MOHINDER PAL, J.

1. This appeal under Section 378 of Criminal Procedure Code has been preferred against the order of acquittal passed by learned Sessions Judge, Bhavnagar in Sessions Case No.162 of 1996 dated 5.7.1997 under Section 302 read with Sections 34 and 323 of Indian Penal Code (IPC).

2. Police came into action after recording statement of Danabhai Meghabhai Ahir, who is resident of Zanzmer, Taluka: Umrala. Danabhai got recorded that he was running a shop of Pan-bidi at Dhola village. They were three brothers including the deceased engaged in the business of diamond polishing. On 17.09.1996 at about 8 O'clock in the morning, he went to the shop located at Dhola Junction. In the evening, at about 9.45 p.m., Ahir Vasirbhai Kalabhai of their village came to him on motorcycle and told that Ahir Bachubhai Valabhai and his son Bhupat Bachubhai assaulted Punjabhai with pipe and sticks. On hearing this news, Danabhai moved towards his village: Zanzmer. When he has reached near the outskirts of the village, he met his uncle Ramabhai Devabhai who was taking his brother Punjabhai to the Hospital on three wheeler tempo. Complainant saw that his brother, viz. Punjabhai sustained