B.R. Gavai, J.

1. The appellants in Criminal Appeal no.396 of 2010 & Criminal Appeal No.397 of 2010 who are original accused Nos.1 and 2 in Sessions Trial No.309 of 2009 have approached this Court being aggrieved by the judgment and order passed in said Sessions Trial on 13-5-2010 thereby convicting the accused appellants for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and sentencing them to suffer Rigorous Imprisonment for life and to pay fine of Rs.1000/- (Rs. One Thousand) each in default of payment undergo further rigorous imprisonment for one month.

2. The prosecution case as could be gathered from the record is as under:

3. That the first informant Vaishali Pramod Kukadey PW-1 was residing with her husband, son Ashutosh, daughter Rewati, mother-in-law Kaushalyabai, nephew Mangesh Marotrao Gomase at Tulshibag near temple of lord Shankar, Belbag, P. S. Kotwali, Nagpur.

4. Her deceased husband Pramod Kukadey was kerosene dealer and nephew Mangesh was taking education. The accused persons were also residing in the nearby locality. There was an enmity between the complainant's family and the family of the accused as Mangesh PW-2 had lodged the complaint against the accused Nos.1 & 2 at Police Station Kotwali.

5. It is the prosecution case that on 26-3-2009 at about 11.15 p.m., all the family members of the informant were present at home. At that time, they heard noise loudly such as “Mangya ko bahar nikalo”. The sister-in-law of informant namely Meena opened the door, the accused Nos.1 to 4 holding wooden log, sword in their hands entered in the house and rushed to assault Mangesh. The informant's sister-in-law came across and Mangesh ran away outside of the house. Meena also followed Mangesh and started towards the Police station to lodge report. The accused No.1 to 4 on account of old enmity broke the old television of Crown Company belonging to the complainant. The husband of the complainant who was on the first floor came down. The accused Nos.1 to 4 dragged the deceased Pramod Kukadey out of the house and took him in front of the house on the road and assaulted with sword and wooden logs on his neck and other part of body. When the informant went to save her husband, she sustained injury on her right hand and leg. Her husband fell down on the ground in injured condition. The accused then fled away from the spot. One Sandeep and others took deceased Pramod to the hospital, but her husband was declared as dead. On receiving information of the incident, PW-13 P.S.I. Ashok Bhalavi came on the spot. He drew spot panchanama on the spot. Thereafter, he took the first informant to the Police Station. On the basis of the report lodged by PW-1 informant, crime came to be registered for the offences punishable under Sections 452, 302, 504, 427, 323 r/w 34 of the Indian Penal Code vide Crime No.40 of 2009 at Police Station Kotwali. Further investigation was carried out by the Investigating Officer including drawing of inquest panchanama, seizure panchanama of the clothes, recording of the statements of the witnesses etc. The charge-sheet came to be filed against all the accused persons for the aforesaid offences and for the offence under Section 135 of Bombay Police Act. Since the offence was exclusively triable by the Court of Sessions, the learned Judicial Magistrate First Class Nagpur committed the case to the Court of Sessions.

6. The charges were framed against the accused by the learned Sessions Judge and the accused persons pleaded not guilty and claimed to be tried. The defence of the accused was of total denial. Various witnesses were examined on behalf of the prosecution in support of its case. At the conclusion of the trial, the learned Sessions Judge convicted the appellants accused No.1 Mahendra S/o Purshottam Londhe and accused No.2 Amol S/o Purshottam Londhe for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and sentenced them to