R.G. Ketkar, J.

1. Criminal Appeal No.1257 of 2003 is preferred by the original Accused No. 2 Nitin Laxman Pansare and Criminal Appeal No.1433 of 2003 is preferred by original Accused No.1 Raju Suresh Chavan. These two appeals are directed against the judgment and order dated October 3, 2003 passed by the learned II Ad-hoc District Judge, Pune in Sessions Case No.113 of 2002.

2. The Appellants were prosecuted for the offences punishable u/s. 302, 307 and 324 read with section 34 Indian Penal Code (for short IPC). The appellants were convicted of the offences punishable u/s.302, 307 and 324 IPC and were sentenced to suffer imprisonment for life only u/s.302 read with section 34 IPC. Each of them was ordered to pay fine of Rs.1000/. Learned Sessions Judge did not separately award sentence to the appellants for the offences punishable u/s.307 and 324 read with section 34 IPC as they were sentenced to suffer imprisonment for life u/s.302 IPC. Learned Sessions Judge also gave benefit of set off equivalent to the period of their detention in jail to the appellants.

3. It is the case of the prosecution that at about 10.15 p.m. in the night of November 15, 2001 the complainant PW2 Prashant Bhagwat alongwith his uncle Suresh Bhagwat were proceeding towards his house on motorcycle. When they reached near streamlet, Accused No.1 Raju Suresh Chavan called them and asked them to stop their motorcycle. PW-2 Prashant and his uncle Suresh were frightened and they fell down from the motorcycle. Immediately thereafter Accused No.1 Raju Chavan and Accused No.2 Nitin Laxman Pansare rushed at them. Both were armed with swords. Both the accused gave sword blows on the head, face, hands and back of Suresh Bhagwat. PW2 Prashant intervened and requested the accused not to beat his uncle, whereupon Accused No.1 Raju Suresh Chavan gave sword blow on right hand of PW-2 Prashant. In the incident his uncle Suresh sustained grievous inujuries and fell down on the spot. After assaulting PW-2 Prashant Bhagwat and Suresh Bhagwat both the accused left the spot. Both the injured were taken to Talegaon General Hospital and were admitted.

4. After getting information about the hospitalisation of PW2 Prashant and Suresh, officers attached to Talegaon Police Station rushed to Talegaon General Hospital and recorded the statement of PW2 Prashant, which was treated as First Information Report (for short FIR). On the basis of this, Talegaon Police Station registered Criminal Case No.120 of 2001 against the accused at about 00.35 hours on November 16, 2001. The investigation was handed over to PW-11 Assistant Police Inspector Mr.Mohan Jadhav. He went to Talegaon General Hospital. He found that injured Suresh was not in a position to speak. He accordingly verified the correctness of the complaint given by injured PW-2 Prashant. On next day i.e. on November 17, 2001, the Investigating Officer visited the spot of incident and prepared the panchanama of scene of offence. During this time, the Investigating Officer collected the blood mixed earth and plain earth from the spot of incident. The motorcycle lying on the spot was also seized. The clothes of the injured persons viz. PW2 Prashant and Suresh were seized under Panchnama at Exhibit 32 in the presence of panchas. The necessary photographs of the scene of offence through private photographer were also taken. The investigating officer recorded the statements of as many as 10 witnesses on that date itself. As the condition of injured Suresh became critical he was shifted to Lokmanya Hospital at Pimpri. Though the Investigating Officer repeatedly visited the Lokmanya Hospital where the injured Suresh was shifted, he found that the injured Suresh was not in a position to speak. To that effect he obtained the requisite certificates from the medical officer about the physical condition of injured Suresh. In the meantime, search of the accused was going on and on November 21, 2001, both the accused were arrested. O