BANDU Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The learned Additional Sessions Judge on the strength of testimony of P. W. 1 Padmakar held the appellant/accused guilty for the offence punishable under section 302 of Indian Penal Code for having committed murder of Jagdish on 17.12.1989 at about 8.15 p.m. in the township of Bhandara by assaulting him with a sword stick marked as Article 12. The only ground as raised by Mr. Daga is that having regard to the nature of incident it could not be an offence punishable under section to 302 of Indian Penal Code. According to him, the case is squarely covered by exception to Section 300 of Indian Penal Code. Mr. Daga has not disputed the involvement of the appellant/accused in the incident leading to homicidal death of Jagdish. Having regard to the nature of ground as raised, we have examined the testimony of P.W. 1 Padmakar. Undisputedly, at the relevant time the deceased Jagdish and others were warming themselves at a public place by burning fuel sticks. The accused came there and also sat for warming. There was a push and pull followed by quarrel and then there was scuffle. Ultimately the accused took out the sword-stick marked as Article 12 and gave a blow on the chest. Consequently Jagdish died.

(2.) Mr. Wahane, learned Additional Public Prosecutor, has urged that having regard to the nature of weapon of offence, the manner in which the blow has been given and the place which the accused has selected for giving blow, the offence is squarely punishable by Section 302 of Indian Penal Code. According to him, the accused had a design and came with preparation to assault Jagdish, as such the finding of conviction cannot be interfered with.

(3.) We have reproduced the substance of the prosecution case. There is nothing on record that there was any previous enmity, quarrel or animosity between the accused and deceased Jagdish. There is nothing on record that the accused had pre-planning or premeditation to commit the crime. It is brought on record that he simply came to the spot for warming. After sitting on the spot the quarrel began. Even before that, there was no such incident leading to the quarrel and as such the sequence which ultimately led to death of Jagdish had an origin at the spot. Therefore, there could not be any pre-meditation. No doubt, the accused was possessing the weapon. However, it could not be said that he had come with a preparation to commit the crime for which he has been prosecuted. Undisputedly, the scuffle between the two was at the spur of moment and it had developed a hit of passion. Hence, according to us, the incident is covered by exception four to section 300 of Indian Penal Code. Finding of conviction under section 302 of Indian Penal Code, therefore, cannot be sustained.