The court determined that the action constituted culpable homicide not amounting to murder, allowing a reclassification of charges under S.304 IPC.

1Being aggrieved by the order of conviction and sentence dated 18-11-1998 passed by the learned Additional Sessions Judge, Bombay in Sessions Case No. 796/1995 against the appellants, the appellants have preferred this appeal on the grounds mentioned in the memo of appeal.

2. With the assistance of the learned Advocate for the appellants and the learned Police Prosecutor we have scrutinised and reappreciated the entire evidence on record.

3. The prosecution story stated briefly is that on 16-3-1995 which was a Holi day the incident occurred in Panchambhayya Chawl, Ghatipada, Mulund West, Mumbai where there was a quarrel between the victim and the accused over petty matter of sprinkling water on that day. The quarrel was repeated in the evening and the accused Nos. 1 and 2 immediately after the quarrel stabbed the deceased - Babasaheb Kharat as a result of which he died. The accused were therefore arrested and prosecuted. The prosecution examined in all nine witnesses to prove its case. These nine witnesses include one eye - witness and two other witnesses who claim to be on the spot of offence after occurrence of the offence. The learned trial Judge on appreciation of this evidence came to the conclusion that the accused persons were guilty for the offence punishable under S.302 of Indian Penal Code and they had shared the common intention of causing death by stabbing. Accordingly he convicted them under S.302 read with S.34 of Indian Penal Code to suffer imprisonment for life. In an appeal preferred by both the accused, accused No. 1 who is son of accused No. 2 was refused bail whereas accused No. 2 was granted bail.

4. This judgment and order is assailed before us in this appeal. Learned counsel appearing on behalf of the appellants submitted stating in nut - shell the following points :
i) that there is no corroborative evidence to the sole testimony of PW - 1 Anusaya Kharat and except that evidence there is no evidence of the accused having stabbed the deceased. There is therefore no question of these persons being held guilty;
ii) even if the evidence of the prosecution is accepted it cannot be a case of murder as there was no intention to cause death in either of the accused persons and therefore conviction under S.302 read with S.34 of is bad;
iii) there is no evidence on record regarding both the accused sharing common intention of causing injury or death. There is no overt act on the part of accused No. 2 and therefore conviction of accused No. 2 under S.302 read with S.34 of IPC is improper;
iv) the recovery of the weapon used in offence as accepted by the learned trial Judge is wrong. The recovery is not in accordance with the provisions of S.27 of the Indian Evidence Act . It was made from an open ground and therefore the recovery is liable to be rejected and if it is so rejected there is nothing to connect the accused with the stabbing and therefore they are entitled to acquittal;
v) in any event, it is the case of a single injury following a quarrel on petty matter and therefore it cannot be a case under S.302 of IPC. At the most accused can be convicted under S.304, Part II there being likelihood or knowledge that the injury may result in death.

5. These submissions were countered by the learned additional Public Prosecutor appearing on behalf of the State. It was the submission of the learned additional Public Prosecutor that the evidence of PW - 1 Anusaya Kharat which is duly corroborated by PW - 2 Vishwanath Tarlekar and PW - 3 Madhukar Shirtode who claims to be on the scene of offence immediately after occurrence is enough circumstantial and ocular evidence to sustain the order of conviction. S