( 1 ) HEARD advocate for the accused and learned APP for the State. This appeal is filed by original accused No. 4 only challenging his conviction under Section 302 of the Indian Penal code. There were three more accused i. e. Accused Nos. 1, 2 and 3. But they were acquitted of the offence under Section 302.

( 2 ) THE prosecution case was [the prosecution stated here is with reference to all the four accused] that accused No. 3 was the wife of accused No. 1 and Accused No. 2 is the wife of accused No. 4 i. e. the present accused. Victim was deceased Mahibub Mujawar. P. W. 3 Gulab was the son and P. W. 6 Smt. Bismilla was the wife of deceased Mahibub. They were residing in the village Gasavi Vasti, Khamgaon, Taluka Phaltan district Satara. They had their agricultural land adjacent to each other. On 23. 8. 2002 deceased Mahibub spread Uria in his field and gave well water to the crop. On 24. 8. 2002 deceased Mahibub found that his field was over flow due to water which was coming from the field of accused and it was causing damage to his crop. He, therefore, started electric motor on the well so that water can go to the field of accused no. 1. On the same day at about 8. 00 a. m. , accused No. 3, came to the house of deceased mahibub and questioned him as to why the water from the well was allowed to enter their field. Deceased Mahibub replied that it was tit for tat. At that time other accused came there and gave him abuses. Accused No. 1 alleged to have given a blow of chappel or sandal on the face of Mahibub as result of which he sustained some injuries.

( 3 ) THEREAFTER while deceased Mahibub, along with P. W. 3 and 6, was proceeding to lodge a complaint at police out post and when they came near the house of accused, accused Nos. 1, 2 and 3 prevented and restrained them. Hence they changed their direction. In the mean time, accused No. 4 came there on bicycle. Accused No. 2 informed accused No. 4 that deceased Mahibub had beaten old man and hence accused No. 4 lifted a bamboo, that was lying there, and gave certain blows as a result of which Mahibub fell down. Thereafter he was removed to different hospitals i. e. Rural Hospital, Phaltan, then Civil hospital, Satara. P. W. 3 Gulab went to Sakharwaid police Out Post and lodged a complaint vide exhibit 18. Mahibub was died on way while he was taking to Pune for treatment. Post mortem was conducted; investigation was carried out and the accused came to be prosecuted. Three accused were acquitted by the trial court and this accused No. 4 was convicted under Section 302 of the Indian Penal Code. Hence this appeal. 4

( 4 ) COUNSEL for the accused contended that looking to the background of rivalry between the parties and dispute that has arisen and also looking to the fact that the present accused had come to the spot accidently, he was told that old man was beaten by deceased Mahibub and, therefore, he lifted the bamboo and assaulted the deceased. In the post mortem only four injuries are noted. Two are abrasions and two are contusion over parietal regions. He also contended that deceased Mahibub was alive for quite some time and even if the prosecution case is accepted as it is, it could not be said that this accused had nay intention to kill, nor any knowledge that assault by bamboo i. e. two blows by bamboo on head would result in causing death. Our attention was drawn to the panchanama of seizure of Bamboo. It was 2 inch in diameter. He also contended that there was no premeditation nor any plan nor any design. The assault was sudden without any thought and, therefore, in any case, the accused could not be convicted under section 302 of the Indian Penal Code and, at the most his conviction could be under section 325 of the IPC.

( 5 ) THE learned APP could not successfully met with this submissions made by the learned counsel for the accused. He tried to contend that the offence could be under Section 304 Part i or Part II.

( 6 ) MEMORANDUM Exhibit 22/1 is about discovery of b

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