DNYANESHWAR DAGDOBA HIVREKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This is an appeal preferred by the accused to challenge the legality of the judgment dated March 27, 1979, recorded by the Additional Sessions Judge, Pune, convicting the appellant for an offence under Section 304 Part II of the Penal Code, and imposing a sentence of rigorous imprisonment for three years.

(2.) The incident which gave rise to the prosecution occurred at about 5 p.m. on November 10, 1979, in a Wada situated at Kasba Peth, Pune. The deceased was residing in the Wada along with his parents and two sisters Tai (P.W. 3) and Anju (P.W. 4). The deceased was a young man of about 23 years old, while the accused was equally a young man and was a friend of the deceased and was residing in the adjoining block in the same Wada. On the date of the occurrence, the deceased left his house and was going along with the accused towards the gymnasium for their regular exercise. Within a short distance from the house where both the accused and the deceased were residing, some dispute took place between them and they started abusing each other and there was a scuffle between them. A young boy Rajendra came and told Tai the sister of the deceased that the accused and the deceased were quarrelling. Thereupon, Tai proceeded to the place where they were quarrelling and on the way came across her sister Anju (P.W. 4). Both the sisters separated the deceased and the accused and the sisters carried their brother back to the house. The deceased was very reluctant to return to the house and both the deceased and the accused continued shouting and abusing each other. Tai and Anju persuaded the deceased to return back and they were followed by the accused. After the deceased entered the Wada and Tai and Anju were forcing him to enter the room, the accused, who was following, pulled stick from the hand of a child who was playing in the Wada and gave a blow on the head of the deceased from the rear. Unfortunately, the deceased collapsed and became unconscious. He was carried inside the house and after sometime removed to the hospital. In spite of the medical aid in the Jahangir Nursing Home, which is a reputed hospital in Pune city, the deceased breathed his last, early on the next day morning. It is required to be stated that it was the brother of the accused who carried him to the hospital as the parents of the deceased were not in the house at the relevant time. The investigation followed and the accused was arrested and charge-sheeted for having committed the offence of murder punishable under Section 302 of the Penal Code.

(3.) The defence of the accused was one of total denial and it was suggested that while the deceased was returning back to his house he was struck against the electric poll, fell down and received an injury which ultimately led to his death. The prosecution in support of its case examined several witnesses including the eye-witnesses Tai (P.W. 3) and Anju (P.W. 4). The medical evidence is of Dr. Shinde (P.W. 7) who examined the deceased on his admission to the hospital and Dr. Kundalkar (P.W. 11) who gave treatment and carried out post mortem. The post mortem notes are produced on record at Exh. 35 and the cause of death is internal hemorrhage. The trial Judge came to the conclusion that the accused gave blow with a stick on the head of the deceased but the stick which weighed only 210 grams could be called an apology for stick. The trial Judge held that the accused never intended to cause death of the deceased but he had a knowledge that the blow given by him would result into death and thereupon recorded a conviction under Section 304 Part II of the Penal Code. Taking into consideration the fact that the accused is a young man of hardly 23 years old and the blow given by him was not violent and has merely caused a slight bruises on the vertex, felt that the sentence of three years rigorous imprisonment would meet the ends of justice. The order of conviction is under challenge in this appeal.