- (1.) The appellant/accused, by this appeal, is challenging the judgment and order dated 26 th August 2015 passed by the learned Additional Sessions Judge, Greater Mumbai, in Sessions Case No.508 of 2014, thereby convicting the appellant/accused of the offence punishable under Section 304-II of the Indian Penal Code, and sentencing him to suffer rigorous imprisonment for 10 years apart from directing him to pay fine of Rs.5,000/- and in default, to undergo further rigorous imprisonment for 4 months.
(2.) Brief facts leading to the prosecution and resultant conviction of the appellant/accused can be summarized thus : (a) Appellant/accused Ram Kir was residing in Room No.8 of Shanidev Building situated at Colabawadi, Mumbai, along with his mother Saraswati (since deceased) and his wife PW2 Sandhya. The incident in question allegedly took place at about 5.30 p.m. of 12th February 2014 in the residential room of appellant/accused Ram Kir which he used to share with his family including his mother Saraswati Kir. On that day, PW3 Maya Wilankar - married sister of appellant/accused Ram Kir came to his house for meeting their mother Saraswati. The appellant/accused was heavily intoxicated at that time. He started hitting PW2 Sandhya and PW3 Maya as well as his mother Saraswati by a wooden stick. Frightened PW2 Sandhya and PW3 Maya went downstairs and made a telephonic call to the control room. PW1 Ananda Patil, Police Naik, was on patrolling duty. He was informed by the control room that quarrel is going on at Shani Building of Colaba wadi and that is how PW1 Ananda Patil along with his colleague police constables reached Room No.8 of Shanidev Building, Colabawadi. He found Saraswati lying unconscious on the floor with bleeding injuries. The appellant/accused was sitting besides her with hands as well as clothes stained with blood. One blood stained stick was also found lying there. Saraswati was then sent to St.George's Hospital for medical treatment. PW1 Ananda Patil lodged report with Police Station Colaba in respect of the incident which has resulted in registration of Crime No.16 of 2014 for the offence punishable under Section 326 of the Indian Penal Code against the appellant/accused. On registration of the crime, the appellant/accused came to be arrested. His clothes came to be seized vide Panchnama Exhibit 32 in presence of PW4 Mohammad Mujawar. (b) PW8 Dr.Pooja Khoride, intern with St.George's Hospital medically examined Saraswati on 12th February 2014 and found that she suffered multiple contusions on face as well as arms. On 13th February 2014, Saraswati succumbed to the injuries suffered by her. PW8 Dr.Pooja Khoride conducted autopsy on the dead body. Clothes of deceased Saraswati were seized vide Panchnama Exhibit 39 in presence of PW5 Ashok Mishra. Statement of witnesses came to be recorded and on completion of investigation, the appellant/accused came to be charge-sheeted for offences punishable under Sections 302 and 323 of the Indian Penal Code. (c) The appellant/accused came to be charged for offences punishable under Sections 302 and 323 of the Indian Penal Code by the learned trial court. He pleaded not guilty and claimed trial. (d) In order to bring home the guilt to the appellant/accused, the prosecution has examined in all twelve witnesses. First Informant Ananda Patil, Police Naik, is examined as PW1. The report lodged by him is at Exhibit 14. Sandhya - wife of the appellant/accused is examined as PW2. His sister Maya Wilankar is examined as PW3. Panch witness Mohammad Mujawar is examined as PW4. Exhibit 32 is Seizure Panchnama of clothes as well as stick. Ashok Mishra - panch witness is examined as PW5. Exhibit 39 is Seizure Panchnama of clothes of deceased Saraswati. Neighbour Vikas Sonawane is examined as PW6. Prem Raut - panch witness to Spot Panchnama is examined as PW7. Autopsy Surgeon Dr.Pooja Khoride is examined as PW8. Carrier Constable Nitin Bhalerao is examined as PW9. Investigating Officers Sahebrao Kharat, Vivek Khavale and Subhash Dudhgaonkar are examined as PW10 to PW12 respectively. (e) Defence of the appellant/accused was that to total denial. He contended that he is falsely implicated in the crime in question.
(3.) I have heard Shri Lalla, the learned counsel appearing for the appellant/accused at sufficient length of time. He argued that PW2 Sandhya and PW3 Maya had turned hostile. There is no evidence to connect the appellant/accused to the crime in question. The learned counsel further argued that though the appellant/accused is convicted of the offence punishable under Section 304-II of the Indian Penal Code, sentence imposed upon him is highly disproportionate, and therefore, the appeal deserves to be allowed.;