JUDGMENT - VISHNU SAHAI, J.:---Though this appeal, the appellants challenge the judgment and order dated 17-6-1995 passed by the Additional Sessions Judge, Pune, in Sessions Case No. 123 of 1994, convicting and sentencing them in the manner stated hereinafter:-

(i) Gokul Dadu Jadhav:---Under section 302 I.P.C. to suffer imprisonment for life and to pay a fine of Rs. 100/- in default to undergo three months R.I.; and

(ii) Datta Suresh Awale:---Under section 302 r/w 34 I.P.C. to suffer imprisonment for life and to pay a fine of Rs. 100/- in default to undergo three months R.I.

It is pertinent to mention that along with the appellants, was tried one Digambar Khandale but, he has been acquitted vide the impugned judgment and the State of Maharashtra has not challenged his acquittal by preferring an appeal under section 378(1) Cr.P.C.

2.In short, the prosecution case runs as under:-

On 9-1-1994, there was marriage of Sham Bate P.W. 2 in Kasam Zopdpatti within the limits of District Pune. The marriage was performed at 7.45 p.m. Thereafter, some of the invitees sat for dinner. The appellants, the acquitted accused Digamber Khandale and some other persons, who were also invited, started dancing. Sham Bate and his bride were sitting on chairs.

The evidence of Sham Bate shows that at that time, the appellant- Gokul Jadhav put his hand on the shoulder of the deceased Mahadu and inflicted a knife blow on his chest. Thereafter, the appellant. Datta Awale inflicted a knife blow on the right arm of Mahadu. The acquitted accused Digambar asked Gokul Jadhav to give fist blow to Mahadu in order to take out the knife which had been pierced in his chest. Thereafter, the appellant Gokul Jadhav proceeded towards the informant Bapu Bhise P.W. 1 who was also there and inflicted a knife blow on his thigh. Then the accused persons are said to have ran away.

Apart from Sham Bate, this incident was seen by the informant Bapu Bhise P.W. 1, Raju Gaikwad P.W. 4 and Chavan Pawar P.W. 5.

Evidence of the eye witnesses shows that after the appellants and Digambar Khandale had run away, Salim Patel P.W. 3 took Mahadu, who was in a precariously injured condition, in a rickshaw to Sasoon Hospital. Bapu Bhise who was also injured was also taken there. On reaching there, Mahadu was pronounced dead, and Bapu Bhise was medically examined.

3.Evidence of P.S.I. Dattatraya Temghare P.W. 8 shows that on the date of the incident, when he was present at the Dattawadi Police Chowky, P.S.O. of Swargate Police Station informed him that one Bapu Bhise had been admitted in Ward No. 12 in the Sasoon Hospital. Consequently, he proceeded to the said ward and after enquiring from the Medical Officer in charge as to whether Bapu Bhise was in a position to make a statement and on receiving a reply from him in the affirmative, recorded Bapu Bhise's statement (Exhibit 30 which is the F.I.R.). It appears that the F.I.R. was recorded at about 10 p.m. because P.S.I. Temghare stated in his cross-examination that he reached Sasoon Hospital at the said time.

4.The post mortem examination on the corpse of the deceased Mahadu was conducted on 10-1-1994 by Dr. Laxman Ferwani P.W. 11 who found on it the following two ante-mortem injuries:-

(i) 1. An incised stab wound present on the front of chest in centre at the level of third rib 1 1/4" x 1/4" x going deep in chest cavity transverse in direction, margins regular antemortem clot present.

2. An incised wound, Rt. arm near the cubital fossa, medial aspect 1¼" X 1/4" X muscle deep transverse in direction, margin regular.

On internal examination, Dr. Ferwani found that beneath injury No. 1, there was a cut in pleural cavity of the right, lung; pericardium was also cut; and there was cut beneath the heart.

In the opinion of Dr. Ferwani, the deceased died on account of ante-mortem injury No. 1 accompanied with internal damage beneath it. In his opinion, the said injury was attributable to a sharp weapon and was sufficient in the ordinary course of nature to c

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