JUDGMENT :

V.M. Deshpande, J.

Being aggrieved by the judgment and order of conviction passed by learned Additional Sessions Judge, Yavatmal in Sessions Trial No.21 of 2017 dated 03.10.2018, the appellants have filed the present appeal. All the appellants were convicted for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code (for short “IPC”) and were directed to suffer imprisonment for life and to pay fine of Rs.10,000/- by each of them and in default to undergo further Rigorous Imprisonment for six months. In addition to the aforesaid conviction, appellant no.3 – Prathmesh alias Nana Rode was also convicted for the offence punishable under Sections 324 and 506 of the IPC and for that, he was directed to suffer Rigorous Imprisonment for two years and to pay fine of Rs.2,000/- and Rs.1,000/- respectively with default clause.

All the appellants were acquitted of the offence punishable under Sections 307, 504 and 120B of the IPC and Sections 4 and 25 of the Arms Act.

Prosecution case:

2. The prosecution case as it was disclosed during the course of trial is as under:

A) On 10.08.2016, Santosh Vaijnath Kendre (PW13) was attached to the Police Station, Wadgaon Road as API. His duty hours on the said day was from 08:00 p.m. to 08:00 a.m. on the next day. While he was discharging his duty, he received an information of commission of crime at Sankatmochan Road and the injured were taken to Yavatmal Government Hospital therefore API Kendre went to the hospital.

On reaching there, he came to know that injured Amit was serious and therefore he was taken to Nagpur and one Ashish Paltankar was admitted in the hospital with injuries on his person. He therefore issued a letter to Medical Officer (Exh.35) to certify as to whether injured Ashish is fit to give statement.

Dr. Azharuddin Sharif Patel (PW2) accordingly examined injured Ashish and made endorsement on letter (Exh.35) itself that patient is conscious and orientated to time, place and person. Endorsement recorded by Dr.Azharuddin is at Exh.36. Accordingly, API Kendre recorded the statement of Ashish (Exh.39), the injured. After recording his statement, Dr. Azharuddin gave his certificate that the patient was conscious and well orientated at the time of recording his statement and statement was recorded in his presence. The said endorsement of Dr. Azharuddin is at Exh.37.

B) As per Exh.39 statement, recorded by API Kendre, Ashish disclosed that his cousin Amit Dipak Paltankar, stays beside his house, who used to give helping hand to him sometimes to run a pan kiosk by name Samarth Pan shop in front of Satanji Temple. It is also disclosed in the statement that about three months prior, a dispute occurred between Amit and Nana Rode(appellant no.3). Statement (Exh.39) further recites that on 10.08.2016 in the night hours at 08:45 p.m. Amit came to pan kiosk and they both started watching a movie by name ‘Tiger’ in the pan kiosk itself. That time, Nana Rode (appellant no.3), Chini, Barkya and Jyangya were standing at pan kiosk of Viju Rajurkar, which was just opposite of pan kiosk of Ashish. Statement Exh. 39 further shows that all of a sudden they came to pan kiosk of Ashish. That time, Chini and Nana Rode started abusing Amit, and Nana challenged Amit by stating, ^^rq>k fo"k; [kre djrks^^ and started assaulting on him by fist and kick blows. Thereafter, Nana Rode took out knife and when Ashish tried to save Amit resulting receiving injuries on his left hand. Thereafter, he intentionally made an assault on him however that was also saved by Ashish by his left hand. At that time, Chini alias Mayur Pusnake (appellant no.4), Jyangya and Barkya were assaulting Amit by fist blows due to which Amit fell on the ground. At that time, Chini took flower pot and hit on the chest of Amit. Jyangya assaulted on Amit on his head by cold-drink bottle due to which the said bottle was crushed. Thereafter, all four dragged Amit in front of Pan kiosk on the road and continue to a