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
- Code of Criminal Procedure — s. 164, 428
- Indian Penal Code, 1860 — s. 201, 300, 302, 304
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
902-APEAL-151-2023 WITH IA-3173-2023 WITH IA-560-2024.doc
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.
Manisha 1/28
902-APEAL-151-2023 WITH IA-3173-2023 WITH IA-560-2024.doc
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
Manisha 2/28
902-APEAL-151-2023 WITH IA-3173-2023 WITH IA-560-2024.doc
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
Manisha 3/28
902-APEAL-151-2023 WITH IA-3173-2023 WITH IA-560-2024.doc
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
Manisha 4/28
902-APEAL-151-2023 WITH IA-3173-2023 WITH IA-560-2024.doc
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
Manisha 5/28
902-APEAL-151-2023 WITH IA-3173-2023 WITH IA-560-2024.doc
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.
Manisha 6/28
902-APEAL-151-2023 WITH IA-3173-2023 WITH IA-560-2024.doc
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
Manisha 7/28
902-APEAL-151-2023 WITH IA-3173-2023 WITH IA-560-2024.doc
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
Manisha 8/28
902-APEAL-151-2023 WITH IA-3173-2023 WITH IA-560-2024.doc
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).
Manisha 9/28
902-APEAL-151-2023 WITH IA-3173-2023 WITH IA-560-2024.doc
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
Manisha 10/28
902-APEAL-151-2023 WITH IA-3173-2023 WITH IA-560-2024.doc
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.
Manisha 11/28
902-APEAL-151-2023 WITH IA-3173-2023 WITH IA-560-2024.doc
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.
Manisha 12/28
902-APEAL-151-2023 WITH IA-3173-2023 WITH IA-560-2024.doc
(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
Manisha 13/28
902-APEAL-151-2023 WITH IA-3173-2023 WITH IA-560-2024.doc
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
Manisha 14/28
902-APEAL-151-2023 WITH IA-3173-2023 WITH IA-560-2024.doc
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
Manisha 15/28
902-APEAL-151-2023 WITH IA-3173-2023 WITH IA-560-2024.doc
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
Manisha 16/28
902-APEAL-151-2023 WITH IA-3173-2023 WITH IA-560-2024.doc
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
Manisha 17/28
902-APEAL-151-2023 WITH IA-3173-2023 WITH IA-560-2024.doc
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
Manisha 18/28
902-APEAL-151-2023 WITH IA-3173-2023 WITH IA-560-2024.doc
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
Manisha 19/28
902-APEAL-151-2023 WITH IA-3173-2023 WITH IA-560-2024.doc
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.
Manisha 20/28
902-APEAL-151-2023 WITH IA-3173-2023 WITH IA-560-2024.doc
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
Manisha 21/28
902-APEAL-151-2023 WITH IA-3173-2023 WITH IA-560-2024.doc
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.
Manisha 22/28
902-APEAL-151-2023 WITH IA-3173-2023 WITH IA-560-2024.doc
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
Manisha 23/28
902-APEAL-151-2023 WITH IA-3173-2023 WITH IA-560-2024.doc
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
Manisha 24/28
902-APEAL-151-2023 WITH IA-3173-2023 WITH IA-560-2024.doc
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
Manisha 25/28
902-APEAL-151-2023 WITH IA-3173-2023 WITH IA-560-2024.doc
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.
Manisha 26/28
902-APEAL-151-2023 WITH IA-3173-2023 WITH IA-560-2024.doc
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.
Manisha 27/28
902-APEAL-151-2023 WITH IA-3173-2023 WITH IA-560-2024.doc
(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.)
Manisha 28/28
Checking your session…