JUDGMENT :

(Abhay S. Waghwase, J.)

1. By invoking Section 374 of the Code of Criminal Procedure, appellants, who are the original accused Nos. 1 to 3 have taken exception to the Judgment and Order of conviction passed by the learned District Judge – 7 & Additional Sessions Judge, Nashik dated 08.06.2015 in Sessions Case No. 142 of 2013, thereby convicting them for the offences punishable under Sections 302 r/w 34, 323 r/w 34, 324 r/w 34 of the Indian Penal Code ( for short ‘IPC’ ) & sentencing them to life, 3 years, 1 year respectively.

FACTS GIVING RISE TO SESSIONS TRIAL ARE AS UNDER :-

2. The complainant, his sons and accused Nos. 1 to 4 are agriculturists and also relatives of each other. Their lands were adjoining to each other. Due to shortage of water, complainant fetched/drew water from Pazar Talav (Percolation Tank). Accused used to prevent the same. This resulted into bitter relations.

3. On 06.12.2012, one of the sons of the complainant namely Dattu and his wife went to fetch water. Another son Raghunath also went to look for them and the complainant claims to have followed all of them to the spot. According to the complainant, accused persons assaulted Dattu with sickle and they assaulted him and his son Raghunath with stick and sickle respectively and all injured were taken to the hospital. There he set law into motion. Dattu expired.

After completion of investigation, PW.11 charge-sheeted all the four accused persons and on committal of the case, it was tried by the learned Additional Sessions Judge, who on appreciating the evidence held accused Nos. 1 to 3 to be guilty of offence under Section 302, 323 and 324 r/w 34 of the IPC and acquitted accused No. 4 Rani from all charges. It is this order of conviction which is now questioned before this Court on various grounds raised in Appeal Memo.

SUBMISSIONS :-

4. Heard extensively both sides. Learned counsel would challenge the findings reached by the learned trial Judge on the following grounds.

Firstly :- Failure of the learned trial Judge to appreciate the evidence on record in the light of legal requirements.

Secondly :- Testimonies of PW.3, PW.4 & PW.5 are not consistent and that PW.3 cannot be said to be eye witness.

Thirdly :- No evidence as to whether accused to be armed at the time of occurrence. Rather complainant party had assaulted accused partly.

Fourthly :- Overt act of accused persons is not defined.

Fifthly :- There being single blow to deceased. It is not the case of homicidal death.

STATE – RESPONDENT :-

5. Learned APP would resist on the ground that there is direct, trustworthy and reliable evidence, including that of injured eye witness account. Medical evidence suggests homicidal death of Dattu. Defence admitted injuries suffered by PW.3 – complainant & PW.5 – Raghunath. Consequently, there being incriminating material, learned trial Court rightly accepted prosecution version & held accused guilty. According to him, there being no merit in Appeal, the same may be dismissed.

6. In view of Judgment of Hon’ble Apex Court in the case of Ishwarbhai Fujibhai Patni Vs. State of Gujarat, reported in (1995) 1 SCC (Cri.) 222, this being Appellate Court, evidence has to be re-examined, re-assessed and re-evaluated. Hence, we accordingly proceed to do so.

7. The evidence goes to show that on said fateful night, deceased went with his wife – PW.4 to fetch water. Taking into account, the evidence of PW.3 – complainant, it is clear that after deceased & PW.4, his other son Raghunath i. e. PW.5 went to the spot. Therefore, complainant was the last person to reach the spot. Hence, it is doubtful whether he had occasion to see the entire episode. Further, his evidence is general & non-specific about the roles played by accused Nos. 1 to 3. Hence, we refrain from relying his testimony.

8. On carefully scrutinizing the evidence of PW.4 & PW.5, the occurrence gets unfolded. PW.4 was in the company of deceased from inception. Hence, her evidence assumes importance. Simi