S.P. KUKDA Y, J. :- Appellants impuon order of conviction and sentence passed upon them on 31st August. 1994 by learned III Additional Sessions Judge. Aurangabad, convicting both of them of the offence punishable under section 302 read with Section 34 of the Indian Penal Code (for short "IPC") and sentencing them to imprisonment for life and to pay a fine of Rs.2,000/- each, in default to suffer RI for six months each; and further convicting appellant No.1 of the offence punishable under section 201 of the IPC and sentencing him to suffer RI for three years and to pay a fine of Rs.1,000/- in default, to suffer RI for six months.

2. Prosecution case in nutshell is that appellant No.1 Annasaheb Vishwanath Chavan is native of village Bhivdhanora, Tq. Gangapur, District Aurangabad. Appellant No.2 - Bhagirathibai is his wife. Appellant No.1 has five brothers, namely Laxman Nanasaheb (Original accused No.3). Shantilal Bhausaheb and Baban (deceased). Brothers are separate in mess and estate. Ancestral field bearing Gut No.178 was equally divided between them. They also have equal share in the common well situated in the field allotted to the share of Laxman. Fields of appellant No.1, his brother-Bhausaheb and adjoining owner Dada Patil (Sarpanch of the village) are to the north of the field of deceased Baban. During the relevant period, deceased had given his field for cultivation to Navnath Sakharam Bhandari (PW 4) on crop share basis. On the day of occurrence, i.e. on 18-12-1992, Navnath was watering the field by taking water from common well from 9 o'clock in the morning. Appellants were harvesting Tur crop (pulses) from their field and threshing it at the threshing flour of their field. Deceased Baban, came to the field with rubber pipe at about 3.00 p.m. in drunken condition. Thereafter, he started watering the field with the help of Navnath, by taking water from the well of Dada Patil. At about 5.00 p.m., there was a quarrel between appellants and deceased regarding use of electric motor installed at the common well. Navnath intervened to stop the quarrel. However, at about 6.00 p.m., deceased started filthily abusing appellants. This gave rise to a scuffle. During the struggle, appellant No.2 sustained abrasion on her left forearm. Appellant No.1 got annoyed and raised an axe for dealing a blow to the deceased. At that juncture, Navnath cautioned appellant No.1 not to use the axe but appellant No.1 proceeded to give an axe blow on the nape of the neck of deceased. As a result, deceased sustained fatal injury and collapsed. He expired before Navnath came to the scene of occurrence.

Appellant No.1 asked Navnath to guard the dead body. He then went to adjoining field of Dada Patil and asked his servant Bhanudas (PW 9) to give company to Navnath (PW 4) Appellants, then, returned to their house in the village. Appellant No.1 and Nana (accused No.3) returned to the field at about 11.00 p.m. Four of them guarded the dead body till about 6 o'clock in the morning.

3. At 6.00 p.m. Bhanudas went back to his work and appellant No.1 went to Gangapur Police Station. At the Police Station appellant No.1 lodged report (Exh.11), giving intimation that his brother Baban was intoxicated. After having conversation with him at about 6 p.m. while returning to his field, Baban stumbled and fell on inverted spade sustaining fatal injury. On the basis of this report, Station House Officer Abdul Rehman registered accidental death at Sr.No.21/92 under section 174 of the Code of Criminal Procedure, 1973 (in short "Cr.P.C.") and entrusted the enquiry to Police Head Constable Vinayak Vishwanath Barse (PW 1). Head Constable Barse went to the scene of occurrence and attached blood stained guilt, pieces of green coloured bangles, spade, bloodstained soil and adjoining soil under Panchnama of the scene of occurrence (Exh.12). He then held inquest on the dead body. During the course of inquest, Head Constable Barse noticed injury on the nape of the neck, on the

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