Point of law: No premeditation and no preparation to commit this offence. The case will fall within Exception-4 to Section 300 of IPC.

JUDGMENT :

SARANG V. KOTWAL, J.

1. Both these Appeals are decided by this common judgment because they arise out of the same trial and in both these appeals the same judgment and order are impugned.

2. Criminal Appeal No.626/2017 is filed by the original accused No.1 Sanju @ Sanjay Suryawanshi and Criminal Appeal No.1030/2017 is preferred by the original accused No.2 Madhukar Mali. Both of them were tried in Sessions Case No.55/2013 by the Additional Sessions Judge, Niphad, District-Nashik.

3. Vide judgment and order dated 7.1.2017, both the Appellants were convicted for commission of the offences punishable under Sections 302 and 324 of the Indian Penal Code read with Section 34 of IPC. For commission of the offence punishable under Section 302 of IPC, both of them were sentenced to suffer life imprisonment and to pay fine of Rs.1500/- each; and in default to suffer further RI for six months. For commission of the offence punishable under Section 324 of IPC, both of them were sentenced to suffer RI for one year and to pay fine of Rs.500/- each; and in default to suffer SI for three months. The sentences were directed to run concurrently. The Appellants were acquitted for commission of the offence punishable under Section 201 read with 34 of IPC. They were given set-off under Section 428 of Cr.P.C. for the period undergone by them as under-trial prisoners during trial. In further discussion, both the Appellants are referred to by their original status as accused Nos.1 and 2 before the trial Court.

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

On 5.7.2013 in the early hours, both the accused assaulted one Chacha @ Suresh @ Ashok Gupta with an iron hook and a knife. They wanted liquor from him. He had refused and, therefore, he was assaulted by both of them. This incident took place in Hotel Bhagyodaya on Mumbai-Agra Road, near village Pimpalgaon (B), Taluka-Niphad, District-Nashik. They concealed the dead body in a shed and then they went to Hotel Akash and demanded liquor from one Ganesh. On his refusal, accused No.1 assaulted him on the head with a glass-bottle causing injuries on his forehead and cheek. Ganesh woke up one Daulat at nearby tea- stall and told him about the assault. Daulat confronted the accused. On his enquiry, accused No.1 told them that they had committed murder of Ashok Gupta and they had concealed his body in a shed. Daulat telephonically informed Kiran, the owner of the Hotel Bhagyodaya, who came there and all of them went to the shed where the dead body was concealed. The police were informed. The accused were handed over to the police. The FIR was lodged. Various panchnamas were conducted. The dead body was sent for postmortem examination. The accused were immediately arrested and the investigation was conducted. At the conclusion of the investigation, the charge-sheet was filed and then the case was committed to the Court of Sessions.

5. During trial, the prosecution examined nine witnesses.

• PW-1 Daulat Padvi was the first informant.

• PW-2 Ganesh Gavade was the injured who was assaulted by the accused.

• PW-3 Ayyub Pathan, PW-4 Kiran Jadhav, PW-5 Harshad Ambore and PW-7 Sudam Chavan were the panchas to various panchnamas but they did not support the prosecution case and were declared hostile.

• PW-6 Constable Dattatraya Jagtap had carried the articles to Forensic Laboratory for analysis.

• PW-8 Dr. Rekha Sonawane had conducted the postmortem on the dead body and had also examined the injured witness Ganesh.

• PW-9 Prashant Ahire was the investigating officer.

Besides this evidence, the prosecution produced C.A. report on record, which showed presence of ‘B-Group’ blood on the clothes of the deceased as well as of both the accused. The same blood group was seen on the iron hook recovered at the instance of accused No.2. There was blood found on the knife but the blood-group was inconclusive. The knife was found near the spot where Ashok Gupta was assaulted.

6. The defence of the accused was of total denial. A