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Cri.Appeal No.2/2021:: 1 ::IN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO.2 OF 20211)Satyasing Mayasing Bavri,Age 45 years, Occu. Labour2)Ravising Mayasing BavriAge 27 years, Occu. Labour3)Malingsing Mayasing BavriAge 25 years, Occu. Labour4)Malabai Mayasing Bavri,Age 63 years, Occu. Labour5)Kalibai Satyasing Bavri,Age 43 years, Occu. Housewife & labourAll are R/o Rajiv gandhi Nagar,Zopadpatti, Jalgaon, Taluka andDistrict Jalgaon …APPELLANTSVERSUSThe State of Maharashtra(Copy to be served on Public Prosecutor, High Court of Bombay,Bench at Aurangabad) …RESPONDENT.......Mr. N.S. Ghanekar, Advocate with Mr. Satwik Waghchaure, Advocate for appellants Mrs. Dr. Kalpalata Patil Bharaswadkar, A.P.P. for respondent....… CORAM : R.G. AVACHAT ANDNEERAJ P. DHOTE, JJ.DATE : 3rd December, 2024 Cri.Appeal No.2/2021:: 2 ::JUDGMENT (PER : R.G. AVACHAT, J.) :The challenge in this appeal is to a judgment andorder of conviction and consequential sentence, passed byAdditional Sessions Judge, Jalgaon on 7/11/2020 in SessionsCase, No.101/2017. By the impugned judgment and order, theappellants have been convicted for various offences andconsequently sentenced to various terms of imprisonment asdetailed in the tabular form below :SectionSentence of imprisonment302 r/w 149 IPCImprisonment for life and fine of Rs.1000/- each, in default S.I. for 3 months.323 r/o 149 IPCImprisonment for 6 months and fine of Rs.100/- each, in default S.I. for 8 days.504 r/w 149 IPCImprisonment for 6 months and fine of Rs.100/- each, in default S.I. for 8 days.143 r/w 149 IPCImprisonment for 1 month and fine of Rs.100/- each, in default S.I. for 8 days.147 r/w 149 IPCImprisonment for 1 year and fine of Rs.100/-each, in default S.I. for 8 days.148 r/w 149 IPCImprisonment for 1 year and fine of Rs.100/-each, in default S.I. for 8 days.37(1)(3) punishable u/s 135 of Bombay Police Act r/w Section 149 IPCImprisonment for 6 months and fine of Rs.100/- each, in default S.I. for 8 days. Cri.Appeal No.2/2021:: 3 ::All the substantive sentences were directed to runconcurrently.2.Rahul (deceased) along with his parents wouldreside at Rajiv Gandhi Nagar, Jalgaon. It was a slum area.The appellants too would reside in the very vicinity. Theincident occurred on 12/7/2017 by 10.00 p.m.Rahul was takingdinner alone on the road i.e. at a very short distance from hisresidence. Appellant Satyasing (A/1) came drunk. He askedRahul to pay him money for consumption of alcohol. Itappears that, A/1 put his hand in a food plate, which was in thehand of Rahul. Rahul got annoyed thereby. A quarrel betweenthe two took place. A/1 caught hold of the collar of Rahul andeven hurled expletives at him. Meanwhile, other appellants,the family members of A/1 arrived. All of them allegedly beatup Rahul. A/1 fished out a knife and assaulted therewith onthe ribs of Rahul. P.W.7 Mhalsabai, mother of Rahul hadintervened. A/1 pushed her against a wall. Her head hit thewall, resulting into blunt trauma. The appellants thereafter fled.Neighbours and family members rushed Rahul to hospital inautorickshaw. Unfortunately, Rahul breathed his last. Cri.Appeal No.2/2021:: 4 ::3.P.W.3 Ajay, brother of Rahul lodged the FirstInformation Report (F.I.R. - Exh.86) against the appellants. Acrime vide C.R. No.97/2017 was registered at RamanandNagar Police Station, Jalgaon for offences punishable underSections 302, 143, 147, 148, 149, 323, 504 of the Indian PenalCode and Section 37(1)(3) of the Bombay Police Act againstthe appellants. A crime scene panchanama (Exh.81) wasdrawn. Appellants were arrested. Mortal remains of Rahulwas subjected to inquest (Exh.89) and autopsy (Exh.147). Theseized articles were sent to Forensic Science Laboratory,Nashik. Statements of persons acquainted with the facts andcircumstances of the case were recorded. Upon completion ofthe investigation, a charge sheet was filed against theappellants.4.The Trial Court framed the Charge (Exhs.20 and59). The appellants pleaded not guilty.5.The prosecution examined 14 witnesses andadduced in evidence certain documents. On appreciation of Cri.Appeal No.2/2021:: 5 ::the same, the Trial Court convicted and consequentlysentenced the appellants as stated above.6.Heard. Learned Advocate for the appellants wouldsubmit that, there was no prior enmity between the A/1 and thedeceased. The incident took place in a spur of a moment. Itwas preceded by a quarrel and hurling of expletives. Theappellants would rear pigs. They would eat pork. When thedeceased Rahul was taking his dinner, A/1 had come drunkand made a demand for money. He even put his hand in thefood plate of Rahul. Since the appellants would eat pork, hegot annoyed thereby, and in a hit of passion, A/1 gave oneknife blow which ultimately proved fatal.7.So far as other appellants are concerned, thelearned Advocate would submit that there is no injurycertificate to indicate the mother of Rahul to have suffered anyinjury. As usual, all the family members have been roped in.In fact it was a quarrel between A/1 and Rahul alone. He,therefore, urged for converting the conviction of A/1 from theoffence punishable under Section 302 of the Indian Penal Cri.Appeal No.2/2021:: 6 ::Code to Section 304 and urged for acquittal of the otherappellants.8.The learned A.P.P. would, on the other hand, tookus through the entire evidence on record to submit that asingle blow proved fatal. The same would suggest the natureof weapon and force of assault. Moreover, the body partchosen by A/1 to make an assault with a knife thereon wouldgo long way to indicate him to have intended to kill Rahul.According to her, there could not be injury certificate asregards blunt trauma. The prosecution witnesses have noreason to give false evidence. She reiterated the reasonsgiven by the Trial Court in support of the impugned order. Sheultimately urged for dismissal of the appeal.9.Considered the submissions advanced. Perusedthe evidence on record. Let us advert to the evidence onrecord and appreciate the same. The evidence of only 4witnesses was referred to by learned Advocate for theappellants. P.W.9 Dr. Jitendra Vispute was a Medical Officerwith Om Critical Centre, Jalgaon. His evidence indicates that, Cri.Appeal No.2/2021:: 7 ::one Rahul Sakat (deceased) was admitted to the said Clinic by11.30 on 12/7/2017. He was initially admitted at Civil Hospital,Jalgaon. As per C.T. Scan report, there was intestine injury.10.P.W.14 Dr. Nikhil was Additional Civil Surgeon, CivilHospital, Nasik. His evidence disclose that, on 14 July 2017, adead body of Rahul was referred for autopsy. He along withother two Medical Officers conducted autopsy and issued thereport (post mortem report Exh.147). Evidence of this witnessis undisputed before us. Column No.17 of the post mortemreport indicates the deceased had suffered following injury :-“Stitched stab wound of size 3 cm. x 0.5 cm. x 5.5 cm.was present over outer aspect of left side ofabdomen, 8 cm. from midline, 11 cm. above anteriorsuperior iliac spine, placed obliquely, One angle wasacute and other was blunt. The direction of the woundwas backwards, upwards, inwards. The track of thewound was through skin, subcutaneous tissue, wall ofabdomen, peritoneum and descending colon.Effusion of blood was present along the tract.” Cri.Appeal No.2/2021:: 8 ::11.In the opinion of P.W.14 Dr. Nikhil, the probablecause of death of the deceased was perforation peritonitis dueto stab injury to abdomen which is sufficient to cause death inordinary course of nature. 12.It is undisputed that, Rahul met with a homicidaldeath. It is also not in dispute that the assault with a knife wasmade by A/1, as a result of which Rahul suffered fatal injury.The question is, whether it is an offence punishable underSection 302 of the Indian Penal Code or 304 Part I or Part II ofthe Indian Penal Code.13.Exh.81 is a crime scene panchanama duly provedby P.W.1 Manoj. It is on the road (open space) surrounded bythe houses. It’s slum like area. P.W.2 Arvind is a witness tothe panchanama (Exh.84) relating to seizure of clothes of thedeceased.14.The F.I.R. was lodged by P.W.3 Ajay, brother of thedeceased. His evidence disclose that, his brother Rahul(deceased) had gone to take meal in a ground outside the Cri.Appeal No.2/2021:: 9 ::residence. It was about 14 to 15 ft. away from their residence.A/1 asked Rahul to pay him money to buy booze. Rahulrefused to pay him. A/1 therefore started abusing him. A/1even started beating Rahul. Thereafter other appellants joinedA/1. They all started beating up Rahul. So his mother wentand intervened to separate them. A/1 pushed her. Her headhit a wall. A/1 thereafter gave a knife blow on the left abdomenof Rahul. Other appellants were present there with him. Afterassault, all of them ran away. He and others rushed Rahul tothe hospital. He then lodged the F.I.R. (Exh.86) at RamanandNagar Police Station, Jalgaon.15.During his cross-examination, it has been broughton record that, Rajiv Gandhi Nagar is also known as slumarea. He admitted that, there were neither friendly relationsbetween A/1 and the deceased Rahul nor enmity as well.There was no financial transaction between them also. Hedenied to have not witnessed the incident. He, however,admitted that, his brother Rahul would drink. At the time of theincident, he (Rahul) was under influence of liquor. Accordingto him, appellants used to rear pigs. They would consume Cri.Appeal No.2/2021:: 10 ::pork. Due to the same, the people residing around wereannoyed with them.16.P.W.5 Ramesh is another eye witness. Hisevidence disclose that he was at his house in Rajiv GandhiNagar. On hearing commotion, he came out of his house. Hesaw the appellants were shouting. He also saw A/1 to havepushed Mhalsabai, due to which she suffered blunt trauma toher head. A/1 then removed a sharp weapon and assaultedRahul therewith. Rahul fell down. The appellants thereafterran away. Rahul’s brother rushed Rahul to hospital in anautorickshaw.17.During his cross-examination, his attention wasdrawn to a statement in his police statement, wherein hestated that he was asleep after taking dinner on 12/7/2017.According to him, there was no prior enmity or disputebetween A/1 and Rahul.18.P.W.7 Mhalsabai, mother of deceased Rahultestified that, she was sitting near the door of her house. Cri.Appeal No.2/2021:: 11 ::Rahul was taking meal outside the house. It was by 7.30 p.m.A/1 came from nearby lane. He was drunk. He demandedmoney from Rahul for consumption of alcohol. Due to thesame, both A/1 and Rahul abused each other. Other appellantsarrived. They started beating Rahul. She, therefore,intervened. A/1 pushed her, whereby her head banged againsta wall. Her evidence further disclose that, A/1 assaulted Rahulon his abdomen with a knife. 19.The prosecution got exhibited her 164 statement,at 105. The defence, therefore, confronted her therewith. Thefollowing matter finds place in her statement under Section 164of the Cr.P.C."रराहहलनान एक घरास खरालरा. त्यरानानंतर सत्यरा शशिकलकरार नानरराहहलच्यरा तराटरात हरात घरातलरा. त्यरानानंतर रराहहल त्यरालरामहणरालरा कक, ततुम शशिकलकरार डतुककर खरातन हहा, मनरन खराणनममी कयहा हरात डरालरा. सत्यरानान रराहहललरा शशिवमी शशदिलमी शशक, तनरनममॉ कक च्यतुत, तनरन बहनना कक च्यतुत. सत्यरानान रराहहलचचमी गचचरानंडमीधरलमी. त्यरावनळळमी सत्यराचचमी आई् मरालरा दिनखमील तनथदन हहातमी.सत्यराचचमी आई् महणरालमी कक, ओ छहाररा गरमीब हह उसन मतमरारहा. त्यरावर ममी सत्यराच्यरा आई्लरा महणरालमी कक, दिनख तनररालडकरा मनरन छहारन कहा मरार रराहरा हह. सत्यरानान त्यराच्यरा आई्लरा Cri.Appeal No.2/2021:: 12 ::शशभनंतमीवर ढकललूनना शशदिलन. सत्यराचचमी आई् व बरायकहा मलरामहणरालमी कक, तनरनकहा समजतरा नाराहमी कयरा ? उसनान दिराा पमीहह. तलून तहा समजदिरार हह.” 20.Appreciation of the aforesaid evidence wouldindicate that, only one injury was found on the person of theappellant, which was in the nature of a stab. Had really all theappellants assaulted Rahul, there would have been more thanone injury seen on his person. There is no injury suffered byMhaslabai as well. Mere presence of appellants No.2 to 5would, therefore, be not sufficient to make them liablecriminally with the aid of Section 149 of the Indian Penal Code.21.What can be seen from the aforesaid evidence isthat, deceased Rahul was drunk. He was taking meal in openground at 15 ft. away from his residence. A/1 came drunk fromnearby lane. He demanded money from Rahul for consumptionof liquor. He even put hand in the plate of Rahul. The aforesaidmatter appearing in 164 statement of the mother of thedeceased indicate that it was an incident that took place in aspur of moment. A quarrel had preceded the incident. A/1 wasdrunk. He fished up a knife and gave its blow on the person of Cri.Appeal No.2/2021:: 13 ::the deceased, which ultimately proved fatal. There was noprevious enmity. As such, the case would fall within exception4 of Section 300 of the Indian Penal Code, which reads thus : Exception 4 :-Culpable homicide is not murder if itis committed without premeditation in a suddenfight in the heat of passion upon a sudden quarreland without the offender having taken undueadvantage or acted in a cruel or unusual manner.Explanation : It is immaterial in such cases whichparty offers the provocation or commits the firstassault.22.For all the aforesaid reasons, in our view, theappeal would partly succeed in terms of the following order :O R D E R(i)The Appeal is partly allowed.(ii)Conviction of the appellant Nos.1 to 5 for the offencespunishable under Sections 302, 143, 147, 148, 323 and 504read with Section 149 of the Indian Penal Code and for theoffence punishable under Section 37(1)(3) punishable under Cri.Appeal No.2/2021:: 14 ::Section 135 of the Bombay Police Act read with Section 149 ofthe Indian Penal Code, recorded by Additional SessionsJudge, Jalgaon on 7/11/2020 in Sessions Case, No.101/2017and the consequential sentences are hereby set aside. Theappellant Nos.1 to 5 are acquitted thereof. Fine amount, ifpaid, be refunded to them. Their bail bonds are cancelled.(iii)The appellant No.1 – Satyasing Mayasing Bavri isconvicted for the offence punishable under Section 304 Part Iof the Indian Penal Code and sentenced to suffer rigorousimprisonment for Nine years and directed to pay fine ofRs.2000/- (Rupees two thousand), in default to suffer rigorousimprisonment for three months. Amount of fine, if paid byappellant No.1, be adjusted.(iv)The appellant No.1 is entitled for set off under Section428 of the Code of Criminal Procedure.(NEERAJ P. DHOTE, J.) (R.G. AVACHAT, J.) fmp/-