BHAURAO Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) ''By this appeal filed under Section 374(2) of Criminal Procedure Code, the appellant -accused challenges the judgment dated 30.10.2002, in Sessions Trial No. 57 of 2002 delivered by Sessions Judge, Bhandara, holding him guilty for offence under Section 302 of Indian Penal Code and sentencing him to suffer imprisonment for life and to pay fine of Rs. 500/ - and in default to suffer further R.I. for two months.

(2.) THE case of the prosecution in brief is that: The present appellant and deceased Ramdas were from village -Pimpalgaon Tahsil -Mohadi District -Bhandara. Ramdas and his wife used to run business of Pan Shop and on the day of incident i.e. on 6 -5 -2002 at about 8.30 in the night, wife of deceased Ramdas was attending pan shop. Ramdas was chit -chatting with some Village Doctor, while sitting on heap of sand nearby pan shop and said Doctor was talking in Hindi and Ramdas was finding it difficult to understand it. The Manager of local dairy was passing by road on his bicycle and Ramdas called him to help him in the conversation. When these three persons were talking, wife of Ramdas closed pan shop and she went to her residence. Accused -Bhaurao i.e. present appellant approached these three persons. He as well as deceased Ramdas had consumed alcohol and Bhaurao started putting irrelevant queries to the doctor. Dairy Manager and deceased Ramdas tried to control accused but in vain. Dairy Manager requested Doctor to go away and Doctor accordingly went away. Then deceased Ramdas got annoyed and he asked the appellant -accused as to why he interfered in their dialogue. Thereafter the accused and deceased exchanged abuses. Dairy Manager also went away. After such exchange of abuses and insults, accused left that place and deceased Ramdas continued to sit there. However, within few minutes accused again appeared from the back side of Ramdas and he was armed with wooden log which is locally known as -œUbhari -. The said log is used for bullock -cart. The accused caught Ubhrai in both his hands and started assaulting Ramdas and dealt several strokes on the face and all sides of head of Ramdas. Ramdas sustained bleeding injuries and fell down. The persons present in the vicinity rushed there and accused threw his Ubhari nearby and disappeared from the place .The. reporter Rameshwar Chopkar and his friend saw the situation and they collected motor -cycle and both of them put injured Ramdas on motor -cycle and they went to nearby village - ''Andhalgaon to give medical treatment to Ramdas. As Doctor was not available there, they went to Police Station and then Police Sub -Inspector - ''Reddiwar went to dispensary. At Police Station, Police Head Constable - ''Shahare registered the Report vide Crime No.19 of 2002. Injured Ramdas was taken to Mohadi, where he was examined by Dr. Khune, who advised his shifting to Government Hospital, Bhandara, where doctors advised him to be taken to Nagpur and he was brought to Medical College at Nagpur. There Ramdas died on 7 -5 -2002 at about 4.30 a.m. After completing investigation, police prosecuted appellant and learned Magistrate, before whom the charge -sheet was filed, committed the matter for trial to Sessions Court. The Sessions Court, after recording evidence, delivered the judgment as mentioned above.

(3.) SHRI Daga, learned counsel for the appellant has contended that though the prosecution has stated that there were two eyewitnesses, PW -1 - ''Rameshwar Upasrao Chopkar (Exh. 15) has turned hostile. He has further contended that other eyewitness PW -2 - ''Narsingh Nathu Gabhane (Exh. 26) also cannot be believed because his evidence contains vital omissions which are proved on record. He further states that the judgment of conviction delivered by trial Court is based solely upon evidence of PW -2 and as these vital omissions are not properly evaluated, the finding in this respect is liable to be quashed and set aside. He has further contended that deposition of PW3 - '' Shamrao Ramlal Bhongade (Exh. 27) is also not properly appreciated and his evidence shows that there was quarrel between the appellant and deceased and both were under the influence of liquor. He contends that in his evidence it has been shown that incident occurred in the night when there was no electric supply to the village and as such the present appellant deserves acquittal. In the alternative, he has also contended that there was quarrel between appellant and deceased and both were under the influence of liquor and there was no pre -meditation. Hence, it is not a case in which one can hold that culpable homicide of Ramads amounted to murder. He contends that it falls within exception (4) to Section 300 and at the most the accused could have been punished under Section 304, Part -I. He states that in cases of grave and sudden provocation, number of injuries inflicted by the accused are not relevant and in support he places reliance upon the judgment of this Court in the case of Baba @ Gulam Raza v. State of Maharashtra.1 He also states that when said incident has taken place in heat of passion, the finding of guilt under Section 302 is unsustainable and in support he places reliance upon judgment of this Court in the case of Dhondba Bhakru Bhende v. State of Maharashtra.2 He further states that the appellant is in jail since 8 -5 -2002 and at present he is about 45 years of age and has got a marriageable daughter and this factor should be taken into account by this Court while considering the matter.