the two sides of the face. Thus, the offence that could have been held has proved would be one punishable under Section 325 of the Indian Penal Code since a cricket bat can not, by any stretch of imagination, taken to be weapon of offence. Therefore, conviction of the appellant would have to be altered to one under Section 325 of the Indian Penal Code. 9. This takes me to the question of sentence. The learned Trial Judge had inflicted a sentence of rigorous imprisonment for three years and to pay a fine of Rs.1,000/- on the Appellant. As rightly pointed out by the 9 learned APP, bench mark of sentence for the offence punishable under Section 325 of the Indian Penal Code ought also to be imprisonment for three years. But the learned Counsel for the Appellant submitted that at the time of incident the Appellant was 45 years old and at the time of conviction he was of 58 years as could be seen from the statement of accused recorded by the learned Trial Judge. This was in the year 1996. Today, the Appellant must be 72 years old. The Appellant was in jail for a month. Considering these aspects, no useful purpose would be served by forcing the Appellant re-visit the jail. Interest of justice would be served by increasing fine and reducing the sentence of rigorous imprisonment to one month and directing that substantial portion of the amount should go the victim's family by way of compensation. 10. In view of this, Criminal Appeal is 10 partly allowed. Conviction of the Appellant for the offence punishable under Section 304- part II is altered to Section 325 of the Indian Penal Code and sentence of rigorous imprisonment for three years and fine of Rs.1,000/- is altered to rigorous imprisonment for one month and fine of Rs.50,000/-or in default for further period of two years. If the fine is not paid, the Appellant would thus suffer rigorous imprisonment for a period of two years. If fine is paid, the entire amount of fine shall be paid to the family of the victim as compensation. The Appellant would be entitled to set off the period in custody against the substantive sentence. The learned Additional Sessions Judge shall take steps to have the Appellant committed to suffer sentence in default of payment of fine, if fine is not deposited within four weeks. (R.C.CHAVAN, J.)