important point
When ingredients of Section 300, Exception 4, IPC are satisfied, conviction u/s 302 is not sustainable.

JUDGMENT

Dr. ARIJIT PASAYAT, J.—

1.Leave granted.

2.Challenge in this appeal is to the judgment of the Division Bench of the Bombay High Court, Aurangabad Bench, upholding the conviction of the appellant for offences punishable under Section 302 of the Indian Penal Code, 1860 (in short the IPC).

3.Background facts in a nutshell are as follows :

“Paridharinath Vaidya (P.W.7), P. S. I. attached to M.1.D.C. Police Station, Jalgaon, recorded the complaint of Sumanbai (P.W. 1) on l5th June, 2002. On the basis of the said complaint, an offence vide crime No.136 of 2002, under Section 302 of Indian Penal Code, 1860 (in short IPC), was registered. Inquest Panchanama came to be drawn in the presence of Sunanda (P.W.2) of the dead body of Devkabai (hereinafter referred to as deceased). The dead body was thereafter referred for post-mortem examination and post-mortem was conducted by Dr. Chaudhari (P.W.6). According to Dr. Chaudhari, the cause of death was shock due to head injury. P. S. 1. Pandharinath Vaidya, thereafter, drew the scene of the offence Panchanama in the presence of Sanjay (P.W.3) and seized from the scene of the offence a wooden log, control soil and blood mixed soil. He thereafter, recorded the statements of the two minor sons of deceased Devkabai viz. Rahul (P.W.4) and Sunil (P.W.5). Clothes of deceased Devkabai came to be seized by Panchanama. The Appellant was arrested and arrest Panchanama was drawn. The clothes, which were on the person of the appellant, also came to be seized and the same are Article Nos.5 and 6. The seized property was referred to the Chemical Analyzer at Aurangabad vide requisition. Further to the completion of investigation, a charge sheet against the appellant, came to be filed.”

4.Prosecution version was as follows:

“Rahul (P.W.4) son of the appellant and deceased Devkabai, stated that the appellant was unemployed and was addicted to liquor and would pick up quarrels with deceased Devkabai often. On the day of the incident Rahul (P.W.1) was sleeping on a clot alongwith his younger brother Sunil (P.W.5). They were awakened on hearing the noise of quarrel between the appellant and Devkabai. According to him, at that time, his mother was cooking and was preparing bread. The appellant dealt a blow of wooden log on her head, as a result she sustained bleeding injuries. He accordingly went running to call his maternal aunt Sumanbai (P.W.1). He narrated the incident to her and along with her immediately rushed back to the house. On seeing Sumanbai (P.W.1), the appellant fled from the house. Near to the scene of the offence the wooden log Article-3 was lying. He noticed two bleeding injuries on the head of his mother Devkabai. Devkabai was shifted to the hospital by Sumanbai (P.W.1) and Sunanda (P.W.2). Devkabai succumbed to her injuries in the hospital.”

5.On the case being committed to the Court of Sessions, trial Judge framed a charge against the Appellant for offence punishable under Section 302 of Indian Penal Code. The Appellant denied the guilt and claimed to be tried. Prosecution, in its effort to substantiate the charge, examined eight witnesses. The trial Judge accepted the evidence of the eye witnesses viz. Rahul (P.W. 4) and Sunil (P.W. 5) and convicted and sentenced the accused as afore stated.

6.Before the High Court the accused appellant contented that the evidence of PWs. 4 & 5, who were the child witnesses, could not be accepted. In any event offence is not covered under Section 302 IPC. This plea was resisted by the State by supporting the judgment of conviction as recorded by the trial court. As noted above, the appeal was dismissed.

7.The stands taken before the High Court were reiterated. According to the appellant prosecution version, accepted in toto, goes to show that the assault was made in course of sudden quarrel and by a piece of wood blow was given and, therefore, the Section 302 IPC has no application, and Exception 4 to Section 300 IPC applies.

8.Learned counsel for the State sup