- (1.) This appeal has been preferred against the judgment and order dated 29.3.2007 passed by the High Court of Bombay in Crl. A. No. 547 of 2003, by way of which it has modified the judgment and order of the Sessions Court, Kolhapur in Sessions Case No. 71 of 2002 dated 11.3.2003, by way of which the appellant stood convicted for the offences punishable under Sections 302 read with 34 and 364 of Indian Penal Code, 1860 (hereinafter referred to as 'the IPC') along with others, converting the conviction under Sections 304-II read with 34 IPC and awarded the sentence of 10 years. However, it has set aside the conviction and sentence under Section 364 IPC. The trial court had awarded the sentence under Sections 302 r/w 34 IPC to suffer life imprisonment along with a fine of Rs. 5,000/- each, in default to suffer further RI for one year; and under Section 364 sentence for life imprisonment along with a fine of Rs. 5,000/-, in default to suffer RI for one year. Both the sentences for life imprisonment were directed to run concurrently.
(2.) Facts and circumstances giving rise to this appeal are that: A. Parshuram Kashinath Chavan (A.1) doubted the character of his wife and had a suspicion that she had developed intimacy with Deepak More (deceased). On the fateful day i.e. 15.11.2001, the deceased, a cable operator, left his house along with his assistant Vishal (PW.13) for giving a cable connection in pursuance of a telephone call. Vishal (PW.13) returned back in the evening and told the father of the deceased that Parshuram Kashinath Chavan (A.1), Sanjay Ashok Powar (A.2), (Appellant herein), and Ajay Janardhan Chavan (A.3) had taken the deceased in a Maruti car. At 7.30 P.M., the father of the deceased was informed by a telephone call that the deceased had met with an accident and he was admitted in a hospital. An FIR was lodged on 16.11.2001 under Sections 326 r/w 34 IPC and the accused were arrested. The deceased succumbed to the injuries at about 8.00 A.M. on 16.1.2001. B. After completing the investigation, the charge sheet was filed and the appellant along with two others was put to trial under Sections 302/34 and 364 IPC. After conclusion of the trial, the trial court vide judgment and order dated 11.3.2003 convicted all the three accused under Sections 302/34 and 364 IPC and awarded the sentence as referred to herein above. C. Aggrieved, the appellant preferred an appeal before the High Court wherein the conviction and sentence of the appellant and others under Section 364 IPC, has been set aside. The appellant and others were convicted under Sections 304-II r/w 34 IPC and awarded sentence of 10 years RI vide impugned judgment and order dated 29.3.2007. Hence, this appeal.
(3.) We have heard Shri P. Vinay Kumar, learned counsel appearing on behalf of the appellant and Ms. Asha G. Nair, learned counsel appearing on behalf of the State. Both the courts below have considered all the aspects of the case in great detail. Learned counsel for the appellant has fairly conceded that the appellant was throughout in the company of Parshuram Kashinath Chavan (A.1), Sanjay Ashok Powar (A.2) and Ajay Janardhan Chavan (A.3) and they had taken the deceased in a Maruti car. He has further admitted that the deceased got injured and the accused persons got him admitted to the hospital. However, he has submitted that the appellant had not assigned any overt act whatsoever in the incident by the prosecution. The appeal deserves to be allowed.;