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Bombay High Court

AVINASH SOMNATH PHULPAGAREversusSTATE OF MAHARASHTRA

Decided
Disposal
Disposed Off

Holding

The Court held that the prosecution failed to establish murder under Sec. 302 IPC and the conviction under Sec. 201 IPC, and instead convicted the appellant of culpable homicide not amounting to murder under Sec. 304 Part‑II IPC.

Summary

The appellant Avinash Phulpagare was convicted of murder (Sec. 302 IPC) and abetment of suicide (Sec. 201 IPC) for the death of an eight‑year‑old girl, Tanisha, based largely on the testimony of a twelve‑year‑old child witness and recovered wooden plank evidence. On appeal, the High Court examined whether the prosecution had proved the requisite intention or knowledge for murder under Sec. 300 IPC and whether the conviction under Sec. 201 IPC was sustainable. The Court found the child’s testimony credible but noted the lack of direct evidence linking the appellant to a fatal head injury and the absence of motive or intent to cause death. Consequently, the Court concluded that the appellant’s act amounted only to culpable homicide not amounting to murder under Sec. 304 Part‑II IPC, and that the Sec. 201 conviction could not be sustained. The conviction under Sec. 302 was set aside, the appellant was re‑convicted under Sec. 304 Part‑II with a ten‑year rigorous imprisonment and fine, and the appeal was partly allowed.

Issues considered

  • The prosecution proved the offence of murder under Sec. 302 IPC beyond reasonable doubt.
  • The prosecution proved the offence under Sec. 201 IPC beyond reasonable doubt.
  • Whether the appellant’s act constitutes murder under Sec. 300 IPC or culpable homicide not amounting to murder under Sec. 304 IPC.

Legislation cited

Subjects

  • murder
  • culpable homicide not amounting to murder
  • Section 302 IPC
  • Section 304 IPC
  • child victim
  • evidence assessment
  • appeal
  • conviction set aside
  • fine
  • set‑off

Judgment

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          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                CRIMINAL APPELLATE JURISDICTION

                 CRIMINAL APPEAL NO. 151 OF 2023
                             WITH
              INTERIM APPLICATION NO. 3177 OF 2023
                             WITH
               INTERIM APPLICATION NO. 560 OF 2024
                               IN
                 CRIMINAL APPEAL NO. 151 OF 2023

Avinash Somnath Phulpagare,                                   ]
Age : 31 years, Occupation : Service,                         ]
R/o: Kasewadi, Bhavani Peth,                                  ]
Masoba Mandir, Pune-4                                         ]
(Presently lodged in Nasik Road Central Prison)               ] … Appellant/
                                                                  Applicant
          Versus

The State of Maharashtra                                      ]
(At the instance of Mankhurd Police Station,                  ] … Respondent
Mumbai)

                          --------------------
Mr. Kishor Walanju, appointed Advocate for the Appellant.

Ms. Supriya Kak, A.P.P., for the Respondent-State.
                             --------------------

                         CORAM : SARANG V. KOTWAL &
                                 SANDESH D. PATIL, JJ.

                            DATE : 02 nd APRIL, 2026.




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JUDGMENT : [PER SARANG V. KOTWAL, J.]

1.        The Appellant has challenged the Judgment and Order dated

20/04/2017 passed by the Additional Sessions Judge, City Civil &

Sessions Court, Mumbai in Sessions Case No.513 of 2016. The

Appellant was convicted as follows:

          (i)     The Appellant was convicted for offence punishable

          under Section 302 of Indian Penal Code (IPC) and was

          sentenced to suffer rigorous imprisonment for life and to pay

          fine of Rs.25,000/- and in default of payment of fine to

          undergo rigorous imprisonment for one year.



          (ii)    The Appellant was also convicted for commission of

          offence punishable under Section 201 of IPC and was

          sentenced to suffer rigorous imprisonment for 2 years and to

          pay fine of Rs.1,000/- and in default of payment of fine to

          suffer rigorous imprisonment for 15 days.



                  Both   the    sentences        were       directed        to     run



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          concurrently. The Appellant was granted set-off under

          Section 428 of Code of Criminal Procedure (Cr.P.C.) as he

          was in jail from 20/03/2016 till the date of the judgment i.e.

          20/04/2017.



2.        Heard Mr. Kishor Walanju, learned Counsel for the

Appellant and Ms. Supriya Kak, learned A.P.P, for the Respondent-

State.



3.        The Prosecution case in brief is as follows:



          The deceased in this case was an eight year old girl Tanisha.

Her mother was married to one Machchindra Bhole. She had three

children including the victim. She had two sons and one daughter.

Her elder son was twelve years of age, the younger son was six years

of age and the victim Tanisha was eight years of age. There was some

marital dispute between Tanisha’s mother and father-Machchindra.

They got separated. Tanisha’s mother started residing with the

Appellant along with her three children. It is the case of the


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Prosecution that on 29/03/2015 at about 1:25 p.m. the victim Tanisha

was sleeping. The Appellant got angry as she did not wake up early.

He gave blows with a wooden strip (which is described as wooden

plank in the Prosecution’s case). She fell unconscious. The Appellant

and Tanisha’s mother took her to a doctor but she could not survive.

On the next day, Tanisha’s real father Machchindra lodged F.I.R. with

Mankhurd Police Station vide C.R. No.88 of 2015. Tanisha’s mother

as well as the Appellant were shown as the Accused in the

investigation. The Appellant had absconded. In the meantime, the

investigation was completed and the chargesheet was filed. Tanisha’s

mother faced the trial vide Sessions Case No. 569 of 2015 before the

Court of Session at Mumbai. She was acquitted on 21/03/2016. The

Appellant came to be arrested on 20/03/2016 and he faced his trial

separately vide Sessions Case No.513 of 2016.



4.        During trial, the Prosecution made an application vide

Exhibit-7 requesting to adopt the evidence recorded in the trial

against Tanisha’s mother in Sessions Case No.569 of 2015. That

application was allowed. The same evidence was adopted in the trial


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against the Appellant. In addition, further examination in chief of

various   witnesses   were   recorded.      The      Appellant        was      given

opportunity to cross-examine all the witnesses. There was no

objection from the Appellant for adopting the examination-in-chief

recorded in the earlier trial i.e. Sessions Case No.569 of 2015. The

Prosecution examined eleven witnesses including the child witness

Roshan who was twelve years of age, the Medical Officers, Panchas

and the Investigating Officer. The main evidence was in the nature of

direct evidence given by the eye-witness PW-2-Roshan Bhole. The

learned Judge relied on his evidence as well as on the evidence of

recovery of a wooden plank at the instance of the Appellant after his

arrest. The defence of the Appellant was of total denial. Based on the

Prosecution’s evidence, the learned Judge convicted and sentenced the

Appellant as mentioned earlier.



5.        As mentioned earlier PW-2-Roshan Bhole is the main witness

in this case. PW-2 deposed that, he was residing with his mother,

brother, his sister i.e. the victim, and grandmother. He knew the




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Appellant. When the victim Tanisha died, the Appellant was residing

with them since about one year. He deposed that Arya alias Avinash

i.e. the present Appellant assaulted Tanisha with a wooden plank. PW-

2 was at home at that time. His mother and brother were also in the

house. It was a Sunday. He deposed that Tanisha woke up late and

therefore, the Appellant assaulted her on her back, chest and thigh.

Tanisha fell unconscious. PW-2’s mother tried to give her water but

Tanisha did not wake up. PW-2’s mother took Tanisha to the hospital.

The Appellant also went with them but Tanisha did not survive. PW-2

had stated those facts to his grandmother. After that, the police

recorded his statement. PW-2 identified the Appellant. He also

identified the wooden plank produced in the Court as Article-1. PW-2

added that the Appellant had assaulted Tanisha on her head, back,

chest and thigh. PW-2 made this addition when he was examined

again in the trial against the Appellant. He had not stated that the

Appellant had assaulted the victim on her head when PW-2 was

examined in Sessions Case No.569 of 2015.




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          In the cross-examination, PW-2 stated that after the incident

his father came from the village in the evening. He did not know

whether his father went to the police station on that day. PW-2 had

gone to the police station two days after the incident with his mother.

At that time, his father was not with him. PW-2 did not know

whether his father had gone to the police station or not. PW-2 had

not told his father about the incident. PW-2’s mother also used to beat

Tanisha. PW-2 denied the suggestion that he was deposing false on the

say of his father.



6.        PW-4-Machhindra Babasaheb Bhole was the first informant

and father of the deceased. PW-4 deposed that he was married in the

year 2004 to Tanisha’s mother Usha. They had three children named

Roshan, Tanisha and Reitesh. At the time of incident, Roshan was

twelve years old, Tanisha was eight years old and Reitesh was six

years old. PW-4 and his wife had been separated since two years

before the incident and his wife was residing with the Appellant. PW-

4 had sold his room and had gone to stay in the village. He wanted




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his wife to come to the village but she refused and continued staying

in Mumbai. PW-4 used to visit Mumbai and used to meet the

children. At that time, his children used to tell him that the Appellant

used to assault and beat them. On the day of the incident, PW-4 was

in his village. PW-4 got a phone call from his grandmother that

Tanisha was admitted to the hospital. He reached Mumbai in the

evening. PW-4 went to the hospital. On the next day i.e. on

30/03/2015, PW-4 again went to the hospital at about 9:00 a.m. He

saw the dead body. PW-4 saw the marks of assault on her forehead,

back and abdomen. The dead body was brought home. Roshan i.e.

PW-2 told PW-4 that the Appellant had beaten Tanisha with a stick

and a wooden plank. Therefore, he went to the police station and

lodged report against his wife Usha and the present Appellant. PW-4’s

statement recorded as F.I.R. was produced on record in the trial

Court at Exhibit-18.



          In the cross-examination, PW-4 could not explain as to why

his police statement did not mention the fact that the Appellant used




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to beat his children. This was an important omission. PW-4 had gone

to the police station on 30/03/2015 at about 5:00 p.m. to 5:30 p.m.

He had gone alone to the police station. PW-4 also could not explain

as to why his police statement did not mention that there were marks

of assault on the back and abdomen of Tanisha. The F.I.R. produced

at Exhibit-18 mentions that the information was received at the police

station at 2:30 p.m. on 29/03/2015 and the F.I.R. was registered at

4:30 p.m. on 30/03/2015.



7.        PW-1-Shashikala Mahadev Gaikwad was the grandmother of

the deceased and PW-2. PW-1 deposed about the separation of her

daughter Usha and PW-4 since about four years prior to the incident.

PW-1 stated that PW-4 was addicted to liquor. The Appellant was

having a love affair with Usha, he started residing with PW-1, Usha

and her children. Initially, he behaved properly but then started

beating the children. He also used to assault Usha. On 30/03/2015,

PW-1 came back home at about 4:30 p.m. (though the incident is

dated 29/03/2015, in her deposition PW-1 refers to 30/03/2015).




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Roshan and Reitesh told her that his mother-Usha had taken Tanisha

to the hospital. PW-1 went to Shatabdi hospital and met Usha who

told her that while having breakfast, Tanisha choked and died

subsequently. PW-1 returned home, at that time, Roshan told her that

the Appellant had assaulted Tanisha with wooden plank and kicks and

fists and had also threatened them. After that, the Appellant and Usha

took Tanisha to the hospital. PW-1 identified the Appellant in the

Court.



          In the cross-examination, PW-1 deposed that police had made

inquiry with her on the day of incident. She used to go to work at

7:30 a.m. and used to return at 4:00 p.m. PW-1 admitted that she did

not know what had happened on the date of incident in between 7:30

a.m. to 4:00 p.m.



8.        PW-5-Sarjerao Jagannath Patil, PSI, had registered the F.I.R.

On 29/03/2015 at about 2:00 p.m., the intimation about Tanisha’s

death was received from Shatabdi hospital. He went there. Tanisha’s




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mother showed the dead body and informed PW-5 that while eating

snacks, Tanisha fell down and had received head injury. PW-5

prepared inquest panchanama. PW-5 made inquiries in the vicinity

where Tanisha was residing. He referred to some incident that had

taken place eight days prior to the main incident. However, this is not

to his personal knowledge and therefore, that part of evidence cannot

be taken into consideration. PW-5 further deposed that somebody had

informed PW-4 about the incident. He suspected that PW-4’s

daughter’s death was not natural. Therefore, he lodged his F.I.R. It

was registered as C.R. No. 88 of 2015. PW-5 then went to the spot of

incident and conducted the spot panchanama. Nothing was seized

during the spot panchanama. The F.I.R. was registered against Usha

and the Appellant. Usha was made an accused because she had tried

to conceal the facts. PW-5 arrested Usha. The Appellant was not

found. Then the investigation was transferred to some other Officer.



          In the cross-examination, PW-5 admitted that he had not

recovered the wooden plank from the spot of incident.




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9.              PW-7-Dr. Supriya Jalinder Suryavanshi was working with

Aayush Nursing Home at Deonar Circle. PW-7 deposed that, on

29/03/2015 at about 10:30 a.m., one lady and one man had brought

Tanisha to the clinic. The couple told her that Tanisha had fallen

down inside the house. There was swelling on Tanisha’s forehead and

there was bleeding from nose. Tanisha was unconscious. Since PW-7

did not have ICU, she advised them to take Tanisha to some other

hospital. PW-7 was cross-examined on behalf of Usha in Sessions Case

No.569 of 2015 but nothing much turns on that cross-examination.



10.             PW-3-Dr.   Narendrakumar         Gangaram          Shinde       was      an

important witness in this case. He had conducted the postmortem

examination. PW-3 deposed that he conducted the postmortem on the

dead body of Tanisha at around 11:45 a.m. on 30/03/2015. PW-3

found the following injuries:

          (i)     Abrasion -3cm. in front of left ear and over left side face

          5x3 cm.

          (ii)    Abrasion over marbrium sternum, 2 x 1 cm.




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          (iii) Abrasion over left elbow joint 1 x 0.5 cm.

          (iv) Abrasion 2 cm above left eyebrow 3 x 2 cm.

          (v) Abrasion over 9 cm below right knee joint middle 2 x 1 cm.



          There was contusion on left frontal area of the size 3.5 x 2 cm.

On internal examination, PW-3 noticed sub dural hematoma and sub

archnoid bleeding. But there was no skull fracture. According to PW-

7, the cause of death was hemorrhagic shock due to head injury. The

viscera was preserved for Histopathological examination. PW-3

produced the postmortem notes at Exhibit-13. After receipt of

Histopathological Report, PW-3 confirmed his opinion about cause of

death mentioned earlier. PW-3 deposed that the injuries were possible

by wooden plank but the police had not shown him the wooden

plank during investigation. He was shown it in the Court as Article-1.

According to him, death was possible by using that wooden plank.

PW-3 deposed that the injuries noted in the postmortem notes were

possible if a person fell down from height.



11.          PW-6-Rajan    Govind     Chavhan,         PI,    was      one      of    the


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Investigating Officers. PW-6 had recorded statements of some of the

witnesses including the statement of Dr. Supriya Suryawanshi. He had

caused statement of Roshan being recorded under Section 164 of

Cr.P.C.



12.       PW-8-Sarita Nilkanth Musale, PSI had recorded PW-2-

Roshan’s statement on 30/03/2015.



           In the cross-examination, PW-8 deposed that PW-2-Roshan

had come to the police station with his grandmother but she had not

made any inquiries with the grandmother.



13.       PW-10-Smt. Janabai Amrut Bhujbal was a panch for inquest

panchanama. The spot panchanama was admitted by the defence. It is

produced on record at Exhibit-12. No incriminating articles were

seized at the time of conducting the spot panchanama.



14.       PW-9-Umesh Ramakant Chalke was a panch witness. He was




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called to Mankhurd Police Station on 26/03/2016. The Appellant had

given his memorandum statement showing his willingness to show the

place where he had kept the wooden plank. That memorandum

statement is produced on record at Exhibit-9. Pursuant to the

statement, the wooden plank was recovered from the room occupied

by one lady by the surname Gaikwad. The wooden plank was kept

concealed behind a wooden cupboard. That panchanama was

produced on record at Exhibit-9A. The wooden plank was produced

in the Court as Article-1.



          In the cross-examination, PW-9 admitted that the Police did

not record statement of the same Gaikwad who had opened the door

of the room from where the wooden plank was recovered. The Police

did not make any inquiries regarding the ownership of the room. He

admitted that the wooden plank was a common place article which

could be seen anywhere on the road or in the dustbin.



15.       PW-11-Avinash Kashinath Jagtap, API was the Investigating




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Officer. Gunda Squad had arrested the Appellant from Pune. They

informed PW-11 attached to Mankhurd Police Station. PW-11 went

to Kashiwadi Police Station in Pune on 20/03/2016 and arrested the

Appellant. PW-11 supervised seizure of wooden plank at the instance

of the Appellant.



            In the cross-examination, PW-11 admitted that he did not

record statement of any police officer from Kashiwadi Police Station.

PW-11 had not recorded statement of Shashikala Gaikwad.



16.       This in short is the evidence led by the Prosecution.



Submissions of Mr. Kishor Walanju, learned Counsel appearing for
the Appellant :
17.       Learned Counsel for the Appellant submitted that the

Prosecution has failed to prove its case beyond reasonable doubt. The

only evidence on which the Prosecution is relying heavily, is the

evidence of PW-2, however, he is a child witness and was under the

control of his father and therefore he was a tutored witness. PW-2’s



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mother was arrested in this case, therefore, he had to depend on his

father. The Appellant was absconding. There was no one else who

could have supported him. Therefore, PW-2 had given evidence

against the Appellant. Learned Counsel further submitted that the

evidence of PW-2 is very cryptic and cannot form basis of conviction.

The description given by PW-2 does not match the medical evidence.

He submitted that PW-2 had not given details of the incident.



18.       Learned Counsel further submitted that recovery of wooden

plank after more than a year cannot be incriminating. The room from

where it was recovered was not exclusively occupied by the Appellant.

The article was not sent for CA examination and there is nothing to

connect that particular wooden plank with the alleged incident. He

submitted that thus, there is no reliable direct evidence or even

circumstantial evidence. Learned Counsel for the Appellant, in the

alternative submitted that, if the evidence of PW-2 is to be believed

even then the offence would not fall within the meaning of Section

300 of IPC. There was no motive for the Appellant to have




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committed murder of the deceased. There was no intention to cause

death. If the Appellant wanted to commit murder of the deceased, he

had ample opportunity and even had the alleged murder weapon with

him and therefore, nothing could have prevented him from inflicting

more blows on other vital parts and even inflicting more blows on the

head. On the contrary, the evidence shows that the Appellant had

helped Usha to take Tanisha to PW-7-Dr. Supriya Suryawanshi for

treatment. Though unfortunately, Tanisha died; even otherwise, it

cannot be said that the Appellant had assaulted her with the intention

of causing such bodily injury where the death was imminent. He

therefore submitted that it would be a much lesser offence and not

the offence punishable under Section 302 of IPC.



Submissions of Ms. Supriya Kak, learned A.P.P. for the Respondent-
State :
19.       Learned A.P.P. on the other hand relied on the evidence of

PW-2-Roshan to contend that he was a natural witness, his presence

at the spot is not doubted. She also relied on the evidence of PW-1 i.e.

the grandmother of the deceased who was also residing in the same


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house. Though at the time of incident, she was not in the house, but

she was informed about the incident and the role played by the

Appellant after she had returned home. Learned A.P.P. submitted that

there was no delay in lodging the F.I.R. The father of the deceased

had reached Mumbai only in the evening and on the next day after

looking at the dead body, he got suspicious and then had lodged the

F.I.R. She submitted that the evidence of the Doctor conducting the

postmortem examination shows that the deceased had died due to

hemorrhage in the brain which is directly attributable to the act of the

Appellant. She further submitted that the circumstance that the

Appellant was absconding for about a year is also an incriminating

circumstance.



Reasons and Conclusion :

20.       We have considered these submissions. We have scrutinized

the evidence of PW-2 minutely. We find that PW-2 is a natural witness

whose presence in the house at the time of the incident cannot be

doubted. PW-2 has given evidence in clear terms. There is not even a

suggestion that PW-2 was not in the house when the incident had


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taken place. PW-2’s evidence that the Appellant was residing with

them is corroborated by the evidence of PW-1 and PW-4. PW-2’s

mother Usha was tried separately and therefore her evidence is not

available as she herself was an accused but otherwise PW-2’s evidence

about their residing together is sufficiently brought on record. We do

not find any infirmity in his evidence. PW-2 was twelve years of age

and therefore, was able to understand the situation. Therefore, we are

of the opinion that PW-2’s evidence can be safely relied on.



21.       As far as the fact that the Appellant was absconding is

concerned, he was a natural suspect and therefore there was nothing

unusual that he was absconding for over a year. Therefore, only a

limited advantage can be claimed by the Prosecution from this

evidence. This circumstance cannot form the basis of the conviction in

the present case. As far as the recovery of the wooden plank is

concerned, it was also effected after more than a year from the

incident. It was effected from a room which was occupied by one

Gaikwad. Her statement is not recorded, and she is not examined.




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The room was not in the exclusive possession of the Appellant. There

is no further connecting piece of evidence in the form of a CA Report

as far as that wooden plank is concerned. Therefore, the circumstance

of recovery of wooden plank at the instance of the Appellant does not

help the prosecution case. Having said this, as mentioned earlier, the

evidence of PW-2 is trustworthy, he is the only reliable witness. His

evidence is supported by the medical evidence led by PW-3-Dr.

Narendrakumar Shinde.



22.       From the evidence we do not see how the Prosecution has

proved the offence under Section 201 of IPC. Therefore, the

conviction recorded under Section 201 and the sentence under that

Section is required to be set aside.



23.       The next question is whether it would amount to the offence

punishable under Section 302 of IPC as defined under Section 300 of

IPC or whether it would be a lesser offence. In that context, we find

force in the submissions of the learned Counsel for the Appellant. The

evidence shows that after the incident, the Appellant and Tanisha’s


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mother Usha had taken Tanisha to a doctor. They tried to give her

medical treatment but by then it was too late and Tanisha had

succumbed to her injuries. If the Appellant had intention to commit

murder of the deceased, nothing could have stopped him because he

had opportunity and weapon with him but except for the injury

causing hemorrhage no other injury was inflicted on a vital organ.

PW-3-Dr. Narendrakumar Shinde, medical officer has accepted that if

the child fell from some height that head injury was possible. In this

context, it is necessary to see the nature of injuries. It must also be

noted that, at the first instance, when PW-2’s evidence was recorded,

he had not stated that the Appellant had given a blow on the head. It

was only subsequently in the trial against the Appellant that he

improved on his first deposition and added that the Appellant had

given blow on the head as well. Even otherwise, the blow on the head

was not forceful. There was no injury to the skull. There was internal

hemorrhage but looking at her tender age, that hemorrhage was

serious.




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24.       Section 300 of IPC reads thus:

          300. Murder.
          Except in the cases hereinafter excepted, culpable
          homicide is murder, if the act by which the death is
          caused is done with the intention of causing death, or

          2ndly.—If it is done with the intention of causing
          such bodily injury as the offender knows to be likely
          to cause the death of the person to whom the harm is
          caused, or

          3rdly.—If it is done with the intention of causing
          bodily injury to any person and the bodily injury
          intended to be inflicted is sufficient in the ordinary
          course of nature to cause death, or

          4thly.—If the person committing the act knows that
          it is so imminently dangerous that it must, in all
          probability, cause death, or such bodily injury as is
          likely to cause death, and commits such act without
          any excuse for incurring the risk of causing death or
          such injury as aforesaid.

25.       It was necessary for the Prosecution to have proved that the

Appellant had caused death with the intention of causing death or

with the intention of causing such bodily injury as the Appellant knew

to be likely to cause death or it was done with the intention of causing

bodily injury and the bodily injury intended to be inflicted was


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sufficient in the ordinary course of nature to cause death or if the

Appellant knew that it was so imminently dangerous that it must in all

probability cause death or such bodily injury as was likely to cause

death.



26.       In the present case, from the circumstances referred to

hereinabove, it is clear that the Appellant had no motive to commit

murder or even to cause such bodily injury which was likely to cause

death. Atleast from the circumstances and the evidence on record, it

cannot be said that he had intention as is required in any of the

circumstances mentioned under Section 300 of IPC. Therefore, from

the record of this case it can be seen that the Prosecution has proved

that the Appellant had knowledge that his act was likely to cause

death which would be culpable homicide not amounting to murder.

The injury had not caused damage to the skull. PW-3-Doctor has

admitted that the head injury was possible by a fall. The Appellant

had immediately accompanied Usha to take Tanisha to a Doctor. PW-

2 had not stated in the first trial that the Appellant had given a blow




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on the head. Therefore, the Prosecution has not proved beyond

reasonable doubt that the Appellant had caused the head injury by

giving a blow on the head. Hence, the offence would fall within the

second part of Section 304 of IPC. Section 304 of IPC reads thus:

          304 Punishment for culpable homicide not amounting
          to murder.—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;
          or with imprisonment of either description for a term
          which may extend to ten years, or with fine, or with
          both, if the act is done with the knowledge that it is
          likely to cause death, but without any intention to
          cause death, or to cause such bodily injury as is likely
          to cause death.


          As discussed earlier, there was no intention on the Appellant’s

part but the circumstances show that he can be attributed the requisite

knowledge which would attract punishment for culpable homicide

not amounting to murder and therefore, in our opinion, the

Appellant’s act is covered by second part of Section 304 of IPC which


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is punishable with imprisonment extending upto 10 years or with fine

or with both.



27.       We have considered the question of quantum of sentence.

The learned Counsel for the Appellant submitted that leniency be

shown to the Appellant and the learned A.P.P. emphasized that the

victim was only eight years of age and her life was taken away

without any reason. We have considered these submissions. We agree

with the submissions of learned A.P.P. that a girl of eight years of age

has lost her life due to the act committed by the Appellant and

therefore, we are inclined to impose maximum punishment prescribed

for the offence punishable under Section 304 Part II of IPC. That

would be rigorous imprisonment for 10 years. We see no reason to

reduce the fine imposed on the Appellant and the in-default sentence

imposed on the Appellant for non-payment of the fine. With the

above reasons, following order is passed.




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                                     ORDER

          (i)     The Criminal Appeal No.151 of 2023 is partly

                  allowed.



          (ii)    The conviction and sentence under Section 302

                  of IPC recorded by the Additional Sessions

                  Judge, Greater Bombay in Session Case No.513

                  of 2016 is set aside; instead, the Appellant is

                  convicted for commission of offence punishable

                  under Section 304 Part-II and is sentenced to

                  suffer rigorous imprisonment for 10 years and to

                  pay fine of Rs.25,000/- and in default of payment

                  of fine to undergo rigorous imprisonment for

                  further 1 year.



          (iii)   The conviction and sentence recorded for

                  commission of offence punishable under Section

                  201 of IPC by the impugned Judgment and

                  Order dated 20/04/2017 is set aside.


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          (iv)   The Appellant is granted set off under Section

                 428 of Cr.P.C.



          (v)    The Appeal No.151 of 2023 is disposed of in the

                 aforesaid terms.



          (vi)   With disposal of the Appeal, the connected

                 Interim Application Nos.3177 of 2023 and 560

                 of 2024 are also disposed of.




(SANDESH D. PATIL, J.)                                (SARANG V. KOTWAL, J.)




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