ORAL JUDGMENT (PER SMT. V.K. TAHILRAMANI, J.) The Appellant /original accused has preferred this Appeal against the judgment and order dated 29th March 2012 passed by the Learned Additional Sessions Judge, Greater Mumbai at Sewree in Sessions Case No.284 of 2011. By the said judgment and order the Learned Sessions Judge convicted the Appellant under Section 302 of the Indian Penal Code and sentenced him to suffer imprisonment for life. 2. The prosecution case briefly stated is as under : Deceased Kunal, P.W.1 – Vijay Gupta, P.W.3 – Rahul Patil, Bala, Ramesh and the Appellant were labourers. They used to work wherever they got work during the day. In the evening, they used to sleep on the footpath near the bridge at Khadaparsi Chowk, Byculla. This place is near the Fire Brigade Office. They all used to consume liquor and eat food together almost all the time. On 4th December 2010, when they were sleeping, P.W.1 – Vijay heard a sound of big stone falling and he along with others woke up. They saw Kunal lying on the footpath, and blood was coming out from his mouth. One big stone was lying near the head of Kunal. Bala had also sustained injuries. The Appellant was standing near the feet of Kunal and abusing him in filthy language. One fire brigade watchman came there shouting. At that time the Appellant threatened all the witnesses with knife and ran away towards station side. Kunal died on the spot. Another labourer Bala also sustained injury to his head as he was sleeping near Kunal. According to the prosecution, the cause for the Appellant assaulting Kunal was that Kunal used to tease the Appellant, due to this there was a quarrel between the Appellant and Kunal. P.W.1 – Vijay then went to the police station and filed FIR. Thereafter investigation commenced. Police came to the spot and prepared spot Panchanama, inquest Panchanama, seized a big stone from the spot and sent the dead body for postmortem. The postmortem report which is at Exhibit 13 shows that Kunal died due to head injury and it was an instantaneous death. The Appellant came to be arrested. After completion of investigation charge-sheet came to be filed. 3. Charge came to be framed against the Appellant under Section 302 of the Indian Penal Code. The Appellant pleaded not guilty to the said charge and claimed to be tried. The Appellant came to be arrested. After completion of investigation charge-sheet came to be filed. 3. Charge came to be framed against the Appellant under Section 302 of the Indian Penal Code. The Appellant pleaded not guilty to the said charge and claimed to be tried. His defence is that of total denial and false implication. After going through the evidence adduced in this case, the Learned Sessions Judge convicted and sentenced the Appellant as stated in paragraph 1 above. Hence, this Appeal. 4. We have heard the learned advocate for the Appellant and the learned APP for the State. We have carefully considered their submissions, judgment and order passed by the Learned Sessions Judge and the evidence in this case. After carefully considering the matter, for the below mentioned reasons we are of the opinion that there is no merit in the Appeal. 5. The conviction of the Appellant is mainly founded on the evidence of P.W.1 – Vijay Gupta and P.W.3 – Rahul Patil. Vijay, Rahul, Bala, deceased Kunal and the Appellant used to sleep near Khadaparsi Chowk at Byculla. P.W.1 – Vijay has stated that on 4 December 2010 at about 4.00 a.m. he heard sound of big stone falling. He along with others got up and saw Kunal lying on the floor and blood was coming out from his mouth. One stone was lying near Kunal. The Appellant was standing near the feet of Kunal and abusing him in dirty language. One fire brigade watchman also came there shouting. The Appellant threatened all of them with knife and went away towards station side. P.W.1 – Vijay saw that Kunal had died on the spot. Bala had also received some injury on his head as he was sleeping near Kunal. P.W.1 – Vijay has stated that earlier to the incident there was a quarrel between the Appellant and deceased Kunal. This shows that all was not well between the Appellant and the deceased and the Appellant had some grudge or animosity towards the deceased due to which he committed the murder of Kunal. 6. The evidence of P.W.3 – Rahul Patil shows that he was sleeping on the footpath on the night of 4th December 2012. At about 4.15 a.m. he heard sound of big stone. He woke up and saw bleeding injury on Kunal’s head. 6. The evidence of P.W.3 – Rahul Patil shows that he was sleeping on the footpath on the night of 4th December 2012. At about 4.15 a.m. he heard sound of big stone. He woke up and saw bleeding injury on Kunal’s head. The Appellant was holding knife and he went away from that place. The learned advocate for the Appellant submitted that the evidence of both P.W.1 – Vijay and P.W.3 – Rahul cannot be believed because there is serious discrepancy in their evidence. She submitted that P.W.1 – Vijay has stated that on hearing the sound of big stone, he got up and saw Kunal lying on the floor and blood coming out from his mouth. One stone was lying nearby. The Appellant was standing near the feet of Kunal and abusing him in dirty language. One fire brigade watchman came there shouting. Then the Appellant threatened all of them with knife and went away towards station side. She submitted that on the other hand P.W.3 – Rahul has only stated that when he woke up, he saw the Appellant holding knife and going away towards station side. She reiterated that P.W.3 – Rahul does not state anything about the Appellant giving abuses to deceased Kunal, nor has he stated about the watchman from the fire brigade station coming to the spot. As far as this aspect is concerned, we find no discrepancy. The evidence of P.W.3 – Rahul clearly shows that he got up little later than P.W.1 – Vijay, hence, he did not see the part of the incident where the Appellant abused the deceased, and the watchman arriving and where the Appellant threatened others with a knife. Thus, we find no merit in the submission of the learned advocate for the Appellant. 7. It is the prosecution case that the Appellant threw a concrete stone weighing about 28 kgs on the head of Kunal and caused his death. This case of the prosecution is supported by the medical evidence. The postmortem notes Exhibit 13 which have been admitted by the defence show that Kunal had sustained the following external injuries : “Laceration of side 2 x 0.5 cm x subcutaneous deep was present over lower aspect of left eyebrow, 2 cm away from glabella, reddish coloured. This case of the prosecution is supported by the medical evidence. The postmortem notes Exhibit 13 which have been admitted by the defence show that Kunal had sustained the following external injuries : “Laceration of side 2 x 0.5 cm x subcutaneous deep was present over lower aspect of left eyebrow, 2 cm away from glabella, reddish coloured. 1) Abrasion of size 3 x 1 cm was present over left eyelid, 5 cm away from glabella, reddish coloured. 2) Laceration of size 3 x 1 cm was present over lateral angle of left eyelid, reddish coloured. 3) Laceration of size 3 x 1 cm x bone deep was present left cheek, 3 cm away from left lateral angle of mouth with surrounding contusion, reddish coloured. 4) Multiple abrasions of size 0.4 x 0.3 cm to 0.4 x 0.1 cm were present over left intra-orbital region over an area 4 x 3 cm, reddish coloured. 5) Laceration of size 2 x 0.5 cm x subcutaneous deep was present over left lateral aspect of lower lip, 2 cm away from midline reddish coloured. 6) Abrasion of size 1 x 0.5 cm was present over left side of chin, 2 cm below from lower lip, reddish coloured, 7) Laceration of size 1 x 0.5 cm x bone deep was present over left side of chin, reddish coloured.” 8. On internal examination, the following injuries were found : “Under scalp contusion of size 5 x 4 cm was present over right occipital region, reddish coloured. Under scalp hematoma of size 6 x 3 cm was present over right temporal occipital region, reddish coloured. Vault – Linear undisplace fracture was seen involving right temporal and occipital bones. Base of skull – Multiple comminuted fracture seen involving left frontal bone, left orbital plate and sphenoid bone. Displaced fracture seen on right side extending from sphenoid bone to right temporal bone along petrous part of right temporal bone. Brain intact. Subdural hemorrhage of size 6 x 4 cm was seen over cerebellum. Diffuse subarachnoid hemorrhage of size 10 x 8 cm was seen over left parietal, frontal, lateral and inferior aspect of left temporal lobe.” 9. The postmortem notes show that the cause of death is head injury (unnatural). Brain intact. Subdural hemorrhage of size 6 x 4 cm was seen over cerebellum. Diffuse subarachnoid hemorrhage of size 10 x 8 cm was seen over left parietal, frontal, lateral and inferior aspect of left temporal lobe.” 9. The postmortem notes show that the cause of death is head injury (unnatural). The injuries on the dead body, the circumstances in which the body of the deceased was found lying on the footpath in injured condition and the conduct of the Appellant when the deceased was lying in a severely injured condition, clearly show that it is a case of homicidal death and the Appellant is responsible for the same. 10. In addition to the evidence of P.W.1 – Vijay and P.W.3 – Rahul, the prosecution has also relied on the circumstance that the knife with which the Appellant threatened the witnesses including P.W.1 – Vijay and P.W.3 – Rahul was recovered at the instance of the Appellant. P.W.2 – Ali Hussain Shaikh is the panch witness who has deposed on this aspect. P.W.2 - Ali Hussain has stated that on 7th December 2010 he was called by the police at about 3.30 p.m. to act as a panch. The evidence of this witness and the memorandum and panchanama Exhibit 11 shows that the Appellant made a statement that he will show the place where he had kept the knife with which he had threatened the witnesses. Pursuant to the said statement, the Appellant led the police and panchas to the fire brigade station at Byculla. The Appellant then took out knife – article 2 from the roof of the station. The said knife came to be seized under the Panchanama. 11. On going through the record, we find that there is sufficient evidence to connect the Appellant with the death of Kunal. Thus, we find no merit in the Appeal. The Appeal is accordingly dismissed. 12. At this stage, we must record our appreciation for Advocate Ms. Rohini Dandekar, who is on the High Court Legal Services Committee and who was appointed to represent the Appellant in this appeal. We found that she had meticulously prepared the matter and she has very ably argued the Appeal. We quantify total legal fees to be paid to her in this Appeal by the High Court Legal Services Committee at Rs.5,000/-