MURLIDHAR GENUJI TUPE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) BY means of this appeal, the appellant has challenged the Judgment dated 17th December, 1981 passed by the Additional Sessions Judge, Ahmednagar in Sessions Case No. 86 of 1981, convicting and sentencing him in the manner stated hereinafter - (i) Under Section 302 IPC to imprisonment for life; and (ii) Under Section 323 IPC to pay a fine of Rs. 100/- i/d R. I. for 15 days. Briefly stated the prosecution case runs as under P. W. 4 Chhabubai Ganpat Tupe and P. W. 5 Ashok Ganpat Tupe are the wife and son of the deceased Ganpat Genu Tupe respectively. The appellant was the younger brother of the deceased. Relations between the deceased, Chhabubai and Ashok on one side and the appellant on the other were highly strained. The cause of contention between the parties was a well jointly owned by them. It is alleged that on 7th May, 1981, at about 2-2. 30 p. m. , Ganpat took the bullocks to the well for water. That well was situated at a distance of about 50 feet from the houses of Ganpat and appellant which were adjoining. It is said that the appellant did not allow Ganpat to take water from the aforesaid well and hence, he came back to the house. Thereafter, abuses were exchanged between Ganpat and the appellant and the latter went running inside his house and brought an axe with which he gave one blow on the head of Ganpat. Ganpat fell down as a consequence of receiving the aforesaid blow. It is alleged that Chhabubai and Ashok who were witnessing the assault on Ganpat tried to inter vene and in that process, Ashok received an axe blow on his forehead. Thereafter Chhabubai started running towards the village. On the way, she met Dada Patil. Then, she went to the house of Police Patil Yadhav Govind Wagh. He was sleeping at that time. She woke him and told him about the incident. Along with the Police patil, she came back to her house. The Police Patil found that Ganpat was lying on the ground and appellant Murlidhar was standing there with something in his hand. The Police Patil bandaged the injuries on Ganpat and on a bullock cart, took him to the Civil Hospital, Ahmed nagar. Thereafter, he went to police station, MIDC.

(2.) THE FIR of the incident was lodged by Ashok Ganpat Tupe P. W. 5 on the same day 7th May, 1981 at 11. 30 p. m. at police station, MIDC, District Ahmed nagar. It was recorded by Police Jamadar Ismail Patel P. W. 9. Evidence of Ismail Patel is that after recording the FIR, he sent Ashok Tupe (informant) to Civil Hospital, with a yadi for treatment. It appears that the deceased was admitted in Civil Hospital, Ahmed nagar between 7th May, 1981 and 12th May, 1981. On the latter date, he died there. On his death, the case was converted to one under Section 302 IPC.

(3.) POST Mortem examination of the dead body of the deceased was conducted by Dr. Bhaskar Pavale, P. W. 6 on 12th May, 1981. Dr. Pavale, found following ante-mortem injuries on the dead body: 1. Incised wound on left occipital region 41/2 x 1/2. The edges were tapering. The injury was horizontal, oblique in direction. It was bone deep. 2. C. L. W. over the left fore-arm 1 X 1/2 skin deep. 3. C. L. W. over left knee 1/2 1/2 skin deep. On internal examination, he found: Skull: Depressed communicated fracture over the temporal occipital bone, 5 in diameter on the left side behind left ear. Fracture of parietal bone 3'1 x 1/2" on left side, upwards and forward in direction. Fracture of temporal left side bone, 3 x 1/2 "horizontal in direction. There was subdural haematom a, posterior cranial fossa. Lacerations below the external injury mentioned above. In the opinion of Dr. Paville, the deceased died on account of injury to vital organ (Brain ). In his statement in the trial Court, Dr. Pavale opined that the injuries of the deceased were fatal and could have been caused by article No. 1-axe shown to him. In his cross-examination, he stated that the three fractures sustained by the deceased must have been caused by one blow.