S.M.HAJARNAVIS, J. - (1.)This is an appeal by the State against the judgment delivered by the Additional Sessions Judge Greater Bombay, acquitting the respondents of an offence punishable under section 302 read with section 34 of the Indian Penal Code.
(2.)Deceased Ramdas Annaji Waghchature and the accused resided in the 1st Line. Kmathipura, Bombay. During the Ganpati festival, there residents used to instal two deities and for that purpose the locality was devised in two parts. The deceased and Khande Bagde were the active workers of the eastern locality while the accused were the active workers of the western locality. On 6th September, 1974, Ramdas and Khande Bagde were collecting donations for the festival from the persons residing along Bapti Road which appears to be a part of the western locality. The accused picked up a quarrel and warned Ramdas and Khande not to collect donations from that locality. It appears that even then Ramdas collected donations from persons of that locality. On 9th September, 1974, that is on the date of the incident at about 10.00 p.m. or 10.15 p.m. Ramdas was sitting on the platform beneath a Pimpal tree. The accused and some other persons came there and questioned him why Ramdas and others were collecting donations from their locality. The accused gave fist blows and kicks to Ramdas. Some boys in that locality informed about this to Annaji the father of Ramdas. Annaji came there but he was pushed aside. Ramdas fell down and it was found that he was bleeding through his mouth and his tongue was protruding. On Dr. Dhabuwala from the same locality was summoned there who advised that Ramdas should be removed to hospital. Vilas Waghchaure, a cousin of Ramdas, carried Ramdas to J.J. Hospital in a taxi. He was admitted as an in-door patient. He was unconscious and he did not respond to the treatment and breathed his last at 5.45 p.m. on 10th September, 1974.
(3.)In the meanwhile, immediately, after admitting Ramdas in hospital, Annaji and Tulshiram went to Nagpada Police Station where Annaji loged a First Information Report on the basis of which an offence was registered under section 307 read with section 114 of the Indian Penal Code by Sub-Inspector Shende. Ramdass clothes were seized by the Police from Annaji. The police visited the scene of offence and prepared a panchanama of the scene of offence. Sub-Inspector Shende also went to the hospital where he found that Ramdas was unconscious and, therefore, his statement could not be recorded. When he learnt that Ramdas was expired in the morning, the police changed the section of offence from section 307 to section 302 of the Indian Penal Code. After completing the investigation, a charge-sheet was filed in the Court of the Metropolitan Magistrate, 17th Court, Mazgaon on 9th October, 1974. The magistrate after going through the papers, committed the accused to face their trial before the Court of Sessions on 5th November, 1974.