GANGADHAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The appellant (accused No. 1) and accused Nos. 2 to 4 in Sessions Case No. 1 of 1974, were prosecuted for causing the death of Sopan and injuries to his brother, complainant Nivrutti, P.W. 7, under sections 302 and 323 read with section 342 and section 109 of the Indian Penal Code, the learned Additional Sessions Judge, Latur by his judgment dated July 15, 1974 convicted the appellant under section 302 and sentenced him to imprisonment for life and convicted the accused Nos. 2 to 4 under section 325 read with section 34 of the Indian Penal Code and sentenced each of them to suffer rigorous imprisonment for two years, no separate sentence being passed against the accused under section 323 in respect of the incident between the accused on the one hand and Nivrutti and Sopan on the other, on June 24, 1973, at about 7 a.m. in Survey No. 44-A of Shekapurwardi in Udgir Taluka, on account of a dispute about the right of way claimed by Nivrutti and Sopan for which a civil litigation was pending.

(2.) Accused Nos. 2 to 4 have not challenged the convictions and sentence. The appellant above has filed the above appeal and challenged the convictions and sentences. Mr. K.A. Rane was appointed at the expense of the State Advocates for the appellant but it appears that the appellant has engaged Mr. R.M. Agarwal. At the hearing Mr. Rane was appearing but Mr. Agarwal was heard by us as he was the Advocate appointed by the accused.

(3.) Mr. Agarwal submitted that the learned Judge erred in convicting the accused No. 1, though there was no evidence apart from the evidence of Nivrutti to show that he had assailed Sopan before the Sopan pressed the testicles of the accused and as there was unimpeachable evidence of Dr. Shrinivas Mungikar that accused No. 1 had one lacerated wound 1 x 1/4 cm. on the left thumb and had tenderness in the scrotum, it was clear that Sopan pressed the testicles of the accused No. 1 and then accused No. 1 desperately defended himself with a small stick held by him giving a blow on the head of Sopan as a result of which Sopan died in the Hospital on 26-6-1973. In other words he argued that the accused No. 1 must be held to have caused the fatal head injury in the right of self-defence and he is therefore, entitled to be acquitted.