IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 264 OF 2006
Salim Khan @ Sanjay Khan
Age. 19 years; C-3319
Residing at : Footpath near
Near Shankar Mandir, S.V. Road,
Mumbai - 400 067.
(Presently in judicial custody at ... Appellant Central Prison, Kolhapur.) (Original Accused no. 1)
The State of Maharashtra,
Through Kandivali Police Station,
(CR No. 352/04, CC No. 334/P/2005, ...Respondent S.C. No. 167/2005) (Original Complainant)
Mr. A.G. Toraskar, for the Appellant.
Mr. S.R. Shinde, APP for State.
CORAM: V.M. KANADE &
P.D KODE, JJ.
DATE : 31st JULY, 2012
ORAL JUDGMENT (PER. V.M. KANADE,J.)
1. Heard, Mr. A.G. Toraskar, Learned Counsel for the Appellant and Mr. S.R. Shinde, Learned APP for the State. 2/6 Apeal.264-06
2. Appellant-original accused no.1, is challenging Judgment and Order passed by 10th Ad-hoc Additional Sessions Judge for Greater Bombay at Sewree dated 13 th September, 2005. By the said Judgment and Order, the learned Sessions Judge was pleased to convict the appellant for the offence punishable under Section 302 r/w 34 of Indian Penal Code and sentenced to suffer R.I. for life and to pay fine of Rs. 2,000/- and in default to suffer 2 years R.I.
3. The prosecution case in brief is that on 30 th October, 2004, the deceased Pappu Virji Waghela, the accused Salim Khan and Lalji Avdhesh Narayan Shukla and Kailash Kannad were playing cards at about 12 o'clock midnight and at that time there was sudden altercation and quarrel between the said persons and it is alleged that the appellant assaulted the deceased with a stick near his ear, whereas other accused used the stone and one other accused assaulted him with the hand. After the assault, the deceased fell down and became unconscious and the complainant, P.W-1 Anand Chaturbhuj Ashad, informed the police, who took the injured Pappu Waghela to the Bhagwati Hospital. Pappu Waghela succumbed to the injuries and died. FIR was therefore registered on the basis of the statement of Anand Ashad, the complainant and thereafter the accused was arrested and he was identified by the complainant. The statement of the witnesses were recorded, charge-sheet was filed. The 3/6 Apeal.264-06
trial was separated since one of the accused was found to be juvenile on the date of the incident. One other accused was absconding and therefore his case was separated. The trial Court convicted the appellant on the basis of the evidence given by P.W-1, Anand Ashad and P.W-5 Sanjay Dhiru Waghela and also on the basis of other material which was brought on record.
4. Learned Counsel appearing on behalf of the Appellant submitted that the identification parade was not held by the investigating officer and the accused-appellant herein, was shown to the witnesses in the police station. He submitted that therefore the identity of the accused was not properly established by the prosecution. He submitted that the complainant identified the accused for the first time in the Court. He submitted that no reliance can be placed on the said identification. He submitted that P.W-5, Sanjay Waghela also has stated that the appellant had assaulted Pappu with the stick near his ear and the death was caused as a result of the head injury. He invited our attention to the evidence of the Doctor who performed the postmortem. He submitted that in any case the trial court erred in convicting the appellant for the offence punishable under Section 302 of the Indian Penal Code.
5. On the other hand, learned APP submitted that the trial 4/6 Apeal.264-06
court had rightly assessed the evidence and no case therefore was made out for setting aside the order of the conviction passed by the trial court.
6. After having gone through the evidence, we are of the view that there is some substance in the submission made by the learned counsel appearing on behalf of the appellant. In our view from the evidence it cannot be said that the appellant had committed an offence punishable to Section 302 and at the best offence committed by the appellant would fall under Section 304 (Part-II) and not under Section 302 of the Indian Penal Code.
7. It is not disputed that the death of Pappu was homicidal and unnatural. The evidence of the Doctor who performed the postmortem discloses that the deceased has received 10 injuries on his person and death was caused as a result of the injury which was caused on the head.
8. The prosecution examined in all seven witnesses, P.W-6 and P.W-7 are the investigating officers, PW-2, P.W-3 and P.W-4 are the Panch witnesses, P.W-1, Anand Ashad and P.W- 5 Sanjay Waghela are two eye witnesses of the said incident. Both have identified the appellant in the Court and P.W-1 have also identified the appellant in the police station. Both these witnesses have stated that there was sudden 5/6 Apeal.264-06
fight and the appellant assaulted the deceased with the stick near his ear. The postmortem notes and the evidence of the Doctor who performed the postmortem indicate that there was one injury caused to the deceased near his ear but death was caused as a result of the injury which was caused on the head. None of the witnesses have stated that the accused-appellant herein had given a blow to the deceased on his head.
9. In our view, therefore, it cannot be said that appellant shared the intention of the other assailant and more particularly the assailant who had assaulted the deceased on his head. There is sufficient material on record to indicate that there was sudden fight and thereafter the appellant has assaulted the deceased on his ear. None of the accused were carrying any weapon and they had assaulted the deceased with whatever was available at the spot. One of the accused is absconding and other being a juvenile, his trial has been separated. From the evidence therefore, it cannot be said even otherwise that the appellant shared the intention of the other accused or particularly the accused who had assaulted the deceased on the head. In this view of the matter, in our view the case of the accused would squarely fall under Exception 4. Therefore, the case of the appellant would fall under Section 304 (Part-I).
10. The Judgment and Order of the trial court, therefore, is set aside to the extent where the appellant has been convicted for the offence punishable under Section 302 and the said order is modified and conviction is altered from Section 302 to Section 304 (Part-I) and he is sentenced to suffer R.I. for 10 years. The appellant is entitled to get benefit of set off under section 428 of the Criminal Procedure Code for the period of sentence, which he has already undergone.
The Appeal accordingly is partly allowed and is disposed of.
(P.D.KODE J.) (V.M. KANADE, J.)