A.I.S. Cheema, J.

1. Criminal Appeal No.677 of 2012 is by original accused Nos.1 and 2. Criminal Appeal No.82 of 2013 is by original accused Nos.4 and 5. These Appeals are against their conviction imposed by Additional Sessions Judge, Ahmednagar vide Judgment dated 22nd November 2012, passed in Sessions Case No.128 of 2010. Criminal Application No.963 of 2013 is filed by the State against original accused Nos.2 to 12 seeking leave under Section 378(1)(3) of the Code of Criminal Procedure, 1973 (for short "Cr. P.C.") against acquittal of original accused Nos.2 to 11 of Sections mentioned. Charge was framed in the trial Court against accused Nos.1 to 6 under Section 302 read with 34 of Indian Penal Code, 1860 (for short "I.P.C."); against accused Nos. 1, 2, 4 and 5 under Section 201 read with 34 of I.P.C.; against accused Nos. 7 to 9 under Section 114 read with 302, read with 34 of I.P.C.; against accused Nos. 1, 3, 4, 10 to 12 under Section 3/25 of the Arms Act.

The trial Court as per Judgment dated 22nd November 2012, convicted accused No.1 for offence under Section 302, 201 of I.P.C. and Section 3 read with 25 of the Arms Act; Accused Nos. 2, 4 and 5 were convicted for offence under Section 201 read with 34 of I.P.C. Accused No.1 was imposed sentence of imprisonment for life for the murder of Ashok Balkrishna Musmade and fine of Rs.5000/-, in default to suffer Rigorous Imprisonment (for short "R.I.") for three months. Similar separate sentence was passed for murder of Dattatraya Bhagwan Yeole. For offence under Section 201 of I.P.C. accused No.1 was imposed sentence of R.I. for seven years and fine of Rs.5000/-, in default to suffer R.I. for three months. For offence under Section 3 read with 25 of the Arms Act sentence of R.I. for three years and fine of Rs.5000/-, in default to suffer R.I. for three months was also passed against accused No.1. The accused Nos.2, 4 and 5 were sentenced to suffer R.I. for seven years and fine of Rs.3000/-, in default S.I. for three months, for offence under Section 201 read with 34 of I.P.C.

Accused No.3 was acquitted for offence under Section 302 read with 34 of I.P.C., Section 3 read with 25 of the Arms Act. Accused Nos. 7, 8 and 9 were acquitted of offence under Section 114 read with 302 read with 34 of I.P.C.

Accused Nos.3, 4, 10, 11 and 12 were acquitted of offence under Section 3 read with 25 of the Arms Act.

The Judgment Para 75 shows that the Court was not finding accused No.6 guilty, but formal order appears to have slipped in the final order.

Thus, these Appeals by convicted accused and the Application by State.

CASE OF THE PROSECUTION

2. Case of the prosecution in brief can be stated to be as under:-

(A) Complainant PW-3 Sampat Balkrishna Musmade was residing at Deolali Pravara, Tq-Rahuri, Dist-Ahmednagar, doing milk business. One of his brothers was Ashok Balkrishna Musmade (hereinafter referred as "deceased Ashok"). Villagers decided that sugarcane fodder i.e. leafy head of sugarcane (known as "WADHE" in Marathi) will not be sold outside the village. On 2nd March, 2010 at about 8.30 p.m. one tempo bearing No. MH-17-T-8623 was stopped by the complainant along with PW-18 Vijay Walunj, PW-20 Vijay Yeole, PW-21 Bababasaheb Yeole and others, which was carrying the fodder. The driver and cleaner were made to unload the fodder bundles. They unloaded 200-300 bundles of "WADHE". The driver phone called accused No.3 Balasaheb Varkhade and he came there along with accused No.1 Abasaheb Varkhade, No.2 Sunil Varkhade, No.4 Prasad @ Pappu Borase, No.5 Lakhan Salunke and son in law of accused No.3 Balasaheb, namely, Kishor Lokhande, the accused No.6. These persons told complainant and others that the tempo belonged to the son in law of accused No.3 Balasaheb. At that time, there was exchange of words. Accused No.3 Balasaheb then made phone call to one Kalu Barde, Bhishya Barde and Bapu Gaikwad and called them. Those three persons threatened the complainant and others. Then Ka