A.R. Joshi, J.

1. Heard rival arguments on this Criminal Appeal preferred by the appellant/orig. accused challenging the judgment and order of conviction dated 16.12.2003 passed by the Additional Sessions Judge, Greater Bombay in Sessions Case No.460 of 2002.

2. The appellant/accused was convicted for the offence punishable under Section 302 of IPC and was sentenced to suffer imprisonment for life and to pay fine of Rs.500/. In default of payment of fine, he was directed to suffer RI for three months. He was also convicted for the offence punishable under Section 201 of IPC and was sentenced to suffer RI for one year and to pay fine of Rs.500, in default to suffer further RI for three months.

3. The case of the prosecution, in nutshell, is as under:

Complainant Deepak Patil was a contractor who had taken the contract of cutting grass in various units of Aarey Colony area of Mumbai. He had employed ten labourers for cutting of grass. It was Government awarded contract. The labourers were attending the duty from 6:00 a.m. till noon time. He was doing the job with the help of his another partner by name Tayyappa (PW4). Said PW4 was also attending the site at Aarey Colony in the morning. On 17.12.2001, PW1 Deepak and his partner went to the work at 7:00 a.m. at Aarey Colony area. At about 9:30 a.m. one worker by name Silvraj came to him and told regarding finding of some blood stains beneath one tree. Search was conducted around that place and the dead body of the victim was found. There were injury marks on the head and neck and the assault was apparently by means of sharpedged weapon. Said dead body was subsequently identified by PW2 Rohit Kamble as that of one Nagraj. On noticing the dead body, PW1 lodged complaint with Aarey Colony SubPolice Station against unknown assailants. Investigation in the matter was started. During which spot panchnama and inquest panchnama was conducted. During the investigation, name of the present appellant/accused was revealed and he was put under arrest on 21.12.2001. Statement of various witnesses were recorded including the statement of PW3 Shanmugam a watchman working with PW1 & PW4. According to said PW3 Shanmugam he had seen the victim and the appellant/accused playing card in the area contracted out to PW1 for cutting grass. According to PW3 Shanmugam (a watchman) he had censored both the persons not to play cards at that place. He found that on the evening of 16.12.2001 they were playing cards and by their side one country made kerosene lamp was ignited.

4. After the arrest of the appellant/accused, during his police custody, search of residence of the appellant/accused was conducted and one T-shirt and full pant were seized from his house. They were having some blood stains. According to the case of prosecution, during interrogation appellant/accused made voluntary statement to produce sickle and accordingly said sickle was recovered under the panchnama in which one panch by name Ravindra Pawar (PW10) took part. Also during the investigation statement of one Jahid Sikilkar (PW5) was recorded by the police as the appellant/accused showed his shop to police party on 30.12.2001. According to police, the appellant/accused had purchased the sickle for Rs.100/from said PW5.

5. During the course of investigation, test identification parade was conducted by the Special Executive Officer (PW8) Shri Arun Mistry which was conducted on 28.1.2002 i.e. after about 40 days of the arrest of the appellant/accused. In the said T.I. Parade, according to prosecution, the watchman PW3 Shanmugam identified the accused as the person playing cards with the deceased on the evening on 16.12.2001. During investigation all the seized articles – including clothes of the deceased, clothes of the appellant/accused and sickle etc. were sent for Chemical Analysis. On completion of investigation, chargesheet was filed. After committal, the matter was tried by the Sessions Court and ended in conviction, which is