The importance of the statements made before the police at the earliest possible opportunity and the conduct of the accused in determining the common object of the crime.

JUDGMENT:

S.B. Sinha, J.

1. Appellants who are five in number are before us being aggrieved by and dissatisfied with the impugned Judgment of the High Court of Bombay, Aurangabad Bench at Aurangabad dated 5.9.2005 passed in Criminal Appeal No. 398 of 1999 affirming a judgment of conviction and sentence dated 30.9.1999 passed by the Sessions Judge, Beed in Sessions Case No. 18 of 1998 convicting the appellants herein inter alia for commission of an offence under Section 302 read with Section 149, Section 147 read with Section 149 of the Indian Penal Code.

2. Appellants herein were proceeded against for committing an offence of culpable homicide amounting to murder of one Dnyandeo and for causing hurt to one Bapu (P.W. 6) on 22.1.1997 at about 10.30 p.m. in the night in Village Pangulgavhan within the Police Station Ashti in the District of Beed. First Information Report in respect thereof was lodged at 7.30 a.m. on 23.1.1997 by PW-2 Rohidas Gite alleging that while he had been sleeping in his house after taking meal, his uncle Ajinath Gite (P.W. 3) came to his house to inform him that thieves had come and some 'tumult' is going on, whereupon both of them went towards the place of occurrence and found that both the 'deceased' and the 'injured' were being assaulted by accused No. 1 Vikram, accused No. 2 Mokinda, accused No. 3 Tatyaba, accused No. 4 Bhagan, accused No. 5 Rambhau, alongwith some others (who being juvenile, had been separately tried).

They, although, tried to intervene, but were threatened not to do so. He thereafter went to the House of the deceased and informed his wife as well as Raosaheb Namdeo Gite who came to the place of occurrence. Other persons including Ashruba Pandharinath, Mahadeo Pandharinath, Shyamrao Gajaba, Ashok Baba, Mahadeo Lahanu also came to the spot. The injured were, by that time dragged upto the river by the assailants.

They were asked to stop assaulting and were furthermore requested in the event they had any dispute with him in regard to their land should take recourse to the law whereupon the assailants left them in the river and fled. Both the deceased and Bapu Kisan Gite (PW-6) were found to be unconscious.

3. P.W. 2 Rohidas was advised by others to inform the Police Station on telephone whereupon he went to Village Bhalavani alongwith Ajinath, Gangaram and Bayaji Bhiva at about 1:00 a.m. and informed the Officer in charge of Police Station on telephone. On receipt of the said information, a police officer visited the place of occurrence at Village Pangulgavhan. In the meanwhile, the injured were shifted in front of the house of Laxmibai Ashruba Gite. They were later on shifted by the police personnel to the Government Hospital at Ashti. Whereas Dnyandeo Vithoba Gite was declared dead, PW-6 was admitted in the hospital. Mr. Suresh Gange , P.W. 8 registered a case under Section 147, 148, 149 and 302. He seized three articles including a bamboo stick measuring about 2 ft. and 5 inches with a diameter of about 2 inches. Other articles were also seized. Appellants were arrested on 24.1.1997. The prosecution case was proved primarily by PW-2 the informant, PW-3 Aginath, PW-4 Janardhan and the injured witness P.W. 6 Bapu.

4. The learned Trial Judge by reason of a judgment of conviction and sentence dated 30.9.1999 on arriving at a finding of guilt, awarded life imprisonment and a fine of Rs. 1,000/- each under Section 302 read with Section 149 of the Indian Penal Code, simple imprisonment of 6 months for commission of the offence under Section 149, fine of Rs. 500/- each under Section 147 read with Section 149 and fine of Rs. 500/- under Section 149 of the Indian Penal Code. The appeal preferred by the appellants thereagainst has been dismissed by the High Court by reason of the impugned judgment.

5. Mr. Arvind V. Savant, learned senior counsel appearing on behalf of the appellants in support of this appeal inter alia would submit;

(i) P.W. 2 having informed the officer-in-charge of Police Stati