1. The present appeal is directed against the judgment and order of conviction passed by the learned 2nd Additional Sessions Judge, Nagpur dated 29.10.2004 in Sessions Trial No.272/2002. By the impugned judgment and order of conviction, the appellant is convicted for the offences under Sections 304II and 452 of the Indian Penal Code. For the offence under Section 452 of the IPC, the appellant was directed to suffer rigorous imprisonment for 3 years and to pay a fine of Rs.1000/- in default of payment of fine to undergo rigorous imprisonment for 6 months. So far as conviction under Section 304II of the IPC is concerned, the appellant is sentenced to suffer rigorous imprisonment for 5 years and to pay a fine of Rs.1,000/- and in default of payment of fine, to undergo further rigorous imprisonment for 6 months.

2. The facts giving rise to the present appeal are stated hereunder:

(a) On 24.02.2002, Babanrao Sidam (PW14) was attached to Police Station, Ajni as Police Sub Inspector. His duty was from 9.00 p.m. of 24.02.2002 to 9.00 a.m. of 25.02.2002. At about 22.15 hrs. Kamlabai Pardhi (PW2) came to Police Station along with the dead body of her husband Rambhau in auto rickshaw. She lodged her oral complaint (Exh.26) which was reduced into writing by Babanrao Sidam (PW14). On the basis of the complaint, a crime was registered as Crime No.52/2002 for an offence punishable under Sections 452, 302 of the Indian Penal Code. The printed FIR is at Exh.27. The dead body of Rambhau was kept in mortuary.

(b) The oral report Exh.26 lodged by Kamlabai shows that she along with her husband and four brothers-in-law reside at Parvati Nagar in one house, however separately, constructed by her father-in-law. Rambhau was working at Railway Station, Nagpur as 'Pointman' and since last one year he was suffering from heart disease and was taking medical treatment.

(c) On 21.01.2002, the appellant along with his two companion used abusive language by standing in the front portion of the house occupied by Lokeshwari (PW1) and extended threats to her. This incident dated 21.01.2001 had occurred in the noon hours. Even in the night hours, on the said day, the appellant gave kick blows to the doors and used filthy language and extended threats. Therefore, Lokeshwari (PW1) lodged report with Police Station, Ajni against the appellant and in that offence the appellant was arrested and was sent to the Central Prison. Complaint Exh.26 further recites that on the day of incident i.e. on 24.02.2002 at 9.00 O'clock in the night when the first informant and her deceased husband were sitting in varandha, the appellant came on a motorcycle and parked the same in front of the house and challenged the husband of the first informant that due to his family members, he was required to go to jail and thereafter gave fist blows on his chest, resulting into the deceased falling on the ground and becoming unconscious. The first informant raised shouts for help. Thereafter, her brothers-in-law came there and they also witnessed the incident. However, due to fear of the appellant, he was not apprehended. Thereafter, the appellant ran away from the spot leaving the motorcycle on the spot itself. The first informant with the help of her brothersinlaw, son Rupesh and one Sunil Suple, who is resident in front of her house, took Rambhau at Dr. Mahulkar Hospital, Dhantoli, in an auto rickshaw. There, he was declared dead.

(d) On 25.02.2002, at mortuary, inquest panchanama (Exh.38) was conducted by Babanrao Sidam (PW14). He also paid visit to the spot of incident and the spot panchanama (Exh.35) was drawn. The motorcycle which was lying near the compound of the house of Kamla, bearing registration No.MH31/ Y9535 was seized under seizure panchanama Exh.36. After post mortem, the dead body was handed over to the relatives of Rambhau.

(e) Khalil Abdul Shaikh (PW16) received case diary of Crime No.52/2002 for further investigation. During investigation on 26.02.2002, he recorded stat