Arijit Pasayat, J. - (1.) Challenge in this appeal is to the judgment of the Division Bench of the Bombay High Court, Nagpur Bench, upholding conviction of the appellant for offence punishable under Section 302 of the Indian Penal Code, 1860 (in short the IPC) as was awarded by the 9th Additional Sessions Judge, Nagpur. Three persons faced trial. They are Sk. Rahim(A-1, Sk. Azim (A-2) and Sk Ibrahim (A-3). A-1 was acquitted and A-3 was convicted for offence punishable under Section 325, IPC.
(2.) Background facts in a nutshell are as follows: The house of Abdul Jabbar Qureshi (hereinafter referred to as the deceased) was adjacent to the house of the appellant/accused in Nava Nakasha, Lashkaribagh, Nagpur. At the relevant time, the appellant along with his two brothers i.e. Sk. Rahim and Sk. Ibrahim as well as his parents and grandfather were residing in the same house. According to the prosecution, about four months prior to the incident in ques tion, the relations between the family of the deceased and the accused were strained, since the family members of the accused allegedly threw filth from their side of the house into the courtyard of the house of the deceased. The family members of the deceased questioned the conduct of the family members of the accused. However, the appellant and his family members did not pay heed to this aspect. The incident in question took place on 8.8.1986 at about 12.00 noon. The de ceased and his son Abdul Khaliq were present in their house along with other family members. At that time they noticed that some filth has been thrown by somebody in the backyard of their house from the side of the house of the accused. The deceased and his family members, therefore, got angry and expressed their displeasure in loud and strong words. The family members of the accused heard the words used by the family members of the deceased and, therefore, the lady members of the family of the accused started abusing the deceased and his family members in filthy lan guage. Then the deceased and his son Abdul Khaliq came out of their house. The accused persons along with their grandfather Shaikh Ahmed also came out of their house. Accused Sk. Azim (appellant) was holding a stick, accused Sk. 3 Ibrahim was holding an iron rod and accused Sk. Rahim was also holding a stick in his hand. Accused Azim gave a stick blow on the head of the deceased due to which he re ceived bleeding injury. Abdul Khaliq, son of the deceased, rushed to rescue his fa ther. All the accused attacked him and beat him with iron rod and stick on his head and abdomen. Abdul Khaliq received injuries on his person. The persons from the locality gathered and rescued them from the accused. The deceased had become unconscious because of the blow which was given by accused No.2, the appellant on the head of the deceased. His condition was serious. Therefore, he was sent to Mayo hospital. The deceased succumbed to the injuries on the next day i.e. on 9.3.1986 at about 3.30 p.m. The dead body of the deceased was referred to the doctor for post mortem exami nation. Dr. Deuskar (PW4) conducted the post mortem examination and opined that the injury on the head of the deceased was sufficient in the ordinary course of nature to cause death and also opined that the said injury is possible by the weapon like stick (lathi).
(3.) The conviction was challenged before the High Court, which as noted above, dismissed the same. The present appeal has been filed by A2.;