ANKUSH SHIVAJI GAIKWAD Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Leave granted.

(2.) This appeal arises out of a judgement and order dated 24th August, 2010 passed by the High Court of Judicature at Bombay, Aurangabad Bench, whereby Criminal Appeal No.359 of 2008 filed by the appellant and two others has been dismissed in so far as the appellant is concerned and allowed qua the remaining two, thereby upholding the appellant's conviction for the offence of murder punishable under Section 302 of the I.P.C and the sentence of imprisonment for life with a fine of Rs.2,000/- awarded to him. In default of payment of fine the appellant has been sentenced to undergo a further imprisonment for a period of three months.

(3.) The factual matrix in which the appellant came to be prosecuted and convicted has been set out in detail by the trial Court as also the High Court in the orders passed by them. We need not, therefore, recapitulate the same all over again except to the extent it is necessary to do so for the disposal of this appeal. Briefly stated, the incident that culminated in the death of deceased-Nilkanth Pawar and the consequent prosecution of the appellant and two others occurred at about 10.00 p.m. on 3rd February, 2006 while the deceased and his wife P.W.1-Mangalbai were guarding their Jaggery crop growing in their field. The prosecution story is that the appellant-Ankush Shivaji Gaikwad accompanied by Madhav Shivaji Gaikwad (accused No.2) and Shivaji Bhivaji Gaikwad (accused No.3) were walking past the field of the deceased when a dog owned by the deceased started barking at them. Angered by the barking of the animal, the appellant is alleged to have hit the dog with the iron pipe that he was carrying in his hand. The deceased objected to the appellant beating the dog, whereupon the appellant started abusing the former and told him to keep quiet or else he too would be beaten like a dog. The exchange of hot words, it appears, led to a scuffle between the deceased and the accused persons in the course whereof, while accused Nos.2 and 3 beat the deceased with fist and kicks, the appellant hit the deceased with the iron pipe on the head. On account of the injury inflicted upon him, the deceased fell to the ground whereupon all the three accused persons ran away from the spot. The incident was witnessed by the wife of the deceased, P.W.1- Mangalbai and by P.W.5-Ramesh Ganpati Pawar who was also present in the field nearby at the time of the occurrence. The deceased was carried on a motorcycle to the hospital of one Dr. Chinchole at Omerga from where he was shifted to Solapur for further treatment. Two days after the occurrence when the condition of the deceased became precarious, P.W.1-Mangalbai filed a complaint at the Police Station, Omerga on 5th February, 2006 on the basis whereby Crime No.25 of 2006 under Sections 326, 504 and 323 read with Section 34 of the I.P.C was registered by the police. Investigation of the case was taken up by P.W.6-Police Sub Inspector Parihar who recorded the panchnama of the scene of the crime and arrested the accused persons. The deceased eventually succumbed to his injuries on 7th February, 2006 whereupon Section 302 read with Section 34 of the I.P.C. was added to the case.