IMPORTANT POINT
Ingredients of section 302 IPC discussed.

JUDGMENT

Dr. B.S. Chauhan, J. —

1. Leave granted.

2. This appeal has been preferred against the judgment and order dated 25.8.2009 passed in Criminal Appeal No.242/04 by the High Court of Judicature at Bombay, Nagpur Bench, affirming the judgment and order dated 16.3.2004 passed by 2nd Additional Sessions Judge, Nagpur, in Sessions Trial No.366/03 convicting the appellant under Section 302 of Indian Penal Code, 1860 (hereinafter called IPC) and awarding the sentence of life imprisonment and, in addition thereto a fine of Rs.1000/- had also been imposed and in default of payment to undergo further rigorous imprisonment for the period of one year.

3. Facts and circumstances giving rise to this appeal are that the appellant’s sister Sandhya had a love affair with Prashant (deceased) which continued for 2-3 years. The appellant was fully aware of the said affair and expressed his displeasure, having had altercations with Prashant (deceased) several times. On 30.4.2003, the appellant saw Prashant (deceased) and his sister Sandhya chatting with each other at about 9.15 p.m. at a short distance from his house. He assaulted Prashant (deceased) with the knife thrice and ran away from the spot.

4. The appellant’s sister Sandhya (PW.6) called the police jeep passing through the road. The police shifted Prashant, injured, to hospital and while going to the hospital Prashant made a statement to PSI Bhaurao Meshram (PW.7) which was treated to be an FIR under Section 307 IPC. As subsequently, Prashant died, the FIR was converted to one under Section 302 IPC. Prashant made two dying declarations (Exh. 20 and 26), one to PSI Bhaurao Meshram (PW.7) on 30.4.2003 and another to Mr. Prakash, Special Judicial Magistrate (PW.3) on 1.5.2003 to the effect that the appellant had caused knife injuries to him.

5. After conclusion of the investigation, charge sheet was filed against the appellant under Section 302 IPC. In support of the case, the prosecution examined several witnesses, however, the eye- witnesses including Sandhya (PW.6) did not support the case of the prosecution and they were declared hostile. The trial Court after considering the evidence on record and the arguments made by learned counsel for prosecution as well as the defence, convicted the appellant under Section 302 IPC vide judgment and order dated 16.3.2004 awarding the life imprisonment and a fine of Rs.1000/- and in default of payment to undergo further rigorous imprisonment for the period of one year.

6. Being aggrieved, the appellant preferred Criminal Appeal No.242/04 which has been dismissed vide impugned judgment and order dated 25.8.2009. Hence, this appeal.

7. Shri Gaurav Agrawal, learned counsel appearing for the appellant has made large number of submissions regarding the veracity of the evidence on record; pointed out contradictions in two dying declarations; prosecution case was not supported by any of the eye-witnesses including Sandhya (PW.6) who had called the police jeep which had taken Prashant (deceased) to the hospital; and the panchnama witnesses of the recovery of knife also did not support the case of the prosecution. However, realising the fact that there have been concurrent findings of fact by the two courts below, wherein after considering the contentions of the defence in detail the courts have recorded the finding that there was no material contradiction in both the dying declarations and the conviction could be based solely on the said dying declarations, he restricted his case only to the nature of offence. It has been submitted by Mr. Agrawal that as the act of the appellant had not been pre-meditated and it all happened because of sudden provocation, conviction could be only under Section 304, Part I IPC and not under Section 302 IPC.

8. Mr. Shabkar Chillarge, learned counsel appearing for the State has submitted that considering the gravity of injuries, no interference is required with the impugned judgment by this Court. The appellant has rightl