JUDGMENT :

S.S. Shinde, J.

1. At the outset it is required to be noted that, by order dated 03rd June 2019 this Court (CORAM: INDRAJIT MAHANTY & A.M. BADAR, JJ.) has already abated this Criminal Appeal as against the Respondent No. 1-Babumiya Abbas Shikalgar who died on 10th August, 2012.

2. This Appeal is directed against the Judgment and order dated 20th May 1995 passed by the learned IInd Additional Sessions Judge, Kolhapur in Sessions Case No. 137 of 1993 acquitting the Respondent (Orig. Accused) for the offence punishable under Sections 143, 147, 148, 302 read with Sections 149, 302, 307 read with Sections 149, 324 of the Indian Penal Code and Section 135 of the Bombay Police Act.

3. The prosecution case, in brief, is as under :

That, P.W. Mohammad and his brother Shoukat are the step brothers of Accused No. 1 - Babumiya. There is dispute between them on account of the properties left by their father Abbas. The house properties are situated at Rajarampuri, Shahapuri, Laxmiputi and Bindu Chowk. The Accused and PW. Mohammad and Complainant Shahanaj are residing in the house at Bindu Chowk bearing no. 1584/C Ward, Kolhapur. Their residences are separate. As the properties are not partitioned the accused are on hostile terms with the complainant, her husband Shoukat, P.W. Mohammad and their family members.

4. On 02.06.1993 it was a day of Bakri-Id. After offering prayer of the Id, Complainant's husband Shoukat and his brother Mohammad wee cutting goat at their house. It was about 11 or 11.15 a.m. After cutting goat complainant's husband Shoukat threw dirt of the goat into the gutter in front of their house. The complainant said him that, why he had thrown the dirt into the gutter and brought a bucket full of water and gave it to her husband for throwing it into the gutter to clean it. Shoukat threw the water in the gutter and thereby the dirt flew. By that the dirt flew and remained stagnant in front of the door of the accused. Thereby the accused No. 1 - Babumiya and his two sons i.e. Accused Nos. 2 and 3 namely Liyakat and Jafar came out of the house holding weapons in their hands. The Accused No. 4 - Hasmatbi also followed them. Then the accused No. 1 abused the complainant in filthy language. By saying so, the accused No. 1 rushed towards Shoukat with an axe. Shoukat's brother Mohammad was standing near by. He came there. Then immediately the accused Jafar hit a Suri on the neck, chest and stomach of Shoukat. That time the accused No. 1 Babumiya embraced Shoukat. An axe in his hand had fell down. By that time the accused no. 2 Liyakat hit on the stomach, right forehead and right arm of Mohammad. The accused No. 4 Hasmatbi was encouraging her son to kill Shoukat and Mohammad. Many people had gathered there. One Jahangir Mestri and one person with beard rescued Shoukat and Mohammad. Shoukat fell down in a pool of blood. Mohammad was held by his family members. Then the complainant immediately went to Laxmipuri Police Station and narrated the incident. Thereby the police immediately went to the spot. Shoukat and Mohammad were admitted in the hospital. Shoukat's wife Shahanaj filed a complaint narrating all the incident. It was registered vide Crime No. 68 of 1993 under Section 307 read with Section 34 of the Indian Penal Code. Shoukat died on the same day in the hospital. Thereafter, Section 302 of the Indian Penal Code came to be added. Investigating Officer Mr. Kadam immediately went to the spot. Spot panchanama was prepared. Weapons were recovered from the spot and other places. Accused were arrested. Clothes on the persons, were attached. Investigation officer directed his constable to get the dying declaration of injured Shoukat recorded. The dying declaration of Shoukat was recorded. As Shoukat died on the same day, post mortem was conducted. Clothes on his person were attached as well as the clothes on the person of injured Mohammad were attached. The properties were sent to the Chemical Analyzer for its report. Blood sampl