1 Cri.Appeal 112-97 Anand IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.112 OF 1997 1. Natha Namdeo Patil ..Appellants Age : 34 years, Occupation : business 2. Dhanaji Namdeo Patil Age : 31 years, Occupation : business both R/o. village Morave, Taluka Panvel, District Raigad. V/s. The State of Maharashtra ..Respondent Mr.A.P.Mundargi, Senior Counsel with Mr.Prashant Badole, for the Appellants Mr.Y.M.Nakhawa, APP, for the Respondent  State Mr.S.V.Gavand, Advocate, for the original Complainant CORAM : R.C.CHAVAN, J. DATE : 24TH JANUARY, 2011 ORAL JUDGMENT . This Appeal is directed against conviction of the appellants for the offence punishable under Section 304 part II read with Section 34 of the Indian Penal Code and 2 Cri.Appeal 112-97 sentence of rigorous imprisonment for five years with a fine of Rs.2000/- or in default rigorous imprisonment of one year imposed on each one of them by the learned Sessions Judge, Raigad-Alibag upon conclusion of trial in Sessions Case No.81 of 1993. 2. Facts which are material for deciding this Appeal are as under :- The appellants as well as the victim were in the business of collecting sea shells and selling those shells in Rajasthan & other parts of the country. This had resulted into business rivalry. A quarrel had taken place between appellant No.1 Natha and victim's son Madan, a few days prior to the date of incident. On 3 rd November, 1992, when Pilaji was going towards the sea-shore to collect shells followed by his son Madan, appellant No.1 caught hold of the victim from the rear side, & victim was made to fall down on the ground. Then appellant No.2 gave a fist blow 3 Cri.Appeal 112-97 on the chest of victim Pilaji. The other persons, who were tried in the trial along with appellants are alleged to have instigated the two appellants and also alleged to have assaulted the victim by peling stones at the victim. Victim's son Madan went back to his home and then other family members rushed to the spot. Victim Pilaji is alleged to have made an oral statement to the family members and others, who had gathered, about the complicity of the appellants and co-accused in the assault on him. Pilaji was taken to hospital but was pronounced dead by the Medical Officer. On a report by his son Madan, an offence was registered and investigation commenced. 3. In course of investigation after performing inquest on the body of Pilaji, it was sent for Post Mortem examination at which Medical Officer noticed as many as six external injuries. Upon dissection, he found 4 Cri.Appeal 112-97 the left ribs as also clavicle had three fractures. There was rupture of lung and laceration of a lobe of the left lung. In the opinion of the Medical Officer, death occured due to failure of cardiorespiratory system due to laceration of lung. In course of investigation, police recorded statements of witnesses and also arrested the appellants and other co-accused. They seized incriminating articles and sent them to the Forensic Science Laboratory. On completion of investigation, charge sheet was sent to the Court of the learned Judicial Magistrate First Class, Panvel, who committed the case to the Court of Sessions, Raigad-Alibag. 4. The learned Sessions Judge charged the appellants and five other accused of the offence punishable under Sections 147, 148 and 302 read with Section 34 of the Indian Penal Code. Since they pleaded not guilty, they were put on trial at which the prosecution 5 Cri.Appeal 112-97 examined in all eight witnesses in its attempt to bring home guilt of the accused persons. After considering their evidence in the light of defence raised, the learned Sessions Judge held that the prosecution had failed to prove complicity of the remaining five accused persons and therefore, proceed to acquit them of the charge levelled. He held two appellants guilty for the offence punishable under Section 304 part II of the Indian Penal Code and sentenced them to rigorous imprisonment for five years with a fine of Rs. 2000/-. Aggrieved thereby, the appellants are before this Court. 5. I have heard the learned Senior Counsel for the appellants and the learned APP for the State. 6. With the help of both the learned Counsel I have gone through the evidence on record. P.W.1 Dr. Murlidhar Pawar, who 6 Cri.Appeal 112-97 conducted Autopsy had observed that the victim had as many six external injuries. There were bruises, with fracture of left clavical, on the left shoulder, right elbow, lower lumber region, left leg, right lower leg and left palm. On dissection he found fracture of the first rib which led to rupture and laceration to the left lung. He stated in his cross examination that injury No.1 namely fractures in the left shoulder was sufficient to cause death in ordinary course of nature. He stated that injuries to right elbow and lower third of left tibia fibula as also on the right leg and right palm were possible by fall. He stated that injury No.1 was possible if a heavy stone is hit on the body with force. He also opined that injury like fracture of lower third left tibia fibula was also possible by being hit by a heavy stone. He stated that bruises to the right elbow, lower lumber region, right lower leg and palm were possible by blows by stick but not 7 Cri.Appeal 112-97 possible by being hit by a stone. In the context of these observations of the Medical Officer, the evidence of eye witness P.W.2 Madan Patil would have to be examined. 7. P.W.2 Madan Patil claimed that he was following his father as his father was going to collect shells from the sea shore. He stated that all the accused suddenly came from the village side and appellant No.1 Natha held his father from the rear side by both the hands. His father then fell down. Appellant No.2 Dhanaji gave a fist blow on the chest of Pilaji. Other accused persons started pelting stones at his father. He claims to have gone back home, narrated the incident to his mother, brother and sister. All of them then rushed to the place where his father was lying. He named others who had already come to the spot to include Joma Goma Patil, Vikas Ramchandra Mhatre and Shantaram Goma Patil. He claimed then after his father was brought 8 Cri.Appeal 112-97 home, on enquiry by his mother, his father told her the names of the assailants. His father was then carried to village Vahal and from there in the Jeep of one Vishwanath Patil first to Panvel Police Station and from there to hospital, where his father was pronounced dead. In the cross examination, the witnesses admitted two previous disputes and cases which had been filed. He stated that the place of incident was of a foot path to the sea shore. He stated that one Padaji Patil, who was police patil of village had also come to his house. The evidence of P.W.2 about the visit of police patil Padaji Patil is discrepant. He also stated that Padaji Patil reduced the information received from his father into writing but that information is neither produced nor Padaji Patil is examined as a witness at the trial. The learned Trial Judge has rightly discarded the entire evidence about oral Dying Declaration by deceased Pilaji. 9 Cri.Appeal 112-97 8. P.W.2 Madan stated that though P.W.8 PSI Mahendrasingh Pawar had come to the hospital when his father was in the hospital, neither did PSI Pawar record his report nor did he narrate about the incident to the inspector. It seems that his report was subsequently recorded. The story, according to this witness, in his cross examination on 2 nd September, 1996 is that appellant No.1 Natha caught hold of Pilaji and made Pilaji fall on the ground. Thereafter, appellant No. 2 Dhanaji sat on the chest of Pilaji and gave a fist blow. This would rule out any blow by stone or any other weapon. He attributed other injuries to the other accused persons, who were pelting stones. Since that story of pelting stones has been discarded by the learned Sessions Judge and since the acquittal of co-accused is not questioned, the evidence would have to be assessed on the basis of what this witness stated namely that appellant No.2 Dhanaji gave a fist blow on the chest of his 10 Cri.Appeal 112-97 father as appellant No.1 Natha had made his father fall down. The witness had claimed in his cross examination that he had seen the whole incident from a distance of 20  25 feet but did not rush to save his father from the assault. 9. P.W.3 Joma Patil claims to have reached the spot after the incident and also claimed to have heard version of the victim. As already observed, the story about oral Dying Declaration has been rightly discarded by the learned Trial Judge as unbelievable. Joma had also witnessed the inquest panchanama which is produced at Exhibit 28. P.W.4 Narayan is another son of the victim, who too came after the incident and therefore, did not actually see the assault. What he claims to have heard is his father's version as to who were the assailants. He states that on 1 st November, 1992, there was an altercation between the parties in respect of which he had 11 Cri.Appeal 112-97 given a report, which was registered as Entry No.912 of 1992. 10. P.W.6 Yashawant Gharat was witness at the panchanama of the spot recorded vide Exhibit 32. In presence of P.W.7 Ravindra Pargaonkar, appellant No.1 Natha is allegd to have made confessional statement that stones which were used in the assault were lying in the grass near sea shore. This was obviously recorded by the investigating officer vide Exhibit 36 and then he, Natha and police went for collecting the stones used in the assault, panchanama of which was drawn vide Exhibit 37. Likewise, appellant No.2 Dhanaji, who has not been attributed any blow by stick stated that he would produce the weapon used in the assault and investigating officer again went on to record this confessional statement and proceeded to re-discover this weapon. The learned Sessions Judge has rightly disbelieved this evidence in its entirety. P.W.8 12 Cri.Appeal 112-97 Mahendrasingh Pawar, PSI states in his cross examination according to the investigation, Shrikant Dagadu Mhatre, Krishna Babu Bhoir and Balaram alias Vijay Thakur were eye witnesses to the incident. None of them has been examined by the prosecution. 11. As far as complicity of the appellants in the assault is concerned, eye witness P.W.2 Madan Patil was rightly believed by the learned Sessions Judge. Though there was enemity and previous disputes that could not have been the cause for Madan to falsely name the two appellants as his father's assailants. The incident occurred in broad day light at 2:00 p.m. and there is no reason to hold that Madan had no business to follow his father for collecting shells. The learned Sessions Judge has rightly excluded exaggeration in the evidence of Madan as also embellishment by the investigating officer in the form of introducing Dying Declaration and recovery. 13 Cri.Appeal 112-97 What has been held as proved is that the appellant No.1 Natha held the victim and pined him down and appellant No.2 Dhanaji sat on chest and gave a fist blow on the chest. The learned Sessions Judge rightly concluded from the nature of assault, that it had been proved that intention to cause death could not at all be attributed to the two appellants. Curiously he had also observed in para 14 of his Judgment that positively it may not be said that either of the two appellants caused the injury on the chest with the knowledge that injury would result in death of the victim. He specifically held that knowledge of possibility of the injury leading to death could not be attributed to the appellants. If that be so, it is not clear as how the appellants could have been held for the offence punishable under Section 304 part II which requires that the act should have been done with the knowledge that it is likely to cause death or to cause of such bodily injury 14 Cri.Appeal 112-97 as is likely to cause death. It is unfortunate that the victim had cardiorespiratory failure due to laceration of lung leading to his death. It is not that appellants had given successive or multiple blows to the victim. What has been observed is only one injury and fracture of only one rib. Therefore, the learned Sessions Judge should have seen that the case would appropriately fell under Section 325 of the Indian Penal Code rather than 304 part II. In view of this, Appeal would have to be partly allowed. Conviction of the appellants for the offence punishable under Section 304 is altered to one for the offence punishable under Section 325 read with Section 34 of the Indian Penal Code. 12. If sentence of rigorous imprisonment for five years was considered adequate for the offence punishable under Section 304 part II of the Indian Penal Code which grievous 15 Cri.Appeal 112-97 offence, obviously, a lesser sentence would be warranted for the lesser offence punishable under Section 325 of the Indian Penal Code for which maximum punishment prescribed is rigorous imprisonment for seven years and fine. The learned Counsel for the appellants submits that the incident occured in the year 1992 i.e. almost about 19 years ago. The conviction was recorded way back in the year 1997 i.e.almost about 14 years ago. He also submits that the appellants have in fact undergone pre-conviction incarceration for a period about five months and therefore, submitted that in the circumstances nominal sentence should be inflicted upon the appellants. The learned APP submits that since the death has occured, maximum sentence prescribed under Section 325 would have been warranted but for the fact that the Sessions Judge himself has awarded sentence of rigorous imprisonment for five years and therefore, according to him, sentence imposed should be 16 Cri.Appeal 112-97 maintained. Considering the fact that the appellants have been convicted 14 years ago for the incident which took 17 years ago and having been living in the shadow of sentence for the last 14 years, as also the fact that it was one fatal blow on the chest which led to the death of the victim, the sentence imposed upon the appellants is reduced to rigorous imprisonment for three years with a fine of Rs.2000/- each or in default rigorous imprisonment for one year. Appeal is, thus, partly allowed in above terms. (R.C.CHAVAN, J.)