VINAYAK DATTA DURBHATKAR Vs. STATE

JUDGEMENT

(1.) This is an appeal by the appellant, against his conviction under Section 304 Part II of the Penal Code. The sentence passed by the learned Sessions Judge is 8 years' R.I. and a fine of Rs. 300/- and, in default of payment of fine, to undergo further R.I. for 2 months. The charge against the appellant at the trial was that on or about 5th June, 1968 at about 7 a.m. at Bandora village he committed murder by intentionally or knowingly causing death of Fondu alias Babuli Vithu Naik, and thereby committed an offence punishable under Section 302 of the Penal Code. There is also the application by the State for enhancement of the sentence passed. According to the State the conviction should have been under Section 302 of the Penal Code.

(2.) The prosecution case, in a nutshell, is that the appellant and the deceased were known to each other for some period before the deceased was assaulted by the appellant with a spade on 5th June, 1968, resulting in multiple injuries. The deceased was a sepoy employed by the Shanta Durga Temple Committee. In 1965 the appellant was granted the fishing rights of the sluice gate of a certain field belonging to this temple. In exchange the appellant was required to supervise the bunds of that field. There was negligence on his part in this work and therefore these rights were withdrawn in September, 1965. It was the deceased who reported to the Committee that the appellant was negligent. The appellant then started a case against the Committee. The deceased informed the Secretary and the President of the Committee that the appellant had threatened him. He also according to these office-bearers, threatened them. The appellant lost this case and thereafter filed an appeal. It was three days thereafter that he attacked the deceased with a spade. The deceased was removed to the hospital on 5th June, 1968, with multiple injuries. He expired on 16th June, 1968. The police, after necessary investigation, arrested the appellant on 25th July, 1968. He was thereafter challaned under Section 302 of the Penal Code.

(3.) The case of the appellant is that he is falsely implicated because of litigation with the Temple Committee. He pleaded an alibi. He adduced evidence in his defence on alibi. He admitted he had been removed from the assignment of fishing rights. He also admitted the institution of a case and an appeal. He denied the allegation that the deceased had been threatened by him.