A.V. Nirgude, J.

1. Both these appeals arise from the judgment and order dated 1st September, 1999 passed by the learned Additional Sessions Judge, Osmanabad in Sessions Case No.41 of 1999.

2. The parties to the appeals would be referred to as their original designation before the trial Court. The sessions case was filed against two accused. They were charged under Section 302 and 307 read with Section 34 of the Indian Penal Code. The learned Judge of the trial Court vide impugned judgment held that Accused No.1 was guilty of offence punishable under Section 304 Part II of the Indian Penal Code and sentenced him to Rigorous Imprisonment for five years and to pay a fine of Rs.5,000/- with a default clause. The learned Sessions Judge found Accused No.2 guilty under Section 324 of the Indian Penal Code and sentenced him to suffer one year Rigorous Imprisonment and to pay a fine of Rs.2,000/- with default clause. The learned Sessions Judge acquitted both the accused for the offence punishable under Sections 302 and 307 read with Section 34 of the Indian Penal Code.

3. On one hand, Accused No.1 – Sunil filed Criminal Appeal No. 352 of 1999 challenging his conviction under Section 304 Part II of the Indian Penal Code and on the other hand, the State of Maharashtra filed Criminal Appeal No.414 of 1999 challenging the acquittal of both the accused.

4. The facts of the prosecution case, in short, can be stated as under:

The incident took place on 22nd September, 1998 at Kallam, District Osmanabad. On that day, at about 05:30 am, PW-5 Jwala alongwith PW-4 Mirza went to the Zilla Parishad ground for exercise. Accused No.1 came there and told them not to use the school ground for exercise after 06:00 am because he was conducting his Karate training class there. Thereupon, PW-4 Mirza assaulted Accused No.1. In retaliation, Accused No.1 assaulted him. PW-5 Jwala and one Kishor separated this scuffle. Soon thereafter, PW-4 and 5 went to the house of Sachin, the victim in this case, and narrated him the entire incident. Then Sachin and PW-4 and 5 went towards Rangila Chowk in Kallam town. The accused duo came to them from behind and challenged Sachin and the witnesses that they would test, who is physically more powerful by holding a Karate match out side the town. Apparently, Sachin and his companions, PW4 and 5 accepted this challenge and these five persons then went towards I.T.I. College which was out side the town. In an agricultural field near the college, PW-4 Mirza took out his vest and took position of fight. Thereupon, the accused duo took out Guptees, which were hidden in their shirts. One blow of Gupti was delivered on PW-4 Mirza’s person. He sustained injury on his back, but ran away from the spot. Then, Accused No.1 launched Gupti attack on Sachin. After 23 blows, Sachin sustained injury on his chest by Gupti and fell down. On the other hand, Accused No.2 Lahu assaulted PW-5. PW-5 had instrument of Karate called “Non Chap”. Using this instrument, he warded off blows of Gupti given by Accused No.2. Accused No.2, however, delivered one blow of his Gupti on the leg of Sachin, who was lying on the ground. Thereafter, the accused ran away. PW-5 Jwala then went to Sachin’s father and narrated the incident. Sachin’s father came to the spot, found Sachin lying in injured condition, went to the police station and informed them about the incident. The police immediately took Sachin to the hospital, but the Medical Officer declared him dead. Thereafter, Sachin’s father lodged a complainant and offence was registered.

5. The learned counsel appearing for Accused No.1 asserted that Accused No.1 deserved acquittal because; firstly, the case of the prosecution is unbelievable and secondly, because this was a case of private defence. On the other hand, the learned counsel appearing for Accused No.2 asserted that assuming the incident is believed, Accused No.2 cannot be convicted for the offence punishable under Section 302 or 307