JUDGMENT

SARANG V.KOTWAL, J. - Both these appeals are decided by this common judgment because they arise out of the same impugned judgment and order. For the sake of convenience the appellants are referred to by their original status in the trial Court. The appellant Sanjaykumar Bharati in Criminal Appeal No. 400 of 2019 was the accused No. 2 and the appellant No. 1 Kundan Choudhary and the appellant No. 2 Damodar Sav in Criminal Appeal No. 673 of 2019 were the accused Nos. 1 and 3 respectively in Sessions Case No. 580 of 2015 on the file of Additional Sessions Judge, Greater Mumbai.

2. Learned trial Judge vide his judgment and order dtd. 26/2/2019 convicted all the accused for commission of offence punishable under sec. 304(II) read with 34 of the I.P.C. and they were sentenced to suffer R.I. for 10 years each. They were originally charged for commission of offence punishable under sec. 302 read with 34 of the I.P.C. They were acquitted from that particular Charge. Under the provisions of sec. 357(3) of the Cr.P.C. all the accused were directed to pay the respondent No. 2 herein i.e. wife of the victim, compensation amount of Rs.25000.00 each and in default of such payment each of them was directed to undergo R.I. for a period of 6 months. They were granted set off for the period which they were in custody during investigation and the trial.

3. The prosecution case is that the deceased Firoz Shaikh was having a chicken center. The accused used to go to his shop to buy chicken. However, there were some dues which they had not paid. On 26/1/2015, at about 8.00 p.m. accused went to his shop to buy chicken. The deceased Firoz refused to give them chicken because of the pending dues. There was a quarrel between them. It is alleged that the accused No. 1 pressed his neck and other two accused gave fist blows on his chest and face. He fell at the spot. The prosecution case is that, he died on the spot. His wife, his employees and other neighbours took him to hospital, but he was declared dead on admission. His wife immediately went to N.M. Joshi Marg police station and lodged her F.I.R. vide C.R. No. 23 of 2015 at 11.45 p.m. It is the case of prosecution that, at the time of incident itself the employee of the deceased and a neighbour chased the accused No. 1 and caught him. The other two accused were arrested on the next morning. The investigation was carried out. The statements of the witnesses were recorded. At the conclusion of the investigation, the charge-sheet was filed and the case was committed to the Court of Sessions.

4. The Charge was framed Under sec. 302 read with 34 of the I.P.C. During trial the prosecution examined 10 witnesses. Out of them, four witnesses were the eye witnesses including wife of the deceased. There were two panchas i.e. pancha for inquest panchanama and a pancha for spot panchanama. PW-8 was Nayab Tahsildar who had conducted the test identification parade on 7/3/2015, in which, all these eye-witnesses identified all the three accused. PW-9 and PW-10 were the Investigating Officers who had investigated this offence.

5. The defence of all the accused is of total denial. Learned trial Judge considered this evidence and based on the evidence of eye witnesses and their identification in the test identification parade, held that all the accused were responsible for this offence. However, learned trial Judge held that there was no intention to commit murder of the deceased. There was no preparation and premeditation. Therefore, learned Judge convicted all the accused under sec. 304(II) read with 34 of the I.P.C., instead sec. 302 read with 34 of the I.P.C.

6. PW-1 Shahajahan Shaikh is an important witness. She was wife of the deceased Firoz. She has deposed that the deceased Firoz and his brother Faiyaz were running that business of chicken shop. PW- 3 Tahair was working in that shop. The deceased used to open the shop at 7.00 a.m. and used to close it at 9.00 p.m. On the date of incident, at about 8.15 p.