IMPORTANT POINT
The case of single blow in heat of passion and retaliation of stick blow falls within Exception 4 to Section 300.

JUDGMENT

R. Banumathi. J.

Leave granted.

2. This appeal arises out of the judgment dated 26.08.2010 passed by the High Court of Bombay at Aurangabad Bench in Criminal Appeal No. 293 of 2008 in and by which the High Court affirmed the conviction of the appellant under Section 302 IPC read with Section 34 IPC and the sentence of life imprisonment imposed upon him. By the same judgment, the High Court acquitted accused No. 2 and 3-Parshuram and his son-Sanjay respectively.

3. Appellant-Nandlal Baviskar and one Dilip Waman Baviskar are close relatives. In the year 2005, Dilip constructed a common wall in between his premises and the house of the appellant. As Dilip had incurred total expenses of the construction of wall, he demanded half of the expenses from the appellant which was refused by him. This became the reason for frequent quarrels between the parties. On 16.05.2006 at around 04:00 PM., there was an exchange of abuse between Dilip, his wife Sakhubai-PW-4 and the appellant. Ganesh-PW-5-son of Dilip called Gopichand Waman Baviskar-PW-1. Accordingly, Gopichand and his brother Lakhichand (deceased) who was physically disabled went to the house of Dilip and they tried to pacify the situation. In that process, Lakhichand had also abused the appellant. Being annoyed, the appellant assaulted Lakhichand with stick on his back. On seeing the said assault on his brother, Gopichand gave a stick blow on the head of the appellant. The appellant thereafter went away from the spot to his house and returned back along with Parshuram and his son Sanjay-accused No. 2 and 3 respectively. At this time, the appellant was armed with a gupti, while Parshuram was allegedly armed with ballam and Sanjay was armed with a stick. When Gopichand, Dilip and Lakhichand saw the appellant approaching towards them along with two other persons, having weapons in their hands, it is alleged that Gopichand and Dilip went at one side but because of physical disability, Lakhichand was not quick enough to move. The appellant attacked Lakhichand with gupti on his left armpit. Parshuram assaulted Lakhichand with ballam; while Sanjay assaulted him with stick. Due to assault, Lakhichand sustained bleeding injuries on his chest, left armpit and became unconscious there. Thereafter, the appellant and the other accused persons ran away from the spot. Gopichand-PW-1 along with his sister in law-Sakhubai-PW-4 and others took Lakhichand to Government Hospital, Adawad where on examination, he was declared dead. Law was set in motion.

4. Upon completion of investigation, charge sheet was filed against the appellant and two other accused under Section 302 I PC read with Section 34 I PC.

5. To substantiate the charges against the appellant and the other accused, the prosecution examined sixteen witnesses including four eye-witnesses and also produced material objects and exhibited number of documents. The accused were questioned under Section 313 Cr.P.C. about the incriminating evidence and circumstances and they denied all of them. Based upon the oral evidence and recovery of gupti from the appellant-accused, the trial court found the appellant-accused guilty. The trial court pointed out that the injuries caused by the appellant has pierced through the upper end of left arm and then entered the chest by causing small fracture to the fourth rib and caused injury to the lungs. Based on the evidence of the eye-witnesses and other evidence, the trial court held that the appellant caused the fatal injuries to the deceased and accused No. 2 and 3 have assaulted the deceased with ballam and stick and convicted all three of them under Section 302 I PC read with Section 34 I PC and sentenced each of them to undergo life imprisonment.

6. In appeal, the High Court held that only the appellant caused fatal injuries to the deceased with lethal weapon and the High Court affirmed the conviction of the appellant and the sentence of life imprisonment imposed upon him. Insofar as accused No. 2 and 3,