JUDGMENT - VISHNU SAHAI, J.:---Vide Judgment and Order dated 22-11-1993 passed in Sessions Case No. 93 of 1993, the learned Additional Sessions Judge, Solapur, convicted and sentenced each of the appellants in the manner stated hereinafter:-

i) Under section 302 read with 34 I.P.C. to suffer life imprisonment and to pay a fine of Rs. 250/- each in default to further undergo one month R.I. each; and

ii) under section 506 read with section 34 I.P.C. to suffer R.I. for 2 years and to pay a fine of Rs. 250/- each, in default, to further undergo one month R.I.

The sentences on both the counts were ordered to run concurrently.

Aggrieved by the aforesaid convictions and sentences, the appellants have preferred the present Appeal.

2. The prosecution case in brief runs as follows:-

The informant Jagannath P.W. 3 was the real younger brother of the deceased Prakash. On 25-12-1992 at about 3.00 p.m. while he and Prakash were present in Hannur Chowk, the three appellants, all real brothers, came there and demanded money from Prakash for consuming liquor. Prakash replied that he had no money. On that the appellants threatening to see him went away. At about 8.00 p.m. the informant and Prakash were proceeding to bus stand. When they had reached Hannur Chowk Prakash asked the informant to purchase bidi and himself went to urinate. At that time the three appellants came from the side of garden. Appellant Raja was armed with an axe; appellant Sanjay with a knife; and appellant Dilip was empty handed. At that very time, Prakash came out after urinating. The Dilip caught hold of his hands and Raja and Sanjay started assaulting him with axe and knife. The allegation is that Raja gave two axe blows, one each on the ribs and head of Prakash and Sanjay gave 5 to 6 blows with knife on the stomach of Prakash. Blood started oozing out from the injuries of Prakash. He fell down as a consequence of receiving them. He is said to have succumbed to those injuries on the spot.

3. After the incident the assailants are said to have run away. The informant Jagannath went to his house and informed his sister and brother Ashok P.W. 4. Thereafter they went to police station, Akkalkot where they reached at about 8.15 p.m. At that time P.S.I. Anant Yeshwantrao Rajeshirke P.W. 21 was present at the police station. The informant informed him that his brother had been done to death as a consequence of the axe and knife blows inflicted by the appellants. Head constable Satpute who was incharge of the station diary made an entry in the station diary and reported the incident to him. Thereafter, he went to the spot along with police personnel and P.W. 3 Jagannath. On reaching the place of the incident, P.S.I. Anant Rajeshirke found that the body of Prakash was lying near the urinal. He arranged for a guard to look after the same and himself left with P.W. 3 Jagannath for the police station.

4. The same day i.e. on 25-12-1992 at 10.05 p.m. the F.I.R. of the incident was lodged by P.W. 3 Jagannath at Police Station Akkalkot. The F.I.R. is Exh. 22 and bears both signatures of the informant as well as those of P.S.I. Anant Rajeshirke. On the basis of the F.I.R. C.R. No. 70 of 1992 under section 302 read with section 34 of the Indian Penal Code and section 135 of the Bombay Police Act was registered.

5. After the lodging of the F.I.R., P.S.I. Anant Rajeshirke went to the place of incident with panchas and prepared inquest panchanama of the dead body. He thereafter launched a search for the appellants. On the morning of 26-12-1992 he went to the spot and prepared the spot panchanama Exh. 55. From the place of the incident he seized blood-stained earth, simple earth, slippers and broken wooden rod of an axe under panchanama. P.S.I. Gaikwad-P.W. 15 who had arrested appellant Sanjay while on patrol duty on 26-12-1992 at about 6.30 with a knife in the right side pocket of his pyjama and who was wearing blood stained clothes at that time produced the aforesaid articles before him. The p

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