(Per S. B. Deshmukh)

1. The appellants along with co-accused were tried for the offence punishable under Section 302 r/w 149, 147, 148, 307 R/W 149 of the Indian Penal Code in Sessions Trial No. 186 of 1995 by the learned Sessions Judge, Akola. The appellants, on trial, have been convicted of the offence punishable under Section 148, 307 r/w 149 and 302 r/w 149 of the Indian Penal Code, and were sentenced to suffer R.I. for 1 year and 6 months and to pay fine of Rs.1000/- each, in default of payment of fine, the accused were directed to undergo further R.I. for two months for the offence punishable under Section 148 of the Indian Penal Code. They are also sentenced to suffer R.I. for 7 years each and to pay fine of Rs.3000/- each, in default of payment of fine, they were directed to undergo further R.I. for six months; for the offence punishable under Section 307 r/w 149 of the Indian Penal Code. They are sentenced to suffer imprisonment for life each and to pay fine of Rs.5000/- each, in default of payment fine, they were directed to undergo further R.I. for one year; for the offence punishable under Section 302 r/w 149 of the Indian Penal Code. All sentences have been directed to run concurrently. Set off under Section 428 of Criminal Procedure Code has been granted. The co-accused who were tried with the appellants have been acquitted of the offence with which they were charged and their bail bonds have been cancelled. This judgment of conviction and acquittal in Sessions Trial No.186 of 1995, was delivered by the learned Sessions Judge, Akola, on July 31st 2004. The appellants are referred to their status as the accused at its serial number in Session Trial No.186 of 1995 for the sake of convenience.

2. At the outset, we have noticed that in all 11 accused persons namely Satish Ramsing Mungona (Accused No.1), Sumersing Ramsing Mungona (Accused No.2), Jaggu Ramsing Mungona (Accused No.3), Rajusing Ramsing Mungona (Accused No.4), Surendrasing Ramsing Mungona (Accused No.5), Vikramsing Ramsing Mungona (Accused No.6), Ranjitsing Ramsing Mungona (Accused No.7), Rajasing Laxmansing Mungona (Accused No.8.), Mahendrasing Rajasing Mungona (Accused No.9), Ramsing Mansing Mungona (Accused No.10) and Madhusing Pandusing Mungona (Accused No.11) were charged regarding the incident dated 13-5-1995 at about 8 p.m. at village Lakhpuri, Taluka Murtizapur, District Akola. Perusal of charge Exh.97 shows that these original accused nos.1 to 11 were charged for the offence punishable under Section 147, 148, 307 read with Section 149 and 302 r/w Section 149 of the Indian Penal Code. The common object of the unlawful assembly of accused nos.1 to 11 alleged in Charge Exh.97 was the murder of Prakashsing Lalsingh Rajput and criminal assault on Kalyansing Lalsing Rajput and Shivpalsing and Jaipalsing Rajpur with deadly weapons and thereby caused hurt to Kalyansing and Shivpalsing. They were charged regarding murder of Prakashsing Lalsing Rajput, in the incident dated 13-5-1995 at village Lakhapuri. The Charge under Section 307 read with Section 149 of the Indian Penal Code was also levelled against the accused Nos.1 to 11, in relation to causing hurt within the meaning of Section 307 read with Section 149 of the Indian Penal Code, in relation to Kalyansing Lalsing Rajput and Shivpalsing Lalsing Rajput. This charge (Exh.97) was framed against the accused nos.1 to 11 on 13-12-1995. The charge was explained to them which they denied and claimed to be tried.

3. The Counsel appearing for the parties have no dispute that during the trial, order was passed by the learned Session Judge under Section 319 of the Criminal Procedure Code and that is how name of Rameshsing Ramsing Rajput was directed to be added and shown as accused no.12 in the said Session Trial No.186 of 1995. In view of the order passed by the learned Session Judge, charge was framed against the added accused no.12 at Exh.158 on 29-08-2003 by the learned Session Judge, Akola. This c