STATE OF MAHARASHTRA Vs. KALU SHIVRAM JAGTAP

JUDGEMENT

(1.) This appeal by special leave is directed against the judgment of the Bombay High Court dated 5-4-1973.

(2.) The respondents were convicted by the Sessions Judge under Section 302/149 of Indian Penal Code along with other accused persons. In appeal filed by the accused before the High Court, the High Court altered the conviction of the three respondents from one under Section 302/149 to that under Section 326/34. There were other accused persons also whose convictions were partly maintained and partly altered but we are not concerned with them because the State has filed the appeal only against respondents 1 and 2 who are accused 2 and 3 before the Trial Court.

(3.) The facts of the case have been detailed in the judgment of the High Court and the Sessions Judge and it is not necessary to repeat the same. It however, appears that two months before the occurrence, there was some dispute between the parties which furnished the motive for the assault on the deceased. Sadashiv. Accordingly to the prosecution accused Nos. 1, 2 and 3 and others came to the place of occurrence, started abusing the deceased and respondent No.1 opened the assault by giving a stick blow on the head of Sadashiv and he was immediately followed by respondent No.2 who struck another blow on the head of the deceased with his stick. So far as respondent No. 3 is concerned, there is no allegation that he took any part in the assault so far as the deceased is concerned. He is said to have assaulted other persons with brick-bats. The High Court while accepting the prosecution case in toto, altered the conviction of the respondents from Sec. 302/149 to that under Section 326/34 mainly on the ground that the medical evidence did not clearly show as to which of the three respondents gave the fatal injury, although it clearly found that there was a concerted attack on the deceased by respondents 1 and 2. The High Court further found that the strokes given by the first two respondents were given with sufficient force which resulted in the fracture of the skull and the brain substance. The High Court felt that as the doctor had opined that the injuries were sufficient in the ordinary course of nature to cause death, it cannot be said that the respondent 1 and 2 committed the offence of murder.