(A.P. Bhangale, J.)

1. This appeal has been preferred against the impugned Judgment and Order dated 16/01/2009 passed by the Ad-hoc Additional Sessions Judge, Khamgaon in Sessions Trial No.25 of 2007 convicting the appellant for the offence punishable under Section 302 of the Indian Penal Code sentencing him to suffer imprisonment for life and imposing fine in the sum of Rs 2000/-, in default to undergo rigorous imprisonment for six months.

2. We have considered the rival submissions made by the learned Counsel for the respective parties and perused the records.

3. The facts and circumstances giving rise to this appeal are as under:

It is case of the prosecution that the accused was a member of an unlawful assembly which was formed at the time of commission of offence and in prosecution of the common object of the assembly, caused death of Subhash Gade. The First Information Report was lodged by Sunita Subhash Gade (wife of the deceased) at Police Station, Jalamb about the incident which occurred on 3/01/2007, at about 7 p.m. stating that while the first informant and her husband were returning to their house from cattle shed of Sahdeo Gade, where they had gone to see the she-goats, the accused namely Kailas Gade, Vilas Gade, Nitin Gade and Jagdeo Gade abused Subhash. Kailas came armed with crow bar, Vilas was armed with stick and Nitin and Jagdeo were possessing iron bars. They assaulted Subhash. Villagers gathered on the spot and the incident was witnessed by Bhimrao Gade, Kadu Gade, Sukhdeo Gade, Aanada Gade and Rajaram Gade. The Complainant Sunita lodged the F.I.R. at Police Station, Jalamb, Tahsil Khamgaon, District Buldana (Crime No.02 of 2007). Investigation followed. The investigating Officer visited the spot and drew the spot panchanama. Inquest was held over the dead body of Subhash. The clothes of the deceased were seized under the Panchanama (Ex.41) and the dead body of Subhash was referred for post mortem examination at Civil Hospital, Khamgaon. The accused were arrested. It is case of the prosecution that the clothes of the accused were seized. In the course of investigation, the weapons of offence were discovered under the panchanamas (Exh Nos. 48 and 50) at their instance. The articles seized were referred to the Chemical Analyser for examination and the report of the C.A. was received. The accused were charge sheeted before the Court of Judicial Magistrate, First Class, Shegaon, who committed the case for trial to the Sessions Court.

4. Thus, the accused were facing trial upon the accusation that, on 3/01/2007, they had formed an unlawful Assembly at about 7.00 p.m. and were armed with dangerous weapons like Crowbar, stick, iron rod, iron angle and in prosecution of the common object of the unlawful assembly, caused death of Subhash, who died on the spot. The accused were charged under Section 302 read with Sections 147, 148 and 149 of the Indian Penal Code.

5. The first question is whether Subhash Gade met with homicidal death. Dr. Prakash Sambhaji Ujagare (PW-7) has deposed that he had performed post mortem examination (Exh.57) on the dead body of the deceased. He found that there were external injuries on the dead body described as follows:

1. CLW over parietal region left side 10 x 3 x 2 cm with sharp and irregular edges.

2. CLS of size 3 x 2 x 1 cm over chin.

3. Contusion over left maxillary area 3 x 2 x 1 cm.

4. Abrasion over the sternal tipithysis.

5. Abrasion over right lower leg.

6. Nose bone fracture.

He also observed following internal injuries:

1. Fracture of parietal bone obliquely bleeding is present.

2. Haematoma in the brain matter. Bleeding in the brain matter.

3. Internal bleeding in the brain is seen.

6. He opined that the cause of death is due to haemorrhage shock due to internal bleeding as a result of fracture of parietal bone due to rupture of brain matter. Haematoma due to extensive trauma to scalp was also observed. Doctor gave opinion that the injuries were possible due to fo