JAGANNATH S O BHAGOJI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This appeal has been preferred by the original accused No. 1 who was tried along with three other accused in Sessions Case No. 6 of 1974 for an offence punishable under section 302 and section 302 read with section 34 of the Indian Penal Code. The other three accused were ultimately convicted for the offence punishable under section 323 read with section 34 of the Indian Penal Code and each of them was sentence to suffer rigorous imprisonment for three months The learned Additional Sessions Judge of Aurangabad who tried this case directed that in view of the provisions contained in section 428 of the Code of Criminal Procedure and in view of the fact that they had already spent three months in custody, they should be released forthwith. Accused No. 1, who is the appellant before me, however, was convicted for the offence punishable under section 304 (Part II) of the Indian Penal Code and sentence to suffer rigorous imprisonment for three years. This he did his judgment and order dated 29th May, 1976, which is the subject matter of challenge in this appeal supported before me by the learned Advocate Mr. R.M. Agrawal.

(2.) It is not necessary, in view of the submissions which have been made before me, to narrate the entire facts and circumstance which led to the prosecution. The same have been mentioned in sufficient detail and with sufficient clarity in the judgment of the learned Additional Sessions Judge. For the purpose of this appeal, however, only the following facts may be noted.

(3.) On 24th of October, 1973 there was a skirmish between a one Rakhmaji, who was the victim of this incident, and accused Nos. 2 and 3 in village Shekta of Taluka Paithan in Aurangabad District. The skirmish is said to be due to a dispute about the cultivation of a land. At the time when the altercation between Rakhmaji and accused No. 3 started, accused No. 1 was not on the scheme. It is only after accused No. 3 gave a call for help that the other accused, namely accused Nos. 1, 2 and 4 came from their house. It is an admitted position that none of these accused came armed with any weapons, not even with stones. It is only after they arrived on the scene that each of them picked up a stone from the open place and threw at Rakhmaji. The evidence shows that two stone hit the head of Rakhmaji, one on the occupital region and the other on the temporal region. It is the latter blow occiptal region and the other on the temporal region. It is the latter blow which caused an injury resulting ultimately in the death of Rakhmaji. After this incident Rakhmaji was taken to the Police Station where he made a statement which was treated as the first information report. In that statement Rakhmaji has not mentioned that a particular accused a particular injury to his head. Rakhmaji survived till 2nd of November, 1973. In the meantime on 25th of October, 1973 statements of three persons, who have been examined as eye witnesses, were recorded. It is at this stage probably that a particular throw of stone was attributed to accused No. 1. On these facts the four accused were tried in Sessions Case No. 6 of 1974 by the learned Additional Sessions Judge of Aurangabad.