JUDGMENT A.S. GADKARI, J. 1. The appellants, original accused nos.1,2 and 3, have challenged the judgment and order dated 23rd December 2011 passed by the learned Extra Joint Adhoc Additional Sessions Judge, C.R. No.2, Sewree, Mumbai, thereby convicting the appellants for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and sentenced them to suffer imprisonment for life and to pay fine of Rs.10,000/by each in default of payment of fine to suffer rigorous imprisonment for one year by each. 2. The facts which can be enumerated from the record, may briefly be stated thus: (i) The deceased Dashrath Bujad and his wife Laxmi (PW1) along with their four children were residing at Palaspada, Mulund (West). PW1 Laxmi and her husband used to bring fruits namely Tadgole from the forest of Bhandup and were dealing in the said fruits seasonally and in the rest of the season, they were doing the work of carrying sand at the site of building construction. That Smt. Jaya Maruti Jadhav, Nitin Rathod (PW2) and Vimal Ankush Waghe (PW3) were also working with them at building site. The appellants were also the residents of the same locality where PW1 Laxmi and deceased Dashrath used to reside. The appellants used to do the work of carrying sand at building site. The group of deceased Dashrath was doing the work of carrying sand at the building site at the rate Rs.1000/for half truck and Rs.2000/for full truck. Whereas, the group of the appellants were doing the similar work of carrying sand @ Rs.900/for half truck and therefore there was dispute between the said two groups since last four months prior to the date of the incident i.e. 6.5.2009. (ii) On 6.5.2009, PW1 Laxmi and her husband Dashrath had brought fruits Tadgole from forest of Bhandup and the said fruits were sold at Ahmad Nagar. That after selling the said fruits at about 8.30 to 9.00 p.m., they were returning to their residence. At the said place at Ahmad Nagar, her husband Dashrath had purchased one Tadi bottle and then they came back to their house. Laxmi was preparing food, whereas her husband Dashrath was cutting vegetables. That Laxmi went at the common tap for the purpose of fetching water. The said common tap was situated at 100 ft. from her house. At the said place at Ahmad Nagar, her husband Dashrath had purchased one Tadi bottle and then they came back to their house. Laxmi was preparing food, whereas her husband Dashrath was cutting vegetables. That Laxmi went at the common tap for the purpose of fetching water. The said common tap was situated at 100 ft. from her house. At the said place i.e. at common water tap the appellants were sitting and they started abusing Laxmi. Because of that her husband came there. At that time, appellant no.3 (Mangal Waghe) did strangulate the throat of Dashrath, appellant no.2 (Mundya Rathod) caught hold the legs of Dashrath and appellant no.1 (Ashok @ Chati) sat on the stomach of Dashrath and gave fist blows on his chest. Thereafter, her husband became unconscious and was lying there, hence Laxmi shouted for help. Thereafter two ladies namely Vimal Waghe (PW3) and Jaya Jadhav arrived there. Nitin Rathod (PW2) also came there. The said persons took the husband of Laxmi to the Mulund Hospital, when after examination, Doctor declared him as dead. (iii) On the basis of the complaint given by PW1 Laxmi, the first information report came to be registered by the Mulund Police Station under Section 302 read with Section 34 of the Indian Penal Code. The inquest panchanama of the dead body of Dashrath was prepared which is at Exhibit 23. The dead body of Dashrath was referred for postmortem examination. (iv) Dr. Swaroop V. Bhalepatil, then attached to Cooper Hospital as Medical Officer, has conducted the postmortem on the dead body of Dashrath on 7.5.2009 between 1 p.m. to 2.30 p.m. On external examination of the dead body of Dashrath, Dr. Bhalepatil found the following external injuries: “(i) Multiple abrasions over right thumb of varying in size, reddishbrownish in colour. (ii) Abraded contusion wound over right elbow, reddishbrownish.” After conducting the internal examination, the Doctor found the following injuries: “Subgalial contusion at frontal occipital, right temporar region of size 2x 1 ½ cm and 3 x 1 ½ cm and 2 x 1 cm respectively.” The Doctor thereafter opined that the external and internal injuries are not corresponding to each other. After receipt of the Chemical Analyzer's report, he formed his final opinion about the cause of death, as shock in the case of multiple subgalial contusion. He thereafter opined that all the injuries were ante mortem in nature. After receipt of the Chemical Analyzer's report, he formed his final opinion about the cause of death, as shock in the case of multiple subgalial contusion. He thereafter opined that all the injuries were ante mortem in nature. He also opined that the said internal injury was possible to a person if the said person is pushed by any other person forcibly down on hard surface and because of the same, death is possible. 3. The investigation of the said crime was thereafter proceeded in usual manner and after completion of the investigation, the chargesheet came to be filed in the Court of learned Metropolitan Magistrate, 27th Court, Mulund, Mumbai. 4. As the offence punishable under Section 302 read with Section 34 of the Indian Penal Code was exclusively triable by the Court of Sessions, the said case was committed to the Court of Sessions for trial, in accordance with law. The learned Trial Court framed charge below Exhibit 15 under Section 302 read with Section 34 of the Indian Penal Code. The contents of the charge were read over and explained to the appellants in vernacular language, to which they denied, pleaded not guilty and claimed to be tried. The Trial Court, after recording the evidence and after hearing the parties to the said case, was pleased to convict the appellants for the offences charged against them by the impugned judgment and order dated 23rd December 2011, as stated herein above. 5. It is to be noted here that the present appeal was preferred by the appellants through jail and Mrs. Farhana Shah was appointed from the High Court Legal Services Committee to represent them. It further appears from the record that, thereafter Dr. Yug Mohit Chaudhary filed his vakalatnama for and on behalf of the appellant no.3, and therefore Mrs. Farhana Shah is now representing appellant nos.1 and 2. 6. Heard Mrs. Farhana Shah, learned Counsel for appellant nos.1 and 2, Mr. Yug Mohit Chaudhary, learned Counsel for appellant no.3 and Smt. V.R. Bhonsale, learned A.P.P. for respondent-State. Learned Counsel for the appellants submitted before us that taking into consideration the evidence available on record, the present case will not fall within the purview of Section 302 of the Indian Penal Court, and instead, would fall either under Section 323 or at the most under Section 325 of the Indian Penal Code. Learned Counsel for the appellants submitted before us that taking into consideration the evidence available on record, the present case will not fall within the purview of Section 302 of the Indian Penal Court, and instead, would fall either under Section 323 or at the most under Section 325 of the Indian Penal Code. The learned Counsel for the appellants therefore submitted that the conviction of the appellants under Section 302 of the Indian Penal Code may be quashed and set aside by allowing the present appeal. Per contra, the learned A.P.P. has supported the impugned judgment and order and prayed that the conviction and sentence of the appellants be sustained and the present appeal may be dismissed. 7. In order to effectively deal with the submissions advanced by the learned Counsel appointed for the appellant nos.1 and 2, learned Counsel for the appellant no.3 and and the learned APP for the respondent-State, it is necessary to refer to the evidence of the prosecution witnesses in brief. 8. The prosecution has examined PW1 Laxmi Dashrath Bujad, the wife of deceased Dashrath Bujad. PW1 Laxmi in her testimony has stated that, on the day of incident, she was residing at Palaspada, Mulund (West). That she along with her husband Dashrath and 4 children were residing together at the said place. That she herself and her husband Dashrath both were bringing fruits namely Tadgole from forest of Bhandup and were dealing in the said fruits seasonally and in the rest of the season, they were working at site of the building construction for carrying sand. That Smt. Jaya Maruti Jadhav, Nitin Rathod (PW2) and Vimal Ankush Waghe (PW3) were also working with them at building site. She has stated that she knew the accused persons as they were also residing in the same locality at Palaspada. That the appellants were also doing the work of carrying sand at building site in the said vicinity. The group of PW1 Laxmi was doing the work of carrying sand at site of building construction @ Rs.1000/for half truck and Rs.2000/for full truck and the said group was consisting of PW1 Laxmi herself, her husband Dashrath, Nitin Rathod (PW2) and Vimal Ankush Waghe (PW3) and Smt. Jaya Maruti Jadhav. The appellants were for the similar work of unloading the sand from truck used to charge Rs.900/for half truck. The appellants were for the similar work of unloading the sand from truck used to charge Rs.900/for half truck. The appellants charging less amount for similar work and therefore on that count there was dispute going on since four months prior to the incident between her husband and the appellants. That on 6.5.2009, PW1 Laxmi herself and her husband brought fruits namely Tadgole from forest situated at Bhandup and same were sold at Ahmad Nagar. That after selling the said fruits, at about 8.30 p.m. to 9.00 p.m. they were returning to their residence At the said place at Ahmad Nagar, her husband Dashrath had purchased one Tadi bottle and then they came back to their house. That she was preparing food, whereas her husband Dashrath was cutting vegetables. That Laxmi then went at the common tap for the purpose of fetching water. The said common water tap was situated at about 100 ft. from her house. At the said place i.e. at water tap the appellants were sitting and they started abusing her, then appellant no.3 Mangal pushed her and therefore she called her husband. Because of that, her husband came there. At that time, appellant no.3Mangal did strangulate the throat of Dashrath and appellant no.2Mundya caught hold the legs and appellant no.3Ashok @ Chati sat on the stomach of Dashrath and gave fist blows on his chest. Her husband was lying unconscious and hence she shouted and therefore two ladies namely Vimal Waghe (PW3), Jaya Jadhav and Nitin Rathod (PW2) arrived there. That as her husband could not get up, PW2 Nitin brought an autorickshaw and her husband was shifted to Mulund Hospital, where the Doctor examined her husband and informed PW2 Nitin that he has expired. After some time, the Police arrived at the hospital and they recorded her complaint. The said complaint is at Exhibit 57. PW1 laxmi was cross-examined by the appellants at length. In the cross examination, it is brought on record that there was some delay which has occasioned at the hands of the police in lodging the first information report. She has further admitted that at the place where her husband was lying, there were stones and the flooring was made up of cement. She has further admitted that at the place of incident, there was water connection and because of the percolation of water the said place had become slippery. She has further admitted that at the place where her husband was lying, there were stones and the flooring was made up of cement. She has further admitted that at the place of incident, there was water connection and because of the percolation of water the said place had become slippery. In the cross-examination, the omissions to the effect that “then accused Mangal pushed me and hence I called my husband” and “accused Ashok @ Chati sat on stomach of my husband”, have been brought on record. Apart from the two omissions, certain improvements have also been brought on record. After deleting the omissions which have been brought on record by the appellants, the statement of PW1 Laxmi in her examination-in-chief reads as “At the place of such water tap all the three accused were sitting there and they started abusing me and because of that my husband came there and then accused Mangal did strangulate throat of my husband and accused Mundya caught hold the legs of my husband and accused Ashok @ Chati gave fist blows on his stomach”. 9. The prosecution has further examined PW2 Nitin Babu Rathod, who is the panchwitness to the inquest panchanama of the dead body of Dashrath. PW2 in his testimony has stated that on 6.5.2009, on his way to his house, he saw some persons gathered at the spot of incident and hence he went there. That he saw Laxmi Bujad (PW1) there. PW1 Laxmi informed him that her husband was killed by the appellants by strangulation and by fist and kick of blows. That he thereafter saw that Dashrath was lying unconscious. That he therefore tried to make some efforts to regain his conscious, but Dashrath remained unconscious, and therefore he immediately shifted Dashrath to the hospital in an autorickshaw. Smt. Vimal and Smt. Jaya were also with him in the said autorickshaw. That Laxmi along with other persons came in an another autorickshaw. At the said hospital, after examination, the Doctor declared Dashrath as dead. The inquest panchanam of Dashrath was carried out, which is at Exhibit 23. This witness was cross-examined at length by the appellants. In his cross-examination, an admission has been extracted wherein this witness has admitted that the police recorded his statement one and half month after the date of incident. He has also admitted that the complainant PW1 Laxmi used to drink Tadi. This witness was cross-examined at length by the appellants. In his cross-examination, an admission has been extracted wherein this witness has admitted that the police recorded his statement one and half month after the date of incident. He has also admitted that the complainant PW1 Laxmi used to drink Tadi. Apart from the aforesaid two omissions, in the rest of the cross-examination, no material, admission or omission has been brought on record by the appellants which would create doubt about the truthfulness of the testimony of this witness in the mind of the Court. 10. The prosecution has further examined PW3 Smt Vimal Ankush Waghe. It appears from her testimony that this witness did not support the prosecution case and therefore was declared as hostile and the learned A. P.P. has cross-examined this witness at length. However, it appears to us that no material which would be useful to the prosecution has been brought on record. 11. The prosecution has further examined PW4 Swaroop V. Bhalepatil, the Medical Officer attached to Cooper Hospital. PW4 Dr. Bhalepatil in his testimony has stated that the dead body of Dashrath was brought to him on 7.5.2009. He thereafter conducted postmortem examination between 1 p.m. to 2.30 p.m. He prepared postmortem notes. The postmortem report is at Exhibit 70. Histopathology report is at Exhibit 71. The reports of the Chemical Analyzer are at Exhibits 72 and 73. PW4 has stated that on examination he found the following external injuries: “(i) Multiple abrasions over right thumb of varing in size, reddish brownish in colour. (ii) Abraded contusion wound over right elbow, reddish brownish.” After conducting the internal examination, the Doctor found the following injuries: “Subgalial contusion at frontal occipital, right temporar region of size 2x 1 ½ cm and 3 x 1 ½ cm and 2 x 1 cm respectively.” The said Doctor thereafter opined that the external and internal injuries are not corresponding to each other. After receipt of the Histopathology report and Chemical Analyzer's report and after going through his postmortem report collectively, he formed his final opinion of cause of death as “shock in the case of multiple subgalial contusion”. He thereafter opined that all the injuries were ante mortem in nature. After receipt of the Histopathology report and Chemical Analyzer's report and after going through his postmortem report collectively, he formed his final opinion of cause of death as “shock in the case of multiple subgalial contusion”. He thereafter opined that all the injuries were ante mortem in nature. He also opined that the said internal injury was possible to a person if the said person is pushed by any other person forcibly down on hard surface and because of the same, death is possible. In the cross-examination of this witness, no material has been elicited at the hands of the appellants which would discredit the testimony of this witness. 12. PW5 is Arunkumar Laxman Lohar, P.S.I., who is the Investigating Officer of the present crime i.e. C.R. No.166 of 2009 registered at Mulund Police Station. PW5 has narrated in detailed the various steps taken by him during the course of investigation after registration of C.R. No.166 of 2009 up to the stage of filing of chargesheet. In the cross-examination of this witness, the appellants have tried to brought on record some delay caused at the hands of the police. However, after perusal of the printed form of the first information report what we noticed is that the incident in question took place on 6.5.2009 at about 10 p.m. and after Doctor declared Dashrath as dead, the first information report came to be registered at Mulund Police Station on 7.5.2009 at about 00.45 a.m. Thus, according to us there is no delay at all in registering the first information report and the appellants cannot be permitted to contend that as there was delay in lodging the first information report at the hands of the police, the testimony of PW5 and PW6, the police officers, become doubtful and the implication of appellants in the present case is an afterthought. 13. PW6 Bajrang Salunke and PW7 Chandrakant Thakur, are the police officers than attached to Mulund Police Station and had taken part in the process of investigating the aforesaid crime. According to us their testimonies are formal in nature and in their respective cross-examination, no useful material has been brought on record which would shake the credibility of their testimony. 14. Thus, after taking into consideration the evidence adduced by the prosecution, it is clear that the ocular evidence of PW1 Laxmi is corroborated by the medical evidence of PW4 Dr. Bhalepatil. 14. Thus, after taking into consideration the evidence adduced by the prosecution, it is clear that the ocular evidence of PW1 Laxmi is corroborated by the medical evidence of PW4 Dr. Bhalepatil. PW1 Laxmi in her testimony has stated that the accused persons strangulate the throat of her husband, caught hold his legs and gave fist blows on his chest and because of which her husband Dashrath fell down and become unconscious. PW4 in his testimony has stated that the external and internal injuries are not corresponding to each other, but the internal injury i.e. subgalial contusion at frontal occipital, right temporar region of size 2x 1 ½ cm and 3 x 1 ½ cm and 2 x 1 cm respectively, is possible to a person if pushed by any person forcibly down on hard surface, such injury is possible. Though PW1 Laxmi in her testimony has stated that the appellant Mangal strangulate the throat of her husband, in the postmortem examination no marks at all were found on the neck of the deceased. 15. The learned Counsel for the appellants have relied on the two judgments of the Division Bench of this Court i.e. (1) State of Maharashtra Vs. Dinkar Balkrishna Palande, reported in 2004 ALL MR (Cri) 2980 and (2) Ajay Madhusudan Mukharjee Vs. State of Maharashtra reported in 2011 ALL MR (Cri) 1471. Learned Counsel for the appellants further submitted that after taking into consideration the evidence of PW1 Laxmi Bujad read with evidence of PW4 Dr. Bhalepatil i.e. the Medical Officer, the present case would not fall within the purview of Section 302 of the Indian Penal Code, instead would fall either under Section 323 or at the most Section 325 of the Indian Penal Code. 16. After going through the aforesaid two judgments, we are of the opinion that the facts in the said two judgments are quite different than the facts in the present judgment. Hence, in our opinion the said two judgments are of no help to the appellants. 17. After scrutinizing the entire evidence on record, particularly the evidence of PW1 Laxmi which is supported by the evidence of PW4 Dr. Bhalepatil, we find that though the external injuries were not of serious in nature, the internal injury which was caused to the deceased was possible because of forcible pushing by the appellants to the deceased Dashrath. 18. 17. After scrutinizing the entire evidence on record, particularly the evidence of PW1 Laxmi which is supported by the evidence of PW4 Dr. Bhalepatil, we find that though the external injuries were not of serious in nature, the internal injury which was caused to the deceased was possible because of forcible pushing by the appellants to the deceased Dashrath. 18. After going through the evidence of the aforesaid two witnesses i.e. PW1 Laxmi and PW4 Dr. Bhalepatil, we find that same does not contain any such infirmity which would militate against the core of the prosecution case. We find that PW1 Laxmi is a natural witness to the incident. We further find that there is ample truthfulness about the facts such as the date, time and place mentioned herein above and the appellants have committed culpable homicide not amounting to murder as contemplated under Section 302 of the Indian Penal code of deceased Dashrath. We may mention here that the said view taken by us is also strengthened by the circumstance that the motive suggested by the prosecution was of weak nature to infer any intention of the appellants to kill the deceased Dashrath, and if the appellants really wanted to kill Dashrath, they could have cause him serious injuries on other vital organs of his body also. 19. We are therefore of the opinion that there was no intention at the behest of the appellants to kill the deceased Dashrath and their case would cover by the Exception 4 to Section 300 of the Indian Penal Code. We are of the considered opinion that the appellants have not committed the offence as contemplated under section 302 of the Indian Penal Code. The Medical Officer i.e. PW4 in his evidence has not stated that the injuries caused by the appellants to the deceased Dashrath were sufficient in the ordinary course of nature to cause death. 20. Consequently, for the aforesaid reason, we feel that the conviction of the appellants under Section 302 of the Indian Penal Code is unsustainable and they should be convicted under Section 304II of the Indian Penal Code. 21. In the result, the present appeal is partly allowed and partly dismissed. We set aside the conviction of the appellants under Section 302 of the Indian Penal Code and sentence awarded to them on that count. 21. In the result, the present appeal is partly allowed and partly dismissed. We set aside the conviction of the appellants under Section 302 of the Indian Penal Code and sentence awarded to them on that count. Instead, we convict them under Section 304II of the Indian Penal Code. In our opinion, for the offence under Section 304II the sentence of 7 years rigorous imprisonment and fine of Rs.10,000/by each of the appellants would meet the ends of justice. 22. According we pass the following order: (i) The appeal is partly allowed. (ii) The conviction and sentence of the appellants under Section 302 read with Section 34 of the Indian Penal Code is hereby set aside. (iii) The appellants are convicted and sentenced for the offence punishable under Section 304II read with Section of 34 of the Indian Penal Code and are sentenced to suffer rigorous imprisonment for 7 years and to pay fine of Rs.10,000/by each, in default of payment, to suffer further R.I. for one year by each. 23. Before parting with judgment, we may place our appreciation for Mrs. Farhana Shah who was appointed by the High Court Legal Services Committee to represent the appellant nos.1 and 2 in this appeal. We quantify total legal fees to be paid to her in this appeal by the High Court Legal Services Committee at Rs.5000/. 24. Since the appellant nos.1 and 2 are in jail, the Registry is directed to communicate this order to them through the concerned jail authority.