V.K. JADHAV, J.

1. By way of this criminal revision application, the revision applicant is challenging the judgment and order of acquittal dated 12.10.2004 passed by the IVth Adhoc Additional Sessions Judge, Beed in criminal appeal No. 27 of 2002, thereby setting aside the judgment and order of conviction dated 14.8.2002 passed by the IIIrd Ad-hoc Assistant Sessions Judge, Beed in Sessions Case No. 135 of 2001, thereby convicting the respondent No.2 original accused for the offences punishable under Sections 304 Part II of I.P.C. and sentencing him to suffer R.I for five years and also to pay fine of Rs. 1000/-, in default to suffer R.I. for six months.

2. It is the case of the applicant that on 30.9.2001 at about 8.30 p.m. when she and deceased Jaya were present in her house, at that time, respondent No.2-accused came to her house and asked whereabouts of the son of accused viz. Madan. At that time, the accused threatened the complainant that he will not allow her son to stay in the village as like his elder brother Dinkar. At that time accused saw deceased Jaya and asked as to how she was there and suddenly the accused gave push to Jaya by his knee and resultantly Jaya fell down on the stony steps of the house of the complainant and received severe injuries. The complainant shouted and upon hearing shouting of the complainant, the accused ran away and thereafter other persons came to the spot of incident and she narrated the incident to them. The applicant-complainant, due to heavy rain, could not lodge complaint at police station and therefore, on 1.10.2001, the complaint came to be lodged at police station Talwada. The Talwada police accordingly registered crime No. 42 of 2001 for the offence punishable under Section 304 of I.P.C. After completion of investigation, charge sheet came to be filed against the accused. The case was committed to the Court of Sessions. The prosecution has examined in all eight witnesses. The learned Assistant Sessions Judge, Beed, after considering the evidence placed on record and after examining the witnesses, convicted and sentenced the respondent-accused, as aforesaid.

3. It is further case of the applicant that respondent No.2-original accused had preferred criminal appeal No. 27 of 2002 in the Court of Sessions at Beed. However, the learned Adhoc Additional Sessions Judge, Beed, by judgment and order dated 12.10.2004 has allowed the appeal and set aside the conviction awarded by the lower court and acquitted respondent No.2-original accused. Hence, this criminal revision application.

4. Learned counsel for the applicant-original complainant submits that the appellate court has not appreciated the evidence led by the prosecution in its proper perspective and has erred in holding that the prosecution has not established its case beyond reasonable doubt that the accused is responsible for the murder of deceased Jaya. Though the delay caused in filing the complaint has been explained in detail, the learned Additional Sessions Judge has recorded perverse findings on the same, without considering the proved fact that there was heavy rain in the night between 30.9.2001 to 1.10.2001 and there was no any male member in the family of the complainant. In view of the provisions of Section 28 of the Code of Criminal Procedure, 1973, the Assistant Sessions Judge is empowered to try the case, however, learned appellate court has committed an error in giving a finding that the Assistant Sessions Judge is not empowered to try the case punishable under Section 304 of I.P.C. Learned Additional Sessions Judge has totally overlooked the evidence of P.W.2 Sagarbai (complainant), P.W.3 Rambhau, P.W.4 Vaishali and P.W.6 Dr. Prathviraj Chavan, which state that deceased Jaya fell down on the steps due to the push given by the respondent accused by his knee, in which she sustained injury to her brain and died on the spot. The appellate court has committed error in observing that there is no external injury fou