V.K. Tahilramani, J.

1. This appeal is directed by the appellant-original accused against the judgment and order dated 24.11.2006 passed by the learned 8th Ad-hoc Additional Sessions Judge, Seweree, Bombay in Sessions Case No. 548 of 2006. By the said judgment and order, the learned Sessions Judge convicted the appellant under Section 302 of IPC and sentenced him to RI for life.

2. The prosecution case briefly stated, is as under: PW-3 Pravin, appellant and Ashish (deceased) were residing on the foot-path at Tardeo, Mumbai since about 15 years. They used to do the work of collecting waste and scrap. They were addicted to consuming brown sugar. On 7.4.2006, PW-3 Pravin was smoking brown sugar in the bushes near the race-course at Haji Ali, Mumbai. At that time, quarrel took place between the deceased and the appellant on account of `vadapav'. The quarrel took place from 11.00 a.m. till evening of that day. During the quarrel, deceased Ashish took out a bamboo stick and he assaulted the appellant with bamboo stick. The appellant then snatched bamboo stick from the hand of the deceased and started assaulting the deceased with it. The deceased fell down. This was witnessed by PW-3 Pravin. Police received information that a dead body was lying near the race-course, hence, police came to the spot. Then PW-1 Police Naik Bhoir lodged F.I.R. on behalf of the State. Thereafter investigation commenced. The dead body of Ashish was sent for postmortem. PW-5 Dr. Meshram conducted the post-mortem.

3. Dr. Meshram found abrasions and laceration on the head, two injuries on the shin and one injury each on the left ear, arm, shin and knee. On internal examination, Dr. Meshram found following injuries:-

1) Multiple haematoma in an area 8 cm x 5 cm in its maximum dimension over the left temporo parietal region.

2) Irregular depressed comminuted with shattering, 15 cm x 9 cm in its maximum dimension, horizontally placed of the left squamous temporal and parietal bones, with its lower limit 3 cm above the tip of the left mastoid process. The appellant was arrested on 14.4.2006. On 15.4.2006, he was referred for medical examination. Injuries were found on the body of the appellant. During the course of investigation, blood stained clothes came to be recovered at the instance of the appellant in the presence of panch PW-4 Prashant vide Memorandum and panchnama Exh.15 and Exh. 15A. After completion of investigation, the charge sheet came to be filed against the appellant. In due course, the case was committed to the Court of Sessions for trial.

4. Charge came to be framed against the appellant under section 302 of IPC. The appellant pleaded not guilty to the said charge and claimed to be tried. The defence of the appellant is that of total denial and false implication. His further defence is that the incident took place while exercising the right of private defence. After going through the evidence adduced by the prosecution, the learned Judge convicted and sentenced the appellant as stated in para 1 above. Hence, this appeal.

5. We have heard the learned counsel for the appellant and the learned A.P.P. for the State. After giving our anxious consideration to the facts and circumstances of the case, arguments advanced by the learned counsel for the parties, the judgment delivered by the learned Judge and the evidence on record, we are of the opinion that the appellant assaulted Ashish (deceased) with Bamboo stick which resulted in death of Ashish, however, for the reasons stated below by us, the judgment and order of conviction and sentence passed by the learned Judge requires to be partly modified.

6. The prosecution case is mainly based on the evidence of PW-3 Pravin who is an eye witness to the incident. PW-3 Pravin has stated that he knew the appellant as well as the deceased. All three of them were doing the work of collecting waste and scrap. All of them were addicted to brown sugar. On the first Friday of April, 2006 (7.4.2006) he s