JANI GULAB SHAIKH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The principal question which arises in this appeal by special leave is whether on the facts as found by the High Court the appellant is guilty under Section 323 or Section 325 or 304, Part II, I P.C. The learned Additional Sessions Judge convicted the appellant under Section 304(1), I P.C., and sentenced him to suffer rigorous imprisonment for seven years and to pay a fine of Rs. 250/- in default to suffer further rigorous imprisonment for two months.

(2.) The High Court convicted the appellant under Section 304, Part II, I.P.C. and sentenced him to rigorous imprisonment for three years. The High Court set aside the sentence of fine.

(3.) The relevant facts as found by the High Court and as appearing on the record are as follows : At about 4.30 p.m. on August 11, 1965, the deceased, Shankar, was passing by, the station road accompanied by Mohanlal Gujarathi, P.W. 2. when they came near the shop of the appellant-hereinafter referred to as the accused which is at a distance of about 20 feet from the Station Road, the deceased uttered ,Kojtn Hui bonduk Kiski Aawaj Hat Aajao" Hearing this the appellant came out of the shop and warned the deceased not to give abuses and asked him to go ahead. In spite of this the deceased seems to have continued abusing the accused, Three-witnesses were produced by the prosecution. The High Court found as follows : __________