IMPORTANT POINT
When the appellant and the deceased were alone at the time of occurrence and he failed to explain death of the deceased and the ocular and forensic evidence go against him, he must be convicted.

JUDGMENT :

R. Banumathi, J.

This appeal arises out of the judgment of the High Court of Judicature at Bombay, Nagpur Bench dated 02.12.2009 in Criminal Appeal No.247 of 2004 affirming the conviction of the appellant under Section 302 IPC and sentence of life imprisonment imposed on him.

2. Briefly stated case of the prosecution is as under:-PW-1-Nagorao Kharate, cousin of the deceased-Dashrath was residing adjacent to the house of Dashrath and his son appellant-accused in village Dapura. PW-1-Nagorao Kharate lodged a complaint at Police Station Boregaon Manju on the evening of 08.04.2002 stating that on the preceding night i.e. 07.04.2002 at around 08.30 p.m. he heard an altercation between Gajanan-the appellant-accused and his father-Dashrath and Dashrath was wailing till about 10.00 p.m. According to PW-1-Nagorao Kharate, such incidents of altercations and assault were frequent in the house of the appellant-accused and therefore he paid no attention to the incident. On the next day morning at about 7.30 a.m., PW-1-Nagorao Kharate was informed by Madhukar Kharate-PW-4 that he had found Dashrath lying dead in a pool of blood inside his house. PW-1 rushed to the house of the appellant and found his cousin Dashrath-father of the appellant lying dead in a pool of blood and a stone smeared with blood lying next to his body. PW-1-Nagorao Kharate then went to the Police Station, Boregaon Manju lodged a complaint, on the basis of which, First Information Report was registered vide RC No.40/2002 for the offence punishable under Section 302 IPC. Investigation was taken up by PW-7-Hanuman Rathod, who was incharge of the police station and PW-7 recorded the statement of witnesses. PW-6-Dr.Prashant Agrawal conducted autopsy on the body of deceased-Dashrath and noted number of injuries on his eyes, forehead, cheek, shoulder, elbow etc. and opined that Dashrath died due to injuries to vital organs and head injuries. Accused was arrested on 09.04.2002 and while in police custody he gave a confession statement which led to the recovery of blood stained clothes of the accused inside his house. On chemical analysis, recovered clothes of the accused found to contain ‘B’ Group blood which is the blood group of the deceased. On completion of the investigation, police filed the chargesheet against the appellant-Gajanan under Section 302 IPC and the case was committed to the Court of Sessions, Akola.

3. To substantiate the charges against the appellant, prosecution has examined as many as seven witnesses and exhibited number of documents and material objects. The accused was questioned under Section 313 Cr. P.C. about the incriminating evidence and circumstances and the appellant denied all of them and pleaded that false case has been foisted against him. Upon appreciation of oral evidence and the circumstances and the conduct of the appellant-accused in not giving explanation for the homicidal death of his father, the trial court convicted the appellant for the offence under Section 302 IPC and sentenced him to undergo imprisonment for life and to pay a fine of rupees one thousand with default clause. Being aggrieved, the appellant preferred appeal before the High Court and by the impugned judgment, the High Court dismissed the same confirming the conviction of the appellant and the sentence of life imprisonment imposed on him.

4. Learned counsel for the appellant Mr. Praveen Chaturvedi contended that PW-1 Nagorao Kharate came to know about the death of Dashrath only from PW-4 Madhukar Kharate and the High Court failed to appreciate that PW-1-Nagorao Kharate was not an eye-witness to the occurrence. It was further contended that the evidence of PWs 1 and 2 are untrustworthy and conviction of the appellant was based on mere suspicion and the High Court erred in not appreciating the lapses in the prosecution case and therefore conviction of the appellant is not sustainable.

5. Learned counsel for the respondent-State Mr. Kunal Cheema submitted that prosecu