K.L. Wadane, J.

1. This appeal is presented by the original accused No. 1 namely Feroz Khan s/o Habib Khan resident of Jalna against the judgment and order passed by the learned 2nd Additional Sessions Judge, Jalna, in Sessions Case No. 77/2002 on 30.01.2003, by which the present appellant has been convicted for the offence punishable under section 302 of the Indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs. 100/- in default rigorous imprisonment for three months. The appellant is also convicted for the offences punishable under section 452 and 324 of the Indian Penal Code and sentenced to rigorous imprisonment for two years and to pay fine of Rs. 100/-, in default, further rigorous imprisonment for three months for each offence.

2. Original complainant has filed Criminal Revision Application No. 112/2003 against the order of acquittal of the accused No. 2 to 5 and prayed to remand the Sessions Case for fresh enquiry and trial and decision on merits. Both, appeal as well revision are taken up together for disposal.

3. We have heard the arguments of Mr. Jain, learned counsel for appellant, Mr. Borade, learned APP for the respondent/State and Mr. Syed, learned counsel for revision applicant.

4. Brief facts of the case may be stated as follows:

Complainant Harun Khan (PW 1), a rickshaw driver by profession lodged a complaint to the police station Jalna alleging that on 22.01.2002 at about 9 am there was quarrel between his mother and wife of accused No. 2 Jaferkhan on account of small child. At that time accused No. 2 threated the complainant and his family members. This fact was narrated to him by his mother.

5. On 23.1.2002 at about 9 a.m. when the complainant and his brother Gaffarkhan (since deceased) were taking their breakfast inside their house, at that time somebody knocked the door of their house. Therefore Gaffarkhan went towards the door and opened it. When Gaffarkhan opened the door the present appellant Ferozkhan gave knife blow on the stomach of Gaffarkhan. Accused No. 2 Jafarkhan, his father Habibkhan (accused No. 4), Afsarkhan (accused No. 5) and one Nasru Khan entered into their house armed with sticks in their hand and started beating the complainant, his wife, mother and father.

6. Maternal uncle of complainant namely Babukhan (one of the injured), Salimkhan and Hamidkhan gathered there, at that time all the accused persons have also beaten them with the help of stick, kick blows, due to which the complainant's maternal uncle Babukhan (PW 5) received serious injuries on his neck and chest. One Mohd. Ayub, Jafer Bin Sayeed, Shaikh Mastan, Mannu and others intervened the matter. Thereafter the complainant and the persons assembled on the spot have taken Gaffarkhan to the Government hospital at Jalna, where he died during the medical treatment. Witness Babukhan was shifted to Government hospital at Aurangabad for medical treatment and after medical treatment he was discharged from the hospital.

7. It is further alleged that the complainant, his wife, mother, father and his maternal uncle have received serious injuries. Gaffarkhan succumbed to the injuries in the Government hospital at Jalna at about 10.30 a.m. After receipt of the first information report (Exh. 48), P.S.O. of Kadim police station Jalna registered the crime for the offences punishable under section 302, 147, 148, 149, 452, 326, 323 of the Indian Penal Code and under section 135 of the Bombay Police Act.

8. After registration of the crime initially the investigation of the crime was carried out by P.W. 14 Shaikh Sattar, PSI, of the said police station. He visited the spot and prepared spot panchnama (Exh. 36), inquest panchnama (Exh. 37). He arrested accused No. 1 on 23.1.2002. He seized the clothes of the deceased. Accused No. 1/appellant has made a statement that he will produce the weapon as per memorandum (Exh. 58) and in pursuance to the statement he has produced the knife (Article 3) vide Exh. 59.

9. On 06.02.2002