ASHOK KASHINATH BHOIR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS appeal takes exception to the Judgment and Order passed by the III Ad-hoc Addl. Sessions Judge, Thane dated november 29, 2002 in Session Case No. 188 of 2002. The appellant was charge-sheeted and tried for offence punishable under section 302 of the I. P. Code on the allegation that he committed murder of his younger brother Vilas. The incident in question took place after altercation commenced between two brothers in their house. Both the brothers were under influence of alcohol at the relevant time. The deceased Vilas who was the youngest among them took up quarrel with the appellant-elder brother on the issue that the appellant was not taking initiative in getting him married. The verbal debate escalated in the appellant using stick lying in the house to hit the deceased victim, while he was about to leave his house, on his back. Only one stick blow was given by the appellant. The victim on receiving that blow fell down. It is the prosecution case that Vilas succumbed to the said injury. Medical evidence does indicate that the deceased had suffered about 11 injuries. Most of them are abrasion and contusion which were inflicted during the altercation between the brothers and after he fell down on the ground on receiving stick blow. Injury No. 10 has been held to be fatal, which is described by the doctor as contusion 6" X l-l/ 2" over right lumber back. Corresponding internal injury on account of said blow is described in column No. 21 of the Post-Mortem report as "peritoneam ruptured". Relying on the medical evidence, the Court below has found that death of Vilas was homicidal death. In this appeal the finding recorded by the Court below that the appellant assaulted deceased Vilas and death of vilas was homicidal death, as reached by the court below is not challenged.

(2.) THE trial Court then proceeded to examine whether the case on hand was one of culpable homicide amounting to murder or otherwise. The trial Court from paragraph-21 to 29 of the impugned Judgment has addressed itself with this aspect and has found that the material on record would clearly establish that the case was not governed by provisions of section 302 of I. P. Code as such, but under section 304 (11) of I. P. Code. The State has not challenged the view so taken by the trial Court. In that sense, this Court will have to proceed on the basis that the offence established against the appellant/accused is under section 304 (11) of i. P. Code. Even if the State had challenged the finding reached by the trial Court on this issue, i have no hesitation in taking the view that there is no infirmity either in the approach or conclusion reached by the trial Court while dealing with the said issue. The reasons so recorded by the trial court are founded on well established position of law. The trial Court has also adverted to the relevant facts for recording the finding that the case was governed by provisions of section 304 (11) of I. P. Code. The trial Court has noted that the incident in question occurred between the appellant and the victim in the house under the influence of liquor. It was sudden quarrel between the brothers. That Vilas was agitated about non-performance of his marriage by the appellant. That issue was hotly debated, which ended in physical fight between the two brothers, in which the appellant is alleged to have assaulted the deceased victim. Amongst the injuries noticed on the person of deceased-Vilas, only one injury is said to be fatal. It has also come in the evidence as deposed by the mother of the appellant that deceased Vilas used to take drinks and quarrel with the appellant under influence of liquor on regular basis. It has also come in the evidence of the mother that deceased Vilas had serious ailment related to appendix. Suffice it to observe that the conclusion reached by the trial Court that the injury caused by the appellant was not intended to kill the victim and was also not pre-planned assault by the appellant on the victim. That finding will have to be upheld.

(3.) THE only question that remains to be considered is the quantum of sentence. Indeed, the trial Court has considered this aspect in paragraph-31 of the impugned Judgment. The trial Court has noted that the offence in question was a serious offence, one of murder of own brother. In such situation, it is not possible to take lenient view, for which sentence has been awarded to the extent of rigorous imprisonment for seven years and to pay fine of Rs. 1000/- in default to suffer further simple imprisonment for three months. On behalf of the appellant it was argued before the lower Court that the appellant was the only earning member of the family and was having two children. Besides, he had to look after his aged mother. This argument however, did not find favour with the lower Court.