JUDGMENT :

ABHAY S. WAGHWASE, J.

1. Appellants-original life convicts for offence under Sections 302, 307 read with 34 of the Indian Penal Code (IPC) are hereby assailing judgment and order passed by learned Sessions Judge, Beed in Sessions Case No. 53 of 2015 dated 11-11-2016.

FACTUAL MATRIX

2. The occurrence has a history and background. Alleged assault in question is made when deceased and PW4 Dashrath were hospitalized on account of consumption of insecticide. Therefore, for the sake of clarity, brevity and properly comprehending the occurrence, we propose to segregate the incidents into two episodes i.e. first which took place before hospitalization and subsequently the second episode after hospitalization around 06:00 p.m. on 23-12-2014.

FIRST EPISODE

3. Parents of PW4 Dashrath had taken land from parents of deceased for cultivation on yearly basis. During such period, deceased Sushma and PW4 Dashrath got acquainted with each other and love relations developed between them. Their such relations were objected by family members of Sushma. Therefore, the contract and agreement of cultivation was called off and prior to the incident in question, PW4 Dashrath, his brother and parents were beaten by appellants, of which complaint was lodged. However, subsequently, the matter was amicably settled. Inspite of objection, PW4 Dashrath and deceased continued their love relations. As relatives of deceased were searching for suitable match for her, it is alleged by prosecution that deceased and PW4 Dashrath met in a field on 23-12-2014 and they consumed insecticide and they were thereby required to be admitted in Deep Hospital, Beed by PW5 Dhananjay, a friend and relative of PW4 Dashrath. PW3 Mayuri, on receipt of above information, visited the hospital to accompany and take care of her brother PW4 Dashrath and as such she was in his company.

SECOND EPISODE

4. Around 06:00 p.m. or so, while PW4 Dashrath was being treated in ICU Bed no. 3 and deceased Sushma being admitted and treated at Bed no. 4, appellants herein forced their entry in the hospital getting armed with weapons like Sword and Koytas. First they entered compartment where injured PW4 Dashrath was undergoing treatment and they mounted assault on him and thereafter, they entered compartment of bed no. 4 and deceased Sushma was done to death.

On the statement of PW3 Mayuri, sister of PW4 Dashrath, Police registered crime against appellants. After investigation, all three accused were chargesheeted, tried and the trial culminated into conviction which gives rise to instant appeals.

RIVAL CONTENTIONS

Submissions of Mr. R.N. Dhorde, learned Senior Counsel for appellant in Criminal Appeal No. 736 of 2016:

5. Learned Senior Counsel appearing for appellant in Criminal Appeal No. 736 of 2016, while criticizing the judgment would submit that, there is no evidence about participation of this appellant and even no specific overt act is attributed to him. He submitted that, evidence adduced by prosecution is ambiguous on crucial aspects like identity and as to who was holding what. The fundamental question raised by him is on what basis accused are identified as actual assailants. Learned Senior Counsel first took us through the evidence of PW1 Somnath and after pointing to the answers given in cross-examination, he would submit that, this witness has categorically admitted and answered that persons seen in alleged CCTV footage are unidentifiable for want of clarity. He would emphasize that the very CCTV footage allegedly seized by investigating machinery and allegedly viewed by this witness cannot be looked into, as it has been admitted that the date, time of occurrence appearing in the CCTV footage, at the outset does not match with the narration given by informant.

6. It is further pointed out that, the sole piece of evidence which prosecution was relying is the electronic evidence, however, according to him, the witness, who extracted the CCTV footage, was not competent to issue certificate an