JUDGMENT :

Sarang V. Kotwal, J.

1. This is an Appeal preferred by the State of Maharashtra against the acquittal of Respondent Nos. 1 to 4 (original accused nos. 1 to 4) in Sessions Case No. 445 of 1993 on the file of the learned Additional Sessions Judge, Pune. These Respondents were tried for commission of offences punishable under Sections 302 and 326 read with 34 of the IPC. By the impugned Judgment and Order dated 13/10/1995, the learned trial Judge had acquitted them.

2. The prosecution case, in brief, is as follows:

The Respondents were residing at Pawar Vasti which was situated near village Manjri-Khurd. One Kisan Undare and his family used to reside at Manjri-Khurd. Respondent No. 1 Tukaram was on friendly terms with Kisan and his brother Maruti. It is the prosecution case that on one occasion when Tukaram had gone to Mumbai with Maruti and Kisan, he tried to poison Kisan's mind against his brother Maruti. Afterwards, the misunderstanding between the brothers Kisan and Maruti was cleared and they realized that the Respondent No. 1 had tried to play mischief. It is the prosecution case that Kisan then stopped talking with the Respondent No. 1. From then onwards, the Respondents' group and Kisan's group were on inimical terms. It is the prosecution case that on 08/06/1993, there was an incident where these Respondents assaulted Kisan and his brothers. Kisan and his group tried to lodge complaint at the police station. Their complaint was not taken down in writing. Kisan and his brothers were referred to Civil Hospital. On the way, they met one Nandkumar Ghule who was related to Kisan's brother Maruti. Nandkumar suggested to Kisan and his brothers that they should not lodge a police complaint and instead, they should settle the matter with the Respondents. According to the prosecution case, in the night of 09/06/1993, Nandkumar, along with Kisan's brother Parshuram, went to the Vasti where the Respondents used to reside. On the way, they picked-up Maruti. They were accompanied by Nandkumar's friend Parmeshwar. When all of them reached Pawar Vasti, they knocked on the door of the Respondents' house. Initially, there was no response but, the Respondents came from the rear door and assaulted Nandkumar and his friend Parmeshwar with sticks. As per the prosecution case, the Respondent No. 1. assaulted Nandkumar with sword on his head due to which Nandkumar fell down. Nandkumar's friend Parmeshwar was also assaulted with sticks on his head due to which he fell unconscious. Parshuram, Maruti and jeep driver then left the place and went to Nandkumar's house to inform his relatives. The jeep driver refused to come back to Pawar Vasti. Parshuram, Manik and Nandkumar's relatives came to Pawar Vasti in a three wheeler. They noticed that Nandkumar was lying dead on the spot and Parmeshwar was lying unconscious. Parmeshwar was removed to hospital. The police were informed. FIR was lodged at Loni-Kalbhor Police Station vide C.R. No. 171 of 1993 under Sections 302 and 326 read with 34 of the IPC.

3. The Respondents were arrested. The investigation was carried out. As per the prosecution case, 4 sticks were recovered at the instance of the Respondent No. 1. During investigation, the spot panchanama was conducted. Some articles lying at the spot were recovered. The sword was lying near the dead body. Post-mortem was conducted on the dead body of the deceased. Bloodstained earth and sandals were collected from the spot. The seized articles were sent to Chemical Analyzer. The clothes of the accused as well as the sticks were sent for chemical analysis. After the investigation was over, the charge-sheet was filed and the case was committed to the Court of Sessions.

4. During trial, the prosecution examined 7 witnesses. PW 1 Kisan Mahadu Undare was the first informant. He had lodged the FIR but he was not an eye witness to the incident. He had given the background of the incident. The FIR was produced on record at Exh. 18. PW 2 Parshuram Mahadu Und