JUDGMENT :

Sadhana S. Jadhav, J.

1. The Appellants herein are convicted for the offence punishable under section 302 read with 34 of Indian Penal Code and under section 135 of Bombay Police Act and are sentenced to suffer for life and fine of Rs.2000/- each, in default, simple imprisonment for six months by the 5th Additional Sessions Judge, Kolhapur vide judgment and order dated 12th May 2000 in Sessions Case No. 169 of 1999. Hence, this appeal.

2. Such of the facts necessary for the decision of this appeal are as follows:-

a) The accused no. 2 happens to be the maternal uncle of accused no.1 and worked as a peon in Shahu Merchants Urban Co-operative Credit Society. The accused no.1- Sheetal had started residing with the accused no.2. He was accompanied by his parents and sister Megha. The house of Parashram Dattatraya Khade is just across the road from the house of the accused no.2. Sachin happens to be the son of the complainant. It is alleged that Megha used to visit the telephone booth of the complainant for making telephone calls and she was insisting upon him to marry her. The complainant and his wife had overheard the said conversation between Sachin and Megha on their intercom.

b) It is further the case of the prosecution that on 9th August 1999 at about 6.30p.m. Sachin was present in the STD booth when he received a call from the accused no.1 calling Sachin near Hotel Suzuki situated at Chandani Chowk. Complainant had overheard the conversation on the intercom. The said invitation by accused no.1 was followed by a threat that Sachin would face dire consequences upon failure to come near Hotel Suzuki. Sachin defied the caller and asked him to visit the STD booth, if he so desired.

c) Upon inquiry by the complainant Sachin had disclosed that the accused no.1 is under the misconception that Sachin teases Megha i.e. sister of accused no.1 and therefore, had called upon him. It is alleged in the First Information Report lodged by the complainant that at about 8.00p.m. both the accused came near the STD booth and upon being exhorted by accused no.2, accused no.1 had assaulted Sachin with a dagger on his chest and head. The complainant has raised hue and cry. Upon seeing the complainant, both the accused fled away. The people in the vicinity had gathered. The injured was taken to CPR hospital and was declared dead on arrival.

d) PW.1-the complainant i.e. Parashram Khade lodged a report at the Laxmipuri Police Station against the accused persons. On the basis of the said complaint, Crime No. 60 of 1999 was registered for the offence punishable under section 302 read with 34 of Indian Penal Code and under section 135 of the Bombay Police Act. The F.I.R. was registered as 00 number at Laxmipuri Police Station and then forwarded to the concerned police station.

3. At the trial the prosecution has examined as many as 17 witnesses to bring home the guilt of the accused. The case rests on the evidence of four eye witnesses i.e. PW.1-Parashram Dattatraya Khade, PW.5-Balasaheb Ashok Mudholkar, PW.6-Rashid Aabubakar Pirjade and PW.7-Mangala Nivrutti Gurav. According to the prosecution, it is the case of direct evidence.

4. PW.1- Parashram Khade has deposed before the Court that he had employed a girl to look after the telephone booth. Her duty hours is 11.00a.m. to 5.00 p.m. and after 5.00p.m. the STD booth was managed by one of his sons and Sachin happens to be his youngest son. His house is situated in a market place. He was acquainted with the accused ever since their childhood. At the time of incident, the accused no.1 was staying with accused no.2 alongwith his family. That, Raviwar Peth Tarun Mandal is situated just opposite the STD booth and young boys used to gather there. PW.1 had overheard the conversation between the accused no.1 and Sachin. On the day of incident he had also heard his son defying the caller. He had heard the accused no.2 exhorting the accused no.1 to assault Sachin and had also seen the actual incident of assault