The central legal point established in the judgment is the application of Exception 4 of Section 300 IPC, which covers acts done in a sudden fight, and the court's conclusion to alter the conviction to Section 304 Part I IPC.

Judgment

DR. ARIJIT PASAYAT, J. - Leave granted.

2. The appellant along with two others faced trial for alleged commission of offence punishable under Section 302 read with Section 34 of the Indian Penal Code, 1860 (in short "IPC"). The trial court found each of the accused persons guilty and convicted each to undergo rigorous imprisonment for life and to pay a fine of Rs 500 each with default stipulation. The conviction and the sentence were challenged by the three accused persons in appeal before b the Bombay High Court, Aurangabad Bench. By the impugned judgment the High Court set aside the conviction of the co - accused i.e. Accused 2 and Accused 3 before the trial court. However, the appeal filed by the appellant was dismissed.

3. Background facts in a nutshell are as follows:

The incident in question was alleged to have taken place on 22 - 1 - 2002. It c was reported to Police Station Newasa by Narsing Mohan Gavane (PW 5) by his complaint (Ext. 21). On this complaint, ASI Laxman Pawar (PW 10) registered an. offence punishable under Section 302 IPC vide CR No. 17 of 2002. Further investigation was conducted by Police Inspector Pandharinath Kedare (PW 11).

4. On 22 - 1 - 2002 between 2.30 to 3.00 p.m. near the field of d appellant - Accused 1 on the bank of Godavari river within the jurisdiction of Village Galnimb, Mohan Gavane (hereinafter referred to as "the deceased") along with his family members including his sons Narsing (PW 5), Devising (PW 6) and his wife Chandrabhaga (PW 9) was staying on the bank of river by erecting a hut. The accused persons whose land is also on the side of bank of the river had their farmhouse in their field. The deceased was mainly doing business of fishing. The deceased and his family members used to plant watermelons in the alluvial land. The accused claiming to be the owners of the said land used to take objection to the deceased and his family members and were giving threat to kill in case they cultivate that alluvial land. On the day of incident, Narsing (PW 5) had gone to the river to catch fish. His brother Devising (PW 6) had gone to the village on a cycle to fetch fertiliser. Their mother Chandrabhaga (PW 9) along with her daughter - in - law was looking after their watermelon crop and were busy in cutting grass. Deceased Mohan was taking his cattle towards the well. While he was proceeding from the field of the accused persons, accused - appellant Ramkishan rushed towards him having an axe. His sons Sadashiv and Kakasaheb also rushed towards the deceased while uttering abuses. That time, they were having 9 swords in their hands. The deceased was caught hold by Accused 2 and 3, who threw him down on the ground. Thereafter, Accused 1 inflicted a blow by axe on the head of the deceased. This incident was witnessed by Narsing (PW 5) as well as Chandrabhaga (PW 9) who were at some distance. They immediately rushed to the spot. Before their arrival, the accused had left the spot and ran away. Devising (PW 6) who was coming towards the field had h seen the accused who were running away from the spot. The deceased was unconscious. With the help of one Shivaji Mule, Narsing (PW 5) took deceased Mohan to the village and from the village, he carried him to a doctor at Salbatpur. However, on the way, deceased Mohan succumbed to the injuries and Dr. Praihad Nagargoje (PW 7) declared him dead. Thereafter, complaint (Ext. 21) was lodged and offence was registered.

5. On completion of investigation, the charge - sheet was placed. In trial, each of the accused persons was found guilty, convicted and sentenced as aforesaid.

6. Before the High Court the stand taken by the accused was that the evidence of the so - called eyewitnesses clearly show that they are exaggerated, full of holes and do not depict a correct position of the factual scenario. The role of Accused 2 and 3 was not established. In any event, the occurrence took place because of the fact that the deceased had encroached on the land of