The main legal point established in the judgment is the reliance on testimonies of witnesses, medical evidence, and the presence of the accused at the scene of the crime to establish guilt in a murder case.

JUDGMENT :

S.B. Sinha, J. - Leave granted.

2. Appellant herein has been found guilty of commission of murder of one Baban alias Babdya along with one Sunil Maruti Avasare, Rakesh Tukaram Pawar, Jitendra Bappa Barawkar and Umesh Babanrao Khutwad who also took part in the assault, however, were convicted u/s 323 of the Indian Penal Code.

3. The first informant is one Ratnabai Shivaji Pawar, the mother of the deceased. She was a maid servant. Her husband was working in a quarry. The deceased was working as a fitter.

4. Appellant herein is known to the family of the deceased. He is a friend of the accused No. 1. He went to the house of the deceased and inquired his whereabouts. He was not there at that time. When the deceased came back to his house, his mother informed him thereabout to which he had allegedly disclosed that the accused No. 3, Rakesh Tukaram Pawar had asked him to provide a bottle of bear. He had refused where after, he was slapped. An attempt was also made to assault him with a knife, but he had run away.

5. On the day of incident, i.e., 30.10.1996 at about 6.30 p.m., the deceased had gone to a clinic of a doctor with his wife Renuka for medical check-up of his son Umesh who was ailing. After some time Renuka came back running to the house and informed the informant (P.W.1), that some persons have picked up a quarrel with her husband in front of the hospital of Dr. Babar. The informant ran to the spot and found that the accused No. 2, Jitendra Bappa Barawkar had caught hold of the hands of the deceased from his back side whereas accused No. 1, Umesh Babanrao Khutwad was holding a knife in his hand. Appellant herein caught hold of the neck of the deceased and instigated the other accused to kill him. Accused No. 1 stabbed the deceased, whereupon he fell down. Accused No. 4, Sunil Maruti Avasare, and accused No. 5, Rakesh Tukaram Pawar, also assaulted him with kicks and fist blows. The first informant tried to intervene. She was asked not to do so. Her husband, Renuka and son-in-law also came there. The accused persons ran away in the meanwhile. The deceased was taken to the local hospital and then carried to Sassoon Hospital. He breatthed his last there.

6. Before the Learned Trial Judge, the prosecution, apart from examining the first informant, examined 15 other witnesses. P.W.10, Rajendra Bangal, was the Medical Officer. He conducted the post-mortem examination of the deceased on 1.11.1996 and found 7 external injuries and 5 internal injuries. The cause of death was said to be "traumatic and hemorrhagic shock caused by stab injuries.".

7. The Learned Trial Judge relied upon the testimonies of P.W.1, mother of the deceased and passed a judgment of conviction and sentence.

8. Appeals preferred by the accused were disposed of by the High Court directing:

1. Appeals filed by the accused Nos. 1, 2 and 3 are dismissed. Their conviction and sentence is maintained.

2. Appeals filed by the accused Nos. 4 and 5 are partly allowed. Accused Nos. 4 and 5 are acquitted of the offence u/s 302 of Indian Penal Code but they are sentenced u/s 323 of Indian Penal Code and sentenced to suffer R.I. for one year and fine of Rs. 1000/- in default R.I. for two months.

3. All the accused to surrender to the concerned Authorities within four weeks from today. After they surrender their bail bonds shall stand cancelled. If the accused do not surrender, the Trial Court may take proper steps to send them to custody for undergoing sentence.

4. Accused will be entitled for set off as per the Rules.

9. Contention of Mr. K. Radhakrishnan, Learned Senior Counsel for Appellant, in regard to the evidence of P.W.1 was that it was not possible for her to witness the occurrence as she had been informed about the incident by P.W.2, Renuka, the wife of the deceased. Our attention was drawn to the fact that P.W.2 was pregnant and, thus, was not expected to cover the distance within a short time as the road was 'sloppy'. It was, thus, likely that Renuka had taken som