IMPORTANT POINT
Ingredients of section 300, exception 4, IPC discussed.

JUDGMENT

Dr. Arijit Pasayat, J. —

1. Challenge in this appeal is to the judgment of a Division Bench of the Bombay High Court, Aurangabad Bench, upholding the conviction of the appellant for offence punishable under Sections 302 and 324 read with Section 34 of the Indian Penal Code, 1860 (in short the ‘IPC’), while directing acquittal of two co-accused persons who had faced trial for the alleged commission of offences punishable under Sections 302 and 324 read with Section 34 IPC. All the three accused persons were found guilty of the aforesaid charges by learned II Additional Sessions Judge, Dhule.

2. Background facts in a nutshell are as follows:

First Information Report was lodged by one Krishnaji at Dhule Police Station on 7.7.2001 at 0030 hrs. It was alleged by him in the report that on 06.07.2001 he was with his father in the thrashing floor. One Bandu Rambhau Patil is his uncle. Partition between his father and uncle Bandu took place prior to the lodging of the report. Despite partition, the agricultural lands were standing in the name of his father Vithoba. In the evening of 06.07.2001, at about 7.00 p.m. a calf which was tied in his thrashing floor, untied itself and went to the thrashing floor of his uncle Bandu. Krishnaji followed the calf to the thrashing floor of his uncle Bandu, caught hold of it and brought it back to his thrashing floor. At that time his uncle Bandu, Accused No. 1 Baban and Accused No. 2 Navnath were present. They scolded him on account of the calf entering their thrashing floor. He explained that calf had un-tied itself and that it was not a deliberate act on his part. He returned to his thrashing floor along with the calf.

After some time, his uncle Bandu and Accused no.2 Navnath and Accused no.1 Baban came to their thrashing floor and hurled abuses at them. A-1 assaulted his father with an axe. The stroke was given on the head of Vithoba. His uncle Bandu assaulted Krishnaji and his father with a stick. Accused No. 2 Navnath also assaulted him and his father with a stick. The assailants after noticing the injuries, left for their house. He along with his father Vithoba returned to his house. On the way to their house, they were also accompanied by one Prakash Bhandane - husband of his aunt.

At about 7.15 p.m. his mother Sindhubai was also abused by Accused Nos. 1 and 2 and other co-Accused, who are acquitted by the trial Court. At that time Prakash (PW 5) requested them not to scold Sindhubai. Accused no.2, Accused no.1 and other Accused persons assaulted his mother Sindhubai as well as Prakash (PW 5). At that time Accused no.1 assaulted Prakash (PW 5) with sword, at his neck. Sindhubai was also beaten by other lady accused persons by fists and blows. This beating was witnessed by Meerabai, Nadarbai, Sadashiv etc. and these witnesses have rescued Sindhubai and Prakash (PW 5). Thereafter, Krushnaji, in an auto-rickshaw went to Dhule for lodging the report and for treatment.

On 06.07.2001 PSI Hiralal (PW 11) was on duty at Dhule Taluka Police station. Krushnaji’s report was registered by Police Station Officer at Cr. No. 169 of 2001, under Sections 147, 148, 149, 307, 324, 504, 506 of IPC. Investigation was taken over by PW 11 Hiralal. He registered the offence on 07.07.2001 at 00.30 hrs. At about 1.30 a.m. on 07.07.2001, he arrested Accused Nos.1 to 6. In the morning of 07.07.2001, he drew panchanama of the scene of offence (Exhibit 80) with the assistance of PW 8 Shantilal, a panch witness. At the time of drawing spot panchanama ordinary soil as well as soil mixed with the blood was seized, kept in a packet and packet was sealed. Along with Shantilal (PW 8), one more panch witness Gopichand was present. Hiralal (PW 11), thereafter, interrogated some witnesses and recorded their statements. Thereafter, he handed over the investigation to API Deepak Gotmare (PW 12).

API Deepak (PW-12) held inquest over the dead body of Vithoba in the presence of two panchas and recorded a panchanama to that e