JUDGMENT

Abhay Ahuja, J. - This is an Appeal preferred by the State against the order of acquittal dated 30th September, 1999 of the Respondents from the offences punishable under Section 302 read with Section 34 of the Indian Penal Code ("IPC") in Sessions Case No.367 of 1997 passed by learned Additional Sessions Judge, Pune.

2. The case of the prosecution is stated as under :-

(a) Briefly stated, this is a case of fight between two brothers where elder brother assaulted the younger brother. According to the prosecution, on 7th June, 1997, the accused attacked the deceased with iron rod, wooden nail and stick due to which the deceased sustained head injury and died in hospital on 16th June, 1997. Sunil (PW-2) and Jalinder Gaikwad (PW-1) are eyewitnesses. Jalinder Gaikwad (PW-2) who is an agriculturist was closest to the place of incident and, therefore, a star witness. The statement of Sunil (PW-2) was recorded on 16th June, 1997 after the death. The postmortem was also conducted on 16th June, 1997 which states the cause of death as "Head Injury" and the NC was lodged on 14th June, 1997, which was converted into FIR after the death of the injured.

(b) The deceased Jalinder Jagtap was