1 5.apeal673-10 IN THE HIGH COURT OF JUDICATURE AT MUMBAI CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.673 OF 2010 The State of Maharashtra ..APPELANT. VERSUS Shripad Dattatraya Suryawanshi and another. ..RESPONDENTS. .... Ms.M.H. Mhatre, A.P.P. for the Appellant-State. Mr.Khan Abdul Wahab, Advocate for the Respondents. .... CORAM : D.D.SINHA & A.R.JOSHI, JJ. DATED : 23rd SEPTEMBER, 2010 P.C. 1. Heard learned Additional Public Prosecutor for the appellant- State and the learned Counsel for the respondents. 2. The State Government has preferred Appeal for enhancement of sentence imposed on the respondents/accused. It is contended that the respondents are convicted for the offence punishable under Section 302 of Indian Penal Code read with Section 34 of Indian PPD 2 5.apeal673-10 Penal Code and sentenced to suffer imprisonment for life and to pay fine of Rs.5000/- each in default to suffer rigorous imprisonment for six months each. Learned Additional Public Prosecutor has contended that deceased Nilesh has received four injuries and as per the medical evidence the probable cause of death was due to asphyxia due to strangulation. It is contended that the manner in which the assault was committed by the respondents as well as the nature of injury sustained by the deceased, the case falls within the category of rarest of rare and, therefore, the State has filed the present appeal for enhancement. 3. Learned Counsel for the respondents contended that the evidence adduced by the prosecution in respect of the assault as well as the injury sustained by the deceased and the probable cause of death, if considered in the right perspective, the present case does not come within the ambit and scope of rarest of rare category. 4. We have considered the contentions canvassed by the respective parties. In the instant case, the doctor Smt.Nargis (PW-7) conducted the post-mortem examination of the deceased and found following injuries 1. Animal bite to right pinna of ear, 1 X .5 cm, 2. Animal bite to left pinna of ear 1 X 1 cm. 3. Contusion over anterior aspect of left side of chest, 6 X 5 cm. Petecheal hemorrhages present 3 5.apeal673-10 over left side of chest - reddish brown in colour. 4. Ligature mark present at the level of thyroid cartilage and above the level thyroid, cartilages encircles neck completely, skin brushing around neck 10 to 11 inches in length 1 cm breadth, petechial haemorrhages. 5. Dr.Nargis has opined that the injury Nos.3 & 4 were ante mortem whereas injury Nos.1 & 2 were post mortem injuries. The probable cause of death given by doctor is death due to asphyxia due to strangulation. In the instant case, the trial Court found that the evidence adduced by the prosecution was sufficient to prove the case of murder beyond all reasonable doubt against respondents/accused and gave sentence to suffer rigorous imprisonment for life. 6. We want to express that the manner in which the injuries were inflected, nature of injuries and cause of death ipso facto would not render the act of the respondents as horrendous or so barbaric which will shock the conscience of the Court. It is no doubt true that the prosecution succeeded in proving the charge of murder beyond all reasonable doubt. However, to bring the case under the rarest of rare category mere proving of charge punishable under Section 302 of Indian Penal Code by itself is not enough, unless the act committed by the accused is so horrendous and barbaric which requires awarding of capital punishment. 4 5.apeal673-10 7. In the instant case, we are of the view that the prosecution failed to demonstrate that the act of the respondents/accused falls within the category of rarest of rare. Consequently the appeal is dismissed. (D.D.SINHA,J.) (A.R.JOSHI,J.)