The main legal point established in the judgment is the application of legal provisions related to intention and sudden provocation in determining the nature of the offence under Section 302 of the Indian Penal Code.

JUDGMENT

Amit B. Borkar, J. - Hearing was conducted through video conferencing and the learned counsel agreed that the audio and video quality was proper.

2. Through this appeal the appellant challenges the judgment and order dated 23.04.2018, passed by Additional Sessions Judge, Gadchiroli in Sessions Case No. 79 of 2015 convicting and sentencing him to undergo imprisonment for life and to pay a fine of Rs.1000/- in default to pay the fine to suffer R.I. for six months for offence under Section 302 of Indian Penal Code.

3. In short, the prosecution case runs as under :

The incident happened on 07.04.2015 in the barren field near the field of accused. On the day of incident Punnibai-(PW-2) along with her sister-in-law Vanita-(PW-3) were in the field at about 7 A.M. At that time the accused approached them and asked as to who has stolen wood from his field. When PW-2 and PW-3 denied it, the accused abused them by saying that they were daughters of landlord and collector. While the accused was abusing PW-2, PW-3, deceased came on spot and made enquiry with Punnibai and Vanita, PW-2 and PW-3 told deceased about the incident. Then the deceased asked the accused as to why accused abused PW-2 and PW-3. At that time accused asked deceased to come near him so that the accused would disclose the reason to the deceased. When the deceased went near the accused, the accused assaulted the deceased with axe on his head. The deceased fell on the ground and was declared dead on arrival in hospital. The accused thereafter himself went to police station along with axe and confessed crime by lodging the report. The police station Jaravandi registered a crime bearing No.03/2015 against the Accused.

4. The Investigating Officer submitted Investigation Complete Report under Section 173 of Criminal Procedure Code before the Judicial Magistrate First Class, Aheri after completing the investigation. The learned Judicial Magistrate First Class, Aheri, committed the case to the Sessions Court as it being exclusively triable by the Sessions Court by its order dated 07.07.2015. The trial court framed the charge against the accused, which was denied by the accused and the prosecution was called upon to open the case. The prosecution in all examined 12 witnesses, out of which PW-2 and PW-3 are eyewitnesses. In the statement of the accused recorded under Section 313 of Criminal Procedure Code, the accused raised defence of rivalry against the deceased, hence the accused was falsely implicated in the case. The accused did not step into the witness box however examined his father as defence witness to prove that the applicant had Psoriasis to his right hand.

5. The learned trial court believed the witnesses examined by the prosecution and convicted the accused for offences punishable under Section 302 of Indian penal Code and sentenced for life imprisonment.

6. We have heard Ms. Kirti S. Deshpande, learned counsel for the appellant and Mr. N. S. Rao, learned APP for the state. We have also perused the depositions of prosecution witnesses, material exhibits rendered and proved by the prosecution, the statement of appellant recorded under Section 313 of Criminal Procedure Code and the impugned judgment.

7. Ms. Kirti Deshpande learned advocate for the appellant submitted that on account of sudden and grave provocation the incident took place. The injury was without any intention. There was only single blow. It is also submitted that there was a delay of six days in recording statements of eyewitnesses. It is also submitted that the accused was not immediately arrested which cast doubt on the theory of prosecution. There is over writing about date and time in the FIR. The eye-witnesses were related to the deceased and hence were interested. It is submitted that in case the Court comes to the conclusion about involvement of appellant, at the most the offence can be under Section 304 part II and accordingly the sentence be reduced. In support of her contentions, the