The main legal point established in the judgment is the application of Exception 4 to Section 300 IPC, which requires the act to be done without premeditation, in a sudden fight, without the offender having taken undue advantage or acting in a cruel or unusual manner, and the fight of the accused being with the deceased.

B.R. Gavai, J.

Being aggrieved by the judgment and order passed by the learned Additional Sessions Judge, Amravati dated 23.9.2013 in Sessions Case No. 28/12, thereby convicting the appellant for the offence punishable under Sections 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life and to pay a fine of Rs.5000/and in default, to suffer further S.I. for one year, the appellant has approached this Court.

2. The prosecution case, in brief, as could be gathered from the material placed on record is as under :

The accused Ramesh and victim Rajendra are cousin brothers. They used to reside in the vicinity of each other at village Kholapur. There was a dispute amongst them about partition of land. It appears that a civil dispute was also pending between them with regard to that matter. On 26.10.2011 at around 5.30 p.m. the accused gave abuses to the victim leading to an altercation between them in front of their house. The accused thereafter went to his house and brought one axe from his house and gave blow of it on the head of victim Rajendra. Victim fell down and became unconscious. He was initially taken to P.H.C. Kholapur and since no doctor was available he was taken to Civil Hospital, Amravati. Since he was serious, he was taken to hospital of one Dr. Sawdekar and thereafter again taken to Civil Hospital, Amravati where he died on the next day in morning. On the day of the incident itself, an oral report came to be lodged by PW.2 Meena, the wife of the deceased below Exh. 26. On the basis of the said oral report, an FIR came to be registered vide Crime No. 66/11 for the offence punishable under Section 307 of the Indian Penal Code. After the death of the deceased, the same was converted into offence punishable under Section 302 of the Indian Penal Code. The investigation was set in motion. Upon completion of investigation, the charge-sheet came to be filed in the Court of learned J.M.F.C., Bhatkuli. However, since the case was exclusively triable by the Court of Sessions, the same came to the committed to the Court of learned Sessions Judge, Amravati.

3. The learned trial Judge framed the charges below Exh. 3 against the accused for the offence punishable under Section 302 of the Indian Penal Code. The accused pleaded "not guilty" and claimed to be tried. At the conclusion of the trial, the learned trial Judge recorded the order of conviction and sentence against the present appellant as aforesaid. Being aggrieved by the order of conviction and sentence, the present appeal has been filed by the appellant.

4. Ms. F.N. Haidari, the learned Counsel appearing on behalf of the appellant, submits that all the witnesses are related to the deceased and as such, are interested witnesses. She further submits that there are various discrepancies in the evidence of the witnesses. She further submits that from the evidence of PW.5 Mohit, the very presence of the first informant PW.2 Meena on the spot is doubtful. She further submits that the testimony of PW.6 Vikas is recorded after six days and as such, the deposition of this witness is not free from doubt. The learned Counsel submits that in so far as the finding of the blood stains on the accused is concerned, the perusal of the seizure panchnama would reveal that there is no evidence regarding sealing of the said article and as such, the said circumstance cannot be used against the appellant. She, therefore, submits that the appellant is entitled to be acquitted and the appeal deserves to be allowed.

5. Mrs. M.H. Deshmukh, the learned Additional Public Prosecutor appearing on behalf of respondent, submits that in the present case there is a direct evidence of eyewitness available. She submits that there is nothing to disbelieve the testimony of these witnesses. It is further submitted that the ocular testimony of the eyewitnesses is supported by the circumstantial evidence of the blood group 'O', i.e. of the deceased being found on the clothes and axe