The central legal point established in the judgment is the evaluation of evidence and material on record to determine the guilt of the accused under Section 307 and Section 34 of the Indian Penal Code.

JUDGMENT :

N.J. Jamadar, J.

1. These appeals are directed against the judgment and order dated 31st May, 2003 in Sessions Case No.182 of 2000, whereby and whereunder accused no.1 Anand and accused no.4 Sandeep (Appellants in Appeal No.736/2003 and Respondents in Appeal No.1381/2003) came to be convicted for the offences punishable under Section 307 read with Section 34 of the Indian Penal Code, 1860 (“IPC”) and sentenced to suffer rigorous imprisonment for five years and pay fine of Rs.1,000/- each, with default stipulation, and the accused nos.2, 3 and 5 to 9 came to be acquitted of the offences punishable under Section 143, 147, 148, 149, 307 and 109 of the IPC.

2. The background facts leading to these appeals can be stated in brief as under:

(a) Mr. Vinayak Nimhan (hereinafter referred to as the first informant) was elected as a Member of Maharashtra Legislative Assembly, in the elections held in the year 1999. A few days after the declaration of the result, Dasara Festival was being celebrated on 19th October, 1999. As a traditional practice at about 8.00 pm. the first informant came in front of Prashant Genral Store, Pashan, to distribute bauhinia leaves i.e. (Apta – customary gold) to the citizens and well wishers. Suddenly a boy, who appeared to be around 24 year old, came in front of the first informant. The said boy threw some substance in the eyes of the first informant. As the first informant felt burning sensation in the eyes he started to rub the eyes. In the meanwhile, two of the informant’s associates Vilas Nimhan and Kailas Nimhan chased the said boy who fed away by the adjoining lane. Within moments of the said assault, few persons, who were hiding in another lane, came from behind and the first informant was assaulted by means of sharp object on the head. The first informant turned behind and noticed that accused nos.2 to 8 were feeing away. The associates of the first informant and the persons who were then present at the scene of occurrence chased those assailants. As the first informant sustained a bleeding injury, the first informant’s driver Hari and Chandrakant Nimhan shifted him to the Sancheti Hospital, Pune.

(b) The boy, who threw the chilly powder, (accused no.1 Anand) was apprehended by Vilas Nimhan and Kailas Nimhan after a chase. Accused no.1 was also brought at Sancheti Hospital and handed over to the police, who had reached the hospital on being apprised about the occurrence. At Sancheti Hospital, the police recorded the statement of the first informant.

(c) The first informant reported the police that accused nos.1 to 8 were the members of the gang of Ram Nimhan – accused no.9, who was inimically disposed towards the first informant on account of the latter’s rise in political stature and popularity. In the past, accused no.1 had threatened to eliminate the first informant. The first informant was thus assaulted with intent to commit murder. On the strength of the said report crime was registered at Chaturshrungi Police Station at CR No.365 of 1999 for the offences punishable under Sections 143, 147, 148, 149 and 307 of the IPC. Thereupon investigation commenced.

(d) During the course of investigation, the Investigating Officer sent a requisition to the Magistrate to record the statement of the first informant. Accordingly, the Special Judicial Magistrate recorded the statement of the first informant. Accused no.1 came to be arrested and the incriminating article i.e. mobile-phone handset of Samsung make came to be seized from the person of accused no.1. House search of the shop premises Jaybhavani Dry-cleaners, where the appellants were reported to be hiding, was conducted and incriminating articles including a pouch of chilly powder kept in a newspaper was seized under the panchnama. The Investigating Officer visited the scene of occurrence and drew panchnama of the scene of occurrence on 20th October, 1999. The Investigating Officer interrogated the witnesses and recorded their statements. The res