M.N.CHANDURKAR, J. - (1.) The learned Additional Sessions Judge, Parbhani in Sessions Case No. 116 of 1974, on his file passed an order acquitting accused Nos. 1 to 3, 5, 7 and 8 of all the charges levelled against them and similarly he acquitted Accused Nos. 4 and 6 also of the rest of charges, but convicted these two accused under section 323 of the Indian Penal Code for voluntarily causing simple hurt to the child by name Muktabai and he directed each of those accused to undergo R.I. for six months and to pay a fine of Rs. 200/- in default to undergo R.I. for two months more. It may be stated that Accused Nos. 4 and 6 were acquitted of the charges under section 302 of the Indian Penal Code framed against them and were convicted only under section 3 23 of the Indian Penal Code and that is why being aggrieved by the order of acquittal so far as the offence under section 302 of the Indian Penal Code is concerned, the state has filed the above criminal appeal.
(2.) The facts in this appeal lie within a narrow compass and in order to decide this appeal and to properly appreciate the facts of this appeal, it is necessary to state a few facts on account of which the Sessions Case arose before the trial Court. The entire prosecution story is as follows:
(3.) The dispute relates to Survey No. 88 which is known as Mathyacho Shot at Jamrun Village in Parbhani District. Mahadu and Amruta are two brothers and according to the prosecution, this land was the ancestral property of these brothers and it was in their possession. The prosecution alleged that on 26-5-1974, these two brothers along with another family member had been to the land for carrying summer agricultural operations and were taking break-fast in the land at the material time. All the accused are relate to each other and according to the prosecution, all these 8 accused entered the land at the material time, when accused Nos. 1, 4 and 6 were possessing axes, whereas others were possessing sticks. The prosecution alleged that as soon as the accused entered the land, there was an exchange of hot words between Mahadu on one hand and accused No. 1 Babarao on the other hand, wherein accused No. 1 instigated to beat the members of the opposite party. Thereafter, the person from the party of the accused started assaulting Mahadu and his family members including Chandrabhaga, wife of Amruta. Chandrabhaga was carrying on her waist Muktabai at that time. After the assault started, Chandrabhaga and Narmada, wife of Mahadu intervened and at that time Muktabai was on the waist of her mother Chandrabhaga. According to the prosecution, accused Nos. 4 and 6 assaulted the child Mukatabai with the result that the said child fell down and died. After the assault was completed, all the accused left the land and thereafter the information was given to the Police Station and after the completion of the investigation, a charge-sheet was filed against all the eight accused in the committing Court. The learned Magistrate committed all the accused to the Court of session to stand their trial for different offences.;