NAMDAO KISAN BHAKARE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) ON 23-3-1993, the Additional Sessions Judge, Amravati, on conclusion of trial in Sessions Case No. 63 of 1987, convicted the accused/appellant for the offence punishable under Section 304, Part II, of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for five years and a fine of Rs. 1,000/-, and in default of payment of fine to suffer further rigorous imprisonment for three months, and in this criminal appeal the accused/appellant has taken exception to his conviction and sentence awarded by the Additional Sessions Judge, Amravati.

(2.) SHARAD son of PW-2 Vithal, who was hardly 8 years old, died in the incident which occurred on 21-11-1986 at 4-00 P. M. Sharad (the deceased) along with PW-1 Sanjay, Rajendra, Dilip and PW-5 Mahadeo had gone to the play ground of the school and at about 4-00 p. m. on 21-12-1986 the accused/appellant Namdeo came to the ground with his bullockcart. The cart was loaded with bamboos. Sharad (the deceased) PW-1 Sanjay and PW-5 Mahadeo and others were asked by the teacher to go with the cart to bring another trip of bamhoos and accordingly all of them boarded the cart. When the bullock cart reached the river and the accused could not pull up the cart properly, the boys laughed at accused/appellant Namdeo. The accused/appellant gave a slap to PW-5 Mahadeo and PW-1 Sanjay for their behaviour and lifted the Ubhari of the cart and gave one blow to the bullock and another to Sharad on his head and as a result thereof Sharad sustained injury on his head and died instantaneously. PW-2 Vithal the father of deceased Sharad, lodged the report at the police station, Warud. Investigation commenced and the dead body of Shard was sent for autopsy. The Investigating Officer prepared spot panchanama (Ex. 15), inquest panchanama (Ex. 17), post mortem report (Ex. 19) was obtained. Ubhari was recovered at the disclosure statement of the accused/appellant and thereafter the Investigating Officer submitted the charge-sheet against the accused appellant, and since the case was triable exclusively by the Sessions Court, the accused/appellant was committed to the Court of the Additional Sessions Judge, Amravati, who framed the charge on 7-10-1992 against the accused for the offence punishable under Section 302 of the Indian Penal Code. The accused pleaded not guilty. Prosecution examined two eye-witnesses, viz. PW-1 Sanjay and PW-5 Mahadeo, the father of the deceased and the first informant PW-2 Vithal, PW-4 Dr. Shanelata, who conducted the post mortem on the dead body of Sharad, and also examined the Investigating Officer and panch witness. The prosecution has exhibited various documents including the oral, report (Ex. 13), inquest panchanama (Ex. 17), spot panchanama (Ex. 15), post mortem report (Ex. 19) printed FIR (Ex. 29) amongst others. The statement of the accused/appellant was recorded under Section 313 of the Code of Criminal Procedure and he denied his involvement in the crime. In answer to Question No. 19 the accused/appellant explained that some boys tried to climb the cart while it was passing through the nallah and at that time one boy fell down. but he did not know who he was. He then went to his house.

(3.) THE trial Court after recording the evidence and hearing the learned counsel for the accused/appellant and the Additional Public Prosecutor, concluded that the death of Sharad was homicidal and that the accused/appellant inflicted a blow of Ubhari on the head of Sharad, resulting into injury and for the said act, found the accused/appellant guilty for the offence under Section 304 Part II of the Indian Penal Code and sentenced him as aforesaid.