V.M. Deshpande, J.

1. Appellants-Waman Shendge and Sau. Kantabai Shendge, the husband and wife, are challenging their conviction imposed on them by the learned 2nd Ad-hoc Additional Sessions Judge, Washim on 31-08-2006 in Sessions Trial No. 28/2006, by which the Court below convicted both of them for the offence punishable under Section 304 Part II read with Section 34 of the Indian Penal Code and directed to suffer rigorous imprisonment for Five years each and to pay a fine of Rs.200/- each and in default of payment of fine to undergo rigorous imprisonment for One month.

2. Though, the appellants were charged for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code for committing murder of Deorao Shamrao Gawali in an incident dated 09-02-2005, the Court below acquitted both of them from the said charge. In spite of their acquittal, the State chose not to prefer any appeal against the said acquittal.

3. I have heard Mr. C.A. Joshi, the learned counsel for the appellants and Mr. M.K. Pathan, the learned Additional Public Prosecutor for the respondent/State. With their able assistance, I have gone through the record and proceedings. Both of them vehemently submitted their respective briefs and prayed for respective reliefs in their favour.

4. On 09-02-2005, PW7 Manohar Thakre was attached to Police Station, Shirpur as Head Constable. On the said date, Deorao Gawli (deceased), resident of Ekamba came to police station. He gave his oral report which was recorded by him as per say of Deorao. The oral report of Deorao is at Exh.36. While reducing the report into writing, HC Manohar Thakre noticed that Deorao had injuries one below left knee and another on shoulder. He, therefore, sent him to Medical Officer at Primary Health Centre, Shirpur for examination.

5. The oral report (Exh.36) lodged by deceased Deorao shows that his cattle shed is situated outside village Ekamba. He used to tether his cattle in the said cattle shed and while going to his cattle shed, he has to proceed from front of the house of the accused persons. The accused used to pick up quarrel with him as he had urinated in front of his house. According to the report, on 09-02-2005 at about 9.00 O'clock in the morning he went to cattle shed to give fodder and water to the cattle and while returning from there along with small she-calf of she-buffalo and a basket of fodder, both the appellants chased him by giving abuses. When he was running away, he was assaulted by big babool stick in front of the house of Baban Lade. Due to that, he fell down. Thereupon, he was assaulted by a big babool stick on his right shin bone, left knee, both elbows and left palm.

6. Pw10 Janardhan Girhe took up the investigation of Crime No. 35/2005 registered for the offence punishable under Section 325 read with Section 34 of the Indian Penal Code. On 25-03-2005, he visited the spot at village Ekamba and prepared the spot panchanama (Exh.21). Appellant Waman produced stick which was seized by him under seizure panchanama Exh.27. After completion of the investigation, he filed the charge-sheet before the learned Judicial Magistrate, First Class, Malegaon for the offence punishable under Section 326 read with Section 34 of the Indian Penal Code. Later on, Deorao expired and therefore, offence under Section 302 of the Indian Penal Code was added. Supplementary charge-sheet was presented by API Bhoge. The case being exclusively triable by the Court of Sessions, the learned Magistrate committed the case to the Court of learned Additional Sessions Judge, Washim, which came to be registered as Sessions Trial No. 28/2006.

7. After the charge was framed against the appellants for the offence punishable under Section 302 of the Indian Penal Code, the prosecution examined in all Ten witnesses and also relied upon various documents. The learned Judge of the Court below after appreciating the prosecution case, though acquitted the appellants for the offence for whic