Bombay High Court

PRADIP VITTHAL GADE AND ANOTHERversusTHE STATE OF MAHARASHTRA

Disposal: DISPOSED OFF
Bench: RAJNISH R VYAS

Holding

The conviction of the appellants under Section 304 read with Section 34 of the IPC is affirmed.

Summary

The appellants Pradip Vitthal Gade and Alka Sandip Gade were convicted for the death of Pradip's wife after a domestic quarrel that allegedly led to assault with kicks and fist blows. The prosecution proved fatal internal injuries through post‑mortem findings, while the defence argued that the victim died from poison ingestion. The trial court convicted them under Section 304 read with Section 34 of the IPC and sentenced each to ten years' rigorous imprisonment. On appeal, the High Court examined the medical evidence, the credibility of the minor eyewitness, and the applicability of joint liability under Section 34, concluding that the injuries were sufficient to cause death and were inflicted jointly. The Court upheld the conviction but reduced the sentences to seven years for Pradip and five years for Alka, partially allowing the appeal.

Issues considered

The death was caused by injuries from assault or by ingestion of poison.
Whether the prosecution established the elements of Section 304 IPC (culpable homicide not amounting to murder).
Whether Section 34 IPC (common intention) applies to hold both appellants liable.
The appropriateness of the ten‑year sentence imposed by the trial court.

Legislation cited

Code of Criminal Procedure — s. 313
Indian Penal Code, 1860 — s. 302, 304, 34

Subjects

culpable homicide not amounting to murder
Section 304 IPC
Section 34 IPC
joint liability
sentencing
poison defence
post‑mortem evidence
minor witness

Judgment

2026:BHC-AUG:2930
904-APEAL-3-26.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD

CRIMINAL APPEAL NO. 3 OF 2026
WITH
CRIMINAL APPLICATION NO. 36 OF 2026

1. Pradip Vitthal Gade
Age: 40 years, Occu.: Agri.,

2. Butty @ Alka Sandip Gade
Age: 35 years, Occu.: Agri.,

All R/o Momin Akhada, Rahuri,
Tq. Rahuri, Dist. Ahmednagar ..APPELLANTS

VERSUS

State of Maharashtra ..RESPONDENT

....
Mr. N.B. Narwade, Advocate for appellants
Mrs. M.N. Ghanekar, A.P.P. for respondent - State
....

CORAM : RAJNISH R. VYAS, J.
DATE : 23rd JANUARY, 2026

ORAL JUDGMENT :

. This appeal challenges conviction awarded to the present

appellants / original accused nos. 1 and 2 in Sessions Case No. 207 of 2019

passed by the Additional Sessions Judge, Ahmednagar dated 16th December,

2025 by which Appellant No.1 – Pradip was convicted for commission of

offence punishable under Section 304 read with Section 34 of the Indian

Penal Code (for short, ‘I.P.C.’) alongwith co-appellant – Alka and both of them

were directed to suffer rigorous imprisonment for ten years and pay fine of

Rs.200/- each, in default, to suffer simple imprisonment for one month.

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2. The criminal law was set in motion on the basis of information

supplied by father of the victim of crime, to Rahuri Police Station, which

resulted into registration of Crime No. 101 of 2019 dated 09 th February, 2019

against the present appellants for commission of offence punishable under

Section 302 read with Section 34 of the I.P.C. The F.I.R. was registered since

the victim of crime died on 08 th February, 2019. The sole eye witness to the

incident is minor son – Sarthak, who was examined as PW 4.

3. In short, it is the case of prosecution that Appellant No.1 – Pradip

is brother-in-law of Appellant No.2 – Alka and both were residing adjoining

houses. Family of Appellant No.1 consisted his wife/victim, son / PW 4 –

Sarthak and daughter / Rutuja, whereas family of Appellant No.2 consisted of

children and her husband – Sandip. The said Sandip is the real brother of

Appellant No.1 – Pradip.

4. On the day of incident i.e. 07th February, 2019, when Appellant

No.1 returned home, he was informed that in the morning a quarrel took

place between the victim and Appellant No.2. He then enquired from the

victim of the crime, who disclosed that in the morning quarrel took place

between Appellant No.2 and the victim on the count of throwing of cow-dung.

It is for this reason, according to the prosecution, the appellants assaulted the

victim by means of kicks and fist blows.

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5. Due to the said assault, the victim, in the night hours, vomited,

and therefore, she was taken by Appellant No.1 to Swami Vivekanand

Nursing Home, Rahuri Factory. At that place, the victim did not receive any

medical treatment and thereafter she was taken to Civil Hospital,

Ahmednagar. When PW2 / father of victim reached Civil Hospital,

Ahmednagar, he shifted the victim to Maxcare Hospital, Ahmednagar where,

unfortunately the victim succumbed to the injuries on 08th February, 2019.

This resulted into registration of F.I.R. as stated above and consequently

carrying of investigation by the police officials.

6. During the course of investigation, the appellants were arrested

After completion of investigation, charge-sheet was filed and charges were

framed against the appellants below Exhibit 30. As the appellants did not

plead guilty, the prosecution, in order to bring home the charge, examined in

all ten witnesses. The appellants were thereafter questioned while conducting

enquiry under Section 313 of the Code of Criminal Procedure. Even detailed

written submissions were filed below Exh.201. The appellants die not enter

the witness box but examined defence witness. The learned trial Court, after

hearing the respective parties and considering the evidence on record,

convicted the appellants for commission of offence punishable under Section

304 read with Section 34 of the I.P.C.

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7. At this juncture, it is necessary to consider the injuries sustained by

the victim since for proving offence under Section 304 of the I.P.C., injuries

will play vital role. The injury certificate is given by PW 6 / Dr. Prasad

Saigaonkar, who was working as Medical Officer at Civil Hospital,

Ahmednagar in 01st January, 2018. He started postmortem at 05:00 p.m. on

08th February, 2019 and completed at 06:00 p.m. The injuries are as under :-

“Rigor mortis was marked partially on upper and lower limbs.
There were no injuries to external genitals. External injuries are
mentioned in column no.17 as follows :-
1) Linear abrasion present over the anterior aspect of right cubital
fossa region along medical aspect of length 0.5 cm breath 0.1 cm,
brownish scab present.
2) Therapeutic intravenous centrallined puncture mark present
over midddle of right subclavicular region, dark red in colour.
3) I. V. (intravenous) puncture mark at right cubital region, dark
red in colour.
4) Intravenous puncture mark present on left cubital region,
medial aspect dark red in colour.
5) Scratch mark abrasion present over the left cubital fossa, medial
aspect below injury No.04, brownish scab present.
6) Contusion present over the anterior aspect of right knee, above
upper margin of patella of size 1.2 x 0.6 cm, dark red in colour.
7) Abrasion present over dorsal aspect of right hand of size 0.1cm
x 0.2 cm., dark red in colour.
8) Therapeutic old scar mark of previous L.S.C.S. operation seen
on lower abdomen horizontally placed, pale in colour.
All these injuries were ante-mortem.
3] On internal examination following injuries are found :
19. Head -
i) Under scalp hematoma present over the left temporal region
over an area of size 07 cm x 04 cm, dark red in colour.
ii) Skull - No fracture of vault or base of skull seen.

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20. Thorax -
a) Fracture of sternum body (tranverse fracture seen at level of 4 th
rib attachment. Underline tissues shows haematoma on posterior
surface of sternum over an area of 3 x 2 cm, dark red in colour.
d) Right lung with 400 gm fluid & Left with 300 gm fluid
e) congested edematous postmortem lividity present over the
posterior aspect of both lungs. On cut section blood mixed, reddish
froth oozes out.

4] I have mentioned internal findings of the abdomen in column
no. 21. They are as under:
21. Abdomen -
i) Peritoneum - rupture of superior mesentric arteary with
hematoma in right mesentric omentous.
ii) Cavity - intact, contains about 2.5 liters of blood.
iii) Stomach and its contents - intact and empty. No peculiar smell,
mucosa congested.
iv) Liver (with weight) and gall bladder - 1.5 kg. gall bladder is
intact, contains bile. Contusion present over medial border of left
lobe. On anterior surface over area of size 17cm x 5cm, dark red in
colour. Confirmed on cut section, liver pale. Contusion present
over posterior i.e. inferior surface of middle of liver at upper part
near attachment of gall bladder over an area of 5 x 3 cm tissue
deep dark red in colour.
v) Pancreas and suprarenals - intact, pale
vi) Spleen with weight (150 gram) intact and pale.
vii) Kidneys with weight right 200 gm and left 200 gm. Right
kidney shows contusion on posterior aspect with rupture of renal
blood vessels and paranephric hematoma, dark red in colour,
bleeding present from rupture blood vessels.
viii) Bladder intact, empty, mucosa present.”

8. In his examination, P W 6 has further stated that from

postmortem report and colour of injuries, the age of injuries were about 36 to

48 hours at the time of postmortem. He further stated that the injuries

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mentioned in Column Nos. 20 and 21 of the postmortem report were

sufficient to cause death of a person in ordinary course.

9. According PW 6, internal injuries, as shown, were possible if a

person was assaulted by fist blows and kicks. The cause of death, according to

this witness, was hemorrhage and shock due to injury to liver, right kidney

and rupture of superior mesenteric blood vessels and right renal blood vessels,

due to blunt trauma over abdomen, due to hard and blunt object. It is thus

crystal clear that the prosecution has proved that the victim has died

homicidal death. The certified copy of the postmortem report was proved by

the prosecution and was marked as Exhibit 123.

10. PW 6 was thoroughly cross-examined by the defence. Various

medical literature was put to the said witness. In cross-examination this

witness has denied that on external examination no marks of assault by hand

were seen. He has also denied that injury number 19(1) can be caused due to

rupture of blood vessels in high blood pressure. Though this witness was

cross-examined at length, but so far as testimony of this witness regarding

injuries mentioned in Column Nos. 20 and 21 and the result are concerned , it

was not disproved by the defence.

11. According to the Learned Counsl for appellants, it was the case of

death by poison, since spot panchanama revealed that in a room where the

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incident had taken place and where the deceased was residing with Appellant

No.1, smell of poisonous substance was detected. He further contended that

initial medical treatment given was also for removing the poisonous substance

from the stomach. He submitted that the prosecution had not proved beyond

reasonable doubt that death did no occur due to consumption of poison.

Learned counsel submitted that possibility cannot be ruled out that victim had

consumed poisonous substance and due to it she died.

12. Suffice it to say that, the testimony of PW 6 clearly shows that it is

due to the injuries which were possible by kick and fist blows, the victim had

died. It is further necessary to mention here that the incident had taken place

on 07th February, 2019, whereas the victim has died on 08 th February, 2019

i.e. within one day only.

13. At this juncture the testimony of minor witness PW 4 / Sarthak is

required to be seen. His testimony was recorded in question answer form,

since at the relevant time he was only twelve years old. If his testimony is

perused, it would reveal that he was residing with Appellant No.1 and the

victim, whereas Appellant No.2 was residing adjoining to their house.

14. In answer to Question Nos.15 and 16, he had stated that on the

day of incident at about 5:30 p.m. he along with his mother / victim was

cleaning cow-shade, at which time his mother put the cow-dung on the

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garbage. Appellant No.2, at that time, started shouting as to why the cow-

dung was put there. The mother then denied putting of cow-dung,but

Appellant No.2 started quarreling with her. He further deposed that

Appellant No.2, who was referred as “Butty Kaku” by PW 4, asked for phone

from Sandip Kaka, husband of Appellant No.2 and called Appellant No.1 and

told him that victim was quarreling with her. At about 10:30 p.m. Appellant

No.1 came home at which time Appellant No.2 also came to his house.

15. This witness stated that the victim then told her husband ( father

of PW 4) about the incident, on which Appellant No.1 / father of PW4 asked

the victim as to why she had not called him at that time. According to this

witness, Appellant No.2 started assaulting his mother, so also Appellant No.1.

Thereafter both the appellants assaulted the victim with kicks and fist blows.

When PW4 went to rescue his mother, Appellant no. 1 pushed her aside and

then PW4 went in Kitchen. This witness stated that thereafter he heard the

noise of assault “Phatak Phatak ” and then he went to sleep.

16. In the midnight this witness was awaken by Appellant No.1, who

told that mother was required to be taken to the hospital. The victim was

unable to move, and therefore, Appellant No.1 took her in the car to the

hospital at Rahuri.

17. In cross-examination this witness had stated that his father /

Appellant No.1 used to work in a medical storeand there were several houses

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situated adjoining the house of Appellant No.1. It was also admitted by this

witness that the victim used to restrain Appellant No.1 from talking his

parents and to the husband of Appellant No.2. He admitted that her mother

used to carry mobile with her and also used to drive a scooty vehicle.

18. In this background an attempt was made by learned counsel for

the appellants to buttress his submission that the victim could have very well

called her parents immediately or she could have reached the police station or

relative’s place with the help of scooty vehicle.

19. In cross-examination, PW 4 / star witness had admitted that a day

earlier to incident, his mother / victim was suffering from stomach ache, and

therefore, had visited Dr. Nalkar.

20. By relying upon the said testimony, learned counsel for the

appellants submitted that the victim was already suffering from stomach ache,

and therefore, possibility cannot be ruled out that it was due to some earlier

injuries she might have succumbed on the next day.

21. Learned counsel for the appellants have invited my attention to the

answer given to Question Nos.94, 95 and 96 to contend that when the victim

was taken at Rahuri hospital after the incident at night, she was in a position

to walk, so also talk with the doctor. He submitted that if that was the

condition of the victim, she would have narrated entire incident to the

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medical officer at Rahuri, but prosecution did not bring a single piece of

evidence on record to show that on what line the victim was treated at health

center at Rahuri. Thus, according to him, genesis of crime was suppressed.

22. It is necessary to mention here that PW4, though in cross-

examination, has admitted that earlier to the date of incident his mother /

victim was suffering from stomach ache, and therefore, had gone to visit Dr.

Nalkar, the fact remains that PW 6 has category stated that the injuries

sustained by the victim were 36 to 48 hours old on the date of examination.

Thus, it can be said that it was on the day of incident the victim sustained

injuries and not earlier to it. Further, PW4 had stated that his mother /

victim was beaten with kicks and fist blows by both the appellants.

23. The testimony of this child witness cannot be brushed aside lightly

since the manner in which the questions were put to him and he answered,

clearly reveals that this witness is an intelligent boy. There is one more factor

to rely upon testimony of PW4 as he is not only his son of the victim but also

of Appellant No.1 and there was no reason for him to depose aginst his father.

Nothing has been brought on a record to show that the testimony of this

witness cannot be relied upon. In fact, presence of this witness was a natural

at the time of incident on the spot.

24. PW 8 is Dr. Kishor Waghmare, who was working as Medical

Officer at Swami Vivekananda Nursing Home, Rahuri Factory since 2015-16.

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On 06th February, 2019 his duty hours were from 8:00 p.m. to 8:00 a.m. of

07th February, 2019. At about 03:30 a.m. one lady accompanied by three

male persons and a small child came to the hospital. She was examined by

the said witness. The lady disclosed her name as Jyoti(victim) and she had

verbal altercation with one of the male person. On being enquired, the lady

informed that the said person was her husband. When this witness enquired

from the husband, he disclosed that the victim had consumed certain

poisonous substance.

25. PW 8 further stated that when she started examining the lady, she

disclosed to him that she did not want to get treatment in the said hospital.

Therefore, PW 8 advised them to take her to bigger hospital at Ahmednagar.

Thereafter, the lady was taken by her husband. Thus it can be said that, it is

in this background, the prosecution could not produce any material in the

form of documentary evidence relating to treatment given at Swami

Vivekanand Nursing Home, Rahuri.

26. PW 8 in his cross-examination has admitted that the lady had

come to the hospital on her own, but he volunteerd that the male persons

were accompanying her and helping her. He further stated that he had not

examined her. Thus it is crystal clear that no documentary evidence was

available on record to show what was the medical condition of the victim at

Rahuri.

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27. From Vivekanand Nursing Home, the victim was taken to the Civil

Hospital, Ahmednagar, where she was examined by PW 9 /Dr. Krishna

Wankhede. PW 9 had deposed that he was attached as Medical Officer to

Civil Hospital in February 2019. A patient by name Jyoti was brought in the

hospital on 07th February, 2019 at about 04:55 a.m. Since it was medico-legal

case, it was registered and numbered as MLC Case No. 884 and the victim

was treated under him. The said victim was referred from Rahuri Ayurvedic

Mahavidyalaya and she was brought by her relatives with the history of

consumption of poisonous substance. He stated that stomach wash was given

and as her condition was serious, her relatives were informed about the same

and their consent was obtained. At about 07:20 a.m., the relatives of the

patient took her to another hospital against the advise.

28. PW 9 was subjected to cross-examination, in which he admitted

that when he examined the victim, she was conscious, oriented and was in

position of talk. He further stated that substance of stomach wash was

preserved and was given in custody of police. He admitted that sample of

stomach wash was take to know if any poisonous substance was consumed.

He further admitted that he had obtained acknowledgment for giving the

sample in custody of police.

29. Relying upon the testimony of the aforesaid witness, learned

counsel for the appellants submitted that it was a case of consumption of

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poison by the victim, and the prosecution had not proved that it is due to

injury caused by fist blows and kicks, the victim had died.

30. It is required to be noted that CA report Exh . 127 shows that

genral and clinical testing does not reveal any poision. Even surrounding

circumstances clearly show that it was not the death by poison .

31. At this juncture, it is necessary to mention here that from the

record it is clear that from the very beginning Appellant No.1 was trying to

create a picture that the victim had consumed poison and due to which she

had died. The spot panchanama shows that nothing incriminating was seized

showing that the victim had consumed poison. Even the star witness, PW 4 /

Sarthak has nowhere stated that his mother has taken poison. Therefore, I

come to the conclusion that the victim has not died due to consumption of

poisonous substance.

32. As PW 9 had stated that against the advise, the relatives had taken

the victim to another hospital, it is necessary to see testimony of father of the

victim. Father of the victim was examined by the prosecution below Exhibit

96, as PW2. He stated that the victim was his daughter and his grand-

daughter was deaf and dumb. He submitted that marriage of his daughter –

Jyoti / victim was performed with Appellant No.1 on 01 st May, 2007.

According to him, Appellant No.1 was having extra marital relationship with

Appellant No.2, which fact was informed to him by the victim.

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33. He also deposed that the victim had told that Appellant No.1 used

to assault the victim under the influence of liquor. On that ground quarrel

used to take place between the victim and Appellant No.1. On 07 th February,

2019 at about 06:00 a.m. he received a telephone call from Vijay, friend of

Appellant No.1, who informed that victim was admitted in Civil Hospital,

Ahmednagar. He then alongwith his son, Ravindra went to Civil Hospital and

found condition of the victim serious, and therefore, shifted her to Maxcare

Hospital, Ahmednagar. He stated that he found marks of assault on her body,

both hands, cheek, neck and abrasions on hands. He submitted that the

incident was narrated to him by PW 4 and on the next day i.e. 09 th February,

2019 he lodged the complaint with police. Same was proved and marked as

Exhibit 99.

34. In cross-examination PW2 had admitted that Appellant No.1 was

working with a medical distributor and his daughter – Jyoti was looking after

all the affairs of the agricultural land. He further admitted that the house in

which the victim was residing was partition and on the other side Appellant

No.2 used to reside with her husband and in-laws. He denied the suggestion

that Jyoti was short tempered and used to quarrel with others on trifle

matters. He admitted that after birth of Rutuja, daughter of Appellant No.1

and the victim, he took Rutuja to his house to take care. He also admitted that

due to physical condition of Rutuja, Jyoti was concerned about her.

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35. PW 2 had further admitted that when he met Jyoti in Civil

Hospital, Ahmednagar, she was conscious and able to talk. This witness

denied the suggestion that there were no marks of assault on the body of Jyoti

and he asked the police to write the same as per his say. He further admitted

that funeral of Jyoti was conducted in the house of Appellant No.1.

36. Pointing out the aforesaid part of testimony, learned counsel for

the appellants contended that the victim had consumed poison which fact was

known to the father of the victim, and therefore, he allowed to conduct the

funeral of deceased Jyoti at the house of Appellant No.1. He submitted that

had it been the case of assault by Appellant No.1 on the victim, the father

would not have allowed to perform the last rites at the hands of Appellant

No.1.

37. Counsel for appellant submitted that the victim was conscious and

her statement could have been recorded by police authorities. He further

submitted that non examination of victim by police clearly shows that the

investigation was not conducted in fair and proper manner. He submitted

that there was absolutely no reason advanced by the prosecution for non

examination of the victim and the said fact goes to the root of the matter. He

submitted that fundamental principle of criminal law is proving a case

beyond reasonable doubt and since genesis of the crime is not proved, the

appellants be acquitted.

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38. With regard to the aforesaid contention, it must be stated that

PW2 i.e. father of victim is not an eye witness. He is a witness to the medical

treatment, which is given to the victim. In cross-examination this witness had

stated that the victim was conscious, but whether she was in a position to

narrate the incident or not was not brought on record by the defence. Suffice

it to say that PW 4 has already stated in detail about the incident and there is

absolutely no reason to disbelieve the same. Just because funeral had taken

place from the house of Appellant No.1, it does not mean that the appellants

are innocent. Human emotion acts in different manner at different time and

different place.

39. Now, coming to the testimony of PW 5 / Balwant @ Ravindra,

brother of the victim, suffice it to say that he has also deposed on the line of

PW 2.

40. Learned counsel for the appellants has invited my attention to the

testimony of defence witness no.1 – Vijay, who had informed father of the

victim telephonically about medical condition of the victim. This witness had

stated in his examination that Accused No.1 was his cousin brother and

Accused No.2 was his sister-in-law. On 07th February, 2019, he received a

phone call from Appellant No.1, who told that the victim was vomiting in

house. Hence, he called his brother Abasaheb. When this witness reached

the house of Appellant No.1 at about 02:00 a.m., the victim was in the

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courtyard and vomiting. They took Jyoti to a Nursing Home at Rahuri Factory

in a vehicle. Jyoti vomited in vehicle also. He could smell poisonous

substance. Jyoti went inside the hospital on foot and they followed her. He

further stated that when the doctor asked Jyoti , she stated that she consumed

certain medicine at 02:00 a.m and Doctor gave requistion for taking her to

Vikhe patil hopital. Then they came back to Rahuri and changed the vehicle

and came to Vikhe Patil hospital but there ICU facility was not avilable .Jyoti

was vommitting in vehicle also.Therafter she was taken to Civil hospital

Ahemadnagar, where tubes were inserted in her body.

41. DW 1 was subjected to cross-examination. He admitted that he

had cordial relation with Pradip prior to the incident and thereafter also. He

submitted that his statement was not recorded by police as per his say, but

subsequently he had stated that police had enquired orally and it was not

written. This witness was put a question whether while recording his

statement, he had told police that in the hospital at Rahuri, the doctor asked

Jyoti what had happened and she told that she had consumed certain

medicine at 02:00 a.m. This part was objected by the defence as question

about previous statement recorded by police, according to defence counsel,

could not be put. The court observed that objection taken would be decided at

the time of judgment. The witness then answered that he had told so to the

police. He then deposed that he cannot assign any reason why the portion

which was put to him in question-answer form was not written in his

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statement. He submitted that he had also told police that when they came to

Civil Hospital, Ahmednagar, Jyoti was admitted and tubes were inserted in

her body and some water was taken out (gastric suctioning). So also, told

police that when her father arrived at the hospital, she had talked with him.

42. Be that as it may. This witness would not be of help to the defence

since he is not an eye witness to the incident, but to the subsequent

development. As already discussed, just because the victim had not narrated

the incident or narrated some different incident, it cannot be said that the

story of prosecution is false.

43. Admittedly, the victim’s statement was not recorded since

according to the doctor she was not in a position to narrate the incident. That

being so, though the defence witness and prosecution witnesses are required

to be treated at par, testimony of this witness cannot be taken into

consideration. There is one more reason. This witness is relative of both the

appellants, and therefore, his testimony will have to be tested with great

caution. As there is no corroboration to the testimony of this witness, relying

upon his testimony would not be in the interest of justice.

44. Coming to the testimony of PW 10 / investigating officer, this

witness had stated that he conducted investigation, prepared the inquest

panchanama, obtained the documents about cause of death and handed over

the dead body. He further submitted that he had collected the chemical

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analysis reports, which are filed at Exhibit 193 and 194. He submitted that

during the course of investigation it revealed that both the accused/appellants

had assaulted the deceased with kicks and fist blows, but made a scene that

the victim had consumed certain poisonous substance. Hence charge-sheet

was filed.

45. At this juncture the query report below Exhibit 126 forwarded by

Mr. P.L. Saigaonkar is required to be taken into consideration. He, in reply to

the query had submitted that Injury Nos. 1 and 5 caused by sharp pointed

object and Injury Nos. 6 and 7 caused by hard and blunt object. Injury

mentioned in column no. 20 in sub-column (1) to sternum fracture and injury

in column no. 21 is relating to injury to peritoneum are grievous in nature.

He submitted that internal abdominal visceral injury in column no.21 are

sufficient in ordinary course of nature to cause death of a person and can be

caused by blow of fist or kick by other person. In answer to Question No.2, he

has stated that he has already given in point no.3 answer to question no.1 and

further stated that injuries mentioned in column no.21 and not column no.17

are sufficient in ordinary course of nature to cause death of a person.

46. Thus it is clear that the injuries which were caused to the victim

was sufficient to cause her death, and therefore, the appellants were rightly

convicted for commission of offence punishable under Section 304 of the

I.P.C.

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47. Section 304 of the I.P.C. speaks about culpable homicide not

amounting to murder. It states that whoever commits culpable homicide not

amounting to murder shall be punished with imprisonment for life, or

imprisonment of either description for a term which may extend to ten years,

and shall also be liable to fine, if the act by which the death is caused is done

with the intention of causing death, or of causing such bodily injury as is

likely to cause death.

48. So far as contention of learned counsel for the appellants that the

ingredients of Section 34 of the I.P.C. are not proved, suffice it to say that PW

4 has categorically stated that it was Appellant No.2, who initially telephoned

Appellant No.1 and when Appellant No.1 came to the house, Appellant No.2

also reached there and thereafter both of them assaulted the victim. It is

necessary to mention here that Section 34 of the I.P.C. is based on principle of

“joint liability” and in order to bring home charge, the prosecution has to

establish, by evidence, that there was a plan or meeting of minds, be a

prearranged or spur of moment to commit the crime. In that view of the

matter, and in the light of testimony of PW 4, it can be said that there was

common intention which was shared by the appellants. At this juncture it is

necessary to discuss what the Apex Court has stated in case of Jasdeep Sing

Vs. State of Punjab, reported in 2022 (2) SCC 545, more particularly

paragraph nos. 20, 23, 25, 26 and 27, which read thus :-

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“20. Before we deal further with Section 34 Indian Penal Code, a
peep at Section 33 of Indian Penal Code may give a better
understanding. Section 33 of Indian Penal Code brings into its fold
a series of acts as that of a single one. Therefore, in order to attract
Sections 34 to 39 Indian Penal Code, a series of acts done by
several persons would be related to a single act which constitutes a
criminal offense. A similar meaning is also given to the word
'omission', meaning thereby, a series of omissions would also mean
a single omission. This provision would thus make it clear that an
act would mean and include other acts along with it.

23. It is a team effort akin to a game of football involving several
positions manned by many, such as defender, mid-fielder, striker,
and a keeper. A striker may hit the target, while a keeper may stop
an attack. The consequence of the match, either a win or a loss, is
borne by all the players, though they may have their distinct roles.
A goal scored or saved may be the final act, but the result is what
matters. As against the specific individuals who had impacted
more, the result is shared between the players. The same logic is
the foundation of Section 34 Indian Penal Code which creates
shared liability on those who shared the common intention to
commit the crime.

25. Normally, in an offense committed physically, the presence of
an Accused charged Under Section 34 Indian Penal Code is
required, especially in a case where the act attributed to the
Accused is one of instigation/exhortation. However, there are
exceptions, in particular, when an offense consists of diverse acts
done at different times and places. Therefore, it has to be seen on
a case to case basis.

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26. The word "furtherance" indicates the existence of aid or
assistance in producing an effect in future. Thus, it has to be
construed as an advancement or promotion.

27. There may be cases where all acts, in general, would not come
under the purview of Section 34 Indian Penal Code, but only those
done in furtherance of the common intention having adequate
connectivity. When we speak of intention it has to be one of
criminality with adequacy of knowledge of any existing fact
necessary for the proposed offense. Such an intention is meant to
assist, encourage, promote and facilitate the commission of a
crime with the requisite knowledge as aforesaid.”

49. In the light of aforesaid discussion, I come to the conclusion that

the bodily injury which was caused by the appellants was likely to cause death

of the victim. Learned counsel for the appellants, contended that if the bodily

injury is caused with a knowledge, sentence may extend to ten years. He

further submitted that maximum punishment should not have been awarded

to the appellants. He then relied upon the judgment in case of Jaswinder

Singh (Dead) Through L.Rs. Vs. Navjot Singh Sidhu & Ors. in Review Petition

(Crl.) No. 477 of 2018 in Crl.A. No. 60 of 2007, more particularly paragraph

no.37, which reads thus :-

“37. In a nutshell, the aspects of sentencing and victimology are
reflected in the following ancient wisdom :
"यथावयो यथाकालं यथा प्राणं च ब्राह्मणे ।
प्रायश्चितं प्रदातव्यं ब्राह्मणैर्ध र्म पाठकैः ।
येन शुध्दिमवाप्नोति न च प्राणैर्वियुज्यते ।
आर्ति वा महर्ती यति न चैतद् व्रतमा दिशेत ।।"

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It means : The person dispensing justice as per Dharmashastra
should prescribe a penance appropriate to the age, the time and
strength of the sinner, the penance being such that he may not
lose his life and yet he may be purified. A penance causing
distress should not be prescribed.”

He contended that the punishment imposed should be just and

proportionate punishment.

50. He stated that in the case in hand, the sentence imposed is of

maximum term and the Court could have awarded just punishment since

previous and subsequent conduct of Appellant No.1 also shows that Appellant

No.1 had taken the victim to hospital and all throughout her treatment had

remained in hospital. He further stated that he had conducted the funeral as

he was under moral obligation, which shows that he had attachment towards

the victim. He submitted that unfortunately the incident had taken place due

to trifle reason, which is crystal clear from the testimony of PW 4. He

submitted that no weapon was used and only kicks and fist blows were given.

He, therefore, requested this Court to reduce the punishment.

51. Learned A.P.P. submitted that there is absolutely no reason which

is advanced by learned counsel for the appellants which requires reduction of

punishment. She submitted that in fact Appellant No.1 misled the

investigating agency, so also the medical officer by giving false history. She

submitted that the accused are required to be punished with iron hand. It is

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also contended by learned A.P.P. that had immediate treatment been

provided by Appellant No.1 by narrating correct medical history, life of the

victim could have been saved. She further submitted that there was absolutely

no instigation on the part of victim, still she was beaten mercilessly, and

therefore, maximum punishment be awarded.

52. I have pondered over the aforesaid contention. In the facts and

circumstances of the case, it can be seen that Appellant No.1 has taken the

victim to hospital immediately and had remained in hospital all throughout

her treatment. Funeral was also taken from his house, which fact is admitted

by father of the victim. The manner in which the incident has taken place and

fist blows were used, imposition of punishment of ten years would be harsh.

Middle path will have to be followed. In this case neither retributive theory

nor reformative theory can take recourse to, but balance will have to be

maintained by sentencing the accused.

53. So far as Appellant No.2 is concerned, from the evidence on record

it is clear that she is a lady and at the time of hearing of sentence, it was

argued before the Court that she was having small children. In answer to

Question No.36 put to PW 4 as to how many children Butti Kaki has, he has

replied that she has one son and one daughter. It is thus crystal clear that

when the incident had taken place, Appellant No.2 was having children.

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54. It is necessary to mention here that it is said that if the criminal

law as a whole is the Cinderella of jurisprudence, then the law of sentence is

Cinderella’s illegitimate baby. It is further pertinent to mention that it is not

even the case of prosecution that Appellant No.2 is having any criminal

antecedent. The socio-economic background, which is clear from the evidence

on record, suggests that Appellant No.2 is a housewife and residing in a small

village. Considering the fact that she is a mother of two children, imposition

of sentence of ten years would not be in the interest of justice. The fact that

no weapon was used while committing the offence is also one of the factors

which is required to be taken into consideration. The fundamental purpose of

sentencing is to protect society and to contribute, along with crime prevention

initiatives, to respect for the law and the maintenance of a just, peaceful and

safe society by imposing just sanctions. The balance will have to be strike

down between deterring the offender from committing offence on one hand

and to assist the accused in rehabilitation. In that view of the matter, I am of

the opinion that sentence imposed upon Appellant No.2 of ten years is

required to be reduced at five years. Thus, following order is passed :-

ORDER
(I) Criminal appeal is partly allowed.

(II) The judgment passed by the Additional Sessions Judge,
Ahmednagar dated 16th December, 2025 in Sessions Case
No. 207 of 2019, so far as convicting the appellants for
commission of offence punishable under Section 304 read
with Section 34 of the Indian Penal Code is maintained.

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(III) The sentence imposed upon Appellant No.1 - Pradip Vitthal
Gade is reduced from ten years to seven years.

(IV) The sentence imposed upon Appellant No.2 - Butty @ Alka
Sandip Gade is reduced from ten years to five years.

(IV) Criminal application, pending if any, also stands disposed of.

( RAJNISH R. VYAS, J. )
SSD

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