JUDGMENT SMT. SADHANA S. JADHAV, J. 1. The appellant herein - (Venkatesh Somraj Verligaddal/accused No.1 is convicted for the offence punishable under Section 302 read with Section 34 of IPC and is sentenced to suffer R.I. for life and fine of Rs.500/- in default R.I. for three months in Sessions Case No.852 of 2005 by the 11th Addl. Sessions Judge, Sewree, Mumbai, by a judgment and order dated 30.8.2006. 2. Such of the facts which are necessary for the decision of this appeal are as follows : (a) The appellant/accused No.1 Venkatesh was residing in slum in New Babrekar nagar, Malvani, Malad (W), Mumbai. The accused No.2 - Bhagirath @ Uttam is the friend of accused No.1 and since he had no accommodation, he was residing with accused No.2. One Satish Gaikwad was residing as their neighourhood along with his family. (b) It is the case of the prosecution that accused Nos. 1 and 2 used to consume alcohol regularly and abuse each other causing breach of peace in the slum area. Satish used to convince them not to consume alcohol and abuse each other in such filthy language. This had given cause for a quarrel between Satish on one hand and the accused Nos. 1 and 2 on the other hand. (c) It is the case of the prosecution that on 5.8.2005, at about 9 p.m. accused Nos. 1 and 2 were drunk and out of their senses. There was a brawl between them. Satish then went to the house of accused Nos. 1 and 2 and convinced them not to quarrel and hurl abuses at each other. A quarrel had ensued between them as both the accused persons felt that it was a quarrel amongst the friends and that Satish should not have intervened. The wife of Satish namely Meena intervened and brought her husband back to their house. However, within a short time, the accused persons went to the house of Satish. They were armed with bamboos. They assaulted Satish. When his wife intervened, accused No.2 gave a blow on her head with bamboo. Satish had sustained severe bleeding injuries. Some person from the neighbourhood had informed the Police Control Room. The police ruhed to the spot. The police found Satisfying in an injured condition. Satish was taken to Bhagwati Hospital by the police. He was declared dead. The statement of Meena was recorded. Satish had sustained severe bleeding injuries. Some person from the neighbourhood had informed the Police Control Room. The police ruhed to the spot. The police found Satisfying in an injured condition. Satish was taken to Bhagwati Hospital by the police. He was declared dead. The statement of Meena was recorded. On the basis of her statement, Crime No.148 of 2005 was registered against both the accused for the offence punishable under Sections 302 and 324 read with Sec. 34 of IPC. The accused were arrested. Investigation was set in motion. After completion of investigation, charge sheet was filed on 29.10.2005. The case was committed to the Court of Sessions and registered as Sessions Case No.852 of 2005. The prosecution examined 18 witnesses to bring home the guilt to the accused. (d) PW-1 Meena Gaikwad happens to be the wife of deceased Satish. She is an eyewitness to the incident. She has deposed before the Court that the accused persons used to have a brawl everyday which caused breach of peace. On the day of the incident also they were quarrelling amongst themselves and hurling abuses at each other under the influence of alcohol. That her husband had been to pacify them. She then brought her husband back to her house and after some time both the accused persons came to her house and assaulted her husband with the bamboo due to blow on head, her husband collapsed and thereafter also the accused had assaulted her husband. When she intervened to rescue her husband, the accused No.1 had given blow on her head with a bamboo. That the residents had informed the incident to the police station. The police came there and removed the dead body of her husband to Bhagwati Hospital. She has admitted the contents of the first information report lodged by her. The said report is marked at Exhibit 10. In the cross-examination, it is elicited that her husband was also addicted to liquor. Her husband used to quarrel with the residents of that area. She has also admitted that they were not concerned with the quarrel between the accused persons inter-se. 3. PW-2 Kondiba Maane is also a resident of the same locality. He has also stated that the accused were in a habit of hurling abuses at each other under the influence of alcohol. He is also an eye-witness to the incident. She has also admitted that they were not concerned with the quarrel between the accused persons inter-se. 3. PW-2 Kondiba Maane is also a resident of the same locality. He has also stated that the accused were in a habit of hurling abuses at each other under the influence of alcohol. He is also an eye-witness to the incident. He has deposed that the accused No.1 had given a blow on the chest of the deceased. He had fled from the spot and was apprehended by the people residing in the said locality. 4. PW-5 Santosh Sawant, Police Constable attached to Malwani Police Station, stated that at about 10.45 p.m. when he was on patrolling duty, he had received a message from the Police Control Room to the effect that commotion was going in New Babrekar Nagar. He, therefore, went to the spot and saw one person lying there in injured condition. The lady, who was present near the injured, had disclosed her name as Meena Gaikwad, wife of the injured. He had taken them to Bhagwati Hospital. 5. PW-6 Arjun Shinde is an eyewitness to the incident. He is a resident of the same locality. According to him, on 5.8.2005, at about 9.30 p.m., both the accused were quarreling each other under the influence of alcohol. Deceased Satish attempted to convince them. The wife of deceased brought him back to his house Thereafter, the accused followed him and started abusing him. The accused asked the deceased to come out of the room and as soon as he came out of the house, first blow was given on him by accused No.2 with a bamboo and thereafter accused No.1 mounted assault upon him due to which he fell down. That the accused continued beating the deceased even after he fell down. The wife of the deceased was also assaulted when she attempted to rescue her husband and then accused had fled away. However, they were accosted immediately. It is elicited in the cross-examination that the bamboo used by the accused were used in the construction of huts and that they are light in weight and are hollow. 6. PW-7 Dr. Priya Bhosale had performed autopsy on the dead body of Satish on 6.8.2005. She had noticed the following Injuries: "1) Incised wound with fracture mandible. 4 x 2 cm bone deep, reddish, sharp edges. 6. PW-7 Dr. Priya Bhosale had performed autopsy on the dead body of Satish on 6.8.2005. She had noticed the following Injuries: "1) Incised wound with fracture mandible. 4 x 2 cm bone deep, reddish, sharp edges. 2) Nasal tip incised wound 3 x 1.5 cm with sharp cutting edges through and through. 3) Rt. Ear bleed fresh red. 4) Fracture sternum present at 5th and 6th rib junction. Skull- on opening fracture of occepital bone was found with huge haematoma, brain edematous. Base of skull fracture present with haematoma." According to her, the cause of death was head injury and injury to chest. In the cross-examination, she has admitted that the police had never shown to her the muddemal articles bamboos by which the assault was committed. She has proved the contents of the post-mortem which is at Exhibit 19. It is pertinent to note that column No.21 of the post-mortem notes clearly indicate that at that point of time the deceased had also consumed alcohol. There was some digested food and smell of alcohol. This, in fact, is sufficient to show that there was a brawl and that the deceased had also consumed alcohol. 7. PW-10 Dr. Suresh Tambe had examined Meena, wife of deceased on 6.8.2005. The patient had given history of the alleged assault by bamboo. He has proved the injury certificate which is at Exhibit 26 which shows that she had sustained a contused lacerated wound 2 x ½ x ½ cm. on angle of left eye. It is elicited in the cross-examination that the patient had not disclosed the name of assailants in her history. The other witnesses are panchas. 8. PW-15 Shrimant Shinde was attached to Malwani Police Station on 5.8.2005. He had arrested the accused on that day and had drawn the arrest panchnama at Ex.35. He has admitted that the arrest panchnama of the accused was not prepared at the place where he was apprehended. 9. PW-16 Pramod Roman was also attached as a PSI to Malwani Police Station on 5.8.2005. He had recorded the statement of Meena wife of deceased and has registered the crime against the accused persons. He had conducted the investigation. An admission is elicited in the cross-examination to the effect that the complainant had not given full names of the assailants in her complaint. She had not given description of the assailants. 10. He had recorded the statement of Meena wife of deceased and has registered the crime against the accused persons. He had conducted the investigation. An admission is elicited in the cross-examination to the effect that the complainant had not given full names of the assailants in her complaint. She had not given description of the assailants. 10. PW-17 Pralhad Survanshi was attached to Malwani Police Station as Police Inspector on 5.8.2005 from 8 p.m. onwards. He had reached the hospital on being informed by the other police personnel. He had recorded the memorandum of the accused No.1 under Sec. 27 of the Evidence Act and pursuant to the same, the bamboo was recovered from a hut at the instance of accused No.1. The recovery panchnama is at Exhibit 32. 11. PW-18 Ravindra Patil was attached to Malwani Police Station as a PSI. He had caused the recovery of clothes at the instance of accused No.2. 12. Upon perusal of the records and proceedings and the evidence adduced by the prosecution, it is clear that the prosecution has established that the appellants had assaulted Satish Gaikwad on 5.8.2005 with a bamboo. However, it cannot be said that it was a premeditated act with an intention to cause homicidal death of Satish Gaikwad. There is no evidence on record to show that the appellant had enmity with deceased Satish Gaikwad. In fact, at the relevant time the appellants were under the influence of alcohol. The postmortem notes shows that the deceased was also under the influence of alcohol. The deceased had intervened between the two friends who were hurling abuses at each other and had invited provocation from the appellants-accused. Hence, by no stretch of imagination. it can be said that the offence committed by the appellants would fall under Section 300 of the Indian Penal Code. 13. The learned Counsel for the appellant submits that Satish was assaulted by the appellant in a fit of rage and in a sudden quarrel and, therefore, the appellant has committed an offence punishable under Section 304 Part" of IPC. “304. Part II of IPC contemplates "304. Punishment for culpable homicide not amounting to murder – Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment of either description for a term which may extend to ten years, or with fine. “304. Part II of IPC contemplates "304. Punishment for culpable homicide not amounting to murder – Whoever commits culpable homicide not amounting to murder shall be punished 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." It can be said that at the relevant time, the appellant was deprived of his mental ability to understand the consequences of their act and therefore the appellant would be liable for the offence punishable under Section 304 Part II of IPC. The prosecution has proved that PW-l Meena was assaulted by accused No.2 and therefore, his conviction for the offence punishable under Section 324 of IPC is upheld. He has undergone the substantive sentence as well as the default sentence awarded to him under Section 324 of IPC. 14. At this stage, we must record our appreciation for Mr. Arfan Saito Advocate appointed from High Court Legal Services Committee, Mumbai, to represent the appellant. We found that he had meticulously prepared the matter and he has very ably argued the matter. We quantify legal fees to be paid to him by the High Court Legal Services Committee at Rs.2,500/-. The said fees be paid to Advocate Mr. Sait within three months from today. 15. Hence, we pass the following order :- ORDER: (i) The Appeal is partly allowed. (ii) The appellant is acquitted of the offence punishable under Section 302 read with Section 34 of IPC. However, he is convicted for the offence punishable under Section 304 Part II of IPC and he is sentenced to the period already undergone. (iii) The appellant is in jail from 5.8.2005 till today. He has already undergone about 7½ years actual rigorous imprisonment. He be released forthwith, if not required in any other case. (iv) Office to communicate this order to the Superintendent of Prison where the appellant is lodged and to the appellant/original accused. (v) Writ of Order be expedited. Appeal partly allowed.