Judgment :- 1. The appellant, through Superintendent, Central Prison, Belgaum, is challenging the legality and correctness of the judgment of conviction and sentence ordered by the Presiding Officer, Fast Track Court-II & Additional Sessions Judge, Belgaum, dated 29th March 2005, in Sessions Case No.219 of 2004 wherein the Sessions Court has convicted the appellant for the offence punishable under Section 302 of the Indian Penal Code sentencing him to undergo imprisonment for life and to pay a fine of Rs.1,000/-and in default of payment of fine amount to undergo simple imprisonment for three months. 2. According to the prosecution, one Irappa Dashrath Raibag, a resident of Neginahal village, was residing in Janata Colony along with his wife, two children and aged father. On 30th April 2004, at about 12.30 p.m., since the deceased was unwell and suffering from dysentery, he went out of the house to answer the nature call. At that point of time, his two minor children by name Bandeppa and Bharati were playing in front of his house. When Irappa was near the water tank – about 50 to 60 feet away from his house – the accused proceeded behind him and gave a blow with M.O.1 – axe on both sides of the head and on the forehead which incident was witnessed by the two minor children of Irappa, who immediately rushed into the house and informed Mahadevi, the complainant, and Dashrath Raibag-father of the deceased who suddenly came out of the house and saw the accused assaulting the deceased Irappa with the axe. At the same time, a neighbour by name Magappa Hakmaddi also witnessed the same. After seeing the complainant-Mahadevi, the appellant-accused ran away with the axe. As a result of the assault, the deceased had sustained injuries to the forehead; right and left parietal region. He was immediately taken to government hospital, Neginahal, where Dr. Babu Naik gave treatment and informed the police, and thereafter, on the advice of Dr. Babu Naik, the injured was shifted to Civil Hospital, Belgaum and he was treated as an inpatient till 10.05.2004, on which date he died in the hospital. On the basis of the complaint lodged by Mahadevi-wife of the deceased, the police registered a case in Crime No.42/04 and after investigation a case was registered in C.C.No.591/2004. Babu Naik, the injured was shifted to Civil Hospital, Belgaum and he was treated as an inpatient till 10.05.2004, on which date he died in the hospital. On the basis of the complaint lodged by Mahadevi-wife of the deceased, the police registered a case in Crime No.42/04 and after investigation a case was registered in C.C.No.591/2004. After the death of Irappa, the offence was converted into 302 of IPC by the Circle Inspector of Police, Bailhongal. 3. The case was committed to the Sessions Court at Belgaum, and later on, on establishment of the Fast Track Court, the case was transferred to the Fast Track Court. The learned Sessions Judge, after hearing the accused, who pleaded not guilty and claimed to be tried, framed charges against the accused. Thereafter the prosecution has examined, in all, 18 witnesses as P.Ws.1 to 18 and got marked Exs.P.1 to P.28 and M.O.1 to M.O.4. No oral evidence was let in on behalf of the accused. However Exs.D1 and D2 were marked in the evidence of P.W.7. 4. The learned Sessions Judge, after recording the evidence and bearing, formulated the following for his consideration: “i) Whether prosecution proves that the deceased Irappa had died homicidal death? ii) Whether prosecution further proves that is the accused who has caused the homicidal death of the deceased Irappa? iii) What Order?” After hearing, the learned Sessions Judge held point nos.1 and 2 in the affirmative and found the accused guilty of the offence punishable under Section 302 of IPC. Thereafter, the appellant was also heard in regard to the sentence and, subsequently, the appellant has been convicted for the offence punishable under Section 302 sentencing him to undergo imprisonment for life. This order is called in question by the appellant in this appeal. 5. We have heard the learned counsel appearing for the appellant and the learned Additional State Public Prosecutor for the prosecution. 6. At the outset, the learned counsel for the appellant does not dispute that the death of Irappa was a homicidal death and he mainly contends that the prosecution has failed to prove that the accused has caused the homicidal death of the deceased Irappa. 7. In view of his submission. Only point no.2 considered by the Sessions Judge has to be reconsidered. In this appeal, we have confined ourselves to the point no.2 formulated by the Sessions Court. 8. 7. In view of his submission. Only point no.2 considered by the Sessions Judge has to be reconsidered. In this appeal, we have confined ourselves to the point no.2 formulated by the Sessions Court. 8. Out of 18 witnesses, the prosecution has examined P.Ws.1 to 3 & 6 as eyewitnesses. P.W.1 is the complainant who is the widow of the deceased Irappa. P.W.2-Bandeppa is the minor son of the deceased, who has seen the incident and also an eye-witnesses. P.W.3-Magappa Hakmaddi, who is a neighbour of the deceased and the accused, has also seen the incident. P.W.6-father of the deceased has also seen the incident. P.W.7 is the elder sister of the accused from whose house M.O.1-axe was seized by the prosecution. She has also supported the case of the prosecution. P.W.8-Dr.Babu Naik is the person who examined and gave medical treatment to the injured, at the first instance, and who informed the Police, P.W.9-Dr.Umadevi is the Medical Officer who conducted autopsy on the dead body of the deceased. P.W.10-Dr.Shashidhar Uppin is the doctor who treated the deceased at Civil Hospital, Belgaum. 9. The main case of the prosecution is that the deceased and the accused are residing in the same road and the house of the accused is in front of the house of the deceased. About three years prior to the incident, the deceased and his father, who is examined as P.W.6, had assaulted the accused with the help of a spade, which had resulted in filing of a criminal case against the deceased and his father and which was pending on the date of incident. According to the prosecution, the deceased had suspected his wife-P.W.1, Mahadevi, of having an illicit relationship with the accused. It is also the case of the prosecution that there was a rift between the accused and the deceased in regard to manufacture of chappals. The decease belongs to Samagar community and the appellant belongs to Harijan community and both of them are residing in the same road. 10. It is also the case of the prosecution that there was a rift between the accused and the deceased in regard to manufacture of chappals. The decease belongs to Samagar community and the appellant belongs to Harijan community and both of them are residing in the same road. 10. It is the case of the prosecution that on account of the deceased and his father assaulting the accused three years prior to the incident, the accused three years prior to the incident, the accused was waiting for a chance to finish off the deceased which resulted in attacking the deceased on 30th April 2004, at about 12.30 p.m., very near to the house of the deceased in front of the water tank which leads to a grave yard in the village. 11. According to the prosecution, the attack made by the accused with the help of M.O.1 has been witnessed by the two minor children of the deceased viz., Bandeppa and Bharati who were playing with the ball in front of the house, and P.W.3, who is a neighbour, has also witnessed the incident as he was taking his buffaloes fro grazing. On seeing the assault made by the accused on the deceased, the two minor children of the deceased rushed into the house and informed P.W.1 and 6 and immediately they came to he spot and saw the accused assaulting the deceased with M.O.1. 12. All these witnesses have deposed in a natural way. The Sessions Judge considering the evidence of P.Ws.1 to 3 & 6 came to the conclusion that there is a direct evidence to show that the accused had attacked the deceased with M.O.1 with an intention to cause homicidal death of the deceased. 13. The Sessions Judge has also considered the nature of the injuries found on the deceased and the medical evidence, which supports the case of the prosecution. Dr.Shashidhar Uppin-P.W.10 has deposed in his evidence that the deceased had sustained lacerated injury over the right and left parietal region and so also on the forehead, and that these injuries could be caused by M.O.1-the axe. The case of the appellant-accused was that the deceased has sustained these injuries on account of fall on a hard rock. According to P.W.10, even if a person falls on a hard rock, the type of injuries received by the deceased cannot be linked. The case of the appellant-accused was that the deceased has sustained these injuries on account of fall on a hard rock. According to P.W.10, even if a person falls on a hard rock, the type of injuries received by the deceased cannot be linked. The Sessions Court, considering the seizure of M.O.1 from the house of P.W.7-elder sister of the accused, also came to the conclusion that though there is some discrepancy in the deposition of P.W.7 and the statement made by her before the police that evidence of P.W.7 can be safely believed. P.W.2-minor son of the deceased viz., Bandeppa, though, in the cross-examination, has admitted that the advocate had asked him to depose in the same lines, still the court has come to the conclusion that P.W.2 though is minor was capable of understanding the questions and could distinguish the truth and false and that the evidence of P.W.2 was natural and could not be disbelieved. The Sessions Judge has also come to the conclusion that there is no exaggeration in the evidence of P.Ws.1 to 3 & 6. Considering that there is direct evidence of P.Ws.1 to 3 and 6 who have seen the accused blowing the deceased with M.O.1, the Sessions Judge came to the conclusion that the accused was responsible for the cause of the death. Thereafter, the Sessions Judge has also examined whether the case can be brought into any of the exceptional circumstances under the explanation to Section 300 of IPC. Considering that there was no sudden provocation and that the accused with an axe had attempted to cause injuries to the deceased with an intention to commit murder, also came to the conclusion that the case of the accused cannot be brought into any of exceptional provisions of explanation to Section 300 of IPC. In the circumstances, the Sessions Judge has convicted the accused for having committed the offence under Section 300 of IPC and sentencing him under Section 302 of IPC. 14. Before us, the learned counsel for the appellant mainly contends that since P.W.2-the minor son of the deceased has admitted that he was tutored by the advocate, the evidence of P.W.2 should have been discarded and the evidence of P.Ws.1, 3 & 6 cannot be believed as they are all interested witnesses. 14. Before us, the learned counsel for the appellant mainly contends that since P.W.2-the minor son of the deceased has admitted that he was tutored by the advocate, the evidence of P.W.2 should have been discarded and the evidence of P.Ws.1, 3 & 6 cannot be believed as they are all interested witnesses. It is also his case that the nature of injuries sustained by the deceased could be caused on account of falling on a hard rock. Since the deceased was suffering from dysentery on the date of the accident he had fallen on the hard rock on account of giddiness. He also contends that if proper medical care had been give, the deceased would not have died, therefore, the case of the prosecution cannot be believed. Lastly, he requests the Court to bring the case within the provisions of Part II of Section 304 of IPC and reduce the sentence. 15. The learned State Public Prosecutor while supporting the judgment of the Sessions Court requests this Court to dismiss the appeal. 16. Having heard the counsel for the parties, the only6 point to be considered by us in this appeal is, whether the Sessions Judge was justified in convicting the appellant for the offence punishable under Section 302 of IPC; and whether the case can be brought within the provisions of Part II of Section 304 of IPC? 17. We have scrutinized the entire evidence again. Admittedly, P.W.1 to 3 and 6 are the eye-witnesses. In the entire cross-examination of all these witnesses, it is unfortunate that the appellant’s counsel did not suggest to these witnesses that the accused was not present at the time of the incident and it is also not the case of the appellant that he was not present when the deceased received injuries on 30th April 2004, at about 12.30 p.m. From this, it is clear, that the presence of the appellant at the time of the incident is admitted by him. P.W.1-the widow of the deceased has stated that on 30th April 2004 her husband was at home and he went out of the house at about 12.30 p.m. to attend to the nature call and, at that point of time, her children viz., Bandeppa and Bharati were playing in front of the house, and she further stated that her children came and informed her and her father-in-law about the attack on the deceased by the appellant and that, immediately, she and her father-in-law along with her children came out of the house and witnessed the accused assaulting her husband. Similarly, P.W.6 has also deposed and so also the neighbour, Magappa Hakamaddi, who has been examined as P.W.3. The evidence of P.Ws.1 to 3 & 6 are consistent and natural and there are no reasons for this Court to disbelieve their evidence when the appellant has not disputed his presence at the time of the incident. 18. The only ground of attack of the learned counsel for the appellant is in regard to the evidence of P.W.2-the minor son of the deceased. According to P.W.2, he was playing with ;his sister Bharati in front of the house and, at that point of time, he saw the accused attacking his father; that, immediately, he and his sister rushed into the house and informed his mother and grandfather, who in turn came out of the house, saw the incident. P.W.2 also denied the suggestion that his father fell on a hard rock and sustained injuries. It is, no doubt, true that he has admitted, in the cross-examination that an advocate had informed what he has to say, but the statement of P.W.2 had been recorded by the police immediately after the incident. Similarly, the statement of P.W.1 was also recorded on the date of the accident. There is no change in the version of the statements made by P.W.1 to 3 and so also by P.W.6 before the police and before the Court. The evidence let in by P.Ws.1, 3 & 6 are not challenged. Even though P.W.2 has admitted that he was tutored by an advocate, before recording the evidence of OP.W.2, the Sessions Judge has put few relevant questions to know whether be is capable of understanding the questions and whether he is telling truth or not. The evidence let in by P.Ws.1, 3 & 6 are not challenged. Even though P.W.2 has admitted that he was tutored by an advocate, before recording the evidence of OP.W.2, the Sessions Judge has put few relevant questions to know whether be is capable of understanding the questions and whether he is telling truth or not. Even if we discard the evidence of P.W.2, as contended by the learned counsel for the appellant, since the evidence of P.Ws.1, 3 & 6 are not challenged, the evidence of all these witnesses would be sufficient to hold that the appellant was responsible for the cause of homicidal death of the deceased. 19. Sofar as the motive is concerned, it is not in dispute that on the complaint of the accused a criminal case had been registered against the deceased and his father-Dashrath, P.W.6, three year prior to the incident and P.W.1 has also admitted that her husband was suspecting her fidelity. According to her, the deceased suspected that she was having an illicit relationship with the accused. It is also to be observed by us that a suggestion is made to P.Ws.2 and 6 by the counsel for the accused that the deceased was always quarrelling with the accused. Accused has also admitted that on his complain a criminal case was registered against the deceased and his father. From this, it is clear that relationship of the deceased and appellant was not cordial as the deceased was suspecting that the accused was having an illicit relationship with his wife and there was a criminal case registered against him, and the suggestion made by the counsel for the accused for the accused to all the witnesses that the deceased was quarrelling with the accused every now and then, would be sufficient to link that there was an intention to finish off the deceased. On the date of the accident, the accused gave a blow to vital part of the head with M.O.1-axe. 20. As stated supra, even P.W.7-sister of the accused has supported the version of the prosecution in seizing M.O.1-axe, which the accused had kept in the house of his sister immediately after the incident. The medical evidence, further, proves that the type of the injury sustained by the decease would be caused with the help of M.O.1. 20. As stated supra, even P.W.7-sister of the accused has supported the version of the prosecution in seizing M.O.1-axe, which the accused had kept in the house of his sister immediately after the incident. The medical evidence, further, proves that the type of the injury sustained by the decease would be caused with the help of M.O.1. From the clinching evidence let in by the prosecution, we are of the opinion that the prosecution has proved, beyond all reasonable doubt, that the accused was responsible for the cause of homicidal death of the deceased. Then, the only point to be considered by us in this appeal is, whether the case can be brought within Part II of Section 304 of IPC? 21. The learned Sessions Judge, in detail, has held in regard to the nature of the injuries caused by the accused on the head of the decease. Even according to the doctor’s evidence, the injuries were received by the deceased on vital part of the brain, which has caused the death. The very fact that the axe has been used by the appellant and has given blow on both sides of the head and so also on the forehead which shows the intention of the appellant in committing the murder of the deceased. Therefore, in the circumstances, we cannot bring the case of the appellant within Part II of Section 304 of IPC to reduce the sentence. In the result, we do not see any merit in this appeal. Accordingly, the appeal is dismissed.