K.U. Chandiwal, J.

1. In Sessions Case No. 108/2010, appellant Rajesh was convicted for offense under Section 302 of IPC, to undergo rigorous imprisonment for life and to pay fine of Rs. 500/- with default stipulation; and for offense under Section 452 of IPC, to undergo rigorous imprisonment for three years and to pay fine of Rs. 300/-; in default, rigorous imprisonment for one month, recorded by order dated 30th August, 2011, by learned Additional Sessions Judge, Dhule. The conviction and sentence is questioned. The appeal is admitted on 20th Dec, 2011. Heard.

2. FACTS:

(a) Kamalbai Chatre, P.W. No. 1, has three daughters; Amruta, Laxmi and Kamini. The accused/appellant was married to Kamini, however, the marriage could not sail well and there was a divorce in Diwali, 2009. Inspite of divorce, the appellant was loitering around the premises of Kamalbai Chatre. On 6th March, 2010, at around 3.45 p.m., P.W. No. 1 Kamalbai was in the house. Her daughter Laxmi, a female Police constable, after her lunch, was sleeping in a room near kitchen. P.W. No. 1 was searching for medicines in nearby cupboard adjacent to the cot where Laxmi was sleeping. She heard sound of handling of utensils, from the kitchen. Initially, she did not suspect. However, when she looked to kitchen, she was surprised to see accused Rajesh had picked up a knife from the kitchen and he rushed to Laxmi. He pressed her mouth with his left hand and thrust the knife in her chest by his right hand. Taken aback, P.W. No. 1 tried to intervene but, appellant had a scuffle with her, beat her. Resultantly, P.W. No. 1 suffered bleeding injury and abrasions. She yelled, "BACHAV, BACHAV". Resultantly, neighbours Pravin @ Bhaiyya Patil (P.W. No. 6), Natha Devidas Patil, Aba Wani, Vijay Kanjarekar, and others rushed. Bhaiyya Patil snatched knife from the accused, however, he also suffered injuries/abrasions. Laxmi, owing to injured condition, came running to gallery, however, due to profuse bleeding, she collapsed. She was carried to Civil Hospital in a Rickshaw where she was declared dead. The neighbours controlled the accused at the spot. F.I.R. (Exh. 20) of P.W. No. 1 was recorded which triggered investigation. The appellant was put under arrest in presence of Siddharth Damodhar Borse and P.W. No. 5 Kailas Changulal Alware (Exh. 29). The description of the appellant was recorded, including blood stained apparels on his person. The apparels were taken charge under said panchnama, packed, signed by Panch witnesses, labelled and sealed.

(b) Spot panchnama (Exh. 28) was drawn with the same panch witnesses; Siddharth and Kailas, who recorded the situation. The blood stained knife, spoilt of blood cotton swab was taken charge by the investigator duly labelled, sealed.

(c) Inquest on dead body was caused in presence of P.W. No. 4 Nagsen Borse who too cemented about the fatal injuries suffered by the deceased. Post mortem on the dead body was caused by P.W. No. 9 Dr. Ramesh Kashinath Gadhari on 6.3.2010 between 6.30 to 7.30 p.m. He noticed a stab injury on chest of the deceased 1.4 c.m. x 0.6 c.m. with cavity deep situated at 2 c.m. lateral to mid-line obliquely placed. The injury was below 17 c.m. of supra sternal notch. Upper end was medially and lower end was placed laterally. The injury was noticed to be fresh and ante-mortem.

P.W. No. 9, on internal examination noticed that brain was pale; chest wall and pleura were cut in 4th inter-costal space. Plural lungs were cut consistent with external injury. Heart contained blood and blood clots, stomach contained 100 cc semi digested food. Walls and mucosa were normal. Corresponding cut marks are noticed on the clothes of the deceased. He has identified the Muddemal article No. B Kurta, to be the same. Death of the deceased was due to stab injury. Accordingly, he issued post mortem report Exh. 43. The injuries were recorded in