1. This appeal is filed by the State of Maharashtra, aggrieved by the judgment and order passed by the 3rd Additional Sessions Judge, Nanded on 22nd December, 1995, in Sessions Case No. 129 of 1995, thereby acquitting the Respondents for the offence punishable under section 302 read with 34 of the Indian Penal Code.

2. The case of the prosecution, in brief, is as under :

(a) That, the complainant Keshav Chavan is the resident of village Sangvi Bk. Taluka and District Nanded. He earns his livelihood by doing the work of labourer. Village Sangvi is located close to Nanded City. He had two younger brothers namely (1) Narayan and (2) Yadav (deceased). Yadav, the brother of the complainant was residing separately from the complainant. The age of Yadav at the relevant time was 20 years. He was also earning his livelihood by doing labour work.

(b) Accused Nos. 1 to 3 are real brothers. They are residing at village Sangvi. Accused No.1 is the tricycle rickshaw puller. Accused No.2 at the relevant time was in the services of Grampanchayat Sangvi, working as waterman. Accused No.3 is labourer by occupation. The name of the mother of accused Nos. 1 to 3 is Jamrunbee. Vatchlabai Uttam Rathod resident of village Sangvi was residing adjacent to the house of accused No.2 Faruq. Uttam, the husband of Vatchalabai was addicted to liquor and hence in order to avoid that, Uttam should not spend the earnings of Vatchalabai, she used to deposit her earnings with Jamrunbee, the mother of accused Nos.1 to 3. About 3 to 4 months prior to the incident, Vatchalabai deposited the amount of Rs.200/with Jamrunbee, with a view that, she should get the money back in case of financial difficulty. On 12.06.1995, Vatchalabai demanded the amount deposited by her from Jamrunbee in order to pay medical expenses. Jamrunbee informed Vatchalabai that, accused No.2 Faruq Khan had spent the amount and asked Vatchalabai to demand the amount from accused No.2. On 12.06.1995 at about 8 p.m. to 9 p.m. Vatchalabai demanded money, as stated by Jamrunbee from accused No.2. Accused No.2 got annoyed and he questioned Vatchalabai as to with whom, and when she had given the money. He also abused Vatchalabai. During the time accused No.2 was abusing Vatchalabai, Uttam, the husband of Vatchalabai intervened. Accused No.2 also abused Uttam who intervened in the dispute and rushed to hold him, and assaulted him by giving 4 to 5 stick blows. Due to stick blows Uttam fell on the ground and received injuries. Vatchalabai sought assistance of one Gangaram, who on the contrary, advised to take Uttam on the next day morning in the police station. Vatchalabai alone went to the Police Station for lodging the report against Faruq.

(c) One Pralhad Sakole, resident of village Sangvi Bk., runs hotel under the name and style as ‘New Ganesh Hotel’ opposite to forest Naka, on NandedHingoli Road, on the eastern side of the road. At that place NandedHingoli road runs northsouth. Forest Naka is located on the western side close to said road. Pralhad with the help of his wife Gayabai runs the hotel. The working hours of the hotel are from 6 a.m. to 10 to 11 p.m. Behind the hotel of Pralhad, there is country liquor shop of one Kadam. In front of the hotel by one side there is Pan Shop. There is also one tyre repair shop near the Hotel of Pralhad. Forest Naka and Hotel of Pralhad are situated opposite to each other.

(d) It is prosecution case that, at about 9 to 9.30 p.m. on 12.06.1995, there was quarrel between accused No.1 and the deceased. Both were in drunken condition. There was beating to each other by them. After about 15 to 20 minutes of quarrel, quarrel automatically stopped. Thereafter, accused No.1 and deceased went in tricycle towards Sangvi village.

(e) It is further the case of the prosecution that, at bout 10 to 10.30 p.m. on same day accused Nos. 1 to 3, had brought Yadav (deceased) by the side of the hotel of Pralhad. They started beating him. Due to the nois