The accused committed murder with the use of deadly weapons and there was no sudden fight or quarrel as envisaged in Exception 4 to Section 300 IPC.

JUDGEMENT :

MILIND N. JADHAV, J.

1. This Appeal questions the legality of the Judgment and Order dated 27.04.2015, passed by the learned Additional Sessions Judge, Raigad at Alibag in Sessions Case No.97 of 2011, convicting Appellants (Original Accused Nos.1 and 2) under Section 235(2) of the Code of Criminal Procedure (for short “Cr.P.C.”) for offence punishable under Section 302 of Indian Penal Code (for short “IPC”) and sentencing them each to suffer rigorous imprisonment for life and pay fine of Rs.5,000/- each and in default thereof suffer further rigorous imprisonment for one year. Both Appellants have also been convicted for offences punishable under Sections 326 read with 34 IPC and sentenced to suffer rigorous imprisonment for 5 years and pay fine of Rs.1,000/- each and in default thereof to suffer rigorous imprisonment for two months; both sentences to run concurrently.

2. Appellant No.1 is the son of Appellant No.2. They shall be referred to as accused No. 1 and accused No. 2.

3. Prosecution’s case is based on ocular evidence to the incident. The gist of facts necessary for determination of the present Appeal are as under:

3.1. Complainant/First informant Santosh Laxman Patil (PW-1) is son of deceased Laxman. He was residing along with his wife Nirmala (PW-3) and two sons (Aniket (PW-4) and Abhishek) on the first floor of a newly constructed house in village Waje, Taluka: Panvel, whereas his parents Laxman and Sushila Patil alongwith his younger brother Bharat (PW-2) and his wife resided on the ground floor of the same house. On 28.12.2010, family of complainant i.e. Patil family performed a housewarming (Gharbharani) ceremony of their newly constructed house and started residing therein. Family of accused namely Masane family resided in the structure/house adjacent to the newly constructed house of Patil family. There was a small alley separating the two houses and an open space separating both structures. Both Patil and Masane family are related to each other and claimed right and entitlement in respect of the alley and the open space in front of their structures.

3.2. On 29.12.2012 at 6:00 a.m. in the morning, complainant’s son took bath; at 6:15 a.m. Nirmala (PW-3) heard screams of accused Nos. 1 and 2 along with Original Accused Nos.3 Vithabai and No.4 Sulouchana hurling abuses at Patil Family while standing in the open space in front of their house; on hearing abuses, father of complainant i.e. Laxman Patil came out of the house but he was assaulted by accused No.1 with axe on his chest and by accused No.2 with sword on his left arm. Laxman sustained grievous injuries and fell to the ground; by this time complainant rushed to his rescue but was assaulted by accused No.1 with axe on the right hand and accused No.2 assaulted him with sword on his right leg. Original Accused No.3 (Vithabai) and Original Accused No. 4 (Sulochana) assaulted complainant with sickle and sticks. On hearing their screams, PW-2 Bharat Patil rushed out of the house but was assaulted by accused No.1 with axe on his left leg and by original Accused Nos.3 and 4 with sticks. Bharat sustained bleeding injuries. PW-4 (son of complainant) witnessed the entire incident from the gallery of house. Laxman was taken to Gandhi Hospital at Panvel and declared dead. PW-1 and PW-2 were treated for their injuries. Inquest Panchanama Exh. 56 of the dead body of Laxman Patil was prepared by PI - Walchand Mundhe and it was sent for post-mortem to Rural Hospital, Panvel. Spot Panchanama vide Exh. 79 was carried out by PW-7 and blood-stained clothes, sickle without handle and stick were recovered and seized. Further seizure of axe, sword and stick used in the crime was made vide Exh. 81 from the backside portion of tin-tank at the instance of accused No.1. Blood stained clothes of accused Nos. 1 and 2 were recovered at their instance and marked as Articles 13 to 15; axe was marked as Article 10, sword was marked as Article 11 and Bamboo stick was marked as Article