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srk
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Appellate Side
Criminal Appeal No.660 of 2000
(1) Sopan Suresh Sonavane
(2) Ram Suresh Sonavane Appellants
(Original Accused)
Versus
The State of Maharashtra Respondent
Ms.Smita Kadu for appellants.
Mr.P.S. Hingorani, APP for State.
CORAM: B.H.MARLAPALLE & R.Y. GANOO,JJ.
November 30, 2009.
ORAL JUDGMENT (PER B.H.MARLAPALLE,J.)
1. This appeal arises from the conviction and sentence
passed on 5th June 2000 in Sessions Case No.453 of 1999 by the
learned Additional Sessions Judge at Pune. Both the accused
who are full blood brothers came to be convicted and
sentenced for the offence punishable under Section 302 read
with Section 34 of IPC and sentenced to suffer life
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imprisonment for causing the homicidal death of Dilip Palande ,
husband of PW 1 – Smt. Rekha Palande.
2. Shortly stated as per the prosecution, the accused and
the deceased were the residents of the same locality and their
houses are few meters away from each other and they were,
therefore, well acquainted with each other. On 16/9/1999
between 10 to 10.30 p.m. while the accused no.1 was passing
by the Navbharat Chowk Mitra Mandal Ganpati, the deceased
who was dancing along with few of his friends in the penal also
requested the accused no.1 to join in the dance. The accused
no.1 refused the same and the deceased insisted which
resulted in exchange of abuses and perhaps a beginning of a
scuffle. However, they were separated by the brother of the
deceased as well as his mother and they went back to their
respective houses. Within 5 to 10 minutes thereafter, accused
no.1 came out with an axe in his hand followed by his brother
accused no.2 holding an iron bar in his hand and charged
towards the house of the deceased. He started shouting and
abusing the deceased few feet away from the house of the
deceased. The deceased came out of his house and
questioned the accused for their unruly behaviour. A scuffle
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took place between the parties and in that accused no.1 gave
one blow with the axe in his hand on the head of the deceased
on account of which the deceased collapsed. At that point of
time PW 1 – Rekha tried to intervene but accused no.1 lifted the
axe in his hand towards Rekha and threatened her from
intervening. Accused no.2 continued the assault on the
deceased with the iron rod in his hand and when people
gathered, they ran away. PW 7 – Rajesh Pandit and PW 9 –
Pinto Gill were two friends of the deceased who were present
when both the incidents had taken place and PW 1 – Rekha with
the help of PW 7 and PW 9 took her husband to Budhrani
hospital (a private hospital at about 2 kms. away from the spot
of incident and where Rekha’s mother was a staff nurse). Dilip
was subjected to medical treatment and while on the operation
table he died at about 1 a.m. In the mean while around 11 p.m.
Rekha went to the Parnakuti Police Chowki and her complaint at
Exhibit 17 was recorded by PW 11 – Peter Lobo and FIR came to
be registered initially for the offences punishable under
Sections 307, 506(2), 504 read with Section 34 of IPC.
However, the I.O. got a telephonic message around 4.30 a.m.
On 17/9/1999 Dilip breathed his last and, therefore, the FIR was
amended. The dead body of Dilip was sent to Sassoon Hospital
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for post-mortem and PW 10 – Dr.Prashant Patil performed the
autopsy and signed the PM notes at Exhibit 38. PW 11 took
over the investigation, visited the spot of offence in the
midnight and drew the Panchanama at Exhibit 19 for which PW
2 – William @ Balu was a witness. He came back to the pendal
in the wee hours of 17/9/1999 and recorded statements of
some of the witnesses. He deputed API Deore in search of the
accused and they were taken in custody from the Deccan
college premises at about 6 a.m. on 17/9/1999 and were taken
to the police station where they were taken under arrest vide
panchanama (Exhibit 21) for which PW 3 – Pushparaj Pillai was
the panch witness. After lodging the complaint Rekha again
came back to the police station at about 00-30 hours and
handed over her blood stained blouse to the IO and the seizure
panchanama was drawn at Exhibit 25 for which PW 5 – Rampal
Tak was the panch witness. At the same time undergarments
of the deceased were also seized under seizure panchanama
(Exhibit 23) for which PW 4 – Santosh Sonawane was the panch
witness. The blood stained shirt of PW 9 Pinto Gill was taken
charge under panchanama at Exhibit 31 for which PW 8 – Ashok
Patil was the panch witness. The dead body was handed over
to the family members to perform the last rites. While under
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arrest the accused no.1 made a statement for recovery of
weapons and he was taken to the Deccan college premises on
20th September 1999 where he got down from the vehicle and
from the grass and bushes he recovered one axe (article 13)
and iron rod (article 14) which were both stained with blood.
Seizure panchanama was drawn at Exhibit 28 for which PW 6 –
Ajay Pardeshi was the panch witness. All these articles like
weapons, clothes buttons etc. collected from the spot were sent
for CA and CA reports were received at Exhibits 14 and 15. On
completion of investigation charge-sheet was filed on
25/10/1999 and the case being triable by the Sessions Court
was committed on 1/11/1999. The charge was framed on
8/2/2000.
3. The prosecution examined in all 11 witnesses and
claimed that PW 1 – Rekha, PW 7 – Rajesh Pandit and PW 9 –
Pinto Gill were the eye witnesses. PW 10 – Prashant Patil in his
depositions before the Court stated that at about 7.15 a.m. on
17/9/1999 while he was on duty at the Sassoon Hospital he
received the dead body of Dilip Shankar Palande through police
constable Lad Bakkal No.2841 for post mortem. He performed
the post-mortem on the same day between 8 a.m. to 9.15 a.m.
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and on examination he noted the following external injuries:
1. Stitched wound oblique over vertex 5 cm long (4 stitches)
2. Stitched wound 8 c.m. below and parallel to injury no.1, 4
stitches, 5 cm long.
3. Contusion over right shoulder and scapular region 15×2
cm.
4. Contusion over right shoulder and scapular region 14×3
cm.
5. Contusion over right side of back horizontal 5 cm below
left scapular interior angle 8×3 cm.
6. Contusion over right side of back horizontal 5 cm below
interior angle of right scapula.
7. Contusion over right elbow 3 x 2 cm.
8. Abrasion 0.4 x 0.3 cm. five in number on right side of
neck and two on left side of neck.
9. Abrasion reddish over left frontal region 4×3 cm.
10. Left black eye.
11.Contusion over lower lip left side 0.5 x 0.5 cm.
12.Contusion over right forearm below elbow 2z1 cm.
13.Contusion over back of right hand 1×1 cm.
On internal examination the Medical Officer noticed the
following internal injuries:
1. Haematoma over left frontal region reddish brown 4 x 4
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cm.
2. Heamatoma over vertex and occipital region 10 x 6 cm.
3. Haematoma over left temporal region 3 x 2 cm.
4. Subdural and suarachoid haemorrhage present over
suprior, anterio and inferior surface of cerebral
hemisphere of brain.
5. Haematoma was present around trachea on both sides.
6. Tear present on anterior surface of liver 4×0.5 and 3×0.5
cm.
All the injuries were ante mortem and the head injuries
caused were sufficient in the ordinary course of nature to cause
death of the deceased. These two head injuries were
corresponding to the external injury nos.1 and 2 and according
to the doctor the cause of death was head injury in association
with hepatic tear and with some evidence of strangulation
(manual). The doctor clarified that though there was evidence
of manual strangulation, it was not the cause of death and the
cause of death was only the head injuries i.e. internal injury
nos.1 to 4 but associated with hepatic tear and evidence of
strangulation was present. He also stated that the head
injuries in question could be caused by hard and blunt object
like iron bar.
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In his cross-examination the doctor stated that the head
injuries described could be possible also by a wooden handle of
an axe and the injuries were caused by more than one blow. As
per him considering the nature of external injuries the victim
might be standing in front of or by the side of the accused. The
manual strangulation referred earlier could be possible with axe
and at the time of the incident both, the victim and the
assailants might be facing each other. No injuries were noticed
on parietal region. He did not see any indication of deceased
having consumed alcohol or was in the habit of consuming
liquor. He assessed that the last meal was taken by the
deceased about four hours prior to his death. No wheel marks
were present on the external injury nos.3 to 7 and no fracture
was noticed. However, right side lower three ribs of the
deceased were fractured and left lung was found pale. No
ligature marks were present on the neck and fracture of ribs is
not at all positive sign of strangulation. Fracture of ribs was
possible if an assailant sits on the chest of the victim.
The Medical Officer was holding the degree of M.D.
Pathology and had conducted about 2000 post mortems. He
was thus an experienced forensic doctor. There is no dispute
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that Dilip died a homicidal death on account of the injuries
sustained by him on his head on 16/9/1999 and the injuries
were caused during the assault unleashed on him in front of his
house around 10.30 p.m. on that day.
4. We, therefore, come to the main issue as to whether the
prosecution has discharged its burden to prove beyond
reasonable doubts that the accused alone had assaulted the
deceased and caused the injuries as noted by PW 10 n the PM
report at Exhibit 39. Mrs.Kadu, the learned counsel for the
appellants submitted that PW 1 – Rekha even by her own
depositions, cannot be accepted to have seen the entire
incident and if she appeared to have come at the scene after
Dilip had collapsed and fallen on the cemented road. PW 1
being the wife, her evidence is required to be scrutinised more
closely. It was further pointed out that the evidence of PW 7 –
Rajesh and PW 9 – Pinto Gill was not consistent with the
prosecution case and, therefore, the prosecution could not
establish beyond reasonable doubt that the accused caused the
death of Dilip by assaulting him on 16/9/1999 at about 10.30
p.m.
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It was further submitted that even as per the prosecution
case the accused had not intended to cause the death of
deceased and even if the prosecution story is believed, it
cannot be held that the accused are guilty of murder and thus
liable to be sentenced under Section 302 of IPC. As per her the
prosecution case, if accepted, may fall in Part II of Section 304
of IPC in asmuchas there was no intention on the part of the
accused to cause the death of the deceased but at the same
time they must be held to have the knowledge while inflicting
the blows on the head that he would die on account of the said
assault / injuries. In support of these contentions Mrs.Kadu
placed reliance on the following decisions:
1. Jagrup Singh v. State of Haryana [AIR 1981 SC 1552]
2. Jawahar Lal v. State of Punjab [AIR 1983 SC 284]
3. Mavila Thamban Nambiar v. State of Kerala [AIR 1997
SC 687]
4. Sekar alias Raja Sekharan v. State represented by
Inspector of Police, Tamil Nadu [2003 Cri.L.J. 53]
Mrs.Kadu also relied upon the following decisions of this
Court:
1. Subrao Chinty Sathe v. State of Maharashtra [1999 (5)
Bom.C.R. 816]
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2. Farukh Shaikh Mohammed v. State of Maharashtra [2006
(1) Bom.C.R. (Cri.) 844]
3. Dharma Ravji Andher v. State of Maharashtra [2004 All
MR (Cri) 2068]
She urged before us that even in the evidence of the eye
witnesses it has clearly come out that it was a single blow
given on the head of the deceased due to which he fell down
and thereafter the accused no.1 was not alleged to have given
any additional blow. As per her this was an important
circumstance to show that the accused had no intention to kill
Dilip and it was in the heat of anger arising out of the earlier
incidents that the accused no.1 came in front of the house of
the deceased, started shouting and when the deceased came
out of his house there was a squabble between the two and
one single blow on the head of the deceased followed.
5. Before we examine the evidence of the eye witnesses,
the record and the evidence of the panch witnesses read with
the CA reports indicated that the blood group of the deceased
was “O” and this was detected from his undergarment and
other clothes, recovered from his body and sent for CA. The
clothes of both the accused were also sent with blood group
“O”. It is also pertinent to note that accused no.2 had not
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suffered any bleeding injury. At the same time both the
weapons were found to have blood stains of Blood Group “O”.
The document at Exhibit 43 also indicated that they were
picked up by API Deore from the bushes in the Deccan college
compound at about 6.30 a.m. on 17/9/2009.
6. PW 1 Rekha stated that deceased Dilip was her husband
and they were residing along with their children in a house
located at Jai Jawan Nagar, Yerwada, Pune. She knew both the
accused. She had come to know from her younger son that
there was a quarrel going on with her husband and, therefore,
she came out of the house. She asked her husband to come
inside the house and he was wearing shoes and at that time
accused no.1 – Sopan and accused no.2 – Rama came there.
Accused no.1 Sopan was armed with an axe and he dealt a
blow of axe on the head of her husband. Her husband fell on
the ground with bleeding injuries on his head. When she tried
to go near her husband, accused no.1 raised an axe towards
her and prevented her from going near him and at that time
accused no.2 – Rama started beating the deceased with iron
rod. The accused ran away from the spot and with the help of
her brother-in-law Balu, she shifted her husband to Budhrani
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Hospital. She came back to the Parnkuti police station to lodge
the complaint and police had recorded her statement at Exhibit
17. She confirmed the same as being signed by her and the
contents thereof were correct. Her husband was declared dead
and subsequently around 00.30 hours she went to the police
station to hand over the blood stained blouse which she was
wearing while carrying her husband to the hospital (Article P-5).
She identified the blouse, the axe as well as the iron rod which
were shown to her in the Court. As per her the axe and the iron
rod were the same weapons used by the accused to cause
injuries to the deceased. She also identified Articles P-9 and
P-10, the shirt and pant on the person of her husband at the
time of the incident. In her cross-examination she admitted
that she would not be able to disclose the exact time when she
reached the police station to record her complaint but after
about one hour she returned to her home as her children were
there. She also disclosed that her mother-in-law was not
staying with her but in the same locality and when she returned
home, the mother-in-law as well as other relations were in her
house. On 17/9/1999 around 12.30 p.m. the dead body of her
husband was brought to the house. She stated that in
Navbharat Chowk which was in front of her house, Ganpati idol
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was installed near the house of Uttekar and there were very
small lanes in her locality. She did not know how many people
were dancing in front of the Ganpati idol of Navbharat Mitra
Mandal on 16/9/1999. She denied the suggestion that while
her husband was putting on his shoes, he had disclosed to her
about the quarrel that had taken place outside the house. She
was not aware whether there was any enmity between her
husband and the accused. She also admitted that her husband
used to drink liquor and was not aware whether her husband
was dancing in front of the Ganesh idol after consuming
alcohol.
7. Next eye witness was Shri Rajesh Pandit (PW 7) who was
an estate agent and a friend of the deceased. He has also
named both the accused. As per him between 10 to 10.30 p.m.
on 16/9/1999 after the Ganpati Aarti was over, he and others
were dancing in front of the Ganesh idol of Navbharat Mitra
Mandal and the loud speaker was on. Accused no.1 – Sopan
came there and he was requested to dance but he did not
oblige and told that he was going home to take his dinner. At
this stage there was some exchange of words between accused
no.1 and the deceased and the witnesses and others
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intervened. The mother of the deceased also intervened and
she separated them. She sent her son, the deceased, to his
home and accused no.1 had gone to his home. Within ten
minutes thereafter both the accused armed with an axe and
iron rod returned near the Ganpati idol and started giving
abuses. It appears, they challenged the deceased and,
therefore, he came out of his house and asked why they were
abusing. At this stage accused no.1 – Sopan gave a blow of axe
on the head of the deceased while he was standing and he fell
down on receiving the blow by sustaining an injury on his head
which was profusely bleeding. Thereafter accused no.2 started
beating the deceased with an iron rod. At that stage the wife of
the deceased tried to intervene but was threatened by accused
no.1 by raising an axe on her. Many people gathered around
and the accused escaped from the place. In his cross-
examination this witness admitted that the deceased fell on his
right shoulder and had not received any injury on his head due
to the iron rod and there was no bleeding injury sustained by
him by the blows given by the iron rod nor were his clothes torn
by the assault of iron rod. He reconfirmed that due to the iron
rod the deceased had sustained non-bleeding injuries though
the blows were given with full force. The place of assault was
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about 10 feet away from the house of the deceased and the
Ganesh idol was about 40 feet away from the said place. He
has repeated the same sequence of events of taking the
deceased to the hospital, his admission and ultimately the
injuries resulting in his death past midnight. He confirmed that
he was at the Budhrani hospital till 2 a.m. and police had
arrived and were there for about half an hour. His statement
was recorded at about 2.30 a.m. on 17/9/1999 along with the
statements of Pinto Gill – PW 9 and Balu Palande, the brother of
the deceased, during the very same night but under the street
light and with the supervision of Lobo, IO (PW 11). He also
stated that after the Aarti was over about 10 to 15 people were
dancing and almost all of them were his friends and members
of Navbharat Mitra Mandal. After the quarrel between accused
no.1 and the deceased on his refusal to dance, he had not seen
accused no.1 Sopan had any injury and the quarrel had lasted
for about ten minutes. Blow of an axe given by accused no.1
was on the rear side of the head of the deceased. In his cross-
examination some improvisations were brought about
regarding the abuses given by accused no.1 to the deceased,
as compared to his statement recorded by the police.
However, in our opinion, those contradictions or improvisations
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are not very material while considering the main offence.
8. PW 9 – Pinto Gill is the third eye witness and known to
both the parties. He was also the person who had
accompanied PW 1 and PW 7 to take the deceased to Budhrani
hospital after the incident. He has repeated the same
sequence of events as came from the evidence of PW 7. He
repeated that accused no.1 dealt an axe blow on the head of
Dilip and accused no.2 dealt a blow with the iron rod on the
chest of Dilip. Articles 13 and 14 i.e. axe and iron rod were
identified before the Court by PW 7 as well as PW 9. He also
confirmed that he had produced his shirt stained with blood to
the police on 19/9/1999 and the blood stains were on account
of the injuries sustained by the deceased who was carried to
the hospital in a rickshaw. He also showed his ignorance to any
enmity between the deceased and accused no.1. The trousers
did not have any stains of blood and next day morning he
visited Budharani hospital to receive the dead body of the
deceased.
9. All the three eye witnesses have thus attributed one
single axe blow by accused no.1 It has also come in the
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evidence of these eye witnesses that when the deceased fell
down after receiving an axe blow on his head, it was accused
no.2 who continued the assault and as per the opinion of the
Medical Officer the cause of breaking of ribs could be on
account of blows of iron rod including hepatic tear. But the
medical evidence more particularly on the external injuries,
indicated two parallel injuries on the head and there did not
appear to be any scope of sustaining the second head injury
on account of fall on the road (cemented) on the head of the
deceased as he had fallen on his side. The evidence of these
three eye witnesses read with the evidence of the Medical
Officer clearly proved the prosecution that the deceased died
on account of the injuries sustained by him during the assault
inflicted by the accused. Therefore, the findings recorded by
the trial Court that the deceased died a homicidal death at the
hands of the accused are required to be upheld.
10. It was submitted by Mrs.Kadu, the learned counsel for the
appellants that there was no common intention at any time of
the accused to commit the murder of Dilip Palande and at the
most while causing the injuries on the head of the deceased as
well as to his ribs, the knowledge could be attributed to the
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accused that the injuries so caused would result in his death.
She, therefore, submitted that the offence under Section 302
read with Section 34 of IPC has not been proved and at the
most it could be the case of an offence punishable under
Section 304 Part II of IPC.
In addition to the decisions referred to hereinabove
Mrs.Kadu has also relied upon the following two decisions:
1. Babu Lal & ors. Vs. State of Madhya Pradesh [AIR 1993
SC 1941]
2. Joseph v. State of Kerala [AIR 1994 SC 34]
She submitted that the facts in this case and more
particularly on the nature of injuries, the way the injuries were
caused and the weapons used, are more akin to the relevant
facts in the case of Babu Lal (Supra). She further submitted
that the parties were known to each other. There was no
animus between them except the preceding immediate incident
of some squabble at the Ganesh Mandal Pendal. Accused were
very young in age and the intention to cause the death is
totally absent. It was for these reasons she reiterated her
prayer to alter the order of conviction from Section 302 to
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Section 304 Part II of IPC, and submitted that the offence in the
instant case would not fall in the ambit of Section 300, Thirdly
of IPC.
11. When these submissions are required to be considered
and if the culpability is to be taken out of the purview of Section
300 of IPC, it would be necessary to consider the nature of
assault, the weapons used in the assault, the multiplicity of the
assault, the injuries sustained by the deceased and the type of
injuries as well as the place of all such injuries. It is true that
the accused and the deceased had no enmity and they were
known to each other as neighbours and members of the same
Ganesh mandal. Hence there was not motive that could be
attributed to them in premeditating an attack on the deceased.
However, it must be noted that after the incident of squabble or
exchange of abuses between the parties was over with the
intervention of other friends as well as the family members of
the deceased, accused no.1 came out of his house within 5 to
10 minutes with an axe in his hand and also his younger
brother with an iron rod which was about 1 1/2 inches in
diameter and 30 inches in length. As per the medical officer,
the injury on the head could have been caused by a blunt
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object and, therefore, perhaps the sharp edge of the axe was
not used while assaulting the deceased by accused no.1. The
internal injuries noted to be four and directly related to two
external injuries on the head could not have been caused by
one assault and the Medical Officer – PW 10 clearly stated that
the deceased on his head had received more than one blow
keeping in mind the two parallel sutured injuries on the head
(vertex). Therefore, even though the eye witnesses account
states that the accused no.1 gave one blow on the head of the
deceased, it would be unsafe to accept that the deceased
received only one blow on his head. Secondly, the deceased
was unarmed and he came out of his house questioning the
accused as to why they were abusing against him. After he fell
down the accused no.2 continued with the assault and it was so
intense that three ribs were fractured and the injury on the liver
3×0.5 cm. and 4×0.5 cm. resulted into hepatic tear which is also
one of the causes of death shown in the PM report. The injuries
sustained by the deceased and as described by the Medical
Officer (PW 10) indicated that the deceased was brutally
assaulted and in the presence of the wife and other participants
of the mandal. The wife was not allowed to even intervene and
accused no.1 raised his axe so as to assault her if she would
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intervene. Thus the assault on the deceased was planned and
intended and, therefore, in our opinion Section 300, thirdly of
IPC is applicable in the instant case.
At the same time we must note that the accused did not
have any criminal record leave alone they being labeled as
hardened criminals. They were in their early twenties when the
incident had taken place but the incident has not taken place in
a sudden fight in the head of passion upon a sudden quarrel.
The fact that the accused were not having any criminal
background and the incident occurred because of the earlier
incident of the deceased insisting on accused no.1 to join the
group for dance are the matters which the competent authority
is required to keep in mind while considering the issue of
remissions as would be available to the accused on completion
of 14 years of imprisonment/sentence or whatever may be the
relevant period set out by the Government of Maharashtra in
the guidelines framed by it for the purpose of remission under
Section 432 of Cr.P.C. But we do not find any case made out on
the basis of the number of authorities cited by Mrs.Kadu, the
learned counsel for the accused, to interfere with the order of
conviction under Section 302 read with Section 34 of IPC.
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12. Hence this appeal fails and the same is hereby dismissed.
Order of conviction and sentence recorded by the Additional
Sessions Judge, Pune in Sessions Case No.453 of 1999 is hereby
confirmed. However, the case of the accused will be
considered by the competent authority at the time of granting
remissions in the light of the observations made hereinabove.
(R.Y.GANOO,J.) (B.H.MARLAPALLE,J.)
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