The court upheld the conviction for culpable homicide not amounting to murder, emphasizing the prosecution's burden to prove charges beyond reasonable doubt while recognizing the lack of intent to kill.

JUDGMENT :

(Abhay S. Waghwase, J.)

1. In this appeal, there is challenge to the judgment and order of conviction passed by IInd Additional Sessions Judge, Jalna in Sessions Case No.4 of 2002 dated 19-01-2005 holding present appellants guilty for offence under Section 304 Part II read with 34 of the Indian Penal Code (IPC).

PROSECUTION CASE IN BRIEF

2. It is the case of prosecution in trial Court that on 27-09-2001 deceased Dhondiba, husband of PW1 Shantabai, was plouging the field. He was accompanied by his son and daughter. Accused nos.1 and 2, who are nephews of deceased, and accused no.3 (wife of accused no.2) and accused no. 4 (wife of accused no.1), picked up quarrel on account of damage to ridge/bandh and beat Dhondiba. Ramkisan, son of informant, rushed and passed information to informant, who also ran towards the field. Another son Namdeo of informant also called Appa Pungale, neighbour. Deceased was taken to Dr.Rajput and later on shifted to Civil Hospital, Jalna, where he died due to biliary Peritonitis with Septicemia with shock due to perforated gall bladder. PW1 Shantabai lodged report against all four accused for offence under Sections 302, 504 read with 34 of the IPC.

PW9 Nikkam (API) investigated the crime and after gathering sufficient evidence, chargesheeted accused under the aforesaid offences.

Trial was conducted by learned IInd Additional Sessions Judge, Jalna vide Sessions Case No.4 of 2002, who hold that offence under Section 304 Part II of the IPC is made out and not offence under Section 302 of the IPC and recorded conviction accordingly.

Said judgment and order is under challenge by way of instant appeal.

SUBMISSIONS On behalf of appellants :

3. Learned Counsel for the appellants submitted that prosecution has failed to prove the charges beyond reasonable doubt. He submitted that independent witnesses have not seen the occurrence and only family members i.e. sons and daughter of informant are examined. That there was previous enmity on account of land dispute. Therefore, there is false implication. Learned Counsel pointed out that witnesses are not consistent and are not lending support to each other. He would strenuously submitted that there were no injuries on the person of deceased Dhondiba. That even Autopsy Doctor has ruled out death due to injuries noticed in column no.17 of post mortem report. That there are allegations of being hit by stones, but there is no injury. He would submit that defence case in trial Court was that deceased Dhondiba fell from bullock cart and suffered injury. The first Doctor to whom deceased was allegedly taken and who treated Dhondiba deposed about the history of fall from bullock cart. He is examined as defence witness. Such Doctor is not cross-examined and therefore, it is his submission that prosecution has not challenged defence version. He submitted that law is fairly settled that defence witness is at the par with prosecution witness, however, learned trial Court has not considered such position. Thus, according to him, there is improper appreciation of evidence and so he prays to set aside the impugned judgment of conviction.

In the alternative, it is his submission that if the Court is not convinced with above submissions, then as occurrence is of 2001 and more than two decades have lapsed and there is normalcy in the relations, sentence already suffered be awarded to the appellants.

In support of his submissions, he seeks reliance on following rulings :

(i) Mahindra v. Sajjan Galpha Rankhamb, AIR 2017 SC 2397.

(ii) Mayur Panabhai Shah v. State of Gujarat, AIR 1983 SC 66.

(iii) Dudh Nath Pandey v. State of Uttar Pradesh, (1981) 2 SCC 166.

(iv) Thulia Kali v. The State of T.N., AIR 1973 SC 501.

On behalf of State :

4. Taking exception to the above submissions and refuting the arguments, learned APP submitted that there is direct eye witness account. That very sons of deceased, who were present have consistently deposed that their father was beaten by accused. That wife was