JUDGMENT

N.V. RAMANA, J.

1. These five appeals, by way of special leave petitions, are by five accused persons against the conviction imposed by the High Court, wherein leave to appeal to this court has been granted to these accused. Facts being related, and the issue involved being connected, we would like to deal with these cases by a common judgment.

2. At the outset, it is to be noted that the High Court has partly allowed the appeal preferred by the accused/appellants and set aside their sentence for the offences punishable under Sections 143, 144, 147 and 148 of IPC, Section 4 read with Section 25 of the Arms Act and Section 37(1)(a) read with 135 of the Bombay Police Act. The conviction of Appellant Nos. 1 to 3 for the offence punishable under Section 302 read with 149 of the IPC was modified to Section 302 read with 34 of IPC, while maintaining the sentence imposed by the trial court.

3. A few facts which are necessary for disposal of these cases are that on the 10^th of December, 2006 between 10:20 pm to 10:30 pm, one Vitthal Hingane (PW-2) and his brother Jagdish Hingane (deceased) were returning from the office of one Uttam Gite, a worker of a political party, at Mulund. When they reached the Saint Pius Lane, six persons i.e. Accused No. 1 (Sunil Chandanshiva), Accused No. 2 (Vijay Nirmal), Accused No. 3 (Latesh Karlekar), Accused No. 4 (Sandeep Bhosale), Accused No. 5 (Vishnu Bule) and Accused No. 6 (Anil Gadekar) confronted them from the opposite side. The accused, who were armed with various weapons like chopper, sword, sickle and stick, on account of some old enmity, assaulted Jagdish Hingane (deceased) and injured Vitthal Hingane (PW-2). Hearing the shouts of the injured and the deceased, PW-11 (Police Naik, Dyaneshwar Ladse) and Police Naik Ghyansham Pawar (not examined), who were on patrol duty, rushed to their help. It is alleged that Accused No. 1 was caught red-handed with blood stained chopper in his hand but the other accused persons succeeded in fleeing from the spot. An independent witness, PW-16 (Kishore Potdar), who was passing through the same road, upon hearing the shouts, also came to the help of PW- 11. The injured (PW 2) was taken in an auto-rickshaw to Mulund General Hospital while PW-11 took the accused No. 1, who was caught red-handed, in a Maruti car, followed the said auto-rickshaw to the aforesaid hospital. On the way, they met PW-15 (Jagdish Shridhar Shetty), who identified the injured and accompanied them to Mulund General Hospital.

4. On arrival at the hospital, PW-11 handed over the custody of accused No. 1, along with his blood-stained chopper, to Ghanshyam Pawar for taking him to Mulund Police Station. One important aspect is that all the while PW-11 stayed in the hospital along with the injured. It is alleged that the deceased said to have revealed to PW 11, the names of four assailants, Sunil Kashinath Chandanshiva (Accused No. 1), Anil Gadekar (Accused No. 6), Vishnu Bule (Accused No. 5) and Sandeep Bhosale (Accused No. 4) and PW11 recorded the same in his case diary.

5. In the meanwhile, two police personnel (PW-24 and PW-25) of Mulund Police Station, on receipt of the information of the incident from PW-11 and Ghanshyam Pawar, rushed to the Mulund General Hospital where, they came to know that Jagdish Hingane had succumbed to the injuries at about 11:23 PM, and the other injured, PW-2 (Vitthal Hingane) was being taken to Sion Hospital for further treatment. With the permission of PW-23 (Dr. Anirrudh Gokhale), PW-24 recorded the statement of the injured PW-2 at about 12:15 AM, and on the basis of said statement PW 24 (PSI Joshi) registered the offence bearing C.R. No. 595 of 2006 against all the accused.

6. Meanwhile PW-24 seized the blood-stained clothes of the injured PW-2 (Vitthal Hingane) under panchanama (Ex. 27). Thereafter, PW-24 went to the spot along with PW-25 (PSI Mane) and PW-11 and prepared spot panchanama (Ex. 29) in the presence of the panch witness (PW-4). From the spot,