JUDGMENT 1. The appellant, who stands convicted for the offence punishable under section 302 of the Indian Penal Code and sentenced to suffer imprisonment for life and to pay fine of Rs.1000/in default of payment of fine to suffer simple imprisonment for three months, in Session Trial No. 202/2004 by the Judgment rendered on 16th March, 2005 by the Additional Sessions Judge, Darwha, is in appeal under Section 374(2) Cr.P.C. before this Court. 2. The facts reveal from the prosecution story, are that the incident in the case on hand occurred on 15/1/2003 at about 8.00 p.m. at village Umartha. On that day, at noon, the accused had been to the house of deceased Jabbarkhan and demanded liquor. Accused threatened deceased Jabbarkhan since the liquor was not supplied to him. At night deceased had been to the house of Gunwant Kale (P.W.2) to watch the television. Along with him, his younger son Babulkhan was also there. At about 8 p.m. accused came with an axe in the house of Mr. Gunwant Kale and gave blow on the head of Jabbarkhan. Jabbarkhan sustained bleeding injury, fell on the ground and became unconscious. Babulkhan son of deceased and others rushed injured Jabbarkhan to the hospital, where he was declared dead by the doctor present in the hospital. P.W.2 Gunwant Kale, the owner of the house where incident took place, went to the Police Station, Ner, on 16/1/2003 at 4.00 a.m. and lodged oral report. Mr. Vantaram, P.S.I., registered the Crime No. 10/2003 based on the report of P.W.2 Gunwant for the offence punishable under section 302 of the Indian Penal Code. He immediately rushed to the spot and carried spot panchanama in presence of the panch witnesses, collected the blood stained soil and simple earth from the spot and prepared inquest panchanama in presence of the panch witnesses. He has recorded the statements of the witnesses. He has also issued a letter for the post mortem to the Medical Officer concerned and collected the post mortem report. On January 20, 2003, he arrested the accused, who surrendered before him. On 23/1/2003, the accused was in police custody. He made a disclosure statement which was recorded under the memorandum in the presence of the panch witnesses. The accused led the panchas and the investigating officer and at his instance recovery of axe (article 1) was effected under the recovery panchanama. On 23/1/2003, the accused was in police custody. He made a disclosure statement which was recorded under the memorandum in the presence of the panch witnesses. The accused led the panchas and the investigating officer and at his instance recovery of axe (article 1) was effected under the recovery panchanama. On January 25, 2003, the investigating officer made a query by communication along with axe to the medical officer. The Medical Officer opined that injury can be caused by the axe. Doctor, who carried out autopsy, opined that head injury could be caused by the axe. All the incriminating articles were forwarded to the chemical analyser for analysis. The report of the chemical analyser was collected. 3. After completion of the investigation, charge sheet was prepared and submitted to the learned Judicial Magistrate, First Class, Ner, District: Washim. The learned Judicial Magistrate, First Class, Ner committed the case to the court of session. 4. The learned Additional Session Judge, Darwha, framed charge Exh.5 for the offence punishable under Section 302 IPC against the accused. The charge was explained to the accused in vernacular to which he denied and claimed to be tried. On trial, as we have referred in foregoing paragraphs, the accused was convicted for the offence punishable under Section 302 IPC and has been sentenced to imprisonment for life with fine. 5. Mr. N.S.Bhat, learned counsel for the accused, submitted that the case of the prosecution comprises oral evidence of six witnesses. On behalf of the prosecution, around 60 to 62 documents have been placed on record. All these documents have been formally proved in evidence. Apart from the oral and documentary evidence, medical evidence comprising oral evidence of P.W.1 Doctor Sanjay, inquest panchanama and post mortem report have been placed on record. 6. The case of the prosecution rests on the eye witness account of two witnesses vz. P.W. 2 Gunwant Kale and P.W. 3 Bablukhan son of deceased Jabbarkhan. 7. Before adverting to the eye witness account in the case on hand, we shall turn to consider the medical evidence to ascertain the death of Jabbarkhan as to whether it is accidental or homicidal? 8. P.W.1 Dr. Sanjay Jadhao was working as Medical Officer, Rural Hospital, Ner, at the relevant time. On 15/1/2003 at about 9.15 p.m., Jabbarkhan Paijankhan Pathan resident of Umartha was brought to the Hospital by his relations in a dead condition. 8. P.W.1 Dr. Sanjay Jadhao was working as Medical Officer, Rural Hospital, Ner, at the relevant time. On 15/1/2003 at about 9.15 p.m., Jabbarkhan Paijankhan Pathan resident of Umartha was brought to the Hospital by his relations in a dead condition. He states in his evidence that he examined and found that Jabbarkhan was dead. He addressed the communication Exh. 34 to the Police Station, Ner. The said communication Exh. 34 is placed on record and admitted in the evidence of P.W.1 Dr. Sanjay. This communication is dated 15/1/2003 and more specifically time mentioned is 9.15. p.m. We find from his evidence that on 16/1/2003 at about 10.45 a.m. dead body of Jabbarkhan was brought by Police Constable Buckle No. 1591 of Police Station, Ner. It was for autopsy and with written request from the Police Station. He conducted autopsy on the dead body of Jabbarkhan. On examination, he found three incised wounds as below: i) Incised wound of the size 2 cm x 1 cm x 1mm over left infra auxillary region (below the arm pit). ii) Incised wound of the size 5 mm x 1 mm x 1 mm over left infra auxillary region just lateral to injury No. (i). iii) Incised wound of the size 2 inch x 2 cm x 1 mm over left hypochondrium region (just below the chest ribs). All the wounds might have caused by sharp edged object. All these injuries were antemortem. All these injuries are mentioned in column No. 17 of the post mortem report. He also found one contusion with lacerated wound of the size 9 cm x 2 cm x 3 cm on vertext region of the head (upper middle portion) (vertical). This injury resulted in depressed communited fracture of parietal bone. The bones broken into pieces and the pieces were driven inward tearing the brain substance. (depressed – pressed inside. Communited several fracture of the same bone). He also found laceration of brain tissue, intracerabral haemorrhage and intra ventricular haemorrhage. (The cavity in the brain is called ventricular). He opined that death may be due to head injury. Accordingly, he prepared the post mortem report (Exh.35). This witness had also received letter Exh. 25 from the Police Station, Ner with pointed query. The axe was also brought by Police Constable Buckle No. 1434. Dr. Sanjay examined the axe and opined that the injuries mentioned in column no. He opined that death may be due to head injury. Accordingly, he prepared the post mortem report (Exh.35). This witness had also received letter Exh. 25 from the Police Station, Ner with pointed query. The axe was also brought by Police Constable Buckle No. 1434. Dr. Sanjay examined the axe and opined that the injuries mentioned in column no. 19 of the post mortem report Exh. 35 were possible by such axe. He sealed the axe and returned to the Police Constable. This axe was shown to him while recording his evidence which he could identify. He had marked white oil paint on the axe for identification. While giving evidence he says that same was the axe which was made available to him along with the query letter for opinion Exh.25. The said axe is Article 1. He issued certificate under his signature which is marked at Exh. 36 (25A). He testifies that the injuries to the head can be caused by sharp edged axe (Article 1). He opined that the death of Jabbarkhan was caused due to head injury. He fairly conceded that the letter addressed to the Medical Officer by Police to conduct the post mortem is not on record. Another part of the cross examination is on the point of caste of deceased Jabbarkhan recorded in column no. 7 of the post mortem report (Exh. 35), was the caste mentioned is as Hindu. In fact, Hindu is not a caste but religion. Undisputedly, deceased Jabbarkhan was belonging to Muslim religion. Nothing important turns of this erroneous recording of religion of the deceased person on post mortem report Exh.35. In cross examination, he has stated that injury in column no. 19 is not incised wound and it can be caused by heavy edged/object like stone. This part of the cross examination, is also considered by us. The cause of death, according to the oral evidence of this witness Dr. Sanjay, Post mortem report and the certificate is head injury sustained by deceased Jabbarkhan. The persons, who have brought the dead body of Jabbarkhan, according to this witness, did not disclose anything to him. He denied the suggestion that he did not examine Jabbarkhan and examined some other Hindu person. He also denied the suggestion that he put the name Jabbarkhan and issued false post mortem report and certificate. The persons, who have brought the dead body of Jabbarkhan, according to this witness, did not disclose anything to him. He denied the suggestion that he did not examine Jabbarkhan and examined some other Hindu person. He also denied the suggestion that he put the name Jabbarkhan and issued false post mortem report and certificate. He also denied the suggestion that without verifying the axe (article A), he has given opinion certificate Exh. 36 (25 A) on the say of police. He also denied the suggestion that he has prepared false document on the say of police. We have carefully considered the post mortem note Exh. 35. Column no. 17 makes a reference to some injuries which are not the injuries responsible for the death of Jabbarkhan. Amongst these injuries, injuries (i) and (iii) are incised wounds. We have considered their location and their severity. We have minutely seen item no. 19 of the post mortem report Exh.35. Here the internal examination of head and injuries have been recorded. Here also diagram of head is drawn by the Medical Officer and nature of the injuries and location thereof have been carefully shown. There is a contusion with lacerated wound over vertex 9 cm x 2 cm x 3 cm. It is mentioned that this injury results in depressed communited fracture of parietal bones. The bones broken into pieces and pieces driven inwards tearing the brain substance. Laceration is also shown of brain tissue. All these injuries have been noticed by us minutely. The cause of death mentioned is death may be due to head injury. Oral evidence of Doctor, Post mortem report (Exh.35), inquest panchanama (Exh. 16) have been cumulatively considered by us, which led us to record a finding that the death of Jabbarkhan is homicidal and not accidental. 9. P.W.2 Gunwant Kale is cited as eye witness. From his evidence, it is cleared that he is a co-villager of the accused. He gives date and time of incident correctly as 15/1/2003 at about 8 p.m.. This witness along with deceased Jabbarkhan, Babulkhan, Sachin, Lahanu and Khemchand were watching television in the chapari of the house. Jabbarkhan (deceased), according to this witness, was sitting resting the wall of the house. At that time, Babbukha accused came with an axe in hand in chapari and gave a blow of axe on the head of Jabbarkhan. This witness along with deceased Jabbarkhan, Babulkhan, Sachin, Lahanu and Khemchand were watching television in the chapari of the house. Jabbarkhan (deceased), according to this witness, was sitting resting the wall of the house. At that time, Babbukha accused came with an axe in hand in chapari and gave a blow of axe on the head of Jabbarkhan. Jabbarkhan received bleeding injury, fell on the ground and became unconscious. He says that they raised cry, thereon some people rushed to the spot and accused after giving blow ran away with the axe. Thus, from the evidence of this witness, it is manifest that the accused, at the relevant date and time, came to the chapri – the spot of the incident, armed with axe and without uttering single word, gave a blow on the head – the vital part of the body of Jabbarkhan and inflicted bleeding injury with the axe and ran away from the spot. In para no.2 this witness states that he and Sanjay took Jabbarkhan to the Hospital at Ner in a bullockcart. At midnight, Jabbarkhan was declared dead. After midnight, he went to the Police Station, Ner and lodged report. His oral report was reduced into writing. He put his signature. The report is dated 16/1/2003 in the wee hours i.e. 4 a.m. The oral report, reduced into writing, is at Exh. 38 and printed FIR is at Exh.39. Axe was shown to him, which he identified as the weapon used by the accused for assault. 10. The learned counsel for the accused took us to the cross examination of this witness P.W.2 Gunwant. This witness, in the cross examination, states that at 8 p.m. it was dark. However, spontaneously he volunteered that electricity bulb was burning in the room and nearby six persons were present there. Omission pertaining to the name of the two persons viz. Bablu and Khemchand, is brought out which is not relevant for appreciation of the evidence of this witness and core part that the accused came with axe and gave blow of axe on deceased Jabbarkhan. He denied the suggestion that stones and bricks were lying in chapri i.e. spot of occurrence. He conceded that half portion of the floor of the chapri is of pavements and half is of earth. He also concedes that deceased Jabbarkhan was sitting on the pavement but fell on earth portion. He denied the suggestion that stones and bricks were lying in chapri i.e. spot of occurrence. He conceded that half portion of the floor of the chapri is of pavements and half is of earth. He also concedes that deceased Jabbarkhan was sitting on the pavement but fell on earth portion. It is tried to be suggested that this witness was in front of Jabbarkhan – the deceased and was watching television which he has accepted. The suggestion put to him that no incident took place as he has stated in examination in chief, is denied by him. He denied the suggestion that the accused did not come to his house. He also denied the suggestion that the police have obtained his signatures on blank papers. He also denied the suggestion that he gave false evidence against the accused. The entire cross examination is read by us with the counsel appearing for the parties. Nothing is elicited in the cross examination of this witness to disbelieve his presence at the place of occurrence and his evidence that accused armed with axe came to the place of occurrence and gave axe blow on the head of Jabbarkhan sustaining bleeding injury. Regarding availability of light, it is to be mentioned that the television was being watched by the persons sitting in a room, the fact which is not challenged in the cross examination. The television set requires electricity is a matter of common knowledge. This witness has claimed that electricity light bulb was burning in the room and, therefore, cannot be said to be false or untrue facts. 11. On behalf of the prosecution another eye witness examined is son of deceased Jabbarkha viz. Bablu Khan. We have noticed that P.W.3 Bablukhan was around 16 years old at the time of recording of his evidence on 23/11/2004. Thus, considering the age of P.W.3 Bablukhan and his status that he is a son of deceased Jabbarkhan, we have considered his evidence with great care and caution. His evidence shows that at about 3.00 p.m. on 15.1.2003, he along with his mother and deceased father Jabbarkhan were sitting in the house. The accused came and demanded liquor . His father Jabbarkhan told the accused that dealing in liquor has been stopped since last year and was unable to provide liquor to him. That time accused threatened to deceased. The accused came and demanded liquor . His father Jabbarkhan told the accused that dealing in liquor has been stopped since last year and was unable to provide liquor to him. That time accused threatened to deceased. Regarding the incident, this witness states that along with his father he had been to the place of occurrence i.e. the house of Gunwant (P.W.2) for watching television. He states that Gunbwant, Sachin, Lahanu, Sanjay, Dhanraj etc. were also present. He was sitting besides his father Jabbarkhan. All of them were watching television serial. At about 8 or 8.15 p.m. accused came with an axe in his hand and gave a blow of axe on the head of his father. Article 1the axe shown to him has been identified by him in examination-in-chief. He accosted the accused and according to him, accused rushed towards him with the axe. He jumped to other side and accused ran away with the axe. After the axe blow, his father fell on the ground and became unconscious. His father had received bleeding head injury. He gives the place of occurrence as in the house of Gunwant Kale. He also states that light was burning on the spot. However, part of his examination-in-chief is regarding taking the injured father to the hospital in a bullock cart initially, after some time by a jeep. He was confronted with the photographs of his father Jabbarkhan with head injury (Article 2). He identified the said photo graph and recalled the head injury also. It is stated by him in his evidence that the said injury caused due to the blow given by the accused by the axe. In cross-examination it appears that the statement of this witness under section 164 was recorded by the learned Judicial Magistrate, First Class. Mr. Bhatt, the learned counsel for the accused took us to the cross-examination of this witness. Regarding the noon incident, in cross examination, he states that his uncle Hidayatkhan was not present in the house when accused had come at 3 p.m. He denied the suggestion that the accused had also come to their house at 7 p.m. It seems that omission in his previous statement that accused had come to their house at 7 p.m., has been brought. We have considered the portion mark 'A' in his previous statement. We have considered the portion mark 'A' in his previous statement. This omission/ contradiction is minor and not relevant regarding the time and manner of assault by the accused with axe on the head of his father. Regarding pendency of criminal cases against his father, he has shown ignorance. It was suggested that the cases under sections 302, 376, 307 and theft were pending against his father. However, he denied the suggestion. He was not aware whether his uncle Hidayatkahn was also facing prosecution of a case. He denied the suggestion that all the villagers were afraid of his father. He denied the suggestion that he had not been to the house of Gunwanta Kale for watching television neither the incident of assault of his father took place in the house of Gunwant. He denied the suggestion that his deceased father had strained relations with his brother. He also denied the suggestion that his father was killed in the Jeep giving blows on chest and legs. The evidence of this witness even though he is son of deceased Jabbarkhan, in our opinion, is of sterling quality. Nothing is elicited in his cross examination to discredit his evidence and claim that he was present at the day, date and time and had witnessed the assault by axe on the head of his father by the accused. The cumulative effect of the evidence of P.W.2 Gunwant and this witness Bablukhan (P.W.3) leads us to record a finding that the accused is a person, who with axe had given massive blow on the head of deceased Jabbarkhan. The intention of the deceased Jabbarkhan while selecting situs i.e. vital part i.e. head of Jabbarkhan is also significant. The damage sustained by skull is noticed and recorded in the post mortem report Exh. 23. Column no. 19 shows the force applied by the accused while inflicting blow of axe. 12. On behalf of the prosecution, panchanama of the spot of occurrence is placed on record at Exh. 42. Out of two panch witnesses i.e. Manoj Zolbaji Gosavi and Vinayak Vitthalrao, P.W.4 Vinayak Gulhane was examined. He did not support the prosecution and was declared hostile. This panchanama Exh. 42 is, however, established in the cross examination of this witness Mr. Vinayak and evidence of P.W.6 Mr. Deonand Vantaram investigating officer also is sufficient for proving this document Exh. Out of two panch witnesses i.e. Manoj Zolbaji Gosavi and Vinayak Vitthalrao, P.W.4 Vinayak Gulhane was examined. He did not support the prosecution and was declared hostile. This panchanama Exh. 42 is, however, established in the cross examination of this witness Mr. Vinayak and evidence of P.W.6 Mr. Deonand Vantaram investigating officer also is sufficient for proving this document Exh. 42 i.e. the scene of offence pancahnama and seizure of articles thereunder. We have noticed the date of panchanama as 16/1/2003 in between 8 to 8.30. We have also noticed the description of chapri – place of occurrence where deceased was sitting watching television along with the prosecution witnesses and was assaulted. 13. The prosecution also claims that the weapon used in the commission i.e axe (article A) has been recovered at the instance of the accused. It is the contention of the prosecution that after arrest the accused was in police custody more specifically on 23/1/2003 and made disclosure statement. His confession statement was recorded in memorandum under section 27 in presence of the pancha P.W.5 Dhnyaneshwar by P.W.6 Investigating Officer, P.S.I., Vantaram. The accused had, thus, confessed that he had concealed the axe under the Babhul (acacia) and Besharam (water hyecinth). The accused produced the said axe, description of which is recorded under seizure panchanama Exh. 46. With the assistance of the learned counsel, we have considered the oral evidence of P.W.5 Dnyaneshwar – panch witness, Memorandum Exh. 45 and recovery panchanama Exh. 46 of article A i.e. axe. 14. From the evidence of P.W.6 P.I., Vantaram, it appears that the incriminating articles including axe were forwarded to the chemical analyser. The chemical analyser report is also placed on record. With the assistance of the learned counsel for the parties, we have seen the report. Our perusal shows that the report Exh. 55 shows that blood in a phial wrapped in adhesive tape labelled of Jabbarkhan Paigankhan Pathan – D was forwarded and report Exh. 55 shows that blood group 'B' was determined. Thus, blood group of deceased Jabbarkhan was 'B'. Another report Exh. 56, which is brought on record by the prosecution, shows that blood in phial of Babbukha – present accused was also forwarded for determination and report Exh. 56 informs the investigating officer that grouping could not be analysed. The learned counsel for the accused points out the report Exh.54. Thus, blood group of deceased Jabbarkhan was 'B'. Another report Exh. 56, which is brought on record by the prosecution, shows that blood in phial of Babbukha – present accused was also forwarded for determination and report Exh. 56 informs the investigating officer that grouping could not be analysed. The learned counsel for the accused points out the report Exh.54. There the axe along with other articles were forwarded for analysis. Report Exh. 54 shows that no blood was detected on axe wrapped in paper labelled – F. 15. On behalf of the accused, it is urged that the evidence of P.W.3 Babulkhan son of deceased Jabbarkhan is illegally accepted by the learned trial Judge. Bablukhan is the son of deceased who is a young boy and there is omission that he accosted the accused and accused rushed on his person. It is also urged on behalf of the accused that the evidence of Gunwant Kale (P.W.2) is not trustworthy. At the relevant time, it was darkness and identification of the accused was not possible for both these two witnesses. It was also submitted on behalf of the accused that axe allegedly recovered on the basis of the information or confession given by the accused was forwarded to the chemical analyser for analysis and no blood was detected on the axe. He also points out that the other pancha on the discovery memorandum Exh. 45 was not examined, neither his name could be disclosed by Dnyaneshwar (P.W.5). We have given due consideration to the submissions of the learned counsel for the parties. In our view, there was sufficient light available for identification. The accused is a co-villager of P.W.2 Gunwant Kale. P.W.3 Bablukhan's evidence is trustworthy. Both of them have proved the assault by accused with the axe on the head of the deceased. It is true that only one pancha is examined. However, that cannot be a ground to disbelieve the memorandum Exh. 45, which is established in the evidence of Dnyaneshwar (P.W.5) and P.W.6 Vantaram – investigating officer. The circumstance that blood was not found on the axe – the weapon allegedly used while commission of crime, also does not enure to the benefits of the accused as the direct evidence of P.W.2 Gunwant Kale and P.W.3 Bablukhan has established the assault which has resulted severe head injury to deceased Jabbarkhan resulting his death instantly. The circumstance that blood was not found on the axe – the weapon allegedly used while commission of crime, also does not enure to the benefits of the accused as the direct evidence of P.W.2 Gunwant Kale and P.W.3 Bablukhan has established the assault which has resulted severe head injury to deceased Jabbarkhan resulting his death instantly. We do not find any infirmity in the judgment of conviction and sentenced rendered by the learned trial court warranting our interference in appeal. 16. In the result, the appeal stands dismissed confirming the conviction and sentence rendered by the learned trial Judge. 17. The fees payable to the Advocate Mr. N.S.Bhat, who has been appointed to represent the appellant, are quantified at Rs. 5000/( Rs. Five thousand). Appeal dismissed.