R.C. CHAVAN, J.:- This is an appeal by the State taking exception to acquittal of respondents recorded by learned Additional Sessions Judge, Washim of the offence punishable under Sections 302 read with 34 of the Penal Code.

2. The facts which led to prosecution of the respondents are as under:

One Pundlik Gyanba Mopkar alongwith his son, brother and nephew was accused in the case of murder of Rambhau Sampat Davhale. They came to be acquitted in that case. Accused No.1 Bharat is brother and Accused No.3 Chintamani is uncle of said Rambhau Davhale, and accused No.2 is friend of accused No.1 Bharat. After acquittal of Pundlik and others accused persons had threatened them and had also beaten up Pundlik on 04-10-1995. On 13-07-1995 Pundlik had been to Washim for attending market but did not return home that night. At 8.00 a.m. next 'morning Pundlik was spotted in a stream by one Mildhao Wakulkar who informed Pundlik's son Vitthal. Vitthal went to the spot and carried his father in a bullock cart. His father disclosed that three accused persons had trampled upon his body causing injuries to him Pundlik was taken to Dr. Wankhade's Hospital at Washim where he was pronounced, dead. Pundlik's son Vitthal reported the matter to the police, who registered an offence and commenced investigation.

3. In course of the investigation police seized incriminating articles, recorded statements of witnesses and caused post-mortem to be conducted on the dead body of the victim and on completion of the investigation sent charge-sheet to the learned Judicial Magistrate First Class, Washim. The learned Additional Sessions Judge, to whom the case was assigned, charged the three accused of the offence punishable under Section 302 simplicitor or 302 read with 34 of the Penal Code. The accused pleaded not guilty and hence, were tried before the learned Additional Sessions Judge. The prosecution examined in all nine witnesses in its attempt to bring home the guilt of the accused. Upon consideration of the prosecution evidence, in the light of defence of denial taken, the learned Additional Sessions Judge came to acquit all the three accused. Aggrieved thereby the State has preferred this appeal.

4. We have heard Adv. Yengal, learned Additional Public Prosecutor for the State and Adv. Tathod, learned counsel for respondents/original accused. The learned Additional Public Prosecutor submitted that, apart from the dying declaration orally made by the victim to his son P.W. 1 Vitthal, the prosecution had tendered evidence of eyewitness P.W. 5 Maroti. The learned Additional Public Prosecutor submitted that this evidence was sufficient to establish guilt of the respondents and should not have been discarded by the learned Additional Sessions Judge. With the help of both the learned counsel, therefore, we have undertaken to evaluate the entire evidence in order to find out whether the learned trial Judge was in error in holding that the prosecution failed to prove respondent's guilt.

5. P.W. 2 Dr. Wankhade stated that at about 10.00 to 10.30 a.m. Pundlik was brought to his hospital and upon examination he found Pundlik to be dead. He accordingly informed the Police Station, Washim. P.W. 4 Dr. Ghunage conducted post-mortem on the body of Pundlik after receiving requisition Exh.22 from the police. He found that ribs on the right side of the chest were fractured and there was also an injury on the forehead. Dr. Ghunage proved his notes of post-mortem examination at Exh.23 and stated that the injuries observed by him were sufficient in the ordinary course of nature of cause death. He also stated that the injuries were possible if some one trampled over the chest and abdomen. He admitted in the cross-examination that there was no injury to the back of the victim. He denied that the injuries were not ante-mortem. The evidence of Dr. Ghunage would show that the victim had met with death on account of homicidal injuries inflicted upon him. The question is, whether the respon

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