P. S. BRAHME, J. - (1.)IN regard to an incident that took place on 8th November, 1993, the victim Ashok Khadse was done to death by the appellant, the Second Additional Judge, Washim in the Sessions Trial No. 56 of 1994, by his judgment and order dated 5th March, 1999, convicted the appellant for the offence u/s. 302 of the INdian Penal Code and sentenced him to suffer imprisonment for life and to pay a fine of Rs. 1,000/- in default to undergo rigorous imprisonment for three months. IN this appeal, the appellant has challenged the said judgment and order of conviction and sentence.
(2.)PROSECUTION case, in brief, is that victim Ashok was son of informant Madhao s/o. Suryabhan Khadse (P. W. 1) and cousin of one Sunita d/o. Datta Khadse (P. W. 13 ). Witness Sunita had clandestine love affair with appellant Devidas Kote. It appears from the record that the appellant did not marry with Sunita, though the latter conceived from appellant Devidas. Consequently, Sunita lodged complaint to the police station and on the basis of that complaint, appellant Devidas came to be tried for the offence of committing rape on her. In that case, deceased Ashok had stood by the site of witness Sunita. Due to that, appellant Devidas had grudge against deceased Ashok. On the day of incident, in the morning, deceased Ashok had gone to gaothan taking cattle. After sometime, one Uttam (P. W. 17) and Chandramani (P. W. 6) informed father of Ashok namely Madhav (P. W. 1) that his son Ashok was being assaulted by appellant Devidas by means of a sword and that, Ashok was lying near the house of one Namdeo Nande (P. W. 10 ). Madhav immediately rushed to the spot and there, he saw his son lying on the ground in injured condition having sustained bleeding injuries and appellant Devidas standing there armed with blood stained sword in front of the house of Namdeo. It so happened that the appellant rushed towards Madhav and due to fear, Madhav went inside the house of one Lahanu and closed the door. He, thereafter, concealed himself in his house. Appellant Devidas followed him and asked him to come out of the house by giving threats to kill him. After sometime, police arrived and the complainant Madhav, accompanied by police, went to the place where his son Ashok was lying. P. S. I. Chowdhary, who had arrived there, recorded the complaint of Madhav vide Exh. 80 which was lodged to police station, Asegaon and the offence was registered vide crime no. 82 of 93.
The investigating officer first made spot panchanama (Exh. 82) and inquest panchanama of the dead body of Ashok vide Exh. 83 in presence of witness Pandurang Khadse (P. W. 2 ). Then, panchanama at the house of one Chaturabai vide Exh. 84 was made and at that time, the stains of blood were noticed on the plank of door of the house. The panchanama of the door plank at the house of Shriram Khadse vide Exh. 86 was drawn. It was revealed that the appellant had thrown the sword in the forest. The same came to be seized under panchanama (Exh. 88) in pursuance of the statement made by witness Sunita. During the course of investigation, it was revealed that the accused had gone to the house of witness Sunita carrying that blood stained sword in his hand and he brought her with him to the place of occurrence and again victim Ashok was assaulted with the sword after he was dragged by pulling his legs and then, the appellant taking with him witness Sunita, went to the forest and threw the sword and then left witness Sunita. The saree, which Sunita was wearing and which was caught hold by the appellant while he almost forcibly brought her with him to the place of occurrence, had stains of blood, as there was blood on the hand of the appellant. So that saree of Sunita came to be seized on 9. 11. 1993 under seizure memo Exh. 91.

Dr. Rathod, who was attached to the Rural hospital, Mangrulpir, carried out autopsy on the dead body of Ashok and prepared post mortem notes (Exh. 96 ). Dr. Rathod (P. W. 5), in his evidence, stated that the cause of death of Ashok was Traumatic haemorrhagic shock due to multiple ante mortem injuries. The blood stained clothes of the deceased were seized. The appellant was absconding. But, ultimately, he was arrested on 19. 12. 1993 and at that time, arrest panchanama vide Exh. 102 was made in presence of panch witnesses Milind Ingole (P. W. 9) and one shirt (Article no. 1) came to be seized vide seizure memo (Exh. 103 ). Then, on 21st December, 1999, the appellant made disclosure to produce his clothes which he had kept at some place. Accordingly, memorandum (Exh. 104) was drawn as regards that disclosure made by the appellant in presence of witness Milind and then, one pant (Article 2), which was produced by the appellant, was seized under seizure memo Exh. 105. It was revealed that one Namdeo has also reported the matter to police vide his report (Exh. 126) which came to be recorded by A. S. I. Dinanath s/o. Parashram Dhaigune (P. W. 15 ). After receiving report of the Chemical Analyser (Exhs. 75 and 76), P. S. I. Chowdhary (P. W. 17), on completing investigation, submitted charge-sheet in the Court of the Judicial Magistrate, First Class, Mangrulpir, who later on committed the case to the Court of Sessions, Akola for trial.

(3.)BEFORE the Sessions Judge, to the charge, the appellant pleaded not guilty and claimed to be tried. At the trial, prosecution examined in all eighteen witnesses including father of deceased-Madhav s/o. Suryabhan Khadse (P. W. 1), Chandramani s/o. Chintaman Khadse (P. W. 6), Dr. Kisan Rathod (P. W. 5), Pandurang Khadse (P. W. 2), Bhimrao Lekurwale (P. W. 7) who was claimed by the prosecution as an eye witness, Milind Ingole (P. W. 9), Namdeo Nande (P. W. 10), Maroti Nande (P. W. 11), Nilkanthrao Nande (P. W. 12), Shantabai Nande (P. W. 14), Police Head Constable Dinanath (P. W. 15) and investigating officer P. I. Chowdhary (P. W. 17 ). The learned Sessions Judge, after completing recording of the evidence, examined the accused u/s. 313 of the Code of Criminal Procedure. The accused denied emphatically the circumstances. He did not lead any defence evidence nor he offered any explanation as to finding of human blood on his clothes. The learned Sessions Judge, accepting the evidence of Madhav and Sunita, coupled with the evidence of witness Chandramani, though he was declared hostile and medical evidence, found that the appellant committed murder of Ashok and consequently, the appellant came to be convicted and sentenced as stated earlier.
We have heard Mr. R. A. Khan, the learned counsel for the appellant and Mr. Mirza, the learned A. P. P. for the respondent-State.