JUDGMENT - S.G. MAHAJAN, J.:---In Session Trial No. 393/95, the learned 6th Additional Sessions Judge, Nagpur, convicted accused No. 1 Ashok s/o Nagorao Chaudhari and No. 2 Bhagwan s/o Anandrao Manohare both, of the offence under section 307 read with section 34 I.P.C. and sentenced each of them to suffer R.I. for five years and to pay a fine of Rs. 500/- or in default to suffer R.I. for two months more. Out of the above said two accused, only accused No. 1 Ashok has challenged the order of conviction and sentence. He is the appellant in this appeal.

2.The case of the prosecution was as under :---

(A) Prior to the incident in this case, the accused used to game on play cards in the locality of complainant Raju Pyarelal Basdwar named Vasant Nagar Hutment, Dharampeth. On the earlier occasions, the complainant had prohibited the accused persons from gaming. In spite of his protests, the accused used to play. Due to the objection of the complainant, the accused got annoyed. The incident in this case took place on 21-9-1994 at about 3.00 to 3.15 p.m. At that time, the accused persons along with some others were gaming on play cards in the above said locality. Complainant Raju asked them n

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