S.P.Kukday, J

1. Bapu Santosh Patil @ Rajput ( accused no.1), Sanjay Prakash Patil ( accused no.3) and Sunil Sursing Patil (accused no.4) are convicted for having committed offences punishable under sections 147, 148 and 302 read with 149 of the Indian Penal Code ( IPC for short) for committing murder of Sachin Sursing Patil in the prosecution of their common object along with their associates. For the first offence the appellants are sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs.1000/- each. For the second offence they are sentenced to suffer rigorous imprisonment for two years and to pay fine of Rs.1500/- each and for the third offence they are sentenced to suffer imprisonment for life and to pay fine of Rs.5000/- each. Sentence of fine carries default stipulation for non payment. These accused are acquitted of the offences punishable under sections 324 and 325 read with 149 of IPC and section read with 25 of the Arms Act. Santosh Tulsiram Patil ( accused no.2), Chandrakiran Nandu Sonawane ( accused no.5) and Jitendra Chotulal Jadhav ( accused no.6) were acquitted of all the offences with which they were charged. Aggrieved by the order of conviction and sentence dated 4th August 2004 passed by IInd Ad-hoc Additional Sessions Judge, Jalgao; Criminal Appeal No.630 of 2004 is filed by Bapu Patil ( accused no.1) and Sunil Patil ( accused no.4). Criminal Appeal No.616 of 2004 is filed by Sanjay Patil (accused no.3). The State has preferred Criminal Appeal No.872 of 2004 against acquittal of accused nos. 1, 3 and 4 for offences punishable under sections 324 and 325 read with 149 IPC and Criminal Appeal No.873 of 2004 against acquittal of accused nos. 2, 5 and 6 of the offences with which they were charged. All these appeals arise out of the same order of conviction and sentence. The appeals are thus decided by a common order. The appellants and respondents are referred to as the accused to avoid confusion.

2. We may notice few relevant facts. Sachin Sursing Patil (deceased) celebrated auspicious Akshay Tritiya day on 15th May, 2002, by playing cards with his friends. He, however, quarrelled with Bapu Santosh Patil and slapped him. Bapu (accused no.1) abused Sachin and swore that he would kill him within two three days. After the quarrel Sachin met his paternal cousin, Bharat (P.W.10) and disclosed this fact to him. Both of them then went to Pan shop of their friend Vijaysing Patil (P.W.4) with Ramesh Patil and Deepak Patil ( not examined ) at about 10.30 p.m. All of them then decided to go to Bansilal Hotel on Jalgao road for dinner. They had two motor cycles. Four of them went to the hotel on motor bikes. Vijaysing and Rushikant Patil (P.W.5) took auto rickshaw. They finished dinner and went to Jaibhole Dhaba across the road at about 11.30 p.m. on motor bikes. After parking their vehicles near Dhaba, all of them were going to nearby Pan shop for having Pan. At about that time Bapu (A/1), Santosh ( A/3) and Sunil, A/4, (younger son of Akkabai) along with three other assailants came there in auto rickshaw of Rajendra Patil ( C.W.1). The assailants got down from both sides of the vehicle. Bapu was wielding sword and others were armed with knives. The assailants surrounded Sachin and started inflicting blows to him with weapons. When Vijaysing, Ramesh and Bharat intervened, some of the assailants inflicted blow just below the throat of Bharat and on the left hand of Ramesh. The hue and cry attracted attention of the customers of Jaibhole Hotel as well as the sentry Vijay Shriram Patil ( P.W.14). The sentry thus, came to the truck parked on the other side of the old highway and saw nine or ten assailants assaulting some one. While the assault was in progress, Bharat ran to the nearby Petrol Pump to seek help of the armed sentry deputed for duty at the Petrol Pump. He requested Vijay to save his brother. While Vijay was coming to the spot with Bharat he saw the assailants leaving the place in au