JUDGMENT - BATTA R.K., J.:---Both these appeals arise out of the same incident for which the appellants were tried in the Sessions Case No. 16/1997. The learned Additional Sessions Judge, Achalpur, by judgment dated 10th February, 1998, held the appellants guilty under section 302 r/w 34 of the Indian Penal Code and sentenced them to imprisonment for life, as also, to pay fine of Rs. 1,000/- each and in default of payment of fine, to suffer rigorous imprisonment for two years. The appellants have filed separate appeals which were heard together. Accordingly, the appeals are being disposed of by a common judgment.

2. The prosecution case, in brief, is that a week prior to the incident, a complaint of theft had been filed by the husband of P.W. 2 Rajkanya against the appellant Vinod. On 6-12-1996, the appellant Vinod came to the house of deceased at about 8.30 a.m., when the deceased was not there and he told Rajkanya (P.W. 2), wife of the deceased, that since they had made a complaint against him, he shall take care of them. When the deceased returned at about 10 a.m., Rajkanya (P.W. 2) told him of what the appellant Vinod had stated. The deceased called police on telephone and informed that the appellant Vinod had come to his house and he had threatened him and he apprehended danger at his hands. Subsequently, the Police Patil Sudhakar Bhore also informed the police about the threats given by the appellant Vinod. The deceased left the house to go to the hotel of one Amrutrao to collect money. Near the said hotel, he was assaulted by the appellant Vinod, as also, the appellant Raju, resulting in injuries on his person. The deceased died as a result of said assault. The incident was witnessed by Ruprao Akolkar (P.W. 1) and Santosh Akolkar (P.W. 3). The weapons of offence were recovered. The incriminating articles including clothes of the appellants having blood stains and clothes of the deceased were sent to the chemical analyser. After completing investigation, charge-sheet was filed. During the course of trial, 13 witnesses were examined. The appellants have challenged their conviction and sentence by filing the appeals under consideration.

3. The learned Advocate for the appellants took us through the evidence of the eye-witnesses Ruprao Akolkar (P.W. 1) and Santosh Akolkar (P.W. 3) and urged before us that there is, inter se, discrepancy between the testimonies of two witnesses; that whereas Ruprao Akolkar (P.W. 1) speaks of exchange of weapons by the appellants after the initial assault, yet other eye-witness Santosh Akolkar (P.W. 3) does not at all speak of the same; that whereas Ruprao (P.W. 1) attributes axe blows on the person of the deceased, except for the blow on head, to the appellant Vinod, yet Santosh (P.W. 3) attributes all injuries caused to the deceased by accused Raju except for blow by iron rod on the head of deceased by the appellant Vinod; that medical evidence of doctor Ranjetsing Digambar Chavan (P.W. 6) totally rules out any injury by iron rod thereby falsifying the prosecution case of use of iron rod in the assault and that both the eye-witnesses did not disclose what they had seen to any one.

4. The learned Advocate for the appellants has also submitted before us that recovery of weapons has not been proved through panchas, who have not supported the prosecution case and that the report of chemical analyser was not put to the appellants in their statement under section 313 of the Code of Criminal Procedure, as a result of which the same cannot be used against the appellants. He has pointed out that the F.I.R. was lodged by Digambar Kisanrao Burnase (P.W. 5) who has stated that his cousin Sanjay Burnase had informed him that the appellants had assaulted the deceased by means of a spear and an axe and said Sanjay Burnase has not been examined by the prosecution.

5. According to the learned Advocate, prosecution has failed to prove the charges against both the accused. Alternatively, it is urged that, at any

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