The central legal point established is the application of Exception 4 of sec. 300 of IPC in determining the nature of the assault and the appropriate conviction under sec. 304(II) of IPC.

JUDGMENT

SHRIKANT D.KULKARNI, J. - Feeling aggrieved by the impugned judgment and order of conviction passed by the Additional Sessions Judge, Kalyan, Dist. Thane in Sessions Case No. 128/2011, the appellant-Original accused has preferred this appeal by taking aid of sec. 374(2) of the Code of Criminal Procedure.

2. The prosecution case in a narrow compass is as under :- Ekabai (since deceased) happened to be mother of the appellant-accused. Both of them were working at the brick kiln at Village Niljepada. The said brick kiln was owned by one Devanand Mangrulkar and Rangnath Mangrulkar, residents of Niljepada. Ekabai (since deceased) and her son appellant were residing in one hut erected at brick kiln. On 19/3/2011, there was Holi festival and most of the workers had gone to their respective home town, however, the appellant and his mother were at their hutment. It was about 7.00 p.m. on 19/3/2011, the appellant picked a quarrel with his mother Ekabai on account of preparing the same vegetable brinjal in the evening. The appellant asked his mother as to why she prepared the same vegetable brinjal with potatoes and potatoes not cooked properly. Why fish was not prepared in the evening. The appellant was annoyed since same vegetable was repeated in the evening by his mother. After getting annoyed, the appellant started assaulting his mother by means of iron rod. Nivrutti Mangrulkar (PW-1) rushed to the spot and intervened in the quarrel. He noticed that Ekabai was not responding and lying on the ground. He informed to his father about the incident. His father came to the spot and found that mother of the appellant is no more. Nivrutti Mangrulkar (PW-1) lodged FIR about incident with Manpada Police Station and on that basis C.R. No. 85/2011 came to be registered under sec. 302 of Indian Penal Code (IPC) against the appellant-accused.

3. The investigation was entrusted to Police Inspector Pandre. The weapon used in the commission of offence came to be seized under Panchnama. The clothes of the deceased also came to be seized. The inquest panchnama was prepared. The dead body was sent to hospital for post-mortem examination and report. The investigation officer found sufficient evidence against the appellant-accused during course of investigation. The charge-sheet came to be filed against the appellant-accused in the Court of JMFC at Kalyan for the offence punishable under Sec. 302 of IPC.

4. The learned JMFC committed the case to the Court of Sessions at Kalyan for trial according to law.

5. The charge against the accusedappellant came to be framed vide Exhibit 4 for the offence punishable under sec. 302 of IPC. The accused denied the charge of murder of his mother and claimed for trial according to law. The trial was commenced before the learned Additional Sessions Judge, Kalyan. The prosecution machinery has examined in all seven witnesses including two eye witnesses and Investigation Officer and closed its evidence. The statement of accused under sec. 313 of Cr.P.C. came to be recorded. The defence of the accusedappellant is of plain denial. According to him, he has been falsely implicated in this case, however, he did not chose to examine any defence witness.

6. The learned Additional Sessions Judge, Kalyan after appreciating the evidence on record and considering the arguments advanced on behalf of both the sides was pleased to hold the appellantaccused guilty under sec. 302 of IPC and sentenced him to undergo imprisonment for life and pay fine of Rs.1000.00 and in default rigorous imprisonment for a period of two months for the offence punishable under sec. 302 of the IPC.

7. In the above background, the appellant-accused questions the legality of the judgment and order of conviction rendered by the Additional Sessions Judge, Kalyan under sec. 302 of IPC.

8. Heard Mr. Sushil Inamdar, learned Counsel appointed through the High Court Legal Services Committee, Bombay and Mr. H.J. Dedhia, learned APP for the StateRespondents.

9.