The main legal point established in the judgment is the reliance on consistent and natural witness evidence, immediate apprehension of the accused with the weapon, and medical evidence supporting the cause of death to establish guilt for the offence under Section 302 of IPC.

JUDGMENT

Prakash D. Naik, J. - Appellant is convicted vide Judgment and Order dated 10th October 2011 passed by learned Additional Sessions Judge, Kalyan in Sessions Case No.11 of 2009 for offence punishable under Section 302 of Indian Penal Code (for short 'IPC') and sentenced to suffer imprisonment for life and to pay fine of Rs.1,000/-.

2. The case of the prosecution is that, on 01.08.2008 Police Naik - Jagtap and others were on night duty at Mohane Chowki. They were attached to Mahatma Phule Police Station, Kalyan. They heard some noise towards Ambivali Railway Station. They rushed towards the spot and noticed that, fight was going on between Raja Rathod and Badrialam. The accused Badrialam gave blow of Sura on the stomach of Raja Rathod and ran away. He was apprehended by Police with Sura (knife) in his possession. Injured was taken to hospital. His condition was critical. He was declared dead. C.R. No.I-280 of 2008 was registered. During the course of investigation, statement of witnesses were recorded. Clothes of the deceased and accused were seized. On completing investigation, charge-sheet was filed.

3. Charge was framed for offence under Section 302 of IPC vide Order dated 21.12.2010. The prosecution examined Seven witnesses. PW-1 Kashinath Keru Jagtap was attached to Mahatma Phule Police Station, Kalyan as Police Hawaldar. He lodged the First Information Report (for short 'FIR'). PW-2- Robin Joseph Balid was panch witness for spot panchanama. PW-3 Natthu Barkya Gorat was Police Hawaldar attached to Mahatma Phule Police Station. He is the eye witness to the incident. PW-4 Bapu Daga Gajare was the Police Hawaldar, attached to Mahatma Phule Police Station. He has witnessed the incident. PW-5 Salim Usman Shaikh is the eye witness to the incident. PW-6 Chandrakant Baburao Shinde was the Police Inspector attached to Mahatma Phule Police Station. He is the Investigating Officer. PW-7 Dr. Ashwini Arvind Patil is the Medical Officer. Autopsy was conducted by this witness.

4. The trial Court after analyzing the evidence on record gave a finding that, the offence under Section 302 of IPC has been proved against the Appellant/Accused and thereby convicted him for the said offence.

5. Learned Advocate Mr. Prosper D'souza appointed to represent Appellant has challenged the Judgment of conviction and submitted that, the impugned Judgment and Order deserves to be set aside. The evidence of witnesses suffers from doubt. There are omissions and contradictions in the evidence. There are contradictions in respect to the fact that, the accused was caught by chasing after the incident of assault. The evidence of witnesses creates doubt and benefit of doubt must be given to the accused. The eye witnesses had seen the incident of assault from distance. There are contradictions in evidence of eye witnesses about distance from where they heard shouts and place of incident. There was darkness at the spot of incident. It was not possible for witnesses to see the incident of assault. Motive to commit crime is not proved. The offence under Section 302 of Indian Penal Code is not made out. At the most the Appellant could be convicted for offence under Section 304(ii) of IPC. There was no intention to commit murder.

6. Learned A.P.P. submitted that, there is sufficient evidence to convict the Appellant for offence under Section 302 of IPC. There are eye witnesses to the incident. There is no reason to disbelieve the version of eye witnesses. Minor contradictions would not affect the prosecution case.

The Appellant was armed with weapon. He assaulted the deceased on the vital part of his body which resulted into his death. The offence under Section 302 of IPC is clearly made out. There was no effective cross examination by the defence. Blood was found on the clothes of the accused. He did not offer any explanation in his statement under Section 313 of Cr.P.C. in respect to the findings of blood on his clothes. There are several eye witnesses to the incide