ASLAM AJIM SAYYEDversusTHE STATE OF MAHARASHTRA

2026:BHC-AUG:39860


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                            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                       BENCH AT AURANGABAD

                                    CRIMINAL APPEAL NO.43 OF 2016

                 Aslam Ajim Sayyed
                 Age: 30 years, Occu.: Labour,
                 Residing at post Takli,
                 Tq. Kopargaon, Dist. Ahmednagar                         .. Appellant

                          Versus

                 The State of Maharashtra
                 Through Police Station Officer,
                 Police Station Ashti, Tq. Ashti,
                 District Beed.                                          .. Respondent

                                                  …
                 Mr. Arun S. Shejwal, Advocate for the appellant.
                 Mr. S. M. Ganachari, APP for respondent/State.
                                                  ...

                                                    CORAM :   ABHAY S. WAGHWASE, J.
                                                    Reserved on : 01.09.2026
                                                    Pronounced on : 02.09.2026

                 JUDGMENT :-

                 1.       By way of instant appeal, there is challenge to the judgment

                 and order of conviction dated 06.01.2016 passed by the learned

                 Sessions Judge, Beed in Sessions Case No.138 of 2013 recording guilt

                 of the appellant for offence under Section 335 of Indian Penal Code

                 [IPC].


                 2.       In short, prosecution case in trial Court was that there was

                 altercation between accused and deceased on the point of occupying
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seat in State transport bus travelling from Ambejogai to Pune. Said

quarrel escalated into assault by accused to deceased, who suffered

injury on the forehead and fell unconscious. He was shifted to

hospital. On report of one Pandit Pokale, who is the son of deceased,

crime was registered for offence under Section 326 of IPC and

subsequently, Section 307 of IPC came to be added, but as deceased

died on 25.06.2013 while undergoing treatment, crime was converted

to Section 302 of IPC and accused was duly charge sheeted and tried

by the learned Sessions Judge vide Sessions Case No.138 of 2013.

Oral and documentary evidence adduced by prosecution was

appreciated and learned trial Judge reached to a finding that

prosecution has failed to prove that offence under Section 302 of IPC

was made out, but held accused guilty for offence under Section 335

of IPC and sentenced him to suffer imprisonment for two years.


.     Instant appeal arises out of said judgment and order of

conviction.


3.    Learned Counsel for the appellant pointed out that there is false

implication. According to him, there is no eye witness. Secondly,

accused and deceased         being strangers, there was issue of

identification of accused. That, no Test Identification parade was

conducted by prosecution in the trial Court.
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4.    Learned Counsel took this Court through the prosecution

evidence, more particularly, the evidence of PW2, who is the son of

the deceased, as well as PW3, who had informed PW2 about the

incident. It is submitted that the testimony regarding the alleged eye-

witness account is also without corroboration. He further questioned

the prosecution case on the ground that the scene of occurrence

panchanama has not been duly proved, as the panch witness has

stated that he did not narrate the contents of the panchanama. Taking

this Court through the evidence of PW2, it is submitted that this

witness, being the son of the deceased, has deposed that his father

was not in a position to speak. He further deposed that he came to

know the name of the accused only subsequently, after recording of

his statement.


5.    On the point of injury to deceased is concerned, by taking this

Court through the testimony of PW5 medical expert, learned Counsel

for the appellant submits that there was clear admission that said

injury is possible due to fall on hard surface. Moreover, inquest

panchanama does not carry any injuries or marks. He pointed out that

there was no injury to the skull, nor any artery was ruptured and

therefore, death could not be attributed to assault or injury.

Moreover, according to him death was due to septicemia.
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6.    Lastly, it is submitted that the aforesaid evidence has not been

correctly appreciated by the learned Trial Court. He, therefore, prays

that the judgment and order of conviction be set aside and the appeal

be allowed.


7.    Per contra, learned APP for respondent/State, who would

support the judgment and order of conviction, also took this Court

through the prosecution witnesses examined in the trial Court and he

laid emphasis on the testimony of PW3, who, according to him, was

direct eye witness. He pointed out that there was identification of

accused in trial Court by this witness and therefore, failure to conduct

no Test Identification parade is of no much significance. He took this

Court through the postmortem report, evidence of medical expert

PW5 as well as cause of death certificate and would submit that death

was only and only due to assault and for no other reason and

therefore, he justifies the the and prays to dismiss the appeal for want

of merits.

8.    After hearing above submissions and on going through the

evidence on record, it appears that, initially, charge was framed under

Section 302 of IPC, but on appreciation of evidence, learned trial

Court seems to have recorded the conviction for offence under

Section 335 of Indian Penal Code and the same is not challenged.
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9.    Though the prosecution has adduced the evidence of as many

as six witnesses, the crucial evidence is that of PW3. Though the son

of the deceased, PW2, has been examined, on analysing his evidence

at Exhibit-26, it appears that, admittedly, he was not a party to the

occurrence and his evidence appears to be based on hearsay

information. Therefore, the only evidence which remains for

consideration is that of PW3 at Exhibit-28.


10.   PW3 testified that, on 08.06.2013, he had been to the bus stand

for repairing water pump of the motor.        There, he saw a mob

gathered near parking place meant for buses in the vicinity of bus

stand and so he went there. He deposed that he saw one person

assaulting Kalyan Pokale i.e. after catching hold by neck with one

hand and with other hand assaulting on the head. Therefore, he went

and reported the incident to his son, who came to the bus stand and

Kalyan was taken to the hospital. He has deposed that he came to

know that assault was due to quarrel in the backdrop of seat in the

bus. Though above witness is subjected to cross-examination, there is

little or no cross on the point of what this witness saw and deposed in

paragraph No.1 of his examination-in-chief. Rather, the manner of

cross-examination, more particularly, paragraph No.3 shows that

there is no serious challenge to the occurrence. He denied falsely
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deposing about witnessing the incident.


.      Thus, here there is eye witness account, which has virtually

remained unshaken.


11.    Deceased Kalyan died on 25.06.2013 in consequence to

occurrence of assault dated 08.06.2013. PW5 medical expert, who

conducted autopsy, narrated the injuries noted by him i.e. external

injuries and he specifically deposed that there was history of assault

on 08.06.2013. On external examination, he has noted following

injuries :-

              i)     Therapeutic Tracheostomy wound present over
                     front of neck,

              ii)    Partially healed contused abrasion present over
                     medical aspect of right arm over upper half of
                     size 10 cm x 5 cm, small dark black scab present
                     over lower margin of size 1 cm x 1 cm.

              iii)   Partially healed contused abrasion present over
                     medial aspect of left arm, middle 1/3rd region,
                     small blakish scab present.


.      PW5 Doctor opined that probable use of weapon was hard and

blunt object. In examination-in-chief, he deposed that after referring

final cause of death certificate, he opined that cause of death was

infarction of midbrain and pons due to traumatic thrombotic oculsion

of basilar artery, which, according to him, is possible, if a head is
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stuck by fighter forcibly, resulting into traumatic injury due to rupture

of artery.

.     However, while under cross-examination, he admitted that he

did not locate rupture of artery during postmortem. He also admitted

that if aged person is assaulted and he falls on hard surface, traumatic

rupture to arteries is possible. Thus, in the cross-examination itself

there is suggestion that the said injury was possible on account of the

assault followed by a fall on a hard surface.


12.   In the backdrop of the aforesaid evidence and having regard to

the circumstances in which the occurrence had taken place, it would

be appropriate to refer to the statutory provision under Section 335 of

IPC, under which the appellant has been convicted. Section 335 of the

IPC reads thus:-

             “335. Voluntarily causing grievous hurt on provocation. -
             Whoever [voluntarily] causes grievous hurt on grave and
             sudden provocation, if he neither intends nor knows
             himself to be likely to cause grievous hurt to any person
             other than the person who gave the provocation, shall be
             punished with imprisonment of either description for a
             term which may extend to four years, or with fine, which
             may extend to two thousand rupees, or with both.”


13.   Taking into consideration the eye witness account of PW3 and

there being direct evidence of the occurrence, learned Trial Court
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committed no error in holding accused guilty for voluntarily causing

hurt on sudden provocation.


14.   In view of above discussion, the following order is passed :-


                               ORDER



      .     Criminal Appeal is dismissed.




                                         [ABHAY S. WAGHWASE, J.]



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