Point of Law : Deceased and Appellant were both inebriated and the quarrel between them was sudden and heated, it cannot be reasonably said that the Appellant has acted in an unusual manner.

JUDGMENT :

Milind N. Jadhav, J.

1. The learned Additional Sessions Judge, Pune, by judgment and order dated 07.03.2015, has convicted Shri. Sagar hagwan Dembre (originally Accused No. 1, hereinafter referred to as “the Appellant”) of the offences punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (for short, “IPC”). The learned Sessions Judge has sentenced the Appellant to suffer imprisonment for life, to pay a fine of Rs. 5,000.00, and in default thereof, to undergo rigorous imprisonment for one year. The Appellant is in appeal against the said judgment and order convicting him in Sessions Case No. 173 of 2015. The Trial Court has concluded that the guilt of the Appellant has been proved beyond reasonable doubt on the basis of the evidence on record, despite minor shortcomings in the Prosecution’s case.

2. Before we advert to the submissions made by the respective advocates and to the reappraisal of the evidence on record, it will be apposite to refer to the relevant facts of the incident briefly.

2.1. On 29.10.2012, at about 3:50 PM, Shri. Harshal Avinash Joshi (hereinafter referred to as “the deceased”), Shri. Sunny Paigude (P.W. 5) and Shri. Amit R. Saude (P.W. 6) were sitting in an open area behind More Petrol Pump, Kothrud, Pune, and were consuming liquor. Around the same time, the Appellant along with Shri. Rohan Vilas Waghchaure (originally Accused No. 2) and Ramesh Kamble (a minor, originally Accused No. 3) arrived at the same spot and also started consuming liquor. According to the prosecution, the Appellant stared at the deceased with anger, for which the deceased questioned him, leading to an altercation between the Appellant and the deceased as well as their respective friends. The Appellant and his friends then chased the deceased, who was running towards the nearby Netrakiran Society. They caught hold of the deceased in front of the house of one Shri. Sambhaji Shirke (P.W. 7). At that spot, the Appellant and his friends started beating and kicking the deceased, causing the deceased to start shouting. The Appellant then picked up a brick lying nearby and hit the deceased on his head with it. Several persons residing in the vicinity arrived at the spot while the Appellant and his friends had run away.

2.2. At about 4:30 PM on the same date, Shri. Amit Saude (P.W. 6, friend of the deceased) made a phone call to Shri. Avinash Joshi (father of the deceased) and informed him that the deceased was admitted to the Intensive Care Unit (ICU) of Shashwat Hospital located at Dhanukar Colony, Kothrud, Pune, for treatment of the injuries sustained during the incident. The deceased was in an unconscious state while in the ICU.

2.3. Thereafter, Shri Avinash Joshi approached the Warje Malwadi Police Station and lodged a complaint against the Appellant and his two friends for injuring the deceased. The police authorities recorded the statement of the deceased’s two friends i.e., Shri. Sunny Paigude (P.W. 5) and Shri. Amit Saude (P.W. 6) under Section 164 of the Code of Criminal Procedure, 1973 (for short, “CrPC”). Shri. Sunny Paigude identified the spot of the incident and a spot panchanama was drawn up.

2.4. The Appellant and the Accused No. 2 were arrested on 29.10.2012 itself. The minor Accused No. 3 was arrested on 30.10.2012. After these arrests were made, the two friends of the deceased i.e., Shri. Sunny Paigude (P.W. 5) and Shri. Amit Saude (P.W. 6) were summoned to the Police Station on 30.10.2012 itself. There, they identified the Appellant, Accused No. 2 and Accused no 3 as the same persons who had assaulted and beaten up the deceased on 29.10.2012.

2.5. On 30.10.2012, the blood-stained shirt of the deceased, which he was wearing at the time of the incident, was seized under panchanama. On the same date, the blood-stained shirt of the Appellant was produced by his mother and was also seized. The seized items were then sent for chemical analysis.

2.6. Between 29.10.2012 and 17.11.2012, Shri. Shivdas