The main legal point established in the judgment is the requirement for conclusive evidence to establish the involvement of the accused and the distinction between common object and common intention under Section 149 of the IPC.

JUDGMENT

Prakash D. Naik, J. - The Appellants are convicted vide judgment and order dated 08th September 2011 passed by Learned Adhoc Additional Sessions Judge, Solapur in Sessions Case No. 136 of 2009 for the offences under Section 302 read with 149 of Indian Penal Code, 307 read with 149 of IPC, Section 323 read with 149 of IPC, Section 147 and Section 148 of IPC. They were acquitted for the offences under Section 504 read with 149 and Section 37(1) read with Section 135 of Bombay Police Act.

2. The Appellants have challenged the aforesaid judgment and order of conviction by preferring these appeals by invoking Section 374(2) of Code of Criminal Procedure.

3. The prosecution case is that there was altercation between accused No. 1 and PW-6 on 05.01.2009. On 27.01.2009 while PW-6 was proceeding, to answer nature''s call, accu-sed Nos. 1 and 2 with juvenile yogiraj came on a Motor Cycle and had altercation with PW-6. They started assaulting him. PW-6 started running to save himself. Accused No.1 hit him on his back by stone. After seeing this Manoj Gaikwad, Renuka Gaikwad, Sujata Gaikwad, Rajesh and Sachin Gaikwad came there. Manoj (deceased) was assaulted by accused Nos. 1 and 2 with iron rod and iron pipe. Rajendra Jadhav, Baban Gaikwad Pavan Gaikwad, Vinod Jadhav and Vivekanand Jadhav came at this spot. Accused No. 5 assaulted Renuka (PW-9) on her head with a sword. Accused No. 3 assaulted with blunt portion of the axe on the right hand of Sachin (PW-8). Accused No. 2 assaulted Sujata. Rest of the accused assaulted Raju Gaikwad with fist and kick blows. In the meantime Yuvraj, Deepak and Sumeet persons gathered on the spot hance the accused ran away. Manoj Gaikwad was taken to civil hospital where he was declared dead. FIR was registered vide C.R. No. 6/2009 under Sections 302, 307, 323, 504, 147 and 149 of IPC and Section 135 of Bombay Police Act. Accused Nos. 1 to 7 were arrested on 28.01.2009. Statements of witnesses were recorded. On completing investigation charge sheet was filed.

4. Charge was framed by order dated 20.08.2009. As per the charge, the accused were members of unlawful assembly and in prosecution of common object of such assembly committed murder of Manoj Gaikwad by intentionally causing his death by assaulting on his head by iron rod and iron pipe and thereby committed offence punishable under Section 302 read with 149 of IPC. The accused were members of unlawful assembly and in prosecution of common object of such assembly one of the member of such unlawful assembly viz. accused No. 6 assaulted Renuka with sword on her head and attempted to commit murder of Renuka and also assaulted complainant and other prosecution witnesses by means of axe, stick stone with such intention or knowledge and under such circumstances that if by that act they had caused the death of complainant and other prosecution witnesses, they would have been guilty of murder under Section 302 of IPC and that they had caused hurt to the complainant and other witnesses and thereby committed offence under Section 307 read with 149 of IPC. The accused being members of unlawful assembly and in prosecution of common object of such assembly to assault complainant and other prosecution witnesses assaulted with axe, sword, stick, iron rod, iron pipe and stone etc. and thereby committed offence under Section 323 read with 149 of IPC. The accused were members of unlawful assembly and in prosecution of common object of such assembly to assault complainant and other witnesses Renuka Gaikwad, Sachin Gaikwad, Sujata Gaikwad, Rajesh Gaikwad and proscution witnesses committed the offence punishable under Section 147 of IPC. The accused were members of unlawful assembly and in prosecution of common object to assault complainant and other witnesses committed the offence with deadly weapons like sword, iron rod, stick stone etc. which are likely to cause death and committed offences under Section 148 of IPC. The accused being members of unlawful assembly