IMPORTANT POINT
Concurrent findings of courts below if not perverse, cannot be interfered.

JUDGMENT

A.S. Bopanna, J.

The appellant herein was arrayed as accused No.1 in the proceedings before the Sessions Case No. 87 of 2005. Along with the appellant, five other accused, namely, accused Nos. 2 to 6 were also charged of the offences under Sections 147, 148 and 302 read with Section 149 of the Indian Penal Code on the allegation that the accused persons were the members of an unlawful assembly and pursuant to the common object, had committed riot and armed with deadly weapon like "katti" committed murder of one Dhammanand, on March 13, 2005 at about 00.15 Hrs at Dhanegaon. The accused did not plead guilty of the charge and had sought that he be tried. The proceedings was accordingly held in the Sessions Court at Nanded.

2. The learned Sessions Court having considered the matter in detail, through its judgment dated August 16, 2006 has convicted the appellant herein for the offence punishable under Section 302 of Indian Penal Code and the appellant was sentenced to suffer life imprisonment and pay the fine of Rs. 1,000/-, in default thereof, to suffer rigorous imprisonment for three months. He was, however, acquitted of the charge under Section 147, 148 of Indian Penal Code. The accused Nos. 2 to 6 were, on the other hand, acquitted of all the charges. The appellant herein, therefore, claiming to be aggrieved by the said judgment dated August 16, 2008 passed by the Sessions Court was before the High Court of Judicature at Bombay, Aurangabad Bench, in Criminal Appeal No. 814 of 2006. The State of Maharashtra being aggrieved by the acquittal of the accused Nos.2 to 6 had also assailed the judgment dated August 16, 2008 to that extent in Criminal Appeal No. 683 of 2008. The High Court through its judgment dated August 14, 2009 has dismissed both the appeals by confirming the judgment passed by the Sessions Court. Insofar as the challenge to the judgment of the Sessions Court by the State of Maharashtra, the same has attained finality. The accused No. 1 who was the appellant before the High Court, is before this Court in the present appeal. The delay of 797 days was condoned on January 30, 2012 and leave was granted on September 14, 2012. In the above background, the conviction ordered by the Sessions Court and upheld by the High Court in holding the accused No. 1 alone guilty of the charge would arise for consideration in this appeal.

3. In that background, we have heard Shri Amit Sharma, learned counsel for the appellant, Shri Nishant R. Katneshwarkar learned counsel for the respondent State and perused the appeal papers.

4. The brief facts leading to the present situation is that all the accused persons being residents of Dhanegaon were in a meeting of Mahila Alpa Bhachat Gat near Bouddha Mandir wherein the complainant of the present incident, namely, Baburao, Kailash and others were also present. During the meeting on March 12, 2005 at about 9.00 p.m. the electric supply went off all of a sudden. The appellant Kamlakar, is stated to have enquired with Kailash alleging that he was the cause for disconnection of electric supply, which led to exchange of abuses between the said Kailash and the appellant Kamlakar. The appellant pushed Kailash who sustained injuries on his person. At about 10.00 p.m., Sheshrao, the father of Kailash accompanied by Kailash went to Baburao who is the uncle of Dhammanand and lodged a complaint at Nanded (Rural) Police Station. The said incident lead to a situation where the accused raised an issue as to why such complaint was lodged and on having enquired with the Dhammanand why his brother Kailash started the quarrel, asked Dhammanand to accompany them to settle the dispute amicably. In that backdrop, at about 00.15 a.m. on March 13, 2005 the said Baburao (PW-1), Rashtrapal (PW-8) and others went to the house of Dilip i.e., accused No. 3. The accused Nos. 5 and 6 were standing at the door and prevented them from entering the house and pushed them. The accused No. 2 - Keshav, accused No. 3-Dilip an