Heard both the learned Counsel.

2. Criminal Appeal No. 161/2010 was admitted on 21st April 2010. The appellants challenge conviction recorded under Section 307, read with Section 34 of Indian Penal Code, in Special Case No. 21/2007, on 31-3-2010, by the learned Additional Sessions Judge, Nanded, thereby directing the appellants/original accused nos.1 and 2, to undergo rigorous imprisonment for seven years and to pay fine of Rs. 1000/-, each, in default to undergo further rigorous imprisonment for 3 months.

3. During the pendency of the appeal, appellant no.2 - M.A. Raheman @ Baba s/o. Shaikh Farid expired on 4-5-2012 at Nanded and consequently, the appeal abates to his extent.

4. The original complainant, feeling aggrieved by the same judgment, recording acquittal of original accused nos.3 and 4, namely, M. Yakub s/o. M. Hajisahab and Moin Ahemad s/o. A. Majid, respectively, has preferred Criminal Appeal No. 365 of 2011 which was admitted on 12th July 2011.

5. Nasar Pasha, the complainant, alleged that at about 10.45 p.m., on 15-1-2002, when he was proceeding for collection of his business dues, on the way, he was brutally assaulted by the appellants and two of their associates and consequently, it gave raise to registration of crime vide C.R. No. 6/2002 at Itwara Police Station, Nanded.

6. In order to prove guilt against the accused, the prosecution examined the 6 witnesses as mentioned below:

PW1 Fayyad Hussain s/o. Sk. Husain Panch witness - Turned hostile

PW2 Md. Ashif Pasha s/o. Md. Hajishaja Brother of the complainant

PW3 Mohd. Naser Pasha Md. Haji Pasha Complainant - Injured.

PW4 Gajanan s/o. Namdeorao Deshmukh. Medical Office - Examined the injured.

PW5 Abdul Hamid s/o. Maheboobsab Panch witness.

PW6 Deepak s/o. Dnyanoba Shinde, API. Investigating Officer

7. PW 3 Mohd. Naser Pasha, the complainant, in his evidence, has stated that on 15-1-2022 at about 10.45 p.m., he was to attend a marriage function, to perform band (Music). Accused no.1 Rafiq asked him to stop the band due to its loud sound, an altercation took place. After attending the function, he board an auto-rickshaw. While the said auto-rickshaw was proceeding at Bafna Road, accused no.1 Rafiq and accused no.2 M.A. Raheman @ Baba (since deceased) stopped the auto-rickshaw, pulled him out of auto-rickshaw. Thereafter, accused no.1 Rafiq removed a Khanjir (Dagger) and attempted to stab him on his head, but incidentally caused injury on his right cheek. Accused no.2 M.A. Raheman @ Baba took the said Khanjir from accused no.1 and stabbed at his left thigh. Accused no.3 M. Yakub and accused no.4 Moin Ahemad caught hold of him and stabbed at his left waist by the same Khanjir. Owing to his e yelling and shouts, one Asif Shaikh Hussain rushed to the place of incident, rescued him. While undergoing treatment, his FIR was recorded (Exhibit 41). Incriminating articles were seized under panchanama Exhibit 42. He identified the incriminating article Khanjir, Article no.5, before the court.

8. PW 6 Deepak Shinde, API, Investigating Officer, has stated in his evidence that he arrested the accused persons under (Panchanama Exhibits 62 to 65. He prepared the spot panchanama and panchanama of attachment of clothes of the accused and the complainant. He also collected the blood mixed earth from the spot of incident under a Panchanama. He also recorded statements of witnesses. On statement made by accused no.2 M.A. Raheman @ Baba, the dagger was recovered at his instance, under memorandum and panchanama Exhibits 58 and 60. He sent clothes of the accused and complainant and cover of the motorcycle to Chemical Analyser's office for examination and report, under letter Exhibit 69. The Chemical Analyser's reports are at Exhibits 70 to 75.

9. PW 4 Dr. Gajanan Deshmukh examined the injured, complainant Mohd. Naser Pasha on 15-1-2002 and found three incised wounds on his person; he issued medical certificate (Exhibit 53). According to him, injury nos. 1 and 3 were simple in nature, whil