Law:

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Penal Code (XLV of 1860)--Ss. 302 & 304, Part I---Appreciation of evidence---Accused had abused and attacked the victim---Victim, however, overpowered accused and sat on his chest ---Co-accused in such a situation delivered knife blow on the victim's thigh and accused got himself released from victim's grip and inflicted strong knife blow on victim's stomach resulting in his death---Accused, "1 was rightly found liable to be convicted under S.302, Penal Code and not under S. 304, Part 1, Penal Code by High Court in circumstances. JUDGMENT G.N. RAY, J.-This appeal is directed against judgment dated October 12, 1982 passed by the Division Bench of Nagpur Bench of Bombay High Court in Criminal Appeal No.247 of 1980 affirming the conviction of the appellant under S. 302 of the Indian Penal Code and sentence to undergo imprisonment for life. 2. The prosecution case in short is that the deceased Ganpat was undergoing sentence and was released on parole. On November 21, 1979, at about 4-30 p.m., the deceased Ganpat visited the shop of Shaligram (P.W.1) and asked for boiled eggs. Opposite to the shop of Shaligram a shop was run by Girjiashankar and Anil (P.W.2) in partnership. While Ganpat was standing near the shop of Shaligram, accused Nashik came there armed with a knife and he caught hold of the shirt collar of the deceased and abused him. Thereafter, a scuffling started between them. Nashik was overpowered and made to fall on the ground by Ganpat. Nashik then shouted in the name of co-accused Hamid for help. Hamid immediately rushed there with a knife and delivered a knife blow on the left thigh of Ganpat. Being so disabled by the knife blow dealt by Hamid, Ganpat released the grip on Nashik. The accused/appellant Nashik thereafter inflicted a strong blow on the stomach of Ganpat by the knife held by him and Ganpat thereafter fell down. The accused/appellant Nashik ran away from the place. A girl named Kiram (P.W.4) who was the niece of Ganpat was present there and when she tried to obstruct, Nashik he brandished his knife which caused injury to her finger. The said girl then went to the Police Station and lodged the report. The accused/appellant Nashik was…

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