JUDGMENT :

(Abhay S. Waghwase, J.)

1. By way of instant Appeal, the Appellant-Original Accused, is assailing the judgment and order passed by learned Additional Sessions Judge, Pune dated 24th November, 2014 in Sessions Case No. 363 of 2013, by which Appellant stood convicted for commission of offence under Section 302 of the Indian Penal Code, 1860 [for short “IPC”] and sentenced to suffer life imprisonment. Brief facts before Ld. Sessions Court:-

2. The deceased-Laxman i.e. brother of complainant was working in Everest Consultancy Services, Vadgaon and he was residing in separate premises, but in the same building where brother/Complainant resided. Accused, and one Satish were friends of deceased-Laxman and they always shared each other’s company.

On 26.12.2012, deceased Laxman and complainant returned from their office. That time around 9 p.m. accused and other friend Satish were already present near there building and they were chatting. Laxman assured to join them after some time and went to his apartment. The complainant-brother also went to his room. Around 10.00 p.m. complainant heard commotion and so he rushed to the spot and there he saw accused Nilesh sitting on the chest of his brother Laxman and hitting with him with cement paver block on his head. When complainant went near them, accused ran away. Complainant shifted his brother initially to Sassoon Hospital and thereafter in KEM hospital. Complainant set law into motion by filing F.I.R. On 29.12.2012, while undergoing treatment, Laxman succumbed to the injuries and therefore crime was converted to Section 302 of IPC and accused was duly indicted for murder.

Investigation was entrusted to PW-6, who was then posted at Haveli Police Station, and after completing the same, he charge-sheeted accused.

Case being exclusively triable by Court of Sessions, it came to be assigned to the file of learned Additional Sessions Judge, who framed charges and undertook trial during which prosecution examined six witnesses and also relied on documentary evidence. After appreciating the evidence and on hearing both sides, learned trial Court reached to the finding that prosecution established the charge and thereby convicted and sentenced accused to suffer life imprisonment.

SUBMISSIONS

On behalf of Appellant –

3. Learned counsel for Appellant, while criticizing the impugned judgment pointed out that by no means case in hand was of Section 302 of IPC. Narrating the sequence of the events, he would submit that from the testimony of PW-1 and 2, it is abundantly clear that accused and deceased were good friends. Accused had come to chat with deceased. There was admittedly no previous enmity or quarrel, nor there were any issues amongst them. Resultantly, there was no motive also. According to him, this is also evident from cross of very complainant. Consequently, it is his submissions as there was no motive and pre-mediation, it is not at all a case of murder. Hence, he would submit that conviction ought not to have been recorded by learned Additional Sessions Judge for under Section 302.

4. It is next submitted that whatever incident took place was at the spur of the moment and probably there was sudden quarrel. Even deceased died after two days of occurrence and therefore according to him, by no stretch of imagination, case would fall or attract charge under Section 302.

5. Learned counsel took us through the evidence of PW- 2 and submitted that evidence of this witness is also full of material, omissions and contradictions. Taking us through the medial expert evidence, he submitted that there was no bleeding injury nor fracture to the skull and therefore when autopsy doctor had, on examination, opined about deceased suffering simple injuries, conviction of Section 302 is absolutely unwarranted.

6. However, he fairly conceded that case in hand at the most, would attract Section 304 part I of IPC and would not travel beyond it. According to him, case squarely falls in the exception 4 o