The main legal point established in the judgment is the requirement of proving the offence beyond reasonable doubt, and the court's discretion to grant the benefit of the doubt to the accused in cases where the evidence is unreliable and tainted with serious lacunas.

ORDER :

N.B. Suryawanshi, J.

1. The appellant, by this appeal challenges the judgment and order passed by the learned Sessions Judge, Pusad in Sessions Trial No. 11/2017 thereby convicting the appellant under Section 304 of the Indian Penal Code and sentencing him to suffer 10 years rigorous imprisonment and to pay a fine of Rs. 1000/- in default to suffer one month rigorous imprisonment and under Section 506 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for six months.

2. The prosecution case, in short, is that:

On 21.11.2016, deceased Sawan along with accused Avinash, Rupesh, Nitin and Suresh went to eat berry fruits in the field of one Baliram Chavhan around 5.00 to 5.30 p.m. The berry tree was located at the boundary (Dhura) of the said field. Deceased Sawan climbed up on the berry tree and gave jerks to the branches of the tree due to which the berry fruits fell under the tree. Other four colleagues collected the fruits. Deceased Sawan got down from the tree and asked Avinash to give him fruits. When Avinash refused, a quarrel took place between the deceased Sawan and Avinash. On that count, a fight ensued between them. The other colleagues tried to intervene, but the Avinash gave threats that he would kill them and Sawan. Deceased Sawan then exhorted the Avinash as to how he would kill him. Avinash lifted the deceased Sawan by catching his waist and threw him on the earth. At that time, the "Kardoda" (sacred thread) of the deceased Sawan was broken and part of it remained in the hands of the Avinash. Avinash went behind the deceased Sawan and strangulated the throat of the deceased by using Kardoda, due to which, Sawan died. It is further alleged that Avinash took out a matchbox from the pocket of his pant and lighted one matchstick and touched it to the hand of the deceased Sawan to confirm whether he was alive or dead.

3. Prem Rathod (PW-1) the father of the deceased Sawan, lodged the report (Exh-39) about the incident on 23.11.2016 at 3.11 a.m. at the Police Station, Pophali, Tal. Umarkhed. On the basis of his report, Crime No. 181 of 2016 came to be registered for offences punishable under Sections 302 and 506 of the Indian Penal Code. After completion of the investigation, charge sheet came to be filed.

4. Charge was framed against the accused Avinash for the offences under Sections 302 and 506 of the Indian Penal Code which he denied. The defence of the accused was of denial and that he was falsely implicated and two alleged eye witnesses were planted by the prosecution. The learned trial Court after recording the evidence found the accused guilty for offence punishable under Sections 304 and 506 of the Indian Penal Code, and accordingly convicted him. Hence, the present appeal.

5. Heard the learned advocate for the appellant and the learned Additional Public Prosecutor for the respondent/State.

6. The learned advocate for the appellant urged that the appellant is falsely implicated in the present offence. There is delay in lodging First Information Report (F.I.R.). The incident has taken place on 21.11.2016, however, the F.I.R. was lodged on 23.11.2016 at 3.00 a.m. in the night. The prosecution has failed to explain the delay. By taking into consideration the evidence of the eye witnesses, he submitted that their conduct is unnatural, they have not disclosed the incident to anybody for two days. On this ground alone their evidence is liable to be rejected. The two eye witnesses did not ever disclose the incident to the Police Officers and only when they were made to sit in the Police Station throughout the night and only thereafter their statements were recorded. They have contradicted each other on material particulars of the incident. He further submitted that the investigation conducted in this case is totally doubtful. After two days, the Investigating Officer found Kardodas (sacred thread) on the spot of the incident. Kardodas though was forwarded to the forensic laboratory, no blood w