The reliability of eye-witnesses, the extension of exception 4 to Sec. 300 of the IPC, and the distinction between Sec. 302 and Sec. 304 - Part I of the Indian Penal Code.

JUDGMENT

N.R.BORKAR,J. - This Appeal takes exception to the Judgment and Order dtd. 14/7/2016 passed by the District Judge - 8 & Additional Sessions Judge, Nashik in Sessions Case No.109 of 2010.

2. The Appellant, who was accused No.1 before the trial court, was tried for the offences punishable under Ss. 498A and 302 of Indian Penal Code (IPC). By the impugned Judgment and Order, the trial court convicted the Appellant for the offence punishable under Sec. 302 of Indian Penal Code and sentenced to suffer life imprisonment and to pay a fine of Rs.1000.00 in default of payment of fine to suffer simple imprisonment for one month. The trial court however, acquitted the Appellant of the charge for the offence punishable under Sec. 498A of the IPC. Two more accused were tried with the Appellant for the offence punishable under Sec. 498A of the IPC. The trial court acquitted them of the said charge.

3. The deceased Sonali was the wife of present Appellant. The Appellant and the deceased were married for five to six years prior to the occurrence of the alleged incident, which took place on 30/3/2010.

4. According to the prosecution, the Appellant and other accused were insisting the deceased to bring Rs.50,000.00 from her parents to augment their hotel business. They were subjecting her to mental and physical cruelty, to coerce her to fulfill their unlawful demand.

5. On 26/3/2010, the Appellant and other accused left the deceased at her parents' house and she was told that they would not let her to come to their house without Rs.50,000.00.

6. According to the prosecution, on the day of incident i.e., on 30/3/2010, the Appellant alone came to the house of parents of the deceased. He told PW-1 Hiraman Ganore, the father of the deceased and other family members that he had come to talk to the deceased. He further told them that he would not be able to talk with the deceased in their presence and told them to go out of the house. Accordingly, to allow the accused No.1 to talk with the deceased, they came out and stayed nearby the house. According to the prosecution, after some time they heard cries of the deceased and she was desperately calling PW-1. Thus, they went inside the house and saw that Appellant was assaulting the deceased with knife. They also found that there were multiple injuries on the person of the deceased. According to the prosecution, Appellant after assaulting the deceased, tried to run away but he was apprehended. Due to assault the deceased died at the spot itself.

7. The trial court to convict the Appellant has primarily relied upon the evidence of PW-1 Hiraman Ganore, the father of the deceased, PW-3 Ashok Ganore, the uncle of the deceased and PW-5 Sangita Ganore, the mother of the deceased, who according to the prosecution are eye witnesses to the incident in question.

8. We have heard the learned Counsel for the Appellant and the learned APP for the RespondentState.

9. The learned Counsel for the Appellant submits that the trial court erred in relying upon the evidence of PW-1, PW-3 and PW-5 to connect the accused No.1 with the alleged crime. It is submitted that PW-5 has admitted in her cross-examination that when she came inside the house, the deceased was lying on the floor and there were multiple injuries on her person. She has further admitted that she was first to come inside the house. The learned Counsel for the Appellant thus submits that when PW-5 came inside the house, the deceased was already lying on the floor in the injured condition, and thus it is apparent that PW-5 had not witnessed the alleged assault by the Appellant. It is submitted that PW-1 and PW-3 who came inside the house after PW-5, therefore cannot be relied upon as eye-witnesses to the alleged incident and therefore, the trial court erred in relying upon the evidence of PW-1, PW-3 and PW-5 as eye witnesses to the alleged incident and convicting the Appellant on the basis of their evidence. The learned Counsel for the Appellant submit