OM PRAKASH SHARDAPRASAD MALLAH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The appellants herein were accused Nos. 1 and 2 respectively before the Sessions Court in Sessions Case No. 196 of 1998. Their trial before the Court culminated in their conviction under section 302 read with 34 Indian Penal Code. They were sentenced to suffer R.I. for life and payment of fine of Rs. 1000/- each. The appellants have impugned the judgment of the Sessions Court, Greater Bombay convicting and sentencing them.

(2.) The case of the prosecution is that the accused were vegetable vendors. On 28-10-1997, the victim had approached their stall when they started teasing him and an altercation took place between the accused and the victim. Accused No. 1 exhorted accused No. 2 to bring something which would put an end finally to their constant bickerings. Accused No. 2 brought a wooden stick (lathi) and gave a blow with it on the victim's head. Harishchandra collapsed. He was removed to Singhi hospital from where his relatives were advised to take him to Cooper hospital. On the way they stopped at Goregaon police station and then took him to Cooper hospital. On reaching Cooper hospital, it was found that the victim had already died. The Inquest panchanama was drawn up at the hospital and thereafter the police proceeded to the scene of offence. The Spot panchanama was also drawn up. The weapon of assault i.e., the wooden stick was recovered at the spot. The accused were arrested and charged for having murdered their uncle Harishchandra. They were tried by the Sessions Court, Greater Bombay and convicted and sentenced as aforesaid.

(3.) With the assistance of the learned Advocate for the accused and the learned APP, we have perused the record and impugned judgment. We are unable to accept the findings recorded by the learned Sessions Judge that the accused were guilty of the offence punishable under section 302, Indian Penal Code read with 34. There is no assault attributed to accused No. 1. Accused No. 2 has assaulted the deceased, according to the prosecution.