BALU DNYANOBA CHANDERE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) AN order of conviction under Section 323 Indian Penal Code and a sentence of rigorous imprisonment for six months and a fine of Rs. 500/- in default further rigorous imprisonment for three months, is impugned in the present appeal. The appellant is the original accused. The incident in question, has taken place on the 10th of March, 1986 at about 8. 30 p. m. at village Sus, Taluka Mulshi, District Pune. The accused is alleged to have assaulted one Vithoba Shivram Chandere who is none else but the uncle of the accused. The accused gave two kick blows, one on the chest and the other on the testicles of Vithoba. Vithoba at the relevant time was aged 65 years. As a consequence of the assault Vithoba met almost an instantaneous death. His death was not a consequence of the injuries sustained. He appears to have died on account of cardiac failure. The incident in question was witnessed by P. W. 1 Shankar Dnyanoba, a stepbrother of the accused. He has lodged a complaint (Exhibit 12) at the Paud Police Station. The same was recorded by P. W. 4 Parwati Magar, a Head Constable attached to the said Police Station. Apart from the complainant Shankar, the incident was witnessed by P. W. 2 Yashodabai, the widow of the deceased and P. W. 3 Sushilabai Pandi Chandere, a daughter-in-law of the deceased. P. W. 5 Virsing Cavit an A. S. I. attached to the aforesaid Police Station investigated into the offence. P. W. 6 Dr. Ashok Sharma, who was attached to the Primary Health Centre at Paud, carried out the postmortem on the corpse of Vithoba. The post-mortem notes are at Exhibit-22.

(2.) I have, with the assistance of Shri Deshpande, who appear on behalf of the accused, gone through the material evidence on record. I find that the presence of the eye-witnesses at the time of the incident, is natural. They as also the accused are residents of the same locality. Accused resides opposite the house of the deceased. I do not find any lacunae in the evidence of the eye-witnesses to cast a doubt on the varacity of the prosecution case. Their evidence is cogent and consistent and deserves to be accepted.

(3.) AS is apparent from the eye-witness account the incident in question does not appear to have been pre-mediatated. Accused appears to have nursed a suspicion that the deceased was preaching his newly wed wife and poisoning her ears. This used to bring about quarrels in the house of the accused. When the witnesses heard a hue and cry they came on the scene. They heard the accused asking the deceased as to why he was poisoning the ears of his wife. Even though the deceased denied having done so, accused mounted two kick blows on the deceased. Hence; it appears that the incident has occurred on the spur of the moment. The offence in question is one of causing simple hurt which is punishable under Section 323 of the Indian Penal Code. The accused was recently married. He appears to have been infuriated as he thought that the deceased was responsible for the quarrels which ensued between him and his newly wed wife. He has, therefore, proceeded to give two kick blows to the deceased. In the incident unfortunately, the deceased met his death. Hence, though the order of conviction under Section 323 of the Indian Penal Code is borne out on the material on record, the sentence of imprisonment imposed on the accused deserves to be reconsidered.