Judgment : A. R. JOSHI, J. Heard rival submissions on both these criminal appeals respectively preferred by the original accused No. 2 and accused No. 1 challenging the judgment and order of their conviction passed in Sessions Case No. 145 of 2011 by the Additional Sessions Judge, Satara. As in both the Criminal Appeals, the same judgment and order is challenged, both the appeals are being disposed of by this common judgment. 2. By the impugned judgment and order dated 29-3-2012 both the appellants were convicted for the offence punishable under section 302 read with section 34 of Indian Penal Code and were sentenced to suffer imprisonment for life each and to pay fine of Rs. 500/- each, in default to suffer SI for six months each. They were also convicted for the offence punishable under section 452 read with section 34 of Indian Penal Code and were sentenced to suffer RI for five years each and to pay fine of Rs. 500/- each, in default to suffer further SI for six months each. 3. At the threshold it must be mentioned that one more juvenile accused was tried separately by the Special Juvenile Court and we are concerned with the present appeals preferred by these original accused Nos. 1 and 2 as they were so mentioned in Sessions Case No. 145 of 2011. 4. The case of the prosecution is that the complainant (PW-2) one Smt. Chayya Narkar was residing along with her husband, an auto-rickshaw driver, in a chawl owned by PW-1 the landlady one Aasama Bagwan. Husband of said Chayya Narkar is the victim who died in the assault inflicted on him in the morning of 6-7-2011. The victim was addicted to consuming liquor to such an extent that even at the starting of the day he used to take liquor. Apparently due to this habit, his wife (PW-2) was doing some work as a maid-servant. According to the case of prosecution, on 4-7-2011 there was some earlier instance during which the juvenile offender a boy was assaulted by the victim and to that effect some complaint came to be lodged by the said boy. Apparently this was the motive for the said juvenile boy and the present appellants to assault and do away with the victim in the morning of 6-7-2011. 5. Apparently this was the motive for the said juvenile boy and the present appellants to assault and do away with the victim in the morning of 6-7-2011. 5. On the fateful day i.e. on 6-7-2011 when the complainant (PW-2) and her husband victim were at home and when apparently the victim was under the influence of alcohol and lying on the ground in a 10 ft. X 10 ft. single room, both the appellants in association with the juvenile offender entered the house and started manhandling the victim which was apparently on account of the earlier assault by the victim on the juvenile offender. During that episode, the juvenile offender went out of the house and procured some flooring tiles and by means of said tiles he assaulted the victim on his head when victim was sleeping on the ground. By that time, both hands of the victim were caught hold of by the appellant/accused No. 1 Laxman Bawadhane. That time, the appellant/accused No. 2 Lavesh Jadhav who is maternal uncle of the juvenile offender put his leg on the chest of the victim. As such, the role attributed to both the appellants is that of assisting the juvenile offender in assaulting the victim on his head by means of the flooring tiles. This incident was witnessed by the first informant (PW-2) as she was at home. After the incident of assault, the appellants and the juvenile offender left the spot leaving the victim in a pool of blood on the ground in the room. The clothes of the victim were smeared with blood. According to the first informant, wife of the victim, one neighbouring lady went and called the landlady of the said chawl. Said landlady PW-1 came to the house of the victim and noticed the situation and thereafter in a vehicle the victim was taken to Civil Hospital. According to the case of prosecution, though it is not so specifically brought on record during the trial, initially ADR report was registered being ADR No. 79 of 2011 as by that time the victim who was under treatment in the Government Hospital had succumbed to the injuries sustained on his face. The victim has died at about 8:00 p.m. on 6-7-2011 and the ADR was apparently registered thereafter and the inquest panchnama was drawn when the matter was still under ADR investigation. The victim has died at about 8:00 p.m. on 6-7-2011 and the ADR was apparently registered thereafter and the inquest panchnama was drawn when the matter was still under ADR investigation. The inquest panchnama was drawn between 8:15 p.m. to 9:15 p.m. and admittedly by that time no complaint was lodged by PW-2, wife of the victim. According to the case of prosecution, the FIR was lodged by PW-2 Chayya Narkar which is at Exhibit-17. It was registered at Satara City police station at about 10:15 p.m.. Spot panchnama was conducted. Post-mortem was done on the body of the victim. PW-5 Dr. Chandrashekhar Karanjkar initially examined the victim when he was alive and taking treatment in the Civil Hospital and also same PW-5 conducted the post-mortem after the death of the victim. At this juncture, the injuries sustained by the victim and as noticed by PW-5 Dr. Karanjkar are reproduced hereunder for the sake of ready reference in order to ascertain the gravity of the assault. 1. C.L.W. on right eye brow starting from root of the nose. 2. C.L.W. over left eyebrow. 3. C.L.W filtrum of the nose through and through. 4. C.L.W. over chin. 5. C.L.W. left zygomatic region. It was muscle deep. Fracture maxila. 6. Fall of tooth left uppermedial inciser and loose teeth right upper medial inciser. Fracture upper jaw at midline. 7. Both the black eyes i.e. swolen, haematoma. 8. Fracture of root of the nasal bone. 6. Apart from the above injuries, the observations in the post-mortem report can also be mentioned at this stage. The substantive evidence of Dr. Karanjkar to that effect is also reproduced hereunder. "2. The fracture injury at anterior cranial Fossa is corresponding to fracture nasal bone root. The injuries were antemortem injuries. The injuries in column No. 17 of the P.M. report were found when the patient was admitted and at that time, those were sutured wound and I found those injuries as sutured. The cause of his death was head injury with polytrauma and multiple fracture due to alleged assault. When I saw his body, I found that he was well nourished. Accordingly I prepare the P.M. notes. It is now shown to me. It bears my signature. It is in my handwriting. I identify it. It is at Exh.23. Now I am shown the pieces of tiles, produced in the Court. When I saw his body, I found that he was well nourished. Accordingly I prepare the P.M. notes. It is now shown to me. It bears my signature. It is in my handwriting. I identify it. It is at Exh.23. Now I am shown the pieces of tiles, produced in the Court. The injuries can be possible by assault either by vertical or horizontal." 7. It is an admitted position that though both the appellants were arrested on 7-7-2011, there is no arrest panchnama so also there is nothing recovered at the instance of the appellants much less the clothes on their persons. On completion of investigation, charge-sheet was filed and the matter was tried by the Additional Sessions Judge, Satara for the present appellants and the juvenile offender was separately tried. During the trial total six prosecution witnesses were examined, out of them the important witness is PW-2 Smt. Chayya Narkar, wife of the victim. At the threshold it must be mentioned that the homicidal death of the victim is not in dispute. Moreover, the injuries sustained by the victim are of much significance and much is argued on those injuries by the learned Counsel for the applicant/accused No. 2. 8. The points which were raised before us by the learned Counsel for the appellant/accused No. 2 are narrated hereunder : (i) Evidence of PW-2 Chayya Narkar is vulnerable and is unacceptable as apparently she is not an eye witness and she had not seen the actual assault. On this aspect, it is submitted that during the cross-examination said PW-2 had answered that the assault on her husband victim continued for about one hour and even upto 2 p.m. she remained at the house with her husband in severely injured condition and lying in a pool of blood. By pointing out this conduct on the part of PW-2 it is submitted that this conduct is unnatural and unacceptable as any prudent man and more particularly wife of the victim would not remain quiet and at the earliest opportunity she would take her injured husband for immediate medical help. However apparently, further argued that, PW-2 remained at her house till about 2:00 p.m. and in fact according to her the assault continued for one hour. (ii) There was no weapon recovered at the instance of any of the appellants. However apparently, further argued that, PW-2 remained at her house till about 2:00 p.m. and in fact according to her the assault continued for one hour. (ii) There was no weapon recovered at the instance of any of the appellants. Moreover it is not a case of the prosecution that any weapon was used by the appellants and the role attributed to accused No. 1 is that of catching hold of hands of the victim and the role attributed to accused No. 2 is that of putting a leg on the chest of the victim during the assault. (iii) According to the substantive evidence of PW-2 complainant in her examination-in-chief itself she had taken the name as Ankush though she identified the appellant/accused No. 2 during the trial. If this evidence of PW-2 is accepted, further argued, then there is a doubt whether she had really identified the present appellant/accused No. 2 as the associate of the main assailant boy. This is more so, further argued, when there is no material brought on record by the prosecution that the appellant/accused No. 2 was also known by another alias name as Ankush. (iv) Admittedly the First Information Report was registered much belatedly at about 10:15 p.m. on 6-7-2011 when actual incident of assault was at 10:30 a.m. in the morning and apparently PW-2 was present during the assault and initial report of the police regarding death of the victim at the hospital lead to registration of ADR at Sr. No. 79 of 2011. Moreover the inquest panchnama at the hospital was conducted in the said ADR and this leads to a doubt as to the case of the prosecution as narrated by PW-2, further argued. (v) So far as the injuries on the victim are concerned, admittedly there is no any medical record as to which were the injuries sustained by the victim when he was alive and examined by the doctor PW-5 Dr. Karanjkar and there is only record of post-mortem notes. However, in the substantive evidence of PW-5 Dr. Karanjkar there is nothing told by him that any of the injuries sustained by the victim were sufficient to cause death in the natural course of event. Karanjkar and there is only record of post-mortem notes. However, in the substantive evidence of PW-5 Dr. Karanjkar there is nothing told by him that any of the injuries sustained by the victim were sufficient to cause death in the natural course of event. It is further argued that there was admittedly no injury on the skull and there was no fracture of vault and though there were apparently three fractures noticed in the post-mortem report, they were not on the vital parts of the body so as to subsequently cause death of the victim in the natural course of events. (vi) Nothing incriminating was recovered at the instance of the appellants moreover their clothes were also not taken charge of. 9. The above arguments are required to be construed in the light of the substantive evidence of main prosecution witness PW-2 and it is to be ascertained whether her evidence is required to be accepted so far as presence of these appellants during the incident of assault. On this aspect, the social status and strata of the society where she was residing is required to be construed and in the light of this circumstance the answers given by PW-2 are required to be considered so far as mentioning of the timing and the period taken for the actual assault etc. The possibility of PW-2, a lady, not accurately giving the timings cannot be ruled out. On going through the substantive evidence of said PW-2 it is seen that she was knowing both the appellants and also the juvenile offender boy even prior to the incident. Though during the arguments it is brought to our notice that the visit of the assailants to the landlord is an omission, in our considered view, this is not an omission in the strict sense, much less it going to the root of the matter. In other words it must be said that she had identified the appellants and more particularly the appellant/accused No. 2 though she took his name as "Ankush" but definitely she pointed out towards the accused No. 2 sitting in the Court during her recording of evidence. Though it was argued strenuously on behalf of the appellants that no T.I. parade was conducted, in our considered view, accepting evidence of PW-2 that she was earlier knowing the appellants, non-conducting the TI parade is of no much significance. Though it was argued strenuously on behalf of the appellants that no T.I. parade was conducted, in our considered view, accepting evidence of PW-2 that she was earlier knowing the appellants, non-conducting the TI parade is of no much significance. Even the motive has been established by the substantive evidence of PW-2 and more so when the injury certificate is produced on record through the investigating officer and said injury certificate is of the juvenile offender and it is dated 4-7-2011 i.e. the day on which according to PW-2 her husband (the victim) had assaulted the juvenile offender and in order to teach a lesson due to such assault the incident of the fateful day transpired. Further the substantive evidence of PW-2 indicates that there was no weapon with the appellants and their role was only to assist the main accused juvenile offender for assault on the victim. According to her the juvenile offender went out of the room during the incident and brought the floor tiles and hit the victim on his face seven to eight times. This substantive evidence is corroborated by the injuries described by PW-5 Dr. Karanjkar. Though the clothes of the appellants/accused were not taken charge of, in our considered view the substantive evidence of PW-2 is sufficient to link both the appellants to the incident of assault. 10. In view of the above, now the question remains whether there was any attraction of the offence punishable under section 302 read with section 34 of Indian Penal Code or any other lesser offence. On this count, the factual position is required to be scrutinized. Firstly that the main and only assault on the victim is by the juvenile offender and the role played by the appellants is that of facilitating such assault. The appellant/accused No. 1 had caught hold of the hands of the victim and the appellant/accused No. 2 has put his leg on the chest of the victim. Apart from this, no other role is given to these appellants moreover hitting of the floor tile on the face of the victim was such that the victim was still alive till he succumbed to the injuries at about 8:00 p.m. on that night. Now the question is whether there was common intention of both the appellants along with juvenile offender to kill the victim. Now the question is whether there was common intention of both the appellants along with juvenile offender to kill the victim. Admittedly the appellants were not armed with any deadly weapon or for that matter with any weapon. Even the juvenile offender was not armed with any weapon and during the incident he went out of the house of the victim and brought flooring tiles and these tiles were used as a weapon to assault the victim on his face. Considering the said injuries and considering the motive established and considering that the appellants/accused Nos. 1 and 2 were not armed with any weapon, in our considered view, it would be erroneous to hold that the juvenile offender and the present appellants had intended to kill the victim. Though it is again a factual position that the death has ensued because of the assault on the face but still whether the death was the intended aim of the appellants is the question. After analyzing the substantive evidence of doctor PW-5 Dr. Karanjkar and also the evidence of PW-2 Chayya Narkar, the argument advanced on behalf of the appellants that there was no intention to kill the victim but only to teach him a lesson on account of the earlier assault, is required to be accepted. 11. Now the question remains as to apart from section 302 of Indian Penal Code which section is attracted. On this aspect, the learned Prosecutor for the State submitted that possibly it would be a case of culpable homicide not amounting to murder and if not then least offence punishable under section 326 of Indian Penal Code as there are admittedly three fractures. So far as the offence punishable under section 304 (Part I or Part II) of Indian Penal Code is concerned, firstly it is required to be established that the circumstances of the case bring the case within any of the Exceptions to section 300 of Indian Penal Code. So far as the offence punishable under section 304 (Part I or Part II) of Indian Penal Code is concerned, firstly it is required to be established that the circumstances of the case bring the case within any of the Exceptions to section 300 of Indian Penal Code. Apparently what is contemplated by the learned Prosecutor is Exception 4 to section 300 of Indian Penal Code, but, even in the parameters spelt out in Exception 4 to section 300 of Indian Penal Code the present case will not fit as Exception 4 reads thus : "Exception 4.- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner." 12. At the cost of repetition it must be mentioned that earlier we have held that it was not an intention of the appellants to kill the victim but only to teach him a lesson and as such there cannot be even application of section 304 (Part I or Part II) of Indian Penal Code. Ultimately, the case rests on section 326 of Indian Penal Code and as such in our view the present appeals are required to be partly allowed bringing down the conviction for the offence punishable under section 302 read with section 34 of Indian Penal Code to section 326 read with section 34 of Indian Penal Code and maintaining the conviction for the offence punishable under section 452 read with section 34 of Indian Penal Code. 13. Before parting with this judgment, we wish to place on record that the learned appointed Counsel Mr. Prashant Patil, who was appointed by the High Court Legal Services Committee to represent the appellant in Criminal Appeal No. 1161 of 2012 has ably conducted the matter. Accordingly, the High Court Legal Services Committee to pay his legal fees as per rules. 14. In view of the above findings and observations and coming to the conclusion as to dilution of offence to section 326 of Indian Penal Code, arguments on behalf of the appellants are heard on the quantum of sentence. Accordingly, the High Court Legal Services Committee to pay his legal fees as per rules. 14. In view of the above findings and observations and coming to the conclusion as to dilution of offence to section 326 of Indian Penal Code, arguments on behalf of the appellants are heard on the quantum of sentence. During the same, the learned Counsel for the appellants submitted that even for the offences punishable under section 304 (Part I or Part II) of Indian Penal Code the usual trend of punishing the accused is for the period of five years to seven years imprisonment and considering the facts of the present case and still considering that the appellants are held guilty for the offence punishable under section 326 read with section 34 of Indian Penal Code, the punishment may commensurates with such fine and the usual trend of imposing sentence. We have given careful consideration to this submission and in our considered view R.I. for five years each would meet the ends of justice. Hence, the present Criminal Appeals are disposed of with following order : ORDER (I) Both the Criminal Appeals i.e. Criminal Appeal Nos. 1160/2012 and 1161/2012 are partly allowed. (II) Conviction of the appellants for the offence punishable under section 302 read with section 34 of Indian Penal Code is brought down to section 326 read with section 34 of Indian Penal Code and both the appellants/accused are sentenced to suffer imprisonment for five years each for the said offence. The sentence imposed on the appellants for the offence punishable under section 452 read with section 34 of Indian Penal Code shall sustain. (III) Both the substantive sentences shall run concurrently and set off as usual according to law be given to the appellants. (IV) Present order be communicated to the concerned appellants through concerned jail authorities