JUDGMENT : 1. Heard both sides. 2. Since arguable points are made, the appeal is admitted. 3. By consent the appeal is taken up for final disposal as the accused is in jail and he is 80 year old person. 4. Present appeal has been filed by original accused challenging his conviction in Sessions Case No.92 of 2016, by learned Additional Sessions Judge, Jalna on 15-03-2019, thereby convicting him for committing offence punishable under Section 304 Part II of Indian Penal Code. 5. Initially the accused has been charged for committing offence punishable under Section 302, 504 of Indian Penal Code and Section 3 (2) (v) of the Scheduled Castes And The Scheduled Tribes (Prevention of Atrocities) Act, 1989, (hereinafter referred to as ‘Atrocities Act’ for the sake of brevity). The First Information Report was lodged by one Vimalbai Limbaji Waghmare on 05-01-2016 contending that, she was residing with daughter aged 11 and husband deceased Limbaji. They were residing at Wadarwadi since last about two to three years prior to the First Information Report (FIR). When she, her daughter and husband were at home, present accused who is ‘Wadar’ by caste, visited their house at about 08.00 p.m. on 31-12-2015 and started talking with Limbaji. Thereafter, accused demanded ‘Bidi’ from Limbaji. But since Limbaji was not having ‘Bidi’, he did not give. Thereupon accused started abusing him. Accused started assaulting Limbaji by slaps and fists. Thereafter, he assaulted Limbaji by wooden log/ stick on his legs, both hands, stomach, back and chest. When hue and cry was raised, at that time Police Patil and other persons came and separated them. She tied home made bandage to the right leg and left arm of her husband from which blood was oozing. When Police Patil told that, they should shift Limbaji to hospital, at that time Limbaji told that since he is unable to move, doctor should be brought to home. Thereafter, on the next date Police Patil brought Dr. Barsale from Ashti. Said doctor had stitched the injuries to the leg and left arm of Limbaji, had given saline and injections to Limbaji. Thereafter, on next date i.e. Saturday also same doctor was brought by Police Patil, who had changed the dressing. But on Sunday i.e. 04-01-2016, at about 08.00 to 09.00 a.m., Limbaji requested wife that he should be taken to hospital. Thereafter, on next date i.e. Saturday also same doctor was brought by Police Patil, who had changed the dressing. But on Sunday i.e. 04-01-2016, at about 08.00 to 09.00 a.m., Limbaji requested wife that he should be taken to hospital. Therefore, she called Police Patil and, thereafter, took Limbaji in a rickshaw to Government Hospital, Ashti. The doctor, after examining him, declared that he expired prior to 11.55 a.m. Therefore, the FIR was lodged stating that, due to the assault given by the present accused, Limbaji has expired. Thereby the prosecution story at that time was that, present accused has committed murder of Limbaji. 6. It will not be out of place to mention here that, Accidental Death came to be registered after the information was given regarding death of Limbaji. After drawing inquest panchanama, his dead body was referred for post mortem. Thereafter, the FIR came to be lodged and further investigation has been taken up. During the course of the investigation, panchanama of the spot has been executed and from that place a piece of broken wooden stick has been recovered. Thereafter, on the same day Police Patil has produced the other piece of the same stick and that piece was also seized by separate panchanama. Clothes of the deceased were seized. Statements of witnesses were recorded. Accused came to be arrested. Post mortem report has been collected and after the completion of the investigation, charge-sheet has been filed before learned Judicial Magistrate, First Class, Jalna. 7. After the committal of the case, accused has been produced before the Court from time to time. Charge has been framed at Exhibit 8 for the offence punishable under Section 302, 504 of Indian Penal Code and Section 3 (2) (v) of the Atrocities Act. The contents of the charge were read and explained to the accused in vernacular, to which accused pleaded not guilty. Prosecution has examined in all nine witnesses to bring home the guilt of the accused. After considering the evidence on record, the learned Trial Judge has held the accused guilty of committing offence punishable under Section 304 Part II of Indian Penal Code and sentenced him to suffer rigorous imprisonment for a term of five years and to pay fine of Rs.5000/-, in default to suffer rigorous imprisonment for one year. This conviction is under challenge in this appeal. This conviction is under challenge in this appeal. It will not be out of place to mention here that, the accused has been acquitted of the offence punishable under Section 302 and 504 of Indian Penal Code and Section 3 (2) (v) of the Atrocities Act. 8. It has been vehemently submitted by learned Advocate Mr. V. D. Solanke representing the appellant that, the learned Trial Judge has not at all appreciated the evidence properly. He failed to consider the delay in lodging the FIR. Though it is stated that, the incident had taken place on 31-12-2015, yet no FIR regarding the alleged assault was reported to police. So also it is stated that, Police Patil was knowing the facts of the case, he has also not informed the incident to Police. Further it has also not been further considered that, as per the informant, Limbaji was examined by a doctor. Dr. Jagannath Barsale has been examined as P.W.5, who appears to be a D.H.M.S. doctor running hospital by name ‘Matoshri Hospital’ at Ashti. He admitted that, he examined Limbaji and gave medical treatment. However, he has also not considered that it was a Medico-Legal case. The Police Patil P.W.4 Abhimanyu Jadhav has turned hospital and nothing contrary has been extracted in his cross-examination. According to him, he went to the house of Limbaji after hearing shouts but at that time he had seen Limbaji lying on the ground, and he had told that, he was beaten by accused Ramchandra. But he has not witnessed any incident. There are so many lacunas those have been left by the prosecution in leading the evidence. P.W.8 Dr. Yogesh Rathod is the Medical Officer, who had conducted post mortem, he says that, he had noticed three external injuries, two of them were stitched wounds. However P.W.5 Dr. Barsale does not say that, he had stitched the wounds. Another fact to be noted is that, though the picture has been painted that, Limbaji had received severe injuries yet there was no attempt on the part of his wife to take him to hospital immediately, he was ultimately moved on third day. There are discrepancies in the testimony of P.W.2 Vimal - the informant and P.W.6 her daughter Rama. Another fact to be noted is that, though the picture has been painted that, Limbaji had received severe injuries yet there was no attempt on the part of his wife to take him to hospital immediately, he was ultimately moved on third day. There are discrepancies in the testimony of P.W.2 Vimal - the informant and P.W.6 her daughter Rama. If all these discrepancies are considered then it can be seen that the prosecution had failed to bring home the guilt of the accused beyond reasonable doubt. The accused was at that time aged 77 and as per the post mortem report age of the deceased was 65 years. The question is how he could not have resisted the alleged assault by the accused. When offence has not been proved beyond reasonable doubt, then the learned Special Judge ought to have acquitted the accused. 9. Per contra, the learned Additional Public Prosecutor supported the reasons given by the learned Special Judge and submitted that, the post mortem report shows that there were three external injuries and three internal injuries. Those injuries were possible by stick. It has been proved beyond reasonable doubt that, death of Limbaji is homicidal death and it occurred as he refused to give ‘Bidi’ to the accused. Dr. Barsale has specifically stated that, he had given the treatment and so also he had advised that the injured should be shifted to Civil Hospital, Jalna. This corroborates the contents of the FIR as well as testimony of P.W.6 Rama. The offence was proved beyond reasonable doubt, however the learned Trial Judge has held that, there was no intention to commit murder and it triggered at the spur of moment. Therefore, it is covered under Part II of Section 304 of the Indian Penal Code. Learned Additional Public Prosecutor submitted that, there is no merit in the present appeal, and prayed for dismissal of the appeal. 10. Here in this case the prosecution has come with a case that, the incident had taken place on 31-12-2015, however the FIR has been lodged on 05-01-2016 i. e. after the death of Limbaji. Neither the informant nor Police Patil had tried to lodge a report when Limabji was alive. There is no explanation to that effect given by P.W.2 Vimal- the informant. Neither the informant nor Police Patil had tried to lodge a report when Limabji was alive. There is no explanation to that effect given by P.W.2 Vimal- the informant. No doubt, she is an illiterate rustic lady aged 60 and much is not expected from her, yet when we are supposed to believe her version, then there has to be some reason behind not taking any action. She could have caused the FIR to be lodged through somebody else though at that stage it appears that the Police Patil was supporting her. Contents of the FIR (Exhibit 22) would show that, in fact the Police Patil had suggested that Limbaji should be taken to hospital, yet Limbaji himself had refused on the ground that he is unable to walk. There is no explanation by Vimal that as to why a vehicle was not arranged and attempt was not made to shift Limbaji to hospital. When it is alleged that he has received severe injuries then how Vimal could not have agreed for the treatment to her husband? Under such circumstance, the incident becomes doubtful. Though P.W.2 Vimal has supported her FIR in her examination-in-chief and her crossexamination appears to be mostly of denials, yet the fact remains that there should be corroborating and believable story from the prosecution. Interesting part is that, from 31-12-2015 to 04-01-2016 it is stated that Limbaji was treated at home and in order to prove the same, prosecution has examined P.W.4 Abhimanyu Jadhav- the Police Patil and P.W.5 Dr. Jagannath Barsale. P.W.4 Abhimanyu Jadhav in his examination-in-chief has ruled out the fact told by P.W.2 Vimal that, when the beating was going on Police Patil had come and he had separated accused and Limbaji. According to P.W.4 Abhimanyu Jadhav, he went to the house of Limbaji after hearing shouts and upon inquiry Limbaji told him that, he has been beaten by Ramchandra. He has flatly denied that, he had seen accused beating Limbaji by means of stick. In his further deposition when learned Additional Public Prosecutor was permitted to put questions in the nature of cross, he has stated that when he went to the spot at that time Vimal and Rama were present. He has flatly denied that, he had seen accused beating Limbaji by means of stick. In his further deposition when learned Additional Public Prosecutor was permitted to put questions in the nature of cross, he has stated that when he went to the spot at that time Vimal and Rama were present. Further he states that, he had seen Limbaji had sustained covert injury as well as the injury on his person (which is not extracted as bleeding injury) and, therefore, on the next day he called Dr. Barsale. That means no medical treatment was given on the same day. If the injuries were severe then nobody would have taken step of not giving medical treatment. In his cross-examination taken on behalf of the accused he has admitted that, Limbaji was addicted to liquor and even on the day of incident he had consumed liquor. Even in the past Limbaji was bedridden for the illness. No doubt, there is no suggestion to P.W.2 Vimal as well as to this witness that under the influence of liquor Limbaji had fallen, resulting him the injuries and, therefore, we cannot infer anything from the alleged habit of drinking liquor of Limbaji. The fact remains from his testimony that, he had called Dr. Barsale for treating Limbaji on 01-01-2016. He has not stated that, on the next day also he had brought Dr. Barsale for the further treatment of Limbaji. However, P.W.5 Dr. Barsale has stated that, on 02-01-2016 also he was called by Police Patil for giving treatment to Limbaji. As per the testimony of P.W.5 Dr. Barsale he has stated that on 01-01- 2016 as well as on 02-01-2016; he had advised that, Limbaji should be taken to Civil Hospital, Jalna. There is absolutely no explanation from P.W.5 Dr. Barsale that, he had asked the history of injuries to Limbaji or to P.W.2 Vimal or even P.W.4 Jadhav and then he had noted that it was a Medico Legal case. It is hard to believe that, he would have given treatment without getting the history about the injuries. Another important point is that, the examination-in-chief of this witness is very much silent on the point that, he had stitched the injuries. In fact, his degree is D.H.M.S.. It is hard to believe that, he would have given treatment without getting the history about the injuries. Another important point is that, the examination-in-chief of this witness is very much silent on the point that, he had stitched the injuries. In fact, his degree is D.H.M.S.. Though he says that, he is running a hospital, yet a question would be whether he could have given that kind of treatment but the fact remains in view of the testimony of P.W.8 Dr.Yogesh Rathod, who had performed the post-mortem that two injuries out of three external injuries had stitches. In her examination-in-chief P.W.2 Vimal has not stated that Dr. Barsale had stitched the wounds but in her FIR she has mentioned it. The contents of the FIR would show that, even saline and injection was given. Again at the cost of repetition the degree of P.W.5 Dr. Jagannath Barsale is holding of Diploma in Homeopathic Medicine and Surgery and it appears that, due to this fact that he was hesitant to tell that he had stitched the wounds, gave saline and injection. His examination-in-chief is silent on this fact. The prosecution has not extracted what type of medical treatment was given by him in his examination-in-chief. In his cross-examination taken on behalf of the accused he has stated that, he has not maintained the record regarding providing medical treatment to Limbaji. He then says that, those injuries were possible due to fall. Limbaji was very weak. In clear terms he has stated that, except his words there is no evidence to show that for two days he had given treatment to Limbaji. This creates doubt over the entire prosecution story. The learned Additional Sessions Judge has absolutely not taken all these aspects into consideration and accepted whatever these witnesses were saying as it gospel truth. Unless the story is believable, the witnesses cannot be believed. 11. P.W.6 Rama is the minor daughter of Limbaji. She has supported her mother. Even according to this witness except accused, her father, mother and herself, nobody else was present when her father was allegedly assaulted. In her cross-examination P.W.2 Vimal has stated that, three years prior to the incident they were residing in Wadarwadi and the house in which they were staying was previously occupied by accused. She has supported her mother. Even according to this witness except accused, her father, mother and herself, nobody else was present when her father was allegedly assaulted. In her cross-examination P.W.2 Vimal has stated that, three years prior to the incident they were residing in Wadarwadi and the house in which they were staying was previously occupied by accused. They were intending that the Government should construct house (Gharkul) on the place where they were residing, but this was opposed by the accused. The relationship between Limbaji and accused were strained on this count. If this is to be accepted then the fact told by her that Limbaji and accused were chitchatting, appears to be exaggerated or the statement is made with some mala fide intention. In her cross-examination she has also stated that, 40 to 50 persons had gathered at the time of incident. Nobody else has been examined by the prosecution. With this kind of story we cannot place reliance on the testimony of P.W.6 Rama also. Another fact to be noted is that, neither Vimal nor Rama are saying that, when accused came to their house, he was already armed with stick. The question is, from where the accused picked up that stick. These two witnesses are not stating that the stick belong to them and it was picked up by accused from the place in their house. They both are not saying that, in the said assault the stick broke into two pieces. P.W.4 Jadhav has not stated that, he had snatched the piece of stick from the hands of accused. There is no suggestion put to him by the learned Additional Public Prosecutor, when permission was given to him to put questions in the nature of cross, regarding panchanama (Exhibit 17). Panchanama (Exhibit 17) has been proved by P.W.1 Dilip Wakale and he has stated that on 06-01- 2016 Police Patil produced piece of stick in his presence before police. Thus the testimony of P.W.1 Dilip and P.W.4 Abhimanyu Jadhav does not corroborate Exhibit 17. Another piece of stick was recovered from the spot itself, therefore the recovery part of the weapon has not been properly and legally proved by the prosecution. 12. The evidence of P.W.8 Dr. Yogesh Rathod would show that, he had noted three external injuries on Limbaji. Another piece of stick was recovered from the spot itself, therefore the recovery part of the weapon has not been properly and legally proved by the prosecution. 12. The evidence of P.W.8 Dr. Yogesh Rathod would show that, he had noted three external injuries on Limbaji. One was stitched wound on posterior side of upper arm just above elbow, another was stitched wound on right lower limb as shine, and third is contusion on right lumber region. He found three internal injuries. One is laceration on left lower lobe, another was liver lacerated on upper right quadrant, and third was right kidney lacerated on its lateral surface. There is absolutely no statement by him that the injuries externally noted by him were corresponding to the injuries noted by him internally. According to him those injuries in all would caused death of Limbaji. In his cross-examination by accused he has stated that, external injuries No.1 and 2 are possible by fall on rough surface but injury No.3 will not be. But then the important statement made by him has been missed by learned Additional Sessions Judge that, according to him the age of the injuries in question was prior to one day of post-mortem. That means, when the post-morten has been conducted on 04-01-2016, the injuries were caused on 03-01-2016. To this statement, there is no reexamination by the prosecution. Therefore, we cannot now relate these injuries to the incident dated 31-12-2015. Further again it has been reiterated by him that, the internal injuries might be before one day of post-mortem. When this fact has been extracted from the expert, the conclusion drawn by learned Additional Sessions Judge that death of Limbaji was homicidal, is wrong. The final opinion was not given in the post-mortem report (Exhibit 48) as the viscera was preserved and it has come in the cross-examination of the Medical Officer that, as he was intending to see the finding of viscera analysis, he had not given the cause of death in post-mortem report. Even on the day of his deposition, he had not seen the viscera report; yet he has given opinion in his examination-in-chief that the external as well as internal injuries would have caused death of Limbaji. This creates further doubt over the prosecution story. The other witnesses are the panchas and the Investigating officer. Much deliberation is therefore not required. Even on the day of his deposition, he had not seen the viscera report; yet he has given opinion in his examination-in-chief that the external as well as internal injuries would have caused death of Limbaji. This creates further doubt over the prosecution story. The other witnesses are the panchas and the Investigating officer. Much deliberation is therefore not required. However, a fact is definitely required to be noted that, P.W.3 Ambadas Waghmare is the panch to the inquest pancahnama (Exhibit 25). Perusal of Exhibit 25 would show that, there is absolutely no mention about the stitches to the injuries but it only mentions application of bandage to left hand and right leg. 13. As aforesaid, the Medical Officer who conducted the post-mortem states that, age of the injuries noted by him on the dead body of Limbaji was a day prior to post-morten dated 04-01-2016, and P.W.5 Dr. Barsale has not described the injury in detail, but only stated that there was injury on leg and arm. Though it appears that, he has used it in plural sense, there were no such mark in the post-mortem report. The conclusion drawn by the learned Additional Sessions Judge that, the case is covered under 304 Part II of the Indian Penal Code i.e. the culpable homicide not amount to murder, is totally wrong. The learned Additional Sessions Judge has totally misinterpreted and has not appreciated the evidence in proper perspective. The evidence adduced by the prosecution was not sufficient to prove the charge levelled against accused, much less culpable homicide not amounting to murder, beyond reasonable doubt. The conviction awarded to the appellant therefore deserves to be set aside. He deserves to be acquitted. Hence, following order. ORDER 1) Appeal stands allowed. 2) The conviction awarded by learned Additional Sessions Judge, Jalna to the appellant Ramchandra s/o Yalappa Dhotre, in Sessions Case No.92 of 2016, dated 15-03-2019, after holding the appellant guilty of committing offence punishable under Section 304 Part II of Indian Penal Code, is hereby set aside. 3) Appellant stands acquitted of the offence punishable under Section 304 Part II of the Indian Penal Code. 4) Appellant has been already acquitted of the offences punishable under Section 302 and 504 of Indian Penal Code and Section 3 (2) (v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. 3) Appellant stands acquitted of the offence punishable under Section 304 Part II of the Indian Penal Code. 4) Appellant has been already acquitted of the offences punishable under Section 302 and 504 of Indian Penal Code and Section 3 (2) (v) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989. 5) Appellant be set at liberty forthwith, if not required in any other case. 6) The fine amount, if any deposited by the appellant, be refunded after statutory period. 7) Needless to say that there is no change in the order of disposal of muddemal. 8) Since appeal filed by the appellant/ applicant is allowed, Criminal Application No.655 of 2020 filed by the appellant/ applicant for suspension of sentence does not survive, hence said application stands disposed of.