The dying declaration must be voluntary and truthful to inspire the confidence of the Court. Inconsistencies in witness testimony and lack of medical evidence can weaken the prosecution's case. Proof of common intention is essential for conviction under Sec. 302, 34 IPC.

JUDGMENT

1. This is an Appeal against conviction filed by the Appellants under Sec. 374 of the Code of Criminal Procedure, 1973 (for short Cr.PC) against the judgment and order of conviction dtd. 10/8/1998 passed by the learned Sessions Judge, Raigad - Alibag (Trial court) in Sessions Case No. 23 of 1991. Appellant No.1 (accused No.1) - Laxman Pilaji Ovalekar expired on 14/1/2018 during the pendency of the present appeal; hence the appeal in respect of Appellant No.1 stands abated. Appellant No.2 (accused No.2) - Manohar Laxman Ovalekar, son of Appellant No.1 is the sole Appellant in the present appeal. For the sake of convenience, Appellant No.1 shall be referred to as Laxman (accused No.1). Before the Trial court 12 accused were tried; however the Trial court held that the prosecution could not prove beyond reasonable doubt that accused Nos. 3 to 12 had formed an unlawful assembly to cause the death of the deceased and assaulted him and hence were entitled to acquittal for the offence with which they were charged. The Trial court convicted and sentenced Accused No.1 and 2 for the offence punishable under Sec. 302 read with Sec. 34 of the Indian Penal Code (for short IPC) and sentenced them to suffer rigorous imprisonment for life and to pay a fine of Rs.2,000.00 each and in default thereof to suffer further rigorous imprisonment for six months.

2. The Appellants have been convicted for killing Mohan Kashinath Mokal, the deceased (hereinafter referred to as Mohan).

3. Before we advert to the submissions made by the respective advocates and to the reappraisal of evidence on record, it will be apposite to refer to the relevant facts briefly:-

3.1. The incident occurred in the intervening night of 2nd /3rd , May, 1990 at village Targhar outside the house of Babu Mokal. Gangabai (PW-2) daughter of Babu Mokal was to get married on 3/5/1990. On the previous night i.e. 2/5/1990, the Haldi ceremony of Gangabai was being celebrated by her family members. Gangabai is the maternal aunt of Mohan. Kashinath Mokal is the father of Mohan. Gangabai, Kashinath, Manohar (PW-4)and Usha (PW-5) are siblings and children of Babu Mokal.

3.2. On 2/5/1990 around midnight, members from the family of Babu Mokal were celebrating and dancing in the marriage pandal which was erected in front of the house of Babu Mokal and Manohar Mokal. Mohan was also amongst the relatives. Since he was tired, he sat down near one of the pandal pole.

3.3. According to the prosecution, Appellant No.1 entered the pandal and assaulted Mohan with a spear (bhala) by inflicting a blow on the right side of his chest. The other accused followed the Appellant No.1 in the pandal with sticks and inflicted stick blows on Mohan. After the assault all accused left the scene of crime. Mohan was taken into the house by Gangabai, Manohar and Usha. Bhargav (PW-1), nephew of Gangabai and the first informant rushed to Panvel Town Police Station to inform about the incident. The police arrived at the scene of crime and removed Mohan to Panvel Municipal dispensary wherein the treating doctor (PW-9) - Dr. Ramrao Kendre examined Mohan at about 3.05 a.m., however since his condition was critical, he was referred to Sion hospital, Mumbai for further treatment.

3.4. The report filed by Bhargav (PW-1) was treated as the First Information Report (F.I.R.) and offence was registered as C.R.No. I-97/1900 under Ss. 147,148,149, 326,504 read with Sec. 34 IPC at 2.35 a.m. with Panvel Town Police Station. The Investigating Officer (I.O.), Shahaji Kisan Ghadge (PW 10) visited the scene of crime, drew the panchanama and collected the plain soil and soil stained with blood. It is pertinent to note that blood stained clothes of Gangabai, Manohar and Usha who carried Mohan inside the house after the assault were not seized by the I.O.

3.5. According to the prosecution, the I.O. thereafter directed Suresh Vishram Chavan, Head Constable, Batch No. 2089 (PW-6) to visit Sion hospital and record the statement of Mohan