B.P. Colabawalla J.

1. By this Appeal, preferred by the Appellant – original accused – Yashwant Hiraman Thakare, exception is taken to the judgment and order dated 23rd January, 2008 passed by the learned Adhoc Additional Sessions Judge – 3, Nashik, in Sessions Case No.25 of 2007. By the said judgment and order, the learned Sessions Judge convicted the Appellant under section 235(2) of the Code of Criminal Procedure, 1973 of the offence punishable under section 302 of IPC and sentenced him to suffer imprisonment for life and to pay a fine of Rs.1,000/-. In default thereof, the Appellant is to suffer further R.I. for three months.

2. The prosecution case briefly stated, is as under:-

(a) The deceased – Kantilal Pandit Thakare was a resident of Village Amburdi, Taluka Kalwan, District Nashik. The deceased – Kantilal and the Appellant were known to each other. PW 1 – Pandit Pandurang Thakare was the father of the deceased – Kantilal.

(b) The incident in question occurred on 26th November, 2004 at around 7.30 p.m. - 8.00 p.m. On the said date, in the evening, the villagers had slaughtered a goat and its meat was distributed amongst the villagers. After taking their meal, a fire place was ignited in the court yard. The Appellant, the deceased – Kantilal, one Balu Parshuram Jagtap, PW 7 – Keda Popat Jagtap, PW 1 – Pandit and other persons were sitting around the fire taking warmth from it. At that time, the deceased – Kantilal and several of these people were discussing about purchasing a VCD player for seeing a movie. During this discussion, the deceased – Kantilal stated that they need to purchase a VCD player from the contribution of the villagers as they always find it difficult to see a movie. He stated that if they purchased the VCD player, they would not be required to go to another village to see a movie. He further stated that for purchasing the VCD player, they should not take the contribution of the Appellant and he should not be allowed to take part in watching the movies. Due to this, the deceased – Kantilal had a heated exchange of words with the Appellant. During this exchange of words, the Appellant slapped the deceased – Kantilal. Thereafter, the Appellant went to his house and brought an iron pipe and assaulted the deceased – Kantilal on his head by means of the said pipe due to which he fell down and sustained serious injuries to his head. Blood also started oozing from the said injuries. In view of this, PW 1 – Pandit and others covered the head of the deceased – Kantilal by means of a cloth and took him to Abhona in a bullock-cart. The lady doctor present in the hospital at Abhona informed PW 1 – Pandit and others that this was a serious case and that the deceased – Kantilal should be shifted to Nashik Hospital immediately. Accordingly, the deceased – Kantilal was brought to Nashik Civil Hospital where he was admitted and treatment was provided to him. However, on the next day, (i.e. 27th November, 2004) the deceased – Kantilal expired at around 12.00 p.m.

(c) After the post mortem on the dead body of the deceased – Kantilal was conducted by PW 5 – Dr Ashok kachare, it was brought by PW 1 – Pandit and others to their village where the funeral rites were performed. Thereafter, PW 1 – Pandit went to Abhona Police Station and reported the incident to the Police. His complaint was reduced into writing by the Police (Exh.12). On the basis of this complaint, Crime No.64/2004 came to be registered for offences punishable under section 302, 504 and 506 of IPC. Thereafter, investigation commenced. The Appellant was arrested on 28th November, 2004. After his arrest, the iron pipe with which the Appellant had assaulted the deceased – Kantilal, as well as the bloodstained shirt of the Appellant, were recovered at his instance. After completion of the investigation, chargesheet came to be filed and in due course the case was committed to the Court of Sessions.

3. Charge came to be framed against the Appellant unde