Point of Law: Criminal Law - Offence of Murder - Conviction Set aside - Absence of medical evidence to prove that he had sustained serious incised wounds, that evidence would become doubtful on point of role attributed to accused persons - The Evidence of injured eye witnesses is found to be full of omissions, contradictions and inconsistencies

JUDGMENT :

G.A. Sanap, J.

These two appeals arise out of a judgment dated 21 July 2016 passed by Additional Sessions Judge, Nasik in Sessions Case No.90 of 2013. The Appellant in Appeal No.324 of 2017 was arrayed as Accused No.6 and the Appellant in Appeal No.725 of 2017 was arrayed as Accused No.2. Learned Sessions Judge convicted the Appellants for offences punishable under Sections 143, 147, 148 read with Section 149 of Indian Penal Code (“IPC”) and under Sections 302, 307 read with Section 149 of IPC and sentenced them to suffer rigorous imprisonment for life under Section 302. They were sentenced to suffer rigorous imprisonment for five years for the offence under Section 307. Learned Sessions Judge awarded the sentence of one year to three months for the remaining offences. They were also sentenced to pay a fine of Rs.1000/-and Rs.500/-for the offences. In these appeals, this order of conviction and sentence is challenged by the Appellants.

The facts leading to filing of appeals are as follows :

2. In the crime, there were in all six accused. Accused Nos.3 and 4 being juveniles were separately charge-sheeted and their case was sent to Justice, Juvenile Board/Court. The remaining four accused, which included the Appellants, faced trial before learned Additional Sessions Judge. Accused No.1 David died during the pendency of the trial and, therefore, case against him stood abated. Accused No.5 Shashikant Barve was acquitted.

3. The incident in question occurred on 25 August 2012, about 4 p.m. The FIR was registered on the basis of the statement of P.W. 1 at Igatpuri Police Station. It is the case of the prosecution that P.W.1, deceased Shailesh and P.W.4-Shahid are friends. 25 August 2012 was the birthday of deceased Shailesh. He wanted to celebrate the birthday with P.W.1 and P.W.4. Therefore, at about 03.30 p.m., they purchased Vadapav and other eatables and went to Municipal Garden, Igatpuri. They sat in the garden. When they were about to eat food at about 04.00 p.m., Accused Nos.1 to 6 came there with sword, chopper, fighter, sickle and rod. The accused David questioned deceased Shailesh, as to why he has been frequently quarreling with them. The accused David questioned Shailesh, as to why he has filed a complaint against them at Igatpuri Police Station. The accused David thereafter told deceased Shailesh that they will kill him. It is the case of the prosecution that the accused David and Shashikant Barve inflicted blows with sword on the head of Shailesh. The accused Kau alias Francis (Appellant in Appeal No.725 of 2017) assaulted deceased Shailesh with chopper and accused Munna with fighter on his head. P.W. 1 and P.W.4 made attempt to rescue Shailesh from these accused. The accused David, thereafter, inflicted a sword blow on the left knee of the informant-P.W.1. The accused Munna @ Ayub Hasan Shaikh (Appellant in Appeal No.324 of 2017) inflicted blows with sickle on his chest and stomach. The accused Kau alias Francis inflicted a blow on his right hand with sickle. The accused Shashikant, David and Kau inflicted blows with sword and chopper on person of Mahesh Bandi-P.W.1. The informant P.W.1, P.W.4 Shahid and deceased Shailesh sustained injuries. They made hue and cry. The people of the locality gathered on the spot. The accused fled from the spot. Thereafter, people took them to Igatpuri Rural Hospital. Considering their serious condition, they were shifted to Wockhardt Hospital, Nasik. Shailesh succumbed to the injuries on the way to the hospital at Nasik.

4. They were taken to Wockhardt Hospital at Nasik. The medical officer treated P.W.1-informant and P.W.4. The medical officer declared Shailesh dead. The information of the crime was conveyed to Bhadrakali Police Station, Nasik. P.W. 12-API attached to Igatpuri Police Station visited Wockhardt Hospital at Nasik. He recorded the statement of P.W. 1. On the basis of the facts stated by P.W.1, he registered the crime bearing No.70 of 2012 against the six accused pers