ABHIMANYU RAMCHANDRA HAREL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE appellant convicted under Section 304 Part II of IPC and sentenced to RI for two years by Judgment and Order dated 22/2/1991 recorded by the Addl. Sessions Judge, Nashik has impugned the order of his conviction and sentence in this appeal.

(2.) THE prosecution case leading to the conviction of the appellant falls under narrow compass. Originally there were two accused who were charged for the offence of murder under Section 302 read with Section 34 of IPC before the Sessions Court. THE appellant was original accused No. 1 who is alleged to have struck blow with wooden log on the head of the deceased by name Udhav. THE appellant is the younger brother of original accused No. 2 by name Jairam. Deceased Udhav was working as helper in Irrigation Dept. On 13-9-1988 between 1-30 to 2-00 p. m. driver Dinkar Tupe PW 4 was supplying drinking water tanker of the Irrigation Department in Mukine dam colony to the employees of the Department when he parked the tanker in front of the quarter of one Rama Jadhav. Accused No. 2 Jairam, since acquitted, came there and questioned him as to why he did not park the water tanker in front of his quarter. That time PW4 Tupe was sitting on a cot in front of the house of one Gurav and was watching the tanker. Accused No. 2 abused the driver Dinkar Tupe and had a scuffle within a short time and both the brothers were assaulting PW 4 driver of the tanker with hands. Seeing the said qurrel the deceased Udhav came there and intervened and separated both the accused persons from driver Tupe. Accused No. 2 objected to deceased interfering in the said quarrel. Appellant went to the quarter of one Bansi and brought a log of wood (Article 5) and hit Udhav on his head from back side as a result of which he fell down. Appellant thereafter dealt one more blow on the head of Udhav as a result of which he became unconscious. Appellant leaving the wooden log on the site ran away and was chased by one Barku Chaudhari who caught the appellant but he escaped. Deceased Udhav still in unconscious state was taken to Wadivarhe police station by PW 2 Shivaji Pingle who was also witness to the assault. As the PSI at the police station found Udhav in serious condition he asked PW2 Shivaji to take Udhav immediately to Civil Hospital, Nashik for treatment for which PSI gave requisition letter. Accordingly Udhav was admitted in the Civil Hospital but was declared dead. Autopsy was conducted on the dead body by Dr. Deogaonker, PW 3 who found contused lacerated wound over his scalp and fracture of occipital bone. According to the post-mortem cause of death of Udhav was fracture of occipital bone with extra dural haemotoma and shock due to acute cardio respiratory failure. THE post mortem notes are at Exhibit 23

(3.) IN support of the prosecution case five witnesses were examined and the spot panchanama, seizure panchanama and post-mortem notes were relied on. PW 1 is Pundlik Patil who was panch to the spot panchanama (exh. 17 ). PW 2 is Shivaji Pingale, brother of the deceased who filed the complaint and was working as Fitter in the Irrigation Dept. He was the eye witness and lodged the FIR. It was he who took the injured Udhav to the police station and thereafter to the Civil Hospital and thereafter lodged the FIR. PW. 3 is Dr. Narayan Deogaonkar, attached to Civil Hospital, Nashik who performed the post-mortem on the dead body. PW 4 is Dinkar Tupe, driver of the water tanker who was working with the Irrigation Department. INitially it was this witness who was assaulted by both the accused and when the deceased intervened and separated this witness from the assault of the two accused, he became the victim of the assault of the accused. PW 5 is Sahebrao Ethape PSI attached to Wadivarhe Police station in Taluka Igatpuri, Dist. Nashik who conducted the investigation and filed the charge-sheet.