-: 1 :- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 691 OF 2007 Ladya alias Kisan Namdeo Thokal Age 27 years, Occ. Nil, R/at : .. Appellant S.No.315, Vaidwadi Zopadpatti, (Org.Accused) Hadapsar, Pune. V/s. 1. The State of Maharashtra .. Respondent. --- Mr.Vikas Shivarkar for the Appellant. Mr.A.S.Shitole, APP for the State. --- CORAM : R. V. MORE, J. CORAM : R. V. MORE, J. CORAM : R. V. MORE, J. DATED : 09th JANUARY, 2009. DATED : 09th JANUARY, 2009. DATED : 09th JANUARY, 2009. ORAL JUDGMENT : ORAL JUDGMENT : ORAL JUDGMENT : 1. The appellant, original accused, was prosecuted for the offence punishable under sections 302 and 323 read with Section 34 of the Indian Penal Code. The learned 7th Additional Sessions Judge, Pune by the judgment and order dated 08.06.2007 which is impugned in the present appeal has convicted the present appellant accused for the offence under section 299, punishable under section 304 Part II of the IPC and sentenced him to suffer R.I. for 5 years and fine of Rs.1000/-, in default to suffer R.I. for one month. The prosecution case in brief is as -: 2 :- follows : i. That on 17.01.2005 at about 8.30 p.m., informant Tukaram Pandhari was having dinner with his wife at his house. His son Sachin came from outside at that time and again went out of the house at about 9.15 pm.. After sometime one Ahmed Pathan, who was proceeding from near the house of the informant, told him that somebody was beating Sachin at Vaidhwadi and went to Vaidhwadi to see what was the matter. After some time, he brought Sachin, lifting on his shoulder, to the house of the informant. Sachin was unconscious and therefore, immediately taken to the hospital of Dr. Dube-Patil at Vaidhwadi from where he was immediately referred to and transferred to Sassoon General Hospital at Pune. The doctor examined Sachin and declared him dead. There were injuries on the body of the deceased Sachin. The post-mortem was conducted. Medical officer opined that sachin died because of the beating given to him. The informant lodged the FIR on 18.01.2005 against the unknown person in Police Station at Hadapsur in respect of murder of Sachin. On the basis of that report a crime no. 26/2005 came to be registered against the appellant accused under section 302 of the IPC. -: 3 :- 2. The investigation was carried out. Inquest panchanama of the deceased Sachin was drawn and his clothes came to be seized under the said panchanama. Spot panchanama was also recorded. Statements of the witnesses were recorded. During the investigation it was transpired that the present appellant accused and three juveniles by name Deepesh Dodke, Vishal Shendge and Sachin Khilare in furtherance of their common intention beat deceased Sachin in front of the house of one Sanesh Kisam Adagale and thereby committed Sachin’s murder. It was further transpired that the above accused have voluntarily caused hurt to Sanesh Adagale also, who intervened and tried to rescue the deceased Sachin at the time of incident. 3. The juveniles accused came to be chargesheeted before the Juvenile Justice Board while the present accused came to be tried before the Judicial Magistrate, First Class (Cantonment) Pune for the above mentioned offence. The offence under section 302 of IPC being exclusively trible by the court of Session, the learned Magistrate committed the case to the Sessions Court. The charge was framed against the present appellant under section 302 and 323 read with 34 of IPC to which the present appellant plead no guilty and claimed to be tried. The defence of the appellant accused is that of total denial. -: 4 :- 4. In order to prove the guilt of the appellant accused, the prosecution examined total nine witnesses. However, material evidence on the point of offence as laid against the appellant accused, is that of Pushpa PW-7, Sanesh PW-4 and Dr. Suryawanshi PW-8. 5. PW-7 has deposed that on 17.01.2005 at about 9.30 p.m. a boy came to her house and inquired about the accused. The boy told that the brother of the appellant accused had taken money from him. Thereafter, he went away. After about half an hour, PW-7 heard commotion of beating. Her husband Sanesh PW-4 opened the door of the house. She saw that the accused and three of his companions were beating that boy i.e. the deceased Sachin. Sanesh PW-4 intervened and attempted to separate the boys. The accused and his companion also beaten her husband. Thereafter, the accused and his companion went away. The deceased Sachin was lying there on the ground in injured condition. Sanesh PW-4 called on the person who was knowing the deceased Sachin. That person lifted the deceased Sachin and carried him on his shoulder. 6. PW-7 -Pushpa specifically stated that the appellant accused and three others beat one person i.e. the deceased Sachin. She has specifically identified that -: 5 :- one Ladya i.e. the present appellant accused as one of the persons who was beating the deceased. The appellant accused was known to PW-7 Pushpa and PW-4 Sanesh as he was residing in the same vicinity. This witness was cross-examined by the defence. However, no contradiction or omission could be brought in her evidence. Her evidence in the cross- examination is not at all shattered. 7. PW-4 Sanesh is the husband of PW-7 Pushpa. He witnessed the incident He has not supported the prosecution case. PW-4 Sanesh, however, does not state that no incident at all took place. He has testified that on the date of incident he received injuries on his ribs as he was given blows by hockey stick. He has avoided to take the name of the assaulter. He has further testified that the accused deals with liquor business and once he was externed. This evidence was not challenged in his cross-examination. 8. Prosecution has examined Dr. Suryawanshi as PW-8. He has done post-mortem of the body of the deceased Sachin. He proved the memorandum of post mortem at Exh. 41. He has testified that the injuries mentioned in clause 17 of the memorandum were possible during quarrel. He categorically denied that the said injuries could be -: 6 :- caused by fall on a hard substance. Dr. Suryawanshi also testified that on external examination, he found following injuries on person of the deceased Sachin. i. Abrasion over lateral half of left clavicle, horizontal 3 x 1 c.m. in size. ii. Abrasion below lateral half of left clavicle, horizontal 2.5 x 0.8 c.m. in size. iii. Abrasion at base of neck on right side vertical, 2.3 x 5.04 cm. in size. iv. Abrasion over the knuckle of middle finger of left hand 1 x 0.5 c.m. On internal examination, Dr. Suryawanshi found following injuries : i. Haematoma under the scalp of left frontal region 1 x 1 c.m. in size. ii. Blood in left pural cavity. -: 7 :- iii. Contusion over costal surface of lover lobe left lung in size 4 x 3 cm. iv. Haematoma in the serosal surface of beginning of ascending colon in the middle of transverse colon and over left flexes of colon. v. Pancreas Haematoma over left pancreas with lateral half. Perinophric haematoma over left kidney. Dr. Suryawanshi was cross-examined at length but nothing could be brought on record to discard his evidence in chief. 9. The presence of PW-7 Pushpa on the spot of the incident is quite natural. Her evidence is also very natural. She has not exaggerated the incident. There are no material contradiction or omission in her evidence. The statement at Exh. 39 recorded by the learned Judicial Magistrate corroborates her version. I find her evidence cogent, trustworthy, reliable and the same inspires confidence. The evidence of PW-7 Pushpa is corroborated by PW-4 Sanesh to some extent but PW-4 has not supported the prosecution story in its entirety. PW-7 in her evidence deposed that her husband Sanesh sustained -: 8 :- injuries at the hands of the accused at the time of incident, though PW-4 has not disclosed the name of the accused persons. His evidence discloses that he received injuries on the date and time of the incident. Further her evidence is corroborated by the medical evidence given by Dr. Suryawanshi, who has proved external injuries mentioned in clause 17 of the memorandum of the post mortem as well as internal injuries mentioned in the column nos. 20 and 21 of the post mortem report. The medical officer Dr.Suryawanshi clearly opined that the injuries were possible during quarrel and he specifically stated that those injuries would not cause by fall on the hard substance. 10. Pushpa PW-7 has no reason to falsely implicate the applicant accused. Her evidence is most natural, trustworthy and corraborated by the medical evidence. In my view evidence of PW-7 is sufficient to establish guilt of the applicant accused and the other juvenile offenders, who gave beating to the deceased Sachin and caused severe injuries to him which resulted in death. 11. Now the question which requires consideration is as to which offence the appellant has committed. Whether they have committed the offence under section 302 or under section 299 of the IPC. The learned Additional Sessions -: 9 :- Judge in this regard held that the appellant has committed offence of culpable homicide, amounting to murder by voluntarily causing hurt to the deceased Sachin to which he has succumbed and sentenced him to suffer R.I. for five years. 12. Mr. Shivarkar, the learned counsel appearing for the appellant accused in this regard submitted that the appellant accused could not have been convicted under section 299 read with section 304 Part II and at the most the appellant accused could have been convicted under section 323 of the IPC. He submitted that the PW-7 Pushpa testified that the accused have beaten deceased Sachin by fists and sticks. However, Dr. Suryawanshi in his deposition stated that the injuries on the person of the deceased Sachin are possible by hard and blunt object. The learned counsel for the applicant accused further submitted that if the deceased Sachin was given beating by the applicant accused by fists and sticks, in that case, even knowledge on the part of the accused that the deceased Sachin would die cannot be attributed to the applicant accused. In the alternative, he submitted that the sentence imposed on the appellant accused is excessive being five years R.I. and that the same deserves to be reduced. -: 10 :- 13. The evidence on record shows that the accused did not use any weapon at the time of incident. Deceased Sachin himself had gone to the place of incident and he was beaten by the accused and his companion. This fact shows that there was no preplan to cause death of Sachin. The incident seems to have occurred at the spur of moment without any premeditation. It cannot be said that the accused intended to cause death to Sachin. In these facts and circumstances, in my view the learned Additional Sessions Judge rightly held that the appellant is not guilty under section 302 as well as 304 part I of IPC. However, the evidence shows that the deceased was mercilessly beaten. Dr.Suryawanshi also testifies the injuries caused to deceased Sachin to the left lung, scalp and colon, which were sufficient in the ordinary course of nature to cause death. Therefore, the accused and his companions certainly had the knowledge that the indiscriminate beating is likely to cause Sachin’s death. The learned Additional Sessions Judge in this regard, in my opinion, correctly found the accused to be guilty under section 299 of the IPC and convicted him under part II of Section 304 of the IPC. 14. The learned counsel for the appellant submitted that the prosecution at the most succeeded in establishing offence against the present accused under section 323 of -: 11 :- the IPC. In this regard, the learned counsel relied upon the deposition of Dr. Suryawanshi to point out contradiction regarding weapon used by the accused in the offence. In my view this submission has no merit. What Dr. Suryawanshi has testified in his examination- in- chief is that the injuries mentioned in column nos. 20 and 21 of post mortem report can be caused due to hard and blunt object. He has her testified that those injuries cannot be caused by fists and sticks. No suggestion was given by the accused in this regard to Dr. Suryawanshi in his cross examination. Only suggestion that was given that the injuries on the person of the deceased Sachin mentioned in paras 19, 20 and 21 are possible by fall on the hard surface which suggestion is denied by Dr. Suryawanshi. Therefore, it cannot be said that the evidence of PW-7 Pushpa and PW-8 Dr.Suryawanshi is contradictory to each other. Dr. Suryawanshi has testified that the injuries on the persons of the deceased were possible during quarrel. It has established beyond doubt that the present appellant accused and alongwith three juveniles offenders have mercilessly beaten the deceased Sachin on the date of the incident, as a result of which deceased Sachin sustained multiple injuries and he fall unconscious on the spot. Sachin was then immediately taken to the hospital, however, he succumbed to the injuries. The accused and his companion had -: 12 :- knowledge that the indiscriminate beating of the deceased Sachin was likely to cause his death. In these facts and circumstances, in my view, there is no merit in the contention of the learned Advocate that the prosecution could establish only offence under section 323 of the IPC. 15. The last submission of reduction of sentence also is without any merit. The appellant accused is dealing with liquor business. He was once externed also. This reflects the character of the accused. The offence under section 299 read with section 304 part II of the IPC is punishable with imprisonment of either description for a term which may extend to 10 years, or with fine, or with both. The learned Additional Sessions Judge has already shown leniency to the appellant accused and sentenced him to suffer R.I. for five years only. Therefore, I do not see any reason to interfere in the same. 16. In the result, the appeal is devoid of any merit and the same is therefore, dismissed. (R.V.MORE,J.) .....