JUDGMENT:

DR. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the judgment of the Division Bench of the Bombay High Court at Aurangabad, dismissing the appeal filed by the appellants. By a common judgment two appeals were disposed of. Both the appeals were directed against the judgment and order passed by learned Third Additional Sessions Judge, Aurangabad, in Sessions Case No. 39 of 1990. Originally there were 37 accused persons in the Sessions Case who faced trial for offences punishable under Sections 302, 307, 395, 436, 324, 323, 147, 148 and 149 of the Indian Penal Code, 1860 (in short the IPC), Section 25 of the Indian Telegraph Act, (in short the Telegraph Act) and Section 3 of Prevention of Damage to Public Properties Act, 1984 (in short the Public Property Act) and Sections 3 and 4 of the Religious Institutions (Prevention of Misuse) Act, 1988 (in short the Religious Institutions Act). Learned Trial judge convicted the present appellants who were accused Nos.1 and 26 respectively for the offences punishable under Section 302 read with Section 34 and Section 324 read with Section 34 IPC. Imprisonment for life and fine of Rs.1,000/- with default stipulations and three years imprisonment and fine of Rs.1,000/- with default stipulation were imposed. Appellant No. 2-Shaikh Abbas was also convicted for offences punishable under Section 452 read with Section 149 IPC and was sentenced to five years rigorous imprisonment and fine of Rs.1000/- with default stipulation. He was also convicted for offences punishable under Section 435 read with Section 149 IPC, and for offences punishable under Section 323 read with Section 149 IPC. The sentences were directed to run concurrently and it was further directed that in case the fine amount was realized, part of it, i.e. Rs.10,000/-, was to be paid to the widow of Jaynarayan (hereinafter referred to as the deceased). Three prosecution witnesses were also directed to be paid compensation of Rs.1,000/-. Law was set into motion on the basis of the statement given by the one Krishna (PW4), Sandu, Police Inspector (PW-11), recorded the statement which was treated as the First Information Report (in short the FIR). The information given by him was to the following effect:

"Krishna PW4 has alleged in the first information report Exhibit 63 that the occurrence in the question took place on 10.10.1989. On that day at about 4 P.M., he along with about 200 villagers had been to a temple for darshana and also for performing pooja on the even of Deshara festival. All of them went to temple and Shami tree near the cremation ground on the outskirts of village Balanagar, Tq. Paithan. As usual, the villagers had been to the place of pooja in a procession with drums etc. After pooja they entered the gate of village (Ves) and had been to the Ram and Maroti temples for offering their prayers. At this time, about 250-300 people from mosque, adjacent to Ram temple, had started pelting stones at them. While pelting stones they were exhorting that it was a time for offering prayer (Namaz) and therefore, these people should leave the place immediately. Krishna PW4, deceased Jaynarayan, Pandharinath, Babasaheb and other villagers have noted the presence of about 3-32 accused persons. According to them, these 32 accused persons along with 200-250 persons assaulted them with sticks, stones, knives etc. the assault was on the people belonging to Hindu religion. PW 4 Krishna had been assaulted by accused No. l Shaikh Majid and accused No.26 Shaikh Abbas with knives. Such assault was on his right hand and below shoulder, on right shoulder as well as in the stomach. He suffered wounds. Such stabbing is suffered by Ranganath, Laxman, Harichand, Gorakh, Hanuman, Uttarm, Bhausaheb, Badri Narayan and Dr. Gopi Kisan as well as Laxman Shamrao. Other persons also sustained serious injuries.

3. As noted above, on the basis of information given by Krishna, (PW-4) case was registered under Sections 307