RAM DADARAM JAMADAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) IN Sessions Case No. 25 of 1985 in all four accused were put on trial and the present Appellant was accused No. 1. Accused No. 2 was his father, accused No. 3 was his younger brother and Accused No. 4 was wife of Accused No.3. They were charged for offences punishable under sections 302, 323 and 447 read with section34 of the INdian Penal Code (the Code, for short ). By his judgment and order dated-4th of October, 1985 the learned Sessions Judge at Osmanabad convicted Accused No. 1 for all the offences whereas Accused Nos. 2 to 4 were acquitted from the offences under section302 read with section34 of the Code and were convicted for offence punishable under sections 447 and 323 read with 34 of the Code. Accused Nos. 2 to 4 were released on a bond of good behaviour whereas the Accused No. 1 came to be sentenced to suffer rigorous imprisonment for life for causing the death of Bhaurao, the younger brother of Accused No.2. Hence, this appeal by the accused No.1.

(2.) AS per the prosecution, deceased Bhaurao S/o Rama Jamadar @ Koli had one son, five daughters and there was a partition of the agricultural land between him and his elder brother Accused No.2. He was staying with his son P.W.4 Prakash Bhaurao Jamadar, wife P.W.6 Trivenibai W/o Bhaurao Jamadar and daughter P.W.7 Uttambai W/o Manohar Ghante. On the fateful day i. e. on30th September, 1984 all the family members were present in their agricultural land and P.W.4 Prakash was engaged in cutting grass that had grown on the border of both the shares. Accused persons went to him and accused No. 1 without any reason gave a blow on his head with Rumana (a wooden handle of plough ). There was a commotion and, therefore, the other family members also rushed to the spot of incidence. The other accused also started assaulting the other family members. The accused No. 1 aimed a second blow with the Rumana and Bhaurao, who was trying to intervene, sustained head injury from the said blow and fell down. He was shifted to the Police Station at Omerga and from there to the medical college and hospital at Solapur. While under treatment he died on7th October, 1984. P.W.4 Prakash registered his complaint (Exhibit-25) on30th September, 1984 with the Police Station at Omerga which came to be subsequently converted for an offence punishable under section302 from section307 of the Code on the death of Bhaurao, along with other offences punishable under sections 447 and 323 read with 34 of the Code.

(3.) SHRI. Deshmukh, the learned counsel for the Appellant/accused No. 1 has, however, urged before us that the Accused No. 1 could not be held to be guilty of an offence punishable under section302 of the Code. Going by the prosecution case and the evidence of all the eye-witnesses it was clear that deceased Bhaurao had received a single blow at the hands of Accused No. 1 and he had collapsed on the ground. He received the same blow as he was trying to intervene between the two cousins. There was no premeditation behind the assault and it was at the spur of the moment. Even otherwise, after the first blow was given to P.W.4 Prakash other injured persons, including Bhaurao, who were at some distance, reached the spot and were trying to separate both the parties. When the accused No. 1 warded the second blow with the Rumana in his hand deceased Bhaurao, while intervening, sustained the assault on his head and the same is proved to be fatal. SHRI. Deshmukh, therefore, urged that the offence could not be called murder within the meaning of section300 of the Code and at the most it has to be held "culpable homicide not amounting to murder" and punishable under section304 Part-II of the Code.