IMPORTANT POINT
Assault on the deceased, in absence of intention to cause death could be on account of sudden fight without premeditation, in the heat of passion and upon a sudden quarrel; and hence falls u/s 304 Part I.

JUDGMENT :

Shiva Kirti Singh, J.

1. By the impugned judgment and order under appeal dated 06.01.2014 the High Court of Judicature at Bombay dismissed Criminal Appeal No.87 of 2005 preferred by the appellant and confirmed his conviction for an offence under Section 302 of the IPC as well as sentence of life imprisonment and fine of Rs.1000/-with a default clause as imposed by the Addl. Sessions Judge, Solapur by judgment dated 31.12.2004 in Sessions Case No. 132 of 2004.

2. The main issue raised by learned counsel for the appellant is whether conviction of the appellant under Section 302 IPC is justified and lawful when the prosecution, as per submissions, has failed to allege and prove any motive for the assault upon the deceased at the hands of the appellant and another accused Balu, a juvenile. It is also contended that the courts below failed to appreciate the implications of evidence of PW-6, Bapulal Shaikhlal Golve who is the brother of the deceased and an eye witness. It was also pointed out that the courts below including the High Court did not appreciate that as per the evidence of the doctor, PW-5 who had conducted the post mortem examination on the dead body of the deceased, the appellant had also sustained two injuries including one contused lacerated wound over left side of forehead above the left eye 2.0 cms x 0.5 cms vertical. The other injury was an abrasion over back central region 0.5 cms x 0.5 cms. Both the injuries were by hard and blunt object.

3. On the basis of aforesaid materials, according to learned counsel for the appellant the conviction could at best be valid under Section 304 Part I and not under Section 302 of the IPC.

4. On hearing the counsels for both the parties and going through the relevant materials we find that practically there is no reason for the assault except an assertion that the appellant was unhappy with a female inmate of the house of prosecution party on a minor issue that she had received some message on telephone but did not convey the same to the appellant. This has been disclosed by PW-4 who claims to be an eye witness. No case has been made out by the prosecution that there was any motive for doing away with the life of the deceased.

As per manner of assault, accused persons assaulted the deceased as well as PW-4 and one Ishwar. Subsequently, PW-4 has alleged that the deceased was assaulted on head by the appellant as well as the juvenile offender Balu. According to medical evidence the deceased had received injuries on head resulting into fracture of skull near the parietal left eminence.

5. As noted earlier, PW-6 who is brother of the deceased has also claimed to be an eye witness. He has deposed that appellant was abusing his aunt for not communicating a telephonic message but PW-6 managed to pacify and send the appellant back to his house. Thereafter the juvenile offender Balu came to their house and allegedly assaulted PW-4 and the deceased on head by stick. On hearing shouts, PW-6 rushed to the place of occurrence and caught accused Balu. When he pushed Balu with a view to take him towards Balu’s house, Balu shouted in loud voice and entreated to be released. On hearing his shouts the appellant as well as four others came to the spot with sticks. Allegedly the appellant assaulted the deceased by stick on head followed by Balu who also assaulted the deceased by stick on head. The deceased fell down and died immediately.

6. Taking an overall broad view of the facts noticed above, it is abundantly clear that the occurrence originated on account of some minor grievance against a lady that she did not convey a telephonic message to the appellant. The appellant thereafter came back to his house. For reasons which are not very clear, the juvenile offender Balu went to the house of the prosecution party and allegedly committed assault for which he was overpowered. On his cries, the appellant and four others rushed with sticks. The appellant, as per medical evidence, sustained two inju