JUDGMENT :

ABHAY S. WAGHWASE, J.

1. Getting dissatisfied by the judgment and order of conviction passed by learned Additional Sessions Judge, Gangakhed in Sessions Trial No. 7 of 2012 dated 12.05.2016, for the offence punishable under Sections 144, 148, 302 r/w 149 of the Indian Penal Code [IPC], all five appellants have preferred the instant appeal praying to quash and set aside the said judgment.

2. On the request of original accused no.5, a separate Advocate i.e. Advocate Mrs. Sharda P. Chate has been appointed to represent his cause by filing separate appeal. Since both appeals are arising out of the one and the same judgment and order of conviction, both are decided by this common judgment.

FACTS LEADING TO TRIAL

3. Informant PW1 Devidas had a dispute with accused nos. 1, 4 and 5 over the field taken by him for cultivation. Deceased Sudhakar, who was brother of informant, was helping him in cultivating the field. There used to be quarrel between deceased and accused on that count. On the morning of 19.08.2011 at 9.00 a.m., there was quarrel between deceased Sudhakar and accused nos.1 to 5. Informant intervened and brought his brother Sudhakar to the house. Thereafter, informant went to the field. At 12.30 p.m., informant received a phone call from PW2 Ganesh informing about quarrel again taking place between deceased and accused in front of house of one Bhaskar and so informant rushed home. According to him, he saw accused Dattarao, who was armed with sickle, and accused no.5 Digambar, who was armed with knife, were assaulting deceased. When wife of deceased, namely, Ashabai intervened, accused no. 2 Meenabai and accused no.3 Sojarbai indulged in scuffle with her. In the assault, deceased Sudhakar succumbed at the spot and therefore, informant summoned police and thereafter lodged report Exhibit 43 which was made the basis of registration of crime against accused persons.

4. The appellants came to be arrested and the matter was investigated by PW13 Police Inspector Waghmare. The accused persons were duly chargesheeted after which learned trial Judge framed charges and recorded evidence adduced by prosecution. Defence also adduced evidence of three witnesses. Thereafter, on hearing both sides and appreciating the oral and documentary evidence adduced by the parties, learned trial Judge reached to the finding that prosecution has established the charges and thereby convicted the present appellants as spelt out in the operative part of the judgment. Exception has been taken to the above judgment on various grounds spelt out in the appeal memo.

RIVAL SUBMISSIONS

5. Mr. Kale, learned Advocate for the appellants in Criminal Appeal No. 372 of 2016 as well as appointed Advocate Mrs. Chate for the appellant in Criminal Appeal No. 600 of 2023 would point out that there is no convincing, cogent evidence about enmity or assault. According to them, though prosecution claims that there is direct eye witness account, there are material omissions, contradictions and inconsistencies in the testimonies of the so called direct eye witnesses and therefore, prosecution evidence was untrustworthy of credence. They pointed out that it is doubtful whether so called direct eye witnesses were present at all at the scene of occurrence. According to them, there is no independent witness, rather only related witnesses are examined by prosecution and therefore, story of prosecution cannot be accepted as proved. They took us through the testimonies of all witnesses, more particularly of informant Devidas [PW1], Ganesh [PW2], Babruwan [PW3], Ashabai [PW4] and child witness Sunil [PW5] and would submit that the answers given by them during cross render the case of prosecution doubtful. That, none of the eye witnesses are lending support to each other and therefore, it is their submission that, conclusion arrived at by learned trial court is illegal.

6. Learned Advocate Mr. Kale would further submit that even taking the case of prosecution and the evidence adduced