The court determined that the appellant's actions were provoked, warranting a conviction under Section 304 Part-I instead of Section 302, emphasizing the absence of premeditation.

JUDGMENT :

(Nitin B. Suryawanshi, J.) :

1. This appeal challenges the judgment and order of conviction passed by learned Additional Sessions Judge, Nagpur in Sessions Trial No.12/2014 dated 17.01.2017, thereby convicting the appellant under Section 302 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for life and to pay fine of Rs.10,000/- with default clause.

2. Facts of the prosecution case in nutshell are as follows – Sanjay Kharabe (P.W.1) son of the deceased lodged first information report alleging that on 12.09.2013, when he was at Bhandara, his cousin informed him on telephone that accused has committed murder of his father on account of distribution of water from canal. He therefore, returned to the village at 12 p.m. thereafter Vinod Waghmare told him that at about 11 a.m. when the deceased was turning water of canal towards his field by spade, accused Krishna Sahadeo Vaidya, who was carrying an axe with him, asked the deceased as to why he is turning water towards his field and not letting water flow towards his field and quarreled with him. Vinod tried to pacify the matter, but, accused no.2 Gaurishankar Krishna Vaidya also came there and when the deceased was turning water towards his field, accused no.1 gave blows of axe on face and head of the deceased. At that time accused no.2 was giving instigation to accused no.1. Deceased sustained bleeding injuries and fell down in the canal. Thereafter due to fear Vinod Waghmare (P.W.3) and Surendra Mehar (P.W.4) ran away from the spot. On the basis of the report Crime No.34/2013 was registered by Aroli Police Station under Section 302 read with Section 34 of the Indian Penal Code. On completion of investigation, charge sheet was filed and both accused were charged under Section 302 read with Section 34 of the Indian Penal Code. In support of its case, prosecution has examined 12 witnesses. The defence of accused was of total denial and of false implication. The trial Court has acquitted accused no.2 and convicted the appellant. Hence this appeal.

3. Heard learned Counsel appearing for the appellant, learned A.P.P. for the respondent State and perused record.

4. Learned Counsel appearing for the appellant submitted that the trial Court has erred in convicting the appellant by relying on the evidence of eye witnesses i.e. P.W.3 Vinod and P.W.4 Surendra, since they have not disclosed the incident to anybody in the village, hence their conduct is unnatural and it is doubtful whether they have really witnessed the incident, therefore, they should be disbelieved. According to him, prosecution has failed to prove the charge of murder beyond reasonable doubt.

In the alternative, he further submits that even if prosecution case is accepted as it is, the conviction cannot be beyond Section 304 Part I or II of the Indian Penal Code. In support of this submission, learned Counsel for the appellant has relied on following decisions.

(1) Criminal Appeal No.473/2014 decided on 10.08.2016 (Nagpur Bench) – Pappu @ Deoman Rambhau Borate .vrs. The State of Maharashtra.

(2) 1998 All MR (Cri) 1158 – Mirchu Gumanmal Damnani .vrs. State of Maharashtra.

(3) 2018 All M.R. (Cri) 1372 (SC) – Atul Thakur .vrs. State of Himachal Pradesh.

(4) Criminal Appeal No.3598/2023 (Supreme Court) decided on 24.11.2023 – Mariappan .vrs. State Rep. By Inspector of Police.

5. Per contra, learned A.P.P. supported the judgment of trial; Court by relying on following decisions.

(1) [2002] 3 SCC 341 – Virender .vrs. State (NC) of Delhi.

(2) [2001] 3 SCC 439 – Ramashraya and another .vrs. State of M.P.

(3) [2000] 4 SCC 198 – Rajender Singh and another .vrs. State of Bihar.

He submits that taking into consideration number of injuries inflicted on the deceased by appellant, and the fact that appellant had come their with an axe, the action of accused was premeditated and therefore, trial Court is justified in convicting the appellant/accused under Section 302 of the Indian Penal Code.

6. We have carefully scrut