SHRIHARI P. DAVARE, J.:-

Heard the respective Counsel for the parties.

2. By the present two Appeals, the appellants i.e. Original accused No. 1 - Vilas @ Hari Om Tatoba Ghag and accused No.3 Dilip Ramchandra Suryavanshi (hereinafter referred to as "the accused" for the sake of brevity), have taken the exception to the conviction and sentence imposed upon them for the offence punishable under Section 302 read with Section 34 of IPC and directing them to undergo imprisonment for life and directing the accused No.1 to pay fine of Rs.3,000/- and also directing the accused No.3 to pay fine of Rs. 1,000/- by Judgment and order dated 12th March, 2004 rendered by the learned Addl. Sessions Judge, Greater Mumbai, in Sessions Case No.1349 of 1995. Admittedly, accused No.2 Angad Malkhansingh Mahajit was expired during the trial and the case against him was abated.

3. Briefly stated, the case of the prosecution is that the alleged incident occurred on 23.10.1993. When the victim Prabhakar Sawant was driving his autorickshaw, PW-l Chandrakant Govalkar, PW-2 Dhanaji Dhopate and PW-5 Babu Patel accompanied with him and when they came in front of “Laxmi Hotel" at Shivaji Nagar on Daftary Linking Road, Malad, a massive assault was committed upon victim Prabhakar probably by three persons, who were armed with sword and choppers and they thrashed the roof-top over the head of autorickshaw driver and tore it apart. Due to the said attack, the said autorickshaw collided with an electric pole and thereupon Prabhakar Sawant got out of the said autorichskaw and started running away from the spot, but the assailants chased him and they chopped him with sword and choppers causing multiple injuries on his legs, hands, and a huge injury on his head. Resultantly, Prabhakar fell down in an injured condition on the spot in front of Laxmi Hotel. At this juncture, Police Head Constable PW-3 Dinkar Bhimaji Rokde and Police Naik PW-8 Vasant Vithal Kale were on patrol duty at the mosque in Islampura area due to tense situation on account of Kashmir Hazrat Baug Dargah and they were not far away from the place of occurrence of the incident. Hence, nearby people ran towards them and informed them about the incident. Thereupon, both the said police personnel arrived at the spot and found that victim Prabhakar Sawant was in injured condition. PW-4 Fulgensingh Umrao Singh, Proprietor of Laxmi Hotel, in front of which the aforesaid incident took place, had allegedly witnessed the assailants assaulting on victim Prabhakar with sword and choppers.

Due to the said incident, nearby shop-owners and restaurants put their shutters down.

It is also alleged that PW-6 Saraswatibai, mother of Prabhakar Sawant, learnt about the said incident of assault on her son through some boys and as such she also rushed to the spot. According to her, victim injured Prabhakar stated before PW-3 Dinkar Rokde and PW-8 Vas ant Kale the reasons for causing injuries to him and the persons who had caused the said injuries and names of the said assailants were disclosed i.e. Angad (accused No.2), Dilip accused No.3 and Vilas @ Hari Om (accused No.1) respectively. Thereafter PW-3 Rokde and PW-8 Vasant Kale both personnel put the injured Prabhakar in an autorickshaw and was removed to Asha Hospital. According to the prosecution, while proceeding towards Asha Hotel, victim Prabhakar made the oral dying declaration before PW-3 Dinkar Rokde, that the three persons i.e. Hari Om, Angad and Dilip i.e. accused Nos. I and 3 and deceased accused assaulted him by chopper. After reaching Asha Hospital, initial medical treatment was given to him, but as per advice, he was shifted to Cooper Hospital for further treatment by an ambulance and was admitted to I.C. Unit. It is the case of the prosecution that since Prabhakar was not in a condition to speak anything about his injuries, API Jadhav (PW-10) recorded the statement of PW-3 Dinkar Rokde and names of the assailants were figured in the said statement coupled with

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