The burden of proving any exception to the definition of murder under section 300 of the IPC lies on the accused, and failure to discharge this burden can lead to upholding the conviction for murder.

JUDGMENT :

Sarang V. Kotwal, J.

1. The Appellant has challenged the Judgment and Order dated 27/11/2014 passed by the Sessions Judge, Raigad, at Alibag in Sessions Case No.20 of 2013. The Appellant was the only accused in that case. The Appellant was convicted for the offence punishable u/s 302 of the Indian Penal Code and was Nesarikar sentenced to suffer imprisonment for life and to pay a fine of Rs.5,000/- and to suffer rigorous imprisonment for one year in default of payment of fine. The Appellant was given set off for the period for which he was in jail during the trial.

2. Heard Mr. Aniket Vagal, learned counsel for the Appellant and Mr. S. S. Hulke, learned APP for the State.

3. The prosecution case is about commission of murder of one Devi Deepak Sarkar @ Deepti Sameer Khan (the deceased in this case) committed by the present Appellant. Both of them were residents of Barvadih, Zarkhand. The Appellant was having a shop for recharging of mobile phones. The deceased used to come to his shop for recharging her phone. Slowly their friendship grew into love affair. Earlier both of them had eloped together. On that occasion they had returned. But again the deceased left her house. The deceased was residing at Kongaon, Taluka Panvel, District Raigad. The Appellant used to visit her. There was a quarrel between them on 03/10/2012 in the evening. On the next date on 04/10/2012 at about 04.30 p.m. there was again quarrel between them and on this occasion, the Appellant committed her murder by throttling her. The neighbours had reached the room, where the murder was committed, on hearing noise. They saw the Appellant jumping out of the window and running away. The deceased was lying dead. Therefore the landlord Janardan Gharat lodged his FIR. The investigation was conducted and the Appellant was arrested on 05/10/2012. After completion of the investigation, the charge-sheet was filed and the case was committed to the Court of Sessions. At the conclusion of the trial the Appellant was convicted and sentenced as mentioned earlier.

4. During trial the prosecution examined in all 10 witnesses;

P.W.1 - Janardan Janu Gharat and P.W.3 Harish Tejab Shetty, had seen the Appellant jumping out of the window and running away after commission of crime.

P.W.2 - Faik Nijam Patel, had seen the Appellant going away towards high way in a frightened condition at about 04.30 p.m. on 04/10/2012.

P.W.4 - Deepak Sarkar, is the father of the deceased and he has given history of relationship between the Appellant and the deceased.

P.W.5 - Dr. Basavraj Sangnath Lohare, had conducted the post-mortem examination.

P.W.6 - Jayavanti Janardhan Gharat was Pancha for Inquest Panchanama.

P.W.7 - Ashok Narayan Patil, was a Pancha for recovery of clothes of the Appellant.

P.W.8 - Vinayak Ramchandra Patil, was a Pancha for Spot Panchanama.

P.W.9 - Jagdish Namdeo Patil, was a Pancha for arrest of the Appellant.

P.W.10 - PI Adhikrao Mahadeo Pol, was the Investigating Officer.

The prosecution has also produced C.A. certificates on record.

5. The defence of the Appellant was of total denial. He has not taken any specific defence.

6. Learned counsel Mr.Aniket Vagal submitted that the incident is a result of sudden quarrel and in the heat of passion the Appellant has committed this act. His subsequent conduct and his repentance of the act before P.W.3 saying that he had committed a mistake; shows that he had not intended to commit murder of the deceased.

7. Mr.Vagal emphasized on his submissions that this is not a case of murder, but the offence is of lesser degree and it falls within the exceptions mentioned in section 300 of the IPC defining murder.

8. On the other hand, learned APP Mr. S. S. Hulke submitted that the prosecution has proved all the necessary facts. The prosecution has proved beyond reasonable doubt that it was a case of homicide and the Appellant had committed this crime.

9. According to the learned APP, if the Appellant was taking up a defence that the offense was a lesser