IMPORTANT POINT
The main legal point established in the judgment is that the incident did not amount to a case of homicide or culpable homicide not amounting to murder, but rather a case of voluntarily causing hurt, thereby attracting the offence under section 323 of IPC.

JUDGMENT :

1. Both appellants/convicts are hereby taking exception to the judgment and order of conviction dated 23.12.2002 passed by IInd Additional Sessions Judge, Jalna in Sessions Case No. 34 of 1998, by which they are held guilty for commission of offence under section 304 Part II read with section 34 of Indian Penal Code (IPC) and sentenced to suffer rigorous imprisonment for 7 years to each of them and to pay fine.

2. In nutshell, challan was filed against one Baburao and present appellants, alleging that, on 18.04.1997 at about 11:00 a.m., they approached deceased and questioned her (for naming appellant Rahibai for maintaining illicit relations with accused no.1.) Accused no. l Baburao instigated both present appellants to beat deceased Indubai, upon which they both showered kicks and fist blows on her abdominal part. At relevant time, deceased Indubai was pregnant. She suffered pain and while she was taken to the hospital, on the way she breathed her last, and therefore, PW8 Devidas set law into motion vide report Exh.63.

3. Initially AD was registered, but on further inquiry, crime was registered for offence punishable under section 302 of IPC and all three accused were duly charge-sheeted and tried by learned Additional Sessions Judge, who, on appreciation of evidence reached to a finding that, prosecution has failed to establish the occurrence to be homicide and rather held only present appellants (original Accused Nos.2 and 3) guilty that, too for charge under section 304 Part II of IPC and sentenced them as spelt out in the operative part. Precisely the same is questioned before us by way of instant appeal.

4. In support of above case, prosecution examined following witnesses :

PW1 Bhagwan, adjoining neighbour to the house of deceased.

PW2 Ganesh and PW3 Laxman also a resident of the same vicinity as of deceased.

PW4 Dr. Rajkumar Gothwal, autopsy doctor, who conducted PM on dead body of Indubai on 20.04.1997.

PW5 Villas, panch to memorandum panchanama (Exh.58).

PW6 Sk. Nazim, panch to memorandum of disclosure and panchanama of seizure of sticks.

PW7 Shakuntala, an acquaintance of deceased.

PW8 Devidas, informant, who lodged FIR (Exh.63).

PW9 Ratnamala, PW10 Pramila and PW11 Suresh are the neighbours and eye witnesses.

PW12 Revtabai an acquaintance of deceased, who allegedly received oral dying declaration.

PW13 Kusum, a Nurse, according to whom, deceased Indubai was carrying pregnancy of three months.

PW14 API Champalal Shevgan, police official who registered AD No. 10/1997 and entrusted investigation to Shri Kanade (PW17).

PW15 Ramesh is the husband of deceased. His testimony is at Exh.83.

PW16 ASI Pralhad Sanap, PSO, who noted report lodged by PW8 Devidas.

PW17 API Kanade, police officer, before whom memorandum of disclosure was given and in consequence to it he caused seizure and finally charge-sheeted accused on completion of investigation.

SUBMISSIONS

5. Learned counsel for appellants would submit that, this is apparently not a case attracting charge of homicide. According to him at the threshold, the charge is therefore misplaced as there was no premeditated act, nor there was any intention and knowledge. He pointed out that, alleged incident had taken place all of a sudden in the backdrop of alleged defamation of accused nos. 1 and 3, which had erupted at the scene of occurrence. He specifically pointed out that, none of the appellants went armed and even accusations are raised regarding beating by means of fist and kick blows, and so, it is his submission that, by no means charge of section 302 of IPC was attracted but appellants and acquitted accused are made to face and answers such charge and even tried for the same.

6. He further invited attention of the court to the testimonies of prosecution witnesses and would emphasize that, almost half of the prosecution witnesses have retracted and have not supported prosecution, i.e. PW1 Bhagwan, PW2 Ganesh, PW3 Laxman and PW5 Vilas, PW6 Sk. Nazim and PW7 Shakuntala, who were exam