(1.) By way of present appeal, the appellant challenges the judgment and order dated 16th November 2007 thereby convicting the accused for the offence punishable under Sec.304 [1] of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for five years and to pay a fine of Rs.5,000/- in default to suffer simple imprisonment for six months.
(2.) The prosecution case in brief is that on the day incident i.e., on 07th April 2004 there was quarrel between deceased Ashok and Digambar on the issue of cutting of Apta tree. Witnesses Bhimrao and Shekurao separated them. Ashok was going towards his field. Accused followed him and assaulted by stone near ear of Ashok. PW-1 Shankar the father of the deceased lodged the complaint. After investigation, the charge-sheet was filed. Since the case was exclusively triable by the Court of Sessions, it was committed to the learned Sessions Judge. Charge was framed under Sec.302 of the IPC. However, at the conclusion of the trial, the learned trial court convicted the accused for the offence punishable under Sec.304[1] and sentenced him to suffer sentence as aforesaid. Being aggrieved thereby, the present appeal.
(3.) Shri Agrawal, learned counsel on behalf of the appellant submits that the learned trial court has grossly erred in convicting the accused. He submits that even according to the prosecution witnesses, the incident has taken place in the dark night. He therefore submits that it is improbable that the witnesses could have witnessed the incident from such a long distance of 60 to 70 feet. He further submits that there are various descripancies in the nature of contradiction and improvements in the evidence of witnesses. He therefore submits that the learned trial Court has grossly erred in convicting the accused.