JUDGMENT

Sandeep K Shinde, J. - The learned Sessions Judge, Solapur in Sessions Case No.84 of 1996 held the appellant guilty of the offence punishable under Section 304 (Part II) of the Indian Penal Code, 1860 ('IPC' for short) and sentenced to suffer rigorous imprisonment for fie years and fine of Rs.3,000/- in default to suffer rigorous imprisonment for one year. Aggrieved accused in the subject Sessions Case has preferred this appeal.

2. Prosecution case in brief is that, on 29th November, 1995 at 9 p.m. or there about accused caused the death of Sidhappa Vithoba Koli by inflicting blow on his head by wooden stick, to which he succumbed, while undergoing the treatment in the Civil Hospital at Solapur. Prosecution case rests on the ocular evidence of Mangal (P.W.1) and Balasaheb Herkar (P.W.5). The incident in question occurred on 29th November, 1995 at Village: Kusur in front of the hotel of the deceased. The incident was reported to police at 00.20 hours by Mangal Koli (P.W.1), niece of the deceased. Accused was chairman, of the milk dairy at Village: Kusur. Balasaheb Herkar (P.W.5) was member of the dairy and he was present when the incident occurred as he had been to dairy to collect the dues of the milk supplied by him. The deceased, Sidhappa with his wife and daughter used to stay in the hotel, which was adjacent to the scene of offence. It is unfolded, in the evidence that house of the accused was also adjacent to hotel of the deceased. On 29th November, 1995, the deceased was sleeping on the platform [1] in front of his hotel and at the relevant time, accused and Balasaheb Herkar (P.W.5) were chitchatting and discussing on the ota of dairy. It is revealed in the evidence that Mangal Koli, niece of the deceased (P.W.1) had been to the four mill and while returning home, on the way, she had seen the deceased and accused were yelling at each other for the reason that by speaking out loudly, accused was, disturbing sleep of the deceased. It is unfolded while yelling, accused rushed to Sidhappa where a wooden stick was lying, of which he held a blow on the head of Sidhappa. Mangal tried to intervene the quarrel, but the accused pushed, her back and ran away. Khandappa Masale (P.W.2), who was in his shop, had seen accused running away from the spot. Wife and daughter of the deceased, after hearing the cry of Sidhappa, came out, of the hotel where Sidhappa was found lying in unconscious condition. He was shifted to Primary Health Centre and incident was reported to police patil. After giving primary treatment at the Primary Health Centre, Sidhappa was removed to Civil Hospital, Solapur. Incident was reported by Mangal (P.W.1), whereupon Crime No.44 of 1995 came to be registered for the offence punishable under Section 326 of the IPC. In the Civil Hospital at Solapur, Dr. Dayanand Kode (P.W.10) had examined Sidhappa and noticed contused lacerated wound on left occipital parietal region. Dr. Kode admitted Sidhappa in surgical ward. Dr. Jagdish Hedau (P.W.13) of the surgical ward was also treating Sidhappa but he succumbed to the injuries. On the next day at 12.30 noon, post-mortem was performed by Dr. Ashok Kanaki (P.W.8), who had also noticed sutured wound at scalp with crack fracture of frontal bone and massive haematoma on occipital and parietal region. According to Dr. Kanaki, cause of death of the deceased was, "due to head injury associated with fracture of ribs."

3. Psi Madhukar Kadam (P.W.12) took over the investigation and fled the charge-sheet, whereupon the charge was framed under Section 302 of the IPC.

4. Prosecution in support of the charge, had examined ten witnesses. The learned Trial Court upon appreciating the evidence, held that the assault by the accused cannot be said to be assault with an intention to kill but the incident occurred in spur of moment and therefore, accused was acquitted of the offence of the murder but held guilty for the offence of culpable homicide not amounting to murder punishable under S