Hamid and Others vs State of Maharashtra

B.B. Vagyani, J.—This Criminal Appeal has been directed against the order of conviction and sentence dt. 19th Feb., 1994, passed by the Additional Sessions Judge, Amalner, district Jalgaon.

The appellants-original accused Nos. 1 to 4, are prosecuted for having committed the offences punishable under Sections 302 and 307 read with 34 of IPC. The Additional Sessions Judge convicted appellants Nos. 1 to 4 for the offence punishable u/s 302 read with Section 34 of IPC and sentenced them to suffer imprisonment for life and to pay a fine of Rs. 100/-, in default to suffer rigorous imprisonment for two years. The appellant Nos. 1 and 2 are also convicted for the offence punishable u/s 324 read with Section 34 of IPC and sentenced to suffer rigorous imprisonment for one year. The appellant Nos. 3 and 4 are, however, acquitted of the offences punishable u/s 307 and Section 324 read with Section 34 of IPC.

It is said that when passions are aroused and mind is imbibed in anger, the reason goes to sleep. This is what happened in the present matter. Overpowered with anger, appellants divorced the faculty of reason and resorted to physical assault on deceased Isak, Gulam Hussain, PW No. 6 and Akhtar Piran, PW No. 7, with the help of butcher''s knives.

The incident occurred on 29th of Sept., 1992, at about 3 p.m. in Mutton Market which is situated at Chopda, taluka Chopda, district Jalgaon. There are good number of mutton shops in the Mutton Market at Chopda. The first informant Shaikh Shabbir, PW No. 2, who is brother of deceased Isak, Gulam Hussain, PW No. 6, Akhtar Piran, PW No. 7, Ahmed Shaikh, PW No. 8, Shaikh Mahemood, PW No. 9 and the appellant-accused have got their mutton shops in the mutton market at Chopda. It is the prosecution case that appellant-accused Salim brought one customer. The said customer dislike the mutton which was kept for sale in the mutton shop belonging to the appellant-accused. The said customer then visited the shop of deceased-Isak. Accused-Salim disliked the visit of said customer to the shop of deceased. Accused-Salim asked deceased-Isak not to sell mutton to the said customer on the ground that he had brought the said customer to the mutton market. Thereafter verbal altercation ensued in between deceased-Isak and appellant-accused Salim. Appellant-accused Salim humiliated deceased-Isak saying, instead of selling mutton, he should start begging. The appellant-accused Salim abused deceased-Isak by calling him a mad person. This small bickering ultimately culminated into ghastly murder of Isak. It is the case of the prosecution that appellant-accused Nos. 3 and 4 rushed to the shop of deceased-Isak and dragged him down from the raised platform of the shop. Appellant-accused Nos. 3 and 4 caught Isak by hands, Appellant-accused Hamid who was armed with butcher''s knife, gave a severe blow of knife on the chest of Isak and caused him bleeding injury. Isak fell on the ground. Accused-Salim who was also armed with butcher''s knife, gave a blow of knife on the back of Isak and caused him bleeding injury. Shaikh Shabbir, PW No. 2, tried to intervene but, because of weapons held by accused Hamid and Salim, he could not do anything. However, Gulam Hussain, PW No. 6, intervened and caught the hand of accused Hamid. Accused Hamid instigated accused Salim to kill him; Accused Hamid gave jerk to the hand of Gulam Hussain, PW No. 6 and assaulted him with knife and caused injuries. Because of assault with knife, Gulam Hussain, PW No. 6, went aside. Meanwhile, Akhtar Piran, PW No. 7, intervened but the accused Hamid and Salim assaulted him with knives and caused multiple injuries. After receiving injuries on his person, Akhtar Piran, PW No. 7, ran away from the spot.

Isak succumbed to the injuries and died on the spot itself. Shaikh Shabbir, PW No. 2, went to the Police Station. Dnyaneshwar Patil, PW No. 10, was Police Station Officer. He recorded complaint Ex. 31 of Shaikh Shabbir, PW No. 2 and registered Crime No. 120/1992. He referred injured Akhtar Piran, PW No. 7, to the Cottage Hospital, Chopda. The investigation of Crime No. 120/1992 was entrusted to PSI Shantaram Mahajan, PW. No. 11.

He immediately visited the spot. Accused-Salim was found present on the spot and was, therefore, arrested immediately. The inquest panchnama, Ex. 11 of the dead body of Isak was prepared. The dead body of Isak was sent to the Cottage Hospital for the purpose of post-mortem examination. Remaining accused were arrested in their house. The blood-stained clothes from the persons of accused Hamid and Salim were seized under panchnama Ex. 33. The spot panchnama, Ex. 12, was prepared. Knives, articles 4 and 5, were seized from the shop of the accused Nos. 1 and 2.

On 1-10-1992, accused-Salim was in police custody. He told before Panchas and Police that he would point out the place where the knife was concealed. Accordingly, memorandum Ex. 38 was prepared. Accused-Salim took the Panchas and Police to the spot and produced a knife from the pit and same was attached under seizure panchnama Ex. 39.

On the same day, accused Hamid, who was in police custody, told before the Panchas and Police that he would point out the place where the knife was concealed. Accordingly, memorandum Ex. 40 was prepared. Accused Hamid took Panchas and Police to his house and produced a blood-stained knife from the tin roof of bathroom and same was attached under panchnama Ex. 41. Attached muddemal articles were sent to Chemical Analyser for examination. Blood sample of injured Akhtar was also sent to Chemical Analyser. Blood samples of the accused were also sent to Chemical Analyser.

Medical Officer Dr. Pramod Chaudhari, PW No. 4, performed autopsy over the dead body of Isak. Following injuries were found on dead body of Isak:

Stab injury 1 1/2 inch x 1/2 inch over the left pectoral region of chest, 1/2 inch medial to nipple, live direction from laterally to medially downward. Haematoma under edges of skin present. Intercostal MS cut in 5th intercostal space. Injury 5 inch deep, laceration of pleura and Lt. lung and injury to Lt. arihum about 1/2 inch x 1/2 inch and also to pericardium.

Pleural and pericardial cavity full of blood.

Stab injury 1 1/2 inch x 1/2 inch over the 6th intercostal space about 2 inch medial to mid axillaries line, posteriorly over the back, lateral to medially downward. Haematoma under subcutaneous tissue present. Intra-costal MS cut. Laceration of pleural Lt. & lanir lotrect Lt. Lung, Lung collapsed. Cavity full of blood.

Medical Officer Dr. Pramod Chaudhari, PW No. 4, opined that cause of death of Isak was haemorrhagic shock due to injuries to vital organs as a result of stab injury and certified his opinion in the post-mortem report, Ex. 16, about the cause of death.

Dr. Pramod Chaudhari, PW No. 4, on examination found following external injuries on the person of Gulam Hussain Abdul Kader, PWNo. 6.

(1) Cut injury 1 inch of length, over the left index finger. Laterally over middle and germinal phalange. Bone deep oblique direction. No fresh bleeding.

(2) Linear cut injury over the middle finger, middle phalanx. ''

He opined that injuries found on the person of Gulam Hussain, PW No. 6, are possible by sharp edged weapon and age of injury was within 24 hours. Injury certificate of Gulam Hussain, PW No. 6, is at Ex. 36.

On examination, Dr. Pramod Chaudhari, PW No. 4, found following external injuries on the person of Akhtar Piran :

(1) Contused lacerated wound 1" x 1/4th inch over the left occipital region, oblique direction, bone deep, bleeding.

(2) Contused lacerated wound 1" x 1/4" over the left shoulder, muscle deep, linear abrasion, extending from it about 2 inches anteriorly,

(3) C.L.W. 1" x l/4th over the left gluteal region, laterally muscle deep.

(4) C.L.W. superficial over the left side of neck, anteriorly one inch below and parallel to the edge of mandible.

(5) Stab injury one inch x l/8th" over the left side of chest, laterally below axilla in 4th intercostal space, direction oblique. Ribs seen, about 3/4 inch deep, intercostal muscle cut, bleeding present.

(6) C.L.W. over the middle 1/3 of right thigh, 1" x 1/4", bleeding present.

(7) C.L.W. curved about 1 1/2" x 1/4" over the right side of neck posteriorly. Bleeding present.

Muscle deep.

Dr. Pramod Chaudhari, PW No. 4, issued injury certificate, Ex. 35 and opined that external injuries found on the person of Akhtar Piran, PW No. 7, are possible by knife and the age of the injuries was within six hours.

The Chemical Analyser''s report Ex. 19 would reveal that blood group of accused Nos. 3 and 4 is ''A''. The blood group of appellant-accused Nos. 1 and 2 could not be determined as the results were inconclusive. The C. A. report, Ex. 20, would reveal that blood group of injured Akhtar Piran, PW No. 7, is ''A''. C. A. report Ex. 21 would reveal that the blood found on the clothes of accused is of ''A'' group. The blood found on the clothes of deceased is of Group ''B''. Human blood was found on knife Article 4. The blood found on the knife Article No. 5 was so disintegrated that its origin could not be determined. Human blood was found on the knife Article 16. Blood detected on knife Article 16 is of human as well as bovine origin.

After completion of the investigation the charge-sheet came to be submitted in the Court of Judicial Magistrate, First Class, Chopda. Learned Judicial Magistrate committed the case to the Court of Session, Amalner, by his order dt. 31-12-1992.

On perusal of police papers charge Ex. 1 came to be framed against appellant-accused. Appellant-accused pleaded not guilty to the charge.

In order to bring home guilt to the appellant-accused the prosecution has examined 11 witnesses. After conclusion of the evidence, the statements of the accused were recorded u/s 313, Cr. P.C. The appellant-accused Nos. 1 and 2 filed their say in writing in addition to the statement recorded u/s 313 of Cr. P.C. The defence of the accused is of denial. It is suggested by the accused that deceased Isak in fact was aggressor and rushed on their person with butcher''s knife. There was clash in between two groups of butchers and in the said clash the deceased and witnesses received injuries.

After hearing the submissions made at the Bar and taking into consideration the entire evidence brought by the prosecution, learned Additional Sessions Judge has come to the conclusion that prosecution has proved guilt of all the appellant-accused and consequently by his impugned order dt. 19-12-1994 convicted them and imposed sentence, as mentioned above.

Learned Advocate Shri P. R. Patil vehemently submitted that the first informant Shaikh Shabbir, PW No. 2, was not at all present in the Mutton Market at the time of commission of offence and, therefore, his testimony, Ex. 30, should not be relied upon. In order to support his submission, learned Advocate Shri P. R. Patil brought to our notice the evidence of eye-witness Gulam Hussain, PW No. 6. No doubt Gulam Hussain, PW No. 6, has testified in Ex. 45 that complainant Shaikh Shabbir was outside the Mutton Market at the relevant time. Pointing out the stray statement of Gulam Hussain, PW No. 6, learned Advocate Shri P. R. Patil wants us to hold that Shaikh Shabbir, PW No. 2, is not an eyewitness and that FIR, Ex. 31, is a product of afterthought.

We do not accede to the submissions of Shri P. R. Patil, learned Advocate. The Mutton market consists of in all 16 shops. This is very small area. Each Mutton shop admeasures 6V2 x 6V2 feet. Even if it is held for the sake of argument that first informant Shaikh Shabbir, PW No. 2, was standing outside the Mutton Market at the time of commission of offence, the place of offence is very much visible. Akhtar Piran, PW No. 7, Ahmad Shaikh, PW No. 8 and Shaikh Mahmood, PW No. 9, have unanimously testified in their respective oral evidence that Shaikh Shabbir, PW No. 2, was present in the Mutton Market at the relevant time. At this juncture, we would like to mention that Akhtar Piran, PW No. 7, who is injured witness has unequivocally testified in his oral evidence, Ex. 48, that Shaikh Shabbir, PW No. 2, also tried to intervene when his brother Isak was being assaulted by accused persons. Akhtar Piran, PW No. 7, Ahmed Shaikh, PW No. 8 and Shaikh Mahmood, PW No. 9, have got their Mutton Shops in the Mutton Market. These eye-witnesses were present in their respective Mutton Shops at the material time. Their presence is, therefore, very natural. They had opportunity to witness the entire episode of assault on Isak. All the Mutton Shops are in close proximity and, therefore, the evidence of eyewitnesses cannot be easily brushed aside. The testimony of first informant Shaikh Shabbir, PW No. 2, finds full corroboration from the FIR, Ex. 31. Accused No. 1 in his statement u/s 313, Cr. P.C. admits that the eye-witnesses were present at the time of incident. The written statement filed by the accused Nos. 1 and 2 would also indicate that eye-witnesses were present at the time of incident. The injuries on the person of Gulam Hussain, PW No. 6 and Akhtar Piran, PW No. 7, would clearly indicate that they were present at the time of commission of offence and that they received injuries on their persons when they tried to intervene and rescued deceased-Isak. In view of this position, we turn down the submissions advanced by the learned Advocate Shri P. R. Patil.

Learned Advocate Shri P. R. Patil then makes grievance with regard to non-explanation of the injuries found on the persons of accused Nos. 1 and 2. For this purpose, learned Advocate Shri Patil invited our attention to the testimony of eye-witness Gulam Hussain, PW No. 6. Gulam Hussain, PW No. 6, has testified in his evidence that accused Nos, 1 and 2 had injuries on their persons. Shaikh Hanif, PW No. 3, is a Panch witness. In his presence, the accused Nos. 1 and 2 were arrested on 29-9-1992 and clothes on their persons were seized under panchnama, Ex. 33. Shaikh Hanif, PW No. 3, has testified in his evidence, Ex. 32, that there were injuries on the person of accused Nos. 1 and 2. Pointing out this evidence, learned Advocate Shri P. R. Patil vehemently submitted before us that on account of the failure of the prosecution to explain the injuries on the persons of accused Nos. 1 and 2, the accused are entitled to order of acquittal on the ground that the genesis of the occurrence is not at all proved by the prosecution. The law in this respect is crystal clear. We do not want to multiply the length of our judgment by citing Supreme Court cases. There is no hard and fast rule that simply because the prosecution witnesses do not explain the injuries on the person of the accused, their entire evidence should be discarded. From the arrest panchnama, Ex. 33, it is seen that after removal of the clothes from the person of accused Nos. 1 and 2, Panchas, particularly, Shaikh Hanif, PW No. 3, noticed small scratches on the persons of accused Nos. 1 and 2. If regard is had to the nature of injuries on the person of accused Nos. 1 and 2, the prosecution or the prosecution witnesses are not at all under obligation to explain such minor scratches. These scratches were noticed by Panch witness Shaikh Hanif, PW No. 3, only after seizure of clothes from the persons of accused Nos. 1 and 2. Eye-witness Shaikh Mahmood, PW No. 9, has testified in his evidence, Ex. 59, that he had not seen injuries on the persons of accused Nos. 1 and 2. Taking into consideration the nature of the injuries found on the person of accused Nos. 1 and 2, the prosecution is not at all under obligation to explain such minor injuries and, therefore, by no stretch of imagination it can be said that the prosecution has suppressed the genesis or the origin of the occurrence and has not presented true version.

By the way, we would like to mention the trend of cross-examinations. It has been suggested to the complainant Shaikh Shabbir, PW No. 2, that Salim caught the hand of deceased Isak and, therefore, he did not receive any injury. Accused-Salim thus has claimed that he had no injuries on his person.

Learned Advocate Shri P. R. Patil next submits that the learned Additional Sessions Judge has failed to put incriminating part of evidence to the accused i.e. medical evidence relating to cause of death of deceased-Isak, u/s 313, Cr. P.C. and, therefore, such part of incriminating evidence appearing against accused cannot be used against them for the purpose of holding them guilty. In order to support this submission, learned Advocate Shri P. R. Patil has relied upon the case of Sharad Birdhichand Sarda Vs. State of Maharashtra, . The legal position in this respect is very much learned and for time and again this has been clarified by the Apex Court. On perusal of the statement of the accused u/s 313 of Cr. P.C, it is seen that the medical evidence with regard to deceased-Isak is not put to the accused persons. Dr. Pramod Chaudhari, PW No. 4, has testified in his evidence, Ex. 34, that on 29-9-1992, he performed post-mortem examination over the dead body of Shaikh Isak and issued post-mortem report, Ex. 16. In his evidence he has clearly testified that both the stab wounds mentioned in column No. 17 of the postmortem report, Ex. 16, are possible by knives and that stab wounds are sufficient to cause death in the ordinary course of nature. This part of the oral evidence of Dr. Pramod Chaudhari, PW No. 4, has gone unchallenged in the evidence on record. The post-mortem report, Ex. 16, would clearly go to show that cause of death of Isak is haemorrhagic shock due to injuries on vital organs as a result of stab injuries. It is seen from the post-mortem report, Ex. 16, that stab wound on the chest of deceased-Isak was 5 inches in depth. This injury has been caused by butcher''s knife. The another injury on the back of Isak is also stab injury and also caused by butcher''s knife.

The inquest panchnama Ex. 11, would clearly go to show that panchas had no doubt that Isak died because of stab wounds.

Learned Advocate Shri P. R. Patil has not explained as to how the prejudice is caused to the accused on account of inadequate compliance of Section 313 of Cr. P.C. The grievance is required to be demonstrated and it is not to be made in the air. In this behalf a reference can be made to the judgment of Apex Court with profit. It has been held by the Apex Court, in the case of Moseb Kaka Chowdhry alias Moseb Chowdhry and Another Vs. The State of West Bengal, that a judgment is not to be set aside merely by reason of inadequate compliance with Section 342, Criminal P. C. Clear prejudice must be shown. In the instant case the learned Advocate Shri P. R. Patil has failed to point out that a great prejudice has been caused to the accused on account of inadequate compliance of Section 313, Cr. P.C. Under the circumstances, we repel the submissions advanced by Mr. P. R. Patil, learned Advocate and hold that this is not a case wherein miscarriage of justice has occasioned on account of incomplete compliance of Section 313 of Cr. P.C.

We are constrained to observe that the learned Additional Sessions Judge has not properly complied with the provisions of Section 313, Cr. P.C. he has completely lost sight of the spirit behind recording statement of the accused u/s 313, Cr. P.C. A duty is cast on the Court to put questions to the accused for the purpose of enabling him to explain any circumstance appearing in the evidence against him. The law demands that each material circumstance appearing in evidence against the accused is required to be put to him clearly, specifically, distinctly and separately. The accused is required to be questioned properly and fairly. The provisions of Section 313, Cr. P.C. is intended to benefit the accused. If the circumstances appearing in the evidence against the accused are put to the accused, the accused gets an opportunity to explain the circumstances which have gone against him in the evidence. On perusal of the statements of the accused recorded u/s 313, Cr. P.C, it is seen that even inadmissible portion is put to the accused persons. Question No. 12 demonstrates this error. The relevant portion of question No. 12 is as under :

It has come in the evidence of PW No. 5 Shaikh Jabbar and PW-11 Shantaram Mahajan CPI that on 1-10-1992, at 9 in the morning, he interrogated the accused No. 2 and he disclosed the fact that the weapon knife with which he caused injuries to deceased Ishaque is hidden by him in the southern side wall of mutton market.

(Emphasis is ours)

The learned Additional Sessions Judge should not have put inadmissible portion to the accused u/s 313 of Cr. P.C. and should not have solicited explanation of the accused on inadmissible portion of the evidence. The duty is of three kinds: (1) Natural duty, (2) Moral duty and (3) Legal duty. The duty contemplated u/s 313, Cr. P.C. is legal duty and, therefore, the judicial officer should take utmost care and precaution in discharging legal duty cast on him. The recording of the statement of accused u/s 313, Cr. P.C. is not an empty formality.

Learned Advocate Shri P. R. Patil further submits that the oral evidence of Shaikh Shabbir, PW No. 2, Gulam Hussain, PW No. 6, Shaikh Piran, PW No. 7, Ahmed Shaikh, PW No. 8 and Shaikh Mahmood, PW No. 9 suffers from infirmities and, therefore, no legitimate weight can be attached to their oral evidence. We have carefully perused the ocular evidence of these eyewitnesses. It is clearly seen from the record that all the eye-witnesses were present at the scene of offence at the material time. Their presence in the Mutton Shop is very natural. There is nothing on record to indicate mat these witnesses were not present at the site or anyone of them was not present at the time of occurrence. It is to be noted that all the eye-witnesses are butchers by their profession and they have got their shops in the Mutton Market. Out of these eye-witnesses, Gulam Hussain, PW No. 6 and Akhtar Piran, PW No. 7, are injured witnesses. They have testified in their evidence that the quarrel ensued in between Isak and accused Salim in connection with sale of Mutton to a customer who was brought by accused Salim. It has come in their evidence that initially there was hot exchange of words in between them and thereafter this petty squabble was aggravated and ultimately culminated into murder of Isak.

Gulam Hussain, PW No. 6 and Akhtar Piran, PW No. 7, sustained injuries on their persons when they tried to intervene and prevented the accused Nos. 1 and 2 from further assault on Isak. Dr. Pramod Chaiidhari, PW No. 4, has examined Akhtar Piran, PW No. 7, on 29-9-1992. It is seen from the injury certificate, Ex. 35, that Akhtar Piran, PW No. 7, had on his person six contused lacerated wounds and one stab injury over the left side of chest. It has come in the evidence of Dr. Pramod Chaudhari, PW No. 4, that all the contused lacerated wounds are possible by blunt edge of the knife and the stab injury at Sr. No. 5 of Ex. 35 is possible by sharp edged weapon like knife.

Dr. Pramod Chaudhari, PW No. 4, examined injured witness Gulam hussain, PW No. 6, on 30-9-1992 and found two cut injuries on his person. The injury certificate in respect of Gulam Hussain, PW No. 6, is at Ex. 36. Dr. Pramod Chaudhari, PW No. 4, has testified in his evidence that injuries found on the person of Gulam Hussain, PW No. 7, are possible by sharp edged weapon and the age of the injuries was within 24 hours.

The evidence of the eye-witnesses is very much straightforward. Their evidence does not suffer from any infirmities. Taking into consideration the evidence of eye-witnesses, it is beyond doubt clear that the accused Nos. 1 and 2 assaulted Isak with butchers knife. The accused Hamid gave a blow with butchers knife on the chest of Isak and caused a bleeding injury. Accused Salim gave a blow with butchers knife on the back of Isak. The complicity of the accused Nos. 1 and 2 in the crime is proved beyond doubt. The prosecution evidence on the point of recovery of knives has been discarded by the learned Additional Sessions Judge. Therefore, we do not want to (dilate upon the prosecution evidence with regard to discovery of knives.

Presence of the blood-stains on the clothes of accused Nos. 1 and 2 loses its significance because C. A. report, Ex. 19, does not reveal the blood group of accused Nos. 1 and 2. The blood of ''A'' group was found on the clothes of accused Nos. 1 and 2. The blood on the clothes of the deceased-Isak is of blood group''B''.

Learned Advocate Shri P. R. Patil submits in the alternative that there was no prior meeting of minds and premeditation. The incident occurred on the spur of moment. The accused Nos. 1 and 2 had absolutely no intention to kill Isak and, therefore, the accused Nos. 1 and 2 cannot be held guilty for the offence punishable u/s 302 of IPC. According to Shri Patil, at the most offence boils down to Section 304, Part I or Part II of IPC. It is a fact that there was no premeditation and there was no prior meeting of the minds. It is also a fact that quarrel occurred on the spur of moment. The evidence on record would clearly point out that accused Nos. 1 and 2 used butchers knife while assaulting Isak. Accused-Hamid caused injury on the chest of Isak. Accused-Salim caused stab wound on the back of Isak. Both these injuries are sufficient in ordinary course of nature to cause death. On receiving a stab wound on the chest, Isak could not offer any resistance. Thereafter accused-Salim caused a stab wound on his back. The successive blows of knives on vital part of the body would clearly indicate that accused-Hamid and Salim very well knew that they were doing an act imminently dangerous to the life of Isak and that a probable result of their act would be death of Isak. Taking into consideration the manner in which the serious injuries were caused on vital parts of body of Isak and the nature of the weapons used, it cannot be said that the accused Nos. 1 and 2 have committed culpable homicide not amounting to murder. We do not accede to the submission of Shri P. R. Patil, Advocate. We hold that the accused Nos. 1 and 2 have committed offence punishable u/s 302 read with Section 34 of IPC.

Learned Advocate Shri P. R. Patil submits that the accused Nos. 3 and 4 were not present on the scene of offence and, therefore, they are liable to be acquitted. Some of the eye-witnesses have stated that accused Nos. 3 and 4 dragged Isak from the raised platform of his shop and held him by their hands to enable the accused Nos. 1 and 2 to inflict wounds on the person of Isak.

However, some of the eye-witnesses have testified that accused Nos. 3 and 4 only dragged Isak from the raised platform and did not hold him by their hands. The evidence brought on record by the prosecution in this respect is shaky. The eyewitnesses are inconsistent, so far as the parts played by accused Nos. 3 and 4 are concerned.

Gulam Hussain, PW No. 6, has stated in his evidence Ex. 45 that there were blood-stains on the clothes of the accused Nos. 3 and 4. Akhtar Piran, PW No. 7, has testified in his evidence Ex. 48 that he saw injuries on the person of accused Nos. 3 and 4.

The arrest panchnama, Ex. 33, would clearly go to show that no injuries were found on the person of accused Nos. 3 and 4. The arrest panchnama, Ex. 33, would also go to show that no blood-stains were noticed on the clothes of accused Nos. 3 and 4. Akhtar Piran, PW No. 7, has admitted in his testimony that he did not disclose the names of accused Nos. 3 and 4 as assailants to the Executive Magistrate when his dying declaration was recorded. Under the circumstances, the presence of accused Nos. 3 and 4 at the time of occurrence becomes doubtful. Taking into consideration this part of the evidence, we are of the opinion that the accused Nos. 3 and 4 are entitled to get benefit of doubt.

In the result, we partly allow the Criminal Appeal of accused Nos. 3 and 4. We set aside the order of conviction and sentence passed by the learned Additional Sessions Judge, Amalner, so far as accused Nos. 3 and 4 are concerned. The accused Nos. 3 and 4 are acquitted of the offences with which they are convicted. They be set at liberty forthwith, if not required in any other offence.

The fine amount, if deposited, be refunded to accused Nos. 3 and 4.

However, we confirm the order of conviction and sentence passed by the learned Additional Sessions Judge, Amalner, so far as accused Nos. 1 and 2 are concerned and, consequently, dismiss their appeal.