1. The appellants-accused are aggrieved by the judgment and order dated 11-1-2007 rendered by the learned Sessions Judge, Chandrapur in Sessions Case 120/2004, by and under which the accused are convicted for offence punishable under Section 307 read with Section 34 of the Indian Penal Code (“IPC” for short) and are sentenced to suffer rigorous imprisonment for seven years and to payment of fine of Rs.2,000/- each. The accused are, however, acquitted of offence punishable under Section 342 read with Section 34 of the IPC.

2. The prosecution case :

The accused and injured Dhanraj Nannaware (P.W.3) were residing at village Ghosari, within the jurisdiction of Police Station Bhadrawati. The incident occurred at 1200 noon or thereabout on 07-3-2004, which was the Dhulivandan day. Dhanraj had gone to the house of the father of the accused one Tulshiram Ghodmare to borrow money. Since Tulshiram was not present, the injured asked his wife to lend the amount and when she went inside the house to bring the amount, the injured was sitting on the cot. In the meanwhile, accused Waman arrived at the scene of occurrence and alleging that Dhanraj subjected his wife to witchcraft (black magic), assaulted Dhanraj on the head by stone and stick. Accused Arun also arrived at the scene of occurrence and assaulted Dhanraj on the head by stone. Dhanraj was also assaulted on the head by the lid of tin container. The legs of the injured Dhanraj were tied by rope and he was taken in the cattle shed. One Yogesh Dhone informed the Police Patil about the incident, the Police Patil arrived at the scene of occurrence and then informed the police telephonically. Police came to the village at 400 p.m. Injured Dhanraj was lying in the cattle shed of the father of the accused. Kawadabai and others who attempted to intervene were not permitted access to the courtyard and were threatened by the accused, is the prosecution version. The police recorded the statement of Kawadabai and registered offence under Sections 307 and 342 read with Section 34 of the IPC. The stones and lid of tin container and the blood stained shirt of the injured Dhanraj were seized and sent to Chemical Analyzer. Statements of witnesses were recorded and upon completion of the investigation charge-sheet was submitted in the Court of Judicial Magistrate First Class, Bhadrawati who committed the proceedings to the Sessions Judge. The learned Sessions Judge framed charge (Exhibit 9) for offence punishable under Sections 307 and 342 read with Section 34 of the IPC. The accused abjured guilt and claimed to be tried. The defence is of total denial and further that injured Dhanraj fell down in the courtyard of the house of the father of the accused under influence of liquor and sustained injuries.

3. Heard Miss Ankita Sarkar, learned Counsel for the accused and Smt. S.V. Kolhe, learned Additional Public Prosecutor for the respondent.

4. Miss Ankita Sarkar, learned Counsel makes a two fold submission. The first submission is that the evidence on record is too sketchy and fragile to prove beyond reasonable doubt that the accused assaulted the injured Dhanraj and the second submission is that even if the evidence is taken at face value, the prosecution has not established offence punishable under Section 307 of the IPC and at the most, the accused can be convicted under Section 324 of the IPC. The second submission is made arguendo and in the alternate, without prejudice to the submission that the accused are entitled to a clean acquittal. Per contra, Smt. S.V. Kolhe, learned Additional Public Prosecutor would submit that it is proved beyond reasonable doubt that the accused assaulted the injured Dhanraj. The vital part on which the injuries are inflicted is sufficient to attribute the requisite intention or knowledge to the accused, as would attract Section 307 of the IPC, is the submission.

5. P.W.1 Bhanudas Kulmethe is the Police Patil who was informed about the incident by Yogeshwar Dhone. P