- (1.)This appeal, by the appellant / original accused is directed against the judgment and order dated 4th March, 2003 passed by learned Adhoc Additional Sessions Judge, Kolhapur in Sessions Case No. 208 of 2002. By the said judgment and order, the learned Sessions Judge convicted the appellant under sections 302 and 307 of I.P.C. For the offence under section 302, the appellant came to be sentenced to RI for life and for the offence under section 307, the appellant came to be sentenced RI for seven years. Learned Adhoc Additional Sessions Judge directed all the substantive sentences to run consecutively.
(2.)The prosecution case briefly stated is as under: The appellant Sunil Sawant and deceased Sambhaji were real brothers. Both of them with their families resided in their ancestral house located in Chavan Galli, near Khandoba Talim in Shivaji Peth, Kolhapur. Sambhaji was residing in one room in front portion of house along with his wife PW7 Rajashri, his two sons PW6 Sumit, Rohit and a daughter. One room which was in their possession was rented out to PW3 Babita Jadhav who was residing there with her family. The room of Babita is adjacent to the room of Sambhaji. The appellant Sunil was residing in back side portion of the said house. He was in possession of four rooms. PW7 Rajashri was recovering rent from the tenants, hence, the appellant Sunil used to often ask Rajashri and her husband Sambaji to carry out repairs to the roof and other repairs. Sometimes, on account of paucity of funds, there was delay in carrying out repairs on account of which appellant raised quarrels. Some portion of the house on front side which was adjacent to the main road was to be acquired by the Corporation for the purpose of road widening. Prior to the incident, authorities under the Corporation had visited the house and measured the likely portion to be acquired. In this background, the appellant Sunil was asking his brother Sambhaji to partition the house between them. Sambaji used to tell the appellant that after the portion is acquired by the Corporation, they will partition the house in order to avoid double expenses of putting up walls for the purpose of partition. However, the appellant Sunil was in no mood to wait. The appellant did not want to wait and he used to raise quarrels and abuse Sambhaji and his wife. In this background on 31.05.2002 at 5.30 a.m, when PW7 Rajashri had gone to the water tap near her house to wash clothes, the appellant came out of his house. At that time, he was armed with axe. He attacked Rajashri with the axe. On hearing the noise, Sambhaji and his sons came out of the house. When Sambhaji saw the accused assaulting Rajashree, he embraced her and asked the appellant why he was assaulting Rajashri. Thereupon, the appellant started assaulting Sambaji with the axe. Both Rajashri and Sambhaji fell down, yet the appellant continued assaulting Sambhaji. On hearing noise, PW 3 Babita came out of her house and some other persons including PW2 Shripati Wagare, PW8 Anil Otari came to the spot. Thereupon, the appellant stopped assaulting and went inside his house. Thereafter, he changed his clothes and left the place. At that time, Sambhaji was lying dead near the water tap and Rajashri was lying there in a serious condition. In the incident, Sambhaji sustained as many as 10 incised wounds and Rajashri sustained five incised wounds.
PW2 Shripati who was also a tenant of deceased Sambhaji, telephoned the police control room and informed that there was quarrel between two brothers and he gave the address to the police. The police came to the scene of offence and recorded the complaint of PW2 Shripati. In the meanwhile, PW7 Rajashri was sent to the hospital for treatment where her dying declaration came to be recorded. The body of Sambhaji was sent for postmortem. After completion of investigation, charge sheet was came to be filed.

(3.)Charge came to be framed against the appellant original accused under sections 307 and 302 of I.P.C. The appellant pleaded not guilty to the said charge and claimed to be tried. His defence is that of total denial and false implication. After going through the evidence adduced by the prosecution, the learned Adhoc Additional Sessions Judge convicted and sentenced the appellant as stated in para 1 above. Hence, this appeal.