K.J. Thaker, J.—The present appellant has preferred this appeal under Section 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 16.1.2004 passed by the learned Addl. Sessions Judge, Fast Track Court No. 5, Vadodara in Sessions Case No. 180/2003, whereby, the learned trial Judge has convicted the appellant for the offence under Section 302 of IPC and sentenced to undergo R/I for life, with fine of Rs. 5000/-, in default, to undergo further S/I for one year.

2.1 The case of the prosecution is that on 9.4.2003, at about 22.00 O’clock in the night, opposite the house of deceased Tukaram Parte, situated in Santkabir area in Vadodara city, accused have formed unlawful assembly and assaulted the deceased with deadly weapons like sword because of pending criminal case wherein the deceased was prime witness. The accused No. 1 present appellant had given sword blow on the head of the deceased, whereas accused No. 2 had given sword blow on the hand of the witness Eknath Ganpatrao Pawar and thereby committed the offence of murder of deceased Tukaram Parte. During that time, complainant and the neighbours came there and the accused