The appeal is filed against the judgment and order of Sessions Case No.113 of 2005, which was pending in Sessions Court, Beed. 7th Ad-hoc Additional Sessions Judge, Beed has convicted and sentence the Appellants for the offence punishable under Sections 307 read with 34 of the Indian Penal Code. They are also convicted and sentenced for the offence punishable under Sections 323 read with 34 of the Indian Penal Code and also for the offence punishable under Section 504 read with 34 of the Indian Penal Code and the provisions of the Bombay Police Act.

2. Both the sides are heard.

3. In short, the facts leading to the institution of the appeal can be stated as follows:

The Complainant Pralhad Tishtak was working as Police Patil of his village Kathoda. The Appellants are real brothers, interse. Accused No.4 was their father. The incident took place on 30th March, 2004 after 05:30 pm. The Complainant was in the company of his two labours and he was intercepted at Golegaon Phata by the accused. The Appellants picked up quarrel with the Complainant by saying that he was unnecessarily giving support to Ex-Sarpanch Raghunath Kirkit. Then Accused Nos.2 and 3 held two hands of the Complainant and Accused No.1 gave blow of knife on the chest of the Complainant. Accused No.4 allegedly instructed the other accused to finish the Complainant. One Raghunath Kirkit reached to the spot after the incident and then the Complainant was shifted to Government Hospital. The Complainant sustained bleeding injury on his chest during the incident and he gave the report on the same day.

4. During the course of investigation, all the accused came to be arrested. On the basis of statement given by Accused No.1 under Section 27 of the Evidence Act, the knife came to be recovered. The clothes of the Complainant and the accused were taken over. The charge-sheet came to be filed for the aforesaid offence. The charge came to be framed for the aforesaid offences. The accused took the defence of total denial.

5. In the trial Court, the Complainant and two eye-witnesses were examined. Some witnesses are examined to prove the recovery of knife at the instance of Accused No.1. Record like C.A. report is produced. Doctor is examined to prove the injury certificate in respect of the Complainant.

6. The Complainant has given evidence against Accused No.1 that he used knife in the incident. He has made allegation that Accused Nos.2 and 3 were holding his hands when Accused No.1 gave blow of knife on his chest.

7. It appears that two eye-witnesses mentioned in the FIR dated 30th March, 2004, are not examined by the prosecution. Two other witnesses, who are not named in FIR are examined. They have given similar version against Accused Nos.1 to 3. The evidence is given as against Accused No.4 also, but he is acquitted by the trial Court.

8. The evidence of Complainant shows that after giving of FIR by him, so many statements were given by him. His statement was also recorded through the Executive Magistrate, which is at Exhibit-59. In the so called dying declaration, he disclosed that out of four accused, two accused were holding him and other two had given blow of knife on his chest. This circumstance is brought on record by the defence, but the trial Court has not discussed this circumstance.

9. The evidence collected and which is considered by the trial Court shows that out of some political dispute, the incident took place. The evidence in cross-examination shows that one accused reached there subsequently and he had given the blow of knife. If the Complainant is believed then it can be said that four persons were involved in the incident. Inspite of this circumstance, only one injury was found on the chest of the Complainant. The doctor has described this injury as simple injury. The learned APP submitted that the intention can be gathered from the circumstances that Accused No.1 was carrying knife and he had given the blow on the chest. This Court holds that in view of