REVATI MOHITE DERE, J.

1. By this appeal, the appellant has impugned the judgment and order dated 3rd November, 1993 passed by the learned Additional Sessions Judge, Solapur, in Sessions Case No. 337 of 1992, convicting him for the offence punishable under Section 302 r/w 34 of the Indian Penal Code ('IPC') and sentencing him to undergo RI for life and to pay fine of Rs. 2,000/-, in default, to suffer RI for 6 months.

2. Although, the aforesaid appeal was preferred by both, Amar Sable and Rabbani Ismail Shaikh, it may be noted that during the pendency of this appeal, Rabbani Ismail Shaikh expired and hence, the appeal was dismissed qua him vide order dated 5th September, 2014. Hence, this appeal is being decided only qua appellant-Amar Sabale.

3. The prosecution case in brief is as under :

The appellant-Amar, co-accused Rabbani and deceased Riyaz were known to each other. On 13th July, 1992 at about 7:00 p.m., Amar and Rabbani visited Riyaz's house at the Old Mill Chawl, Solapur. Riyaz went with Amar and Rabbani to Yadav Katul's (PW 9) tailoring shop, where Riyaz got a new zip fixed on his old pant. At the said place, all are stated to have consumed alcohol. Riyaz (deceased), appellant-Amar and Rabbani (original accused No. 2) are stated to have come back to Riyaz's house and after some time, are again stated to have left in an auto-rickshaw, driven by Rafique (original accused No. 3). At about 10:00 p.m, Shivaji Garad (PW 5) heard some sound, when he was studying in the Maratha Mandir Hostel and hence looked out of the Hostel and found a man lying on the road. He accordingly informed his teacher and went with him to the Sadar Bazar Police Station at about 10:30 p.m., and disclosed the same to PI Subhash Patel (PW 12). The information was entered in the Station Diary (Exhibit 45). PI Patel (PW 12) rushed to the spot and found a dead body lying at the spot. He called for the photographer at 11:00 p.m. and photographs were taken of the spot. Inquest panchanama (Exhibit 10) was drawn and the dead body was handed over for post-mortem examination. On 14th July, 1992, at about 12:30 a.m., PW 12 - PI Subhash Patel lodged a report (Exhibit 37) on the basis of which C.R. No. 121 of 1992 was registered with the Sadar Bazar Police Station, Solapur, as against unknown person. Thereafter, investigation commenced. The appellant-Amar and other accused were arrested on suspicion and their blood stained clothes were seized from their person. A blood-stained stone was also recovered at the instance of appellant-Amar.

After investigation, charge-sheet was filed as against the appellant-Amar and two other co-accused i.e. Rabbani and Rafique in the Court of the Judicial Magistrate First Class, for the offence punishable under Section 302 r/w 34 of the IPC. Since the offence was sessions triable, the case was committed to the Court of Sessions.

4. The defence of the appellant was that of denial and false implication.

5. The prosecution, in support of its case, examined 13 witnesses. PW 1- Usman Vijapure (panch to the inquest panchanama); PW 2-Mohammad Rafik Shaikh, panch to the discovery panchanama (discovery of stone at the instance of appellant-Amar); PW 3-Ismail Khan Shamsher Khan, panch to the seizure of a piece of red cloth and button; PW 4-Dattatraya Huljanthiwale, panch to the seizure of blood-stained clothes from appellant's person, and deceased's clothes after the postmortem was performed; PW 5-Shivaji Garad, a student staying in the Maratha Mandir Hostel, who heard a bang and saw a man lying on the road and accordingly informed the police; PW 6-Dr. Nandkumar Deshpande, the Medical Officer, who conducted the post-mortem; PW 7-Imtiaz Ahmed Shaikh, brother of deceased Riyaz, (witness with respect to last seen evidence); PW 8- Machindra Shinde, an auto-rickshaw driver to whom an extra judicial confession was made; PW 9-Yadav Katul, the tailor; PW 10-Vasudeo Jadhav, the police constable who carried the articles to the Chemical Analyser; PW