Both these Appeals filed under Section 374(2) of Cr.P.C. arise from the order of conviction and sentence passed on 30th January, 2009 in Sessions Case No.171 of 2004 by the learned Additional Sessions Judge at Pune. In the said case in all four accused were convicted for the offences punishable under Sections 302 and 323 r/w. Section 34 of the IPC. However, during the pendency of the trial, i.e. on 5th September, 2004, accused No.4 Dattatray alias Appa Nivrutti Dudhane died and the trial against him stood abated and the trial continued against accused Nos.1 to 3. All the three accused have been found guilty for the offence punishable under Section 302 r/w. Section 34 of IPC and they have been acquitted for the offence punishable under Section 323 r/w. Section 34 of the IPC.

All of them have been sentenced to suffer life imprisonment and to pay a fine of Rs.5,000/- each, in default of payment of fine to undergo further R.I. for six months. Criminal Appeal No.169 of 2009 has been filed by the accused No.1, whereas Criminal Appeal No.251 of 2009 has been filed by accused Nos.2 and 3. All of them are presently undergoing sentence and their plea for bail was rejected by this Court.

2. As per the prosecution case, one Bajirao Bhorde, who was a Police Constable and brother of Shankar Bhorde, died on 11th February, 2004 and he was a friend of the complainant party Jakir Gafur Shaikh and deceased Rajesh Vasantsing Pardeshi. The complainant Jakir Gafur Shaikh and the deceased Rajesh Pardeshi along with other four friends attended the funeral of one Bajirao Bhorde at Vaikunth Crematory and while they were on their way to the house of Shankar Bhorde, brother of the deceased Bajirao Bhorde, in the Police Colony (Shivaji Nagar) on two wheelers, accused No.2 Satish Dhole called the deceased Rajesh Pardeshi, who was the pillion rider along with the complainant on his motorcycle, and, therefore, the deceased Rajesh Pardeshi stopped near Vasant Hair Cutting Saloon around Goodluck Chowk at Pune, at about 4:30 p.m. Accused No.2 Satish Dhole questioned the deceased Rajesh Pardeshi as to whether the deceased had become oversmart and was trying to show his authority and in that, there was some altercation between accused No.2 and his friends i.e. accused Nos.1, 3 and 4, on one hand and the deceased on the other. During this altercation, accused Nos.1 to 3 dragged the deceased towards the steps of Vasant Hair Cutting Saloon and, thereafter, accused No.4 Dattatray Dudhane, who was not known to the complainant, took out a jambia from his leather cover and inflicted two blows on the deceased. The first blow cut the thumb of right hand of the deceased and the second blow landed on his chest and he collapsed. The accused ran away from the scene of the incident while Rajesh Pardeshi was lying in the pool of blood. It took some time for the complainant and his friends to get a rickshaw and take the injured to the nearby Deendayal Hospital, where Rajesh Pardeshi was declared dead around 5 :00 p.m. The shocking incident that had taken place was during the broad daylight in a busy locality like Ferguson College Road. News reached to the nearest Police Station, i.e. Deccan Police Station, and, thereafter, Raju Dhondiram More (PW6) visited the spot. Raju More (PW6) got a message at about 4:40 p.m. and reached the spot at about 4:45 p.m. He was informed that the injured was taken to Deendayal Hospital, he saw blood lying on the ota in front of Vasant Hair Cutting Saloon and he reached the Deendayal Hospital. There, he came to know from the Doctor that Rajesh Pardeshi was no more. Raju More (PW6) recorded the statement of the complainant Jakir Gafur Shaikh and with a covering letter sent the same to the Deccan Police Station where C.R. No.58 of 2004 was registered at about 5:45 p.m.

3. The dead body of Rajesh Pardeshi was sent for post mortem to the Sassoon Hospital at Puneand Dr. Prashant Damodar Suryavanshi (PW5) conducted the post mortem be