- (1.)Criminal Appeal No. 1288 of 2006 has been filed by the accused/appellant challenging his conviction for an offence punishable under Section 326 of the Indian Penal Code and sentence of RI for 10 years and fine of Rs. 5000/-, in default of which to undergo further RI for one month, by the III Ad hoc Additional Sessions Judge, Thane, by judgment dated 14/11/2006, in Sessions Case No. 381 of 2005. Criminal Appeal No. 577 of 2007 has been filed by the State questioning the correctness of the acquittal of the respondent/accused as recorded by the III Ad hoc Additional Sessions Judge, Thane. Since both the appeals arise from the judgment of the trial court, these appeals are being decided by this common judgment. Facts, as are necessary for the decision of these appeals, may briefly be stated thus:--
"PW 8 - PI Narayan Hatkar, who, on 20/5/2005, was attached to the Shantinagar Police Station, Bhiwandi, and was on duty, recorded the report of PW 2 - Pundalik, father of deceased Kashinath, at Exh. 20. On the basis of the report of PW 2 - Pundalik at Exh. 20, an offence was registered. The investigation of the said crime was entrusted to PW 8 - PI Hatkar. It appears that deceased Kashinath, on being taken to the IGM Hospital at Bhiwandi, was declared dead by the Medical Officer. An inquest panchanama was accordingly drawn in the hospital in the presence of panchas at Exh. 10. The dead body of deceased Kashinath was thereafter referred for postmortem examination. The appellant was not available, but was arrested subsequently. PW 8 - PI Hatkar thereafter proceeded to the scene of the incident and in the presence of the panchas drew the scene of the incident panchanama at Exh. 35. Sample of blood stains from the scene of the incident were drawn and seized. The clothes of deceased Kashinath were seized under seizure memo at Exh. 13 in the presence of panchas. Statements of the witnesses were recorded. As pointed out by us above, the appellant was arrested on 24/5/2005 under arrest panchanama at Exh. 55. The clothes of the deceased and the other articles which were seized were referred to Chemical Analyzer under requisition at Exh. 56. The reports of the C.A. are at Exhs. 57 and 58.

During custodial interrogation, the appellant expressed his willingness to point out the place where the weapon was concealed. Accordingly, a memorandum was drawn in the presence of the panchas at Exh. 41. The appellant led the police and the panchas to Vatika Hotel on the Bombay-Agra Road and from the near the pipe-line, produced a sickle which was seized in the presence of panchas under seizure memo at Exh. 42. The seized articles were referred to C.A. on 30/5/2005 under requisition at Exh. 61. Further to the completion of investigation, a charge-sheet against the appellant was filed.

Postmortem on the dead body of deceased Kashinath was performed by PW 1 -Dr. Jayashree Mhaske, who noticed the following external injuries:--

(i) Incised penetrating wound oblique shape from left axilla upto 10th rib medially, size 6 inches x 2.5 inches x 6 inches, deep into cavity.

(ii) Incised wound over left arm, of upper 1/3rd medially size 2 inches x 1 inch x 1 inch, muscle and vessel deep.

(iii) Fracture of rib No. 2 to rib No. 10.

On internal examination, she noticed the following injuries:--

(i) Thorax incised wound rib 3 to rib 10, fractured cartilage, cut over left side.

(ii) Lungs laceration over left lung lobe, 2 inch x 1 inches.

(iii) Haemothorax about 2 to 2.5 ltrs. Blood."

PW 1 - Dr. Jayashree Mhaske accordingly opined that deceased had died due to cardio respiratory failure due to haemorrhagic shock due to injury to lung by hard and sharp object. Postmortem report is at Exh. 18. PW 1 - Dr. Mhaske had also opined that injury No. 1 was sufficient in ordinary course of nature to cause death."

(2.)On the case being committed to Court of Sessions, trial court vide Exh. 2 framed charge against the appellant for offence punishable under Section 302 of the IPC. The appellant vide Exh. 3 denied his guilt and claimed to be tried. Prosecution in support of its case examined eight witnesses. The defence of the appellant was of denial. The trial court upon appreciation of the evidence acquitted the appellant for offence punishable under Section 302 of the IPC, but convicted and sentenced him as afore-stated for an offence punishable under Section 326 of the IPC. The State being thus aggrieved by the acquittal of the appellant/accused for offence punishable under Section 302 of the IPC, has filed Criminal Appeal No. 577 of 2007 questioning his acquittal, while the appellant being aggrieved by his conviction has filed Criminal Appeal No. 1288 of 2006. Both these appeals, therefore, are being decided by this common judgment.
(3.)Prosecution has principally relied upon the testimony of PW 2 - Pundalik, PW 3 - Laxman, PW 5 - Gurunath and PW 6 - Anandi as eye witnesses to the incident. PW 2 - Pundalik deposes that deceased Kashinath was his son, who was a member/organizer of a Band i.e. a group of persons who used to play musical instruments in the marriage. The appellant/accused was also a member of the group. According to PW 2 - Pundalik, on 19/5/2005, at about 12 in the noon, deceased Kashinath, along with other members of the group had gone to village Kachore for playing the musical instruments. The appellant had not been taken along with them. Deceased Kashinath and others returned back at about 2 in the morning. On 20/5/2005 at about 7 to 7.15 a.m. while deceased Kashinath was sitting on the steps and brushing his teeth, the appellant came to the house of PW 2 - Pundalik. PW 2 -Pundalik at that time was standing, though inside the room but near the door. The appellant questioned deceased Kashinath as to why he had not been taken along with others for playing musical instruments. It appears that there was some altercation between deceased Kashinath and the appellant and the appellant who was carrying a sickle with him, dealt a blow of sickle on the hand of deceased Kashinath. It further appears that since the blade of the sickle was curved, an injury was also inflicted on the ribs of deceased Kashinath.
Deceased Kashinath, on sustaining the injuries cried out for help and the accused then fled from the scene of the incident. PW 2 -Pundalik along with others took Kashinath initially to the police station and on the advise of the police, shifted him to the IGM Hospital at Bhiwandi. The Medical Officer pronounced Kashinath as dead. PW 2 - Pundalik then lodged his report against the appellant at Exh. 20.

In cross-examination, PW 2-Pundalik has admitted as correct that the appellant was a friend of deceased Kashinath and the appellant was also one of the members of the group headed by Kashinath, who used to play musical instrument. Pundalik has also admitted as correct that the appellant and deceased Kashinath and others used to go together for playing the instruments at various programs. An omission has been elicited that Pundalik had not stated that he was standing near the door and that the appellant was armed with a sickle. However, in our opinion, considering the recitals in the First Information Report at Exh. 20, the aforesaid omissions are inconsequential omissions and do not affect the credibility of PW 2 - Pundalik. A contradiction at portion marked "A" is also elicited, however, the aforesaid contradiction does not assist the accused for impeaching the credibility of PW 2-Pundalik.