JUDGMENT :

Per Sarang V. Kotwal, J.

1. The Appellants have challenged the Judgment and order dated 14/12/2015 passed by the learned Additional Sessions Judge, Kolhapur in Sessions Case No. 114 of 2014, whereby both the Appellants were convicted for commission of the offence punishable under section 302 r/w. 34 of the Indian Penal Code (for short ‘IPC’). They were sentenced to suffer Imprisonment for life and to pay a fine of Rs.5000/- each. The Appellant No.1 was convicted for the offence punishable U/s.504 of IPC and was sentenced to suffer R.I. for one year and to pay a fine of Rs.1000/-.

The sentences awarded to the Appellant No.1 were directed to run concurrently. The Appellant No.2 was acquitted for the offence punishable under sections 504 and 506 r/w. 34 of IPC. The Appellant No.1 was acquitted for commission of offence punishable U/s.504 of IPC.

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

The deceased in this case Dhananjay Rajput was serving in a Country Liquor shop at Gangavesh, Kolhapur. The Appellant No.1 came to that shop for consuming liquor on 23/03/2014 in the afternoon. The deceased was sweeping the floor. He requested the Appellant No.1 to move aside. The Appellant No.1 got angry. He went out of the shop. He called the Appellant No.2. At about 3.30p.m. when the deceased was outside the shop, the Appellant No.1 held him from behind. The Appellant No.2 removed a knife and gave two blows on the abdomen and one stab on the chest.

Thereafter both the appellants went away on their motorcycle. Dhananjay caught a rickshaw. One Sanjay Patil admitted him to hospital. Dhananjay’s brother Sanjay Rajput and others were informed. They reached the hospital. It is the prosecution case that, Dhananjay narrated the incident to his brother, sister, rickshaw driver and others.

3. In the evening, exploratory and other surgical procedure was performed on Dhananjay. He survived for a few more days and on 29/03/2014 he died. He had developed septicemia. The appellants were arrested. The F.I.R. in this case, was lodged by the brother of the deceased. The investigation was conducted and the charge-sheet was filed. The case was committed to the court of sessions. During trial, the prosecution examined as many as 22 witnesses. Most of the pancha witnesses turned hostile. The prosecution case rests on the circumstantial evidence and mainly on the oral dying declarations.

4. The important prosecution witnesses to whom the oral dying declaration was made by the deceased are PW-11 Sanjay Rajput, who was brother of the deceased, PW-12 Pradeep Powar who was the rickshaw driver who had taken the deceased to CPR hospital and P.W.13 Rekha Rajput, who was sister of the deceased.

5. PW-15 Sangram More was friend of the deceased. He had gone to the CPR hospital and had met the deceased; that time the deceased had narrated the incident to him. PW-17 Sanjay Patil is another witness to whom allegedly the deceased had given oral dying declaration. However, he was declared hostile because his version was materially different in respect of the roles played by both the appellants.

6. Besides these important witnesses, the prosecution examined PW-1 Sagar Sutar and PW-2 Shivkumar Pol, panchas for spot panchanama. They were declared hostile. PW-3 Suresh Khade and PW-4 Mohsin Shaikh were panchas for seizure of clothes of the deceased. PW-3 was declared hostile. PW-5 Ravi Nikam and PW-6 Jaysing Sidhganesh were panchas for seizure of clothes of accused.

They were also declared hostile. They did not support the prosecution case. PW-7 Deepak Jagtap and PW-8 Chandrakant Gaikwad were panchas for seizure of motorcycle and knife. They did not support the prosecution case and were declared hostile.

PW-9 Ratnakar Pol was the liquor shop owner. He was not present at the time of incident. He has stated in his deposition that, when he saw the deceased in the hospital, he was not in a position to talk.

7. PW-10 Vilas Chowgule had seen the first part of the incident which had take