Sunil K. Kotwal, J.

1. By filing this appeal, State of Maharashtra has challenged the judgment and order passed by Additional Sessions Judge, Ambejogai in Sessions Case No. 94/2004, wherein accused Nos. 1, 2, 4 and 5 were acquitted of the offence punishable under Section 302 read with Section 149, Sections 504 read with Section 149, Section 143, 147 and 148 of the Indian Penal Code. State has also challenged the correctness of conviction of accused Nos. 1 and 4 only for the offence punishable under Section 323 of the Indian Penal Code. Respondents are original accused Nos. 1, 2, 4 and 5.

2. Facts leading to institution of this appeal are that, accused and complainant as well as all witnesses are the residents of village Pargaon Sudrik Shivar, Taluka Shrigonda, District Ahmednagar. Informant Chandrabhagabai Labde (P.W. 1) is the wife of deceased Bhaguji Labde. At the relevant time of the occurrence, deceased used to work as labour at Kukdi irrigation Department, used to come from Pargaon to Karjat. On 2.4.2004 at about 11.00 a.m., informant Chandrabhagabai and her son Sachin (P.W. 6) went to their field, known by local name "Dara". Deceased Bhaguji also accompanied them. The land of the accused is adjacent to the land of the deceased. At that relevant time, even the accused persons were also working in their field. Chandrabhagabai Labde (P.W. 1) noticed that at about 11.30 a.m., accused were cutting one common tree standing on the common boundary of their field and they were also removing stones from that common boundary. When Chandrabhagabai objected this act, by that time, even Bhaguji reached on the spot and asked his wife Chandrabhagabai not to talk with the accused. However, the accused No. 3 suddenly started abusing the deceased Bhaguji, made him fall on the ground, sat on his chest and started assaulting him on his chest by stone. That time, accused No. 1 Prakash was armed with iron bar, accused No. 4 Subhash was armed with stick and accused No. 5 Sandip was armed with axe. They started assaulting Bhaguji by their respective weapons on the head, back and hand of the deceased Bhaguji. Chandrabhagabai (P.W. 1) started shouting and requested the accused not to beat her husband. When she tried to intervene, that time accused No. 2 Shashikala pulled her hair, fell her on ground and started beating her by means of fist blows and kicks. Hearing the noise of commotion, even Sandip Labde (P.W. 6) rushed on the spot and he tried to rescue the deceased, but he was assaulted by sticks and stones on his back by the accused. By that time, deceased Bhaguji became unconscious. Therefore, Chandrabhagabai (P.W. 1) rushed towards the houses of her relatives and hearing her shouts, her relatives Nilesh Madke (P.W. 5) and Ramdas Hirve reached on the spot of the incident. They took the injured Bhaguji by motorcycle initially to Pargaon and thereafter to Shrigonda Rural Hospital. Doctor examined the deceased and declared him dead. On the same day, Chandrabhagabai (P.W. 1) lodged report to Police Station, Shrigonda (Exh. 24). Head Constable Kolhe (P.W. 8) registered Crime No. 77/2004 against the accused persons for the offence punishable under Sections 143, 147, 148, 302 read with Section 149, Section 323 read with Section 149, Section 504 read with Section 34 of the Indian Penal Code. P.S.I. Girme (P.W. 9) conducted investigation of the crime. He referred the dead body of the deceased for post mortem. Dr. Baban Thaval (P.W. 2) performed autopsy examination of the dead body on 2.4.2004 and issued post mortem notes (Exh. 36). Investigating Officer (P.W. 9) prepared spot panchanama (Exh. 39) and seized one blood stained flint stone, blood stained PVC plastic pipe, two blood stained sticks from the spot. After arrest of the accused Nos. 1 and 2, he seized their clothes under seizure panchanama (Exh. 45) on 2.4.2004. Subsequently, other accused were arrested. On their medical examination, their blood samples were collected. All seized mudde