JUDGMENT - BATTA R.K., J.:---Both these appeals arise out of the same incident for which the appellants were tried in the Sessions Case No. 16/1997. The learned Additional Sessions Judge, Achalpur, by judgment dated 10th February, 1998, held the appellants guilty under section 302 r/w 34 of the Indian Penal Code and sentenced them to imprisonment for life, as also, to pay fine of Rs. 1,000/- each and in default of payment of fine, to suffer rigorous imprisonment for two years. The appellants have filed separate appeals which were heard together. Accordingly, the appeals are being disposed of by a common judgment. 2. The prosecution case, in brief, is that a week prior to the incident, a complaint of theft had been filed by the husband of P.W. 2 Rajkanya against the appellant Vinod. On 6-12-1996, the appellant Vinod came to the house of deceased at about 8.30 a.m., when the deceased was not there and he told Rajkanya (P.W. 2), wife of the deceased, that since they had made a complaint against him, he shall take care of them. When the deceased returned at about 10 a.m., Rajkanya (P.W. 2) told him of what the appellant Vinod had stated. The deceased called police on telephone and informed that the appellant Vinod had come to his house and he had threatened him and he apprehended danger at his hands. Subsequently, the Police Patil Sudhakar Bhore also informed the police about the threats given by the appellant Vinod. The deceased left the house to go to the hotel of one Amrutrao to collect money. Near the said hotel, he was assaulted by the appellant Vinod, as also, the appellant Raju, resulting in injuries on his person. The deceased died as a result of said assault. The incident was witnessed by Ruprao Akolkar (P.W. 1) and Santosh Akolkar (P.W. 3). The weapons of offence were recovered. The incriminating articles including clothes of the appellants having blood stains and clothes of the deceased were sent to the chemical analyser. After completing investigation, charge-sheet was filed. During the course of trial, 13 witnesses were examined. The appellants have challenged their conviction and sentence by filing the appeals under consideration. 3. The weapons of offence were recovered. The incriminating articles including clothes of the appellants having blood stains and clothes of the deceased were sent to the chemical analyser. After completing investigation, charge-sheet was filed. During the course of trial, 13 witnesses were examined. The appellants have challenged their conviction and sentence by filing the appeals under consideration. 3. The learned Advocate for the appellants took us through the evidence of the eye-witnesses Ruprao Akolkar (P.W. 1) and Santosh Akolkar (P.W. 3) and urged before us that there is, inter se, discrepancy between the testimonies of two witnesses; that whereas Ruprao Akolkar (P.W. 1) speaks of exchange of weapons by the appellants after the initial assault, yet other eye-witness Santosh Akolkar (P.W. 3) does not at all speak of the same; that whereas Ruprao (P.W. 1) attributes axe blows on the person of the deceased, except for the blow on head, to the appellant Vinod, yet Santosh (P.W. 3) attributes all injuries caused to the deceased by accused Raju except for blow by iron rod on the head of deceased by the appellant Vinod; that medical evidence of doctor Ranjetsing Digambar Chavan (P.W. 6) totally rules out any injury by iron rod thereby falsifying the prosecution case of use of iron rod in the assault and that both the eye-witnesses did not disclose what they had seen to any one. 4. The learned Advocate for the appellants has also submitted before us that recovery of weapons has not been proved through panchas, who have not supported the prosecution case and that the report of chemical analyser was not put to the appellants in their statement under section 313 of the Code of Criminal Procedure, as a result of which the same cannot be used against the appellants. He has pointed out that the F.I.R. was lodged by Digambar Kisanrao Burnase (P.W. 5) who has stated that his cousin Sanjay Burnase had informed him that the appellants had assaulted the deceased by means of a spear and an axe and said Sanjay Burnase has not been examined by the prosecution. 5. According to the learned Advocate, prosecution has failed to prove the charges against both the accused. 5. According to the learned Advocate, prosecution has failed to prove the charges against both the accused. Alternatively, it is urged that, at any rate, the charges levelled against the appellant Vinod are not at all proved in the light of discrepancy between the evidence of eye-witnesses Ruprao Akolkar (P.W. 1) and Santosh Akolkar (P.W. 3). He, therefore, contends that both the appellants be acquitted of the charges. 6. On the other hand, the learned A.P.P. has submitted before us that the prosecution case has to be examined in the light of what had transpired prior to the incident including that, about a week prior to the incident, a complaint of theft has been lodged by the deceased against the appellant Vinod and on the day of incident i.e. to say on 6-12-1996, the appellant Vinod had come to the house of deceased at about 8.30 a.m. when the deceased was not there and the appellant Vinod had threatened stating that, since they had made a report against him, he would take care of them and subsequent thereto, said appellant Vinod along with accused Raju assaulted deceased, on account of which the deceased has died. 7. The learned A.P.P. further points out that even after the incident the appellant Vinod had gone to the hotel of Amrutrao and after demanding snacks, which were refused, he asked Amrutrao, father of the witness Santosh (P.W. 3) as to whether he also needs beating. According to the learned A.P.P., the appellant Vinod had gone to the said hotel since the son of Amrutrao namely Santosh (P.W. 3) had seen the incident and he had gone there to threaten his father. The learned A.P.P., has further urged before us that though Santosh (P.W. 3) does not speak of exchange of weapons by the appellants after initial assault, yet Ruprao (P.W. 1) was witnessing the incident from a very close distance, on account of which he could notice exchange of weapons, which possibly was not noticed by Santosh (P.W. 3). At any rate, according to the learned A.P.P., in the light of events preceding the incident and subsequent thereto, it is clearly borne out by the evidence on record that the appellant Vinod had entertained common intention to kill the deceased and at the time of incident, both the appellants were together carrying the weapons with them. At any rate, according to the learned A.P.P., in the light of events preceding the incident and subsequent thereto, it is clearly borne out by the evidence on record that the appellant Vinod had entertained common intention to kill the deceased and at the time of incident, both the appellants were together carrying the weapons with them. Therefore, the learned A.P.P. has urged before us that there is no justification to interfere with the conviction recorded by the trial Court. 8. Rajkanya Tulsidas Gurnase (P.W. 2) is wife of the deceased. She has stated that, about a week prior to the date of incident, a complaint of theft had been lodged against the appellant Vinod by her husband. According to her, on the date of incident i.e. on 6-12-1996, at about 8.30 a.m. the appellant Vinod came to her house when her husband was not there. The appellant Vinod told her that since they had made a report against him he shall take care of them. When her husband came, she reported the matter to her husband, who informed the police on telephone that the appellant Vinod had come to his house, he was threatening him and he apprehended danger to his life at his hands. She has also stated that the Police Patil Mr. Shankar Bhore also informed police on telephone of the threats to her husband by the appellant Vinod. During cross-examination, she stated that prosecution against the appellants Vinod on the report of theft was pending. She had also stated in her examination-in-chief that after the incident also the appellant had come to her house with an iron pipe and was saying that one more person is to be taken care of. There has been absolutely no challenge to this testimony of Rajkanya (P.W. 2) except for the suggestion that she has deposed falsely on account of enmity. There was no cross examination at all on material particular of evidence given by this witness. Therefore, from the evidence of this witness, it stands proved that on the day of incident, prior to the incident, the appellant Vinod had come to the house of deceased and had threatened that he would take care of him since he had lodged report against him. Therefore, from the evidence of this witness, it stands proved that on the day of incident, prior to the incident, the appellant Vinod had come to the house of deceased and had threatened that he would take care of him since he had lodged report against him. It also stands proved that after the incident also, the appellant Vinod came with an iron pipe to the house of deceased and stated that one more person is to be taken care of. This statement, in other words, means that one person has been taken care of and one more person is to be taken care of. 9. Coming to the incident in question, prosecution has examined two witnesses namely Ruprao Akolkar (P.W. 1) and Santosh Akolkar (P.W. 3). Ruprao (P.W. 1) has stated that he saw deceased Tulsidas near the hotel of one Amrutrao Akolkar. Tulsidas told him that the appellants Vinod and Raju are prepared to beat him. According to this witness, the appellant Raju was armed with an axe and the appellant Vinod was armed with an iron pipe. The appellant requested him to escort him to his house. Accordingly, they started going towards the house of Tulsidas. But, they had just walked to some distance when the appellant Vinod and the appellant Raju came and threatened Ruprao (P.W. 1) to go away or else he will be assaulted. Accordingly, he got himself away. He has further stated that the appellant Raju assaulted Tulsidas on his head by means of an axe and the appellant Vinod also assaulted him by means of an iron pipe. Tulsidas fell down and after he fell down, the appellant exchanged their weapons and the appellant Vinod assaulted Tulsidas by means of the axe and the appellant Raju assaulted Tulsidas by means of the iron pipe. He further stated that the appellant Vinod assaulted Tulsidas by means of the axe on his back and legs. 10. During the cross-examination of Ruprao (P.W. 1) emphasis appears to be on the question as to whether he had informed any one about what had transpired at the time of incident. According to him, the incident lasted for about 2 to 3 minutes. This witness was not at all questioned about the material particulars of the incident revealed by him in the examination-in-chief and his testimony has remained unchallenged and unshaken. 11. According to him, the incident lasted for about 2 to 3 minutes. This witness was not at all questioned about the material particulars of the incident revealed by him in the examination-in-chief and his testimony has remained unchallenged and unshaken. 11. The other eye-witness Santosh Akolkar (P.W. 3) has stated that he was in the hotel when he found both the appellants coming towards his hotel side; the appellant Raju was armed with an axe and the appellant Vinod was armed with an iron pipe; he saw the deceased Tulsidas passing by the road towards his house; the appellants went behind Tulsidas and the appellant Vinod dealt a blow of pipe on his head from behind because of which Tulsidas fell down. Thereafter, the appellant Raju assaulted Tulsidas by means of the axe and dealt blows thereof on his head, back and leg. He confirms that Ruprao (P.W. 1) was present around and the appellant Vinod had asked Ruprao to get away. He also states that, thereafter, both Raju and Vinod came to his hotel and demanded snacks from his father, who refused and on his refusal, they threatened his father asking if he needs beating. He confirmed during cross-examination that the appellant Raja was seen armed with an axe and the appellant Vinod was armed with a pipe. He also reiterated in the cross-examination that Ruprao was present at the time of occurrence. 12. According to the learned Advocate for the appellants, there is apparent contradiction between the testimony of two eye-witnesses regarding assault by the appellants on the deceased and that the medical evidence rules out assault by iron rod. In this connection, our attention has been drawn to the evidence of Dr. Ranjetsing Digamber Chavan (P.W. 6), who found following injuries on the person of deceased. i) Clearcut incised wound on the left parietal region of head 3½" x 1" x 2" located along midline. ii) Incised wound on the left arm lower 1/3 region. Posterior aspect of size of 2" x 1" x 1". iii) Incised wound on the back right side 3" x 1" x ½" obliquely placed. iv) Incised wound on left thigh lower 1/3 on the anterior aspect size 5" x 1" x 1". v) Incised wound on lateral aspect of left knee joint 3" x 1" x 1". Posterior aspect of size of 2" x 1" x 1". iii) Incised wound on the back right side 3" x 1" x ½" obliquely placed. iv) Incised wound on left thigh lower 1/3 on the anterior aspect size 5" x 1" x 1". v) Incised wound on lateral aspect of left knee joint 3" x 1" x 1". vi) Incised wound on left thigh lower 1/3 region on the medical aspect 2" x 1" x 1". vii) Incised wound on right papliteal region 5" x 2" x 2". 13. According to Dr. Chavan (P.W. 6), death was due to haemorrhagic shock as a result of multiple injuries. He further opined that the injury No. 1, by itself, was sufficient, in the ordinary course of nature, to cause death of a person. He further opined that the other injuries at Serial No. 2 to 7 taken together are sufficient to cause death of a person. In the cross-examination, he stated that the injury No. 1 was possible by an axe and the injury No. 2 to 6 were also caused by a sharp weapon like axe. According to him, if an injury is caused by means of a pipe, then the injury would be a contused laceration and he did not find any contused lacerated wounds on the person of the deceased. He also stated that if a blow is dealt on head by means of an iron pipe then the injury would be lacerated injury. He categorically stated that none of seven injuries found on the person of deceased were likely to have been caused by means of a pipe. Thus, the medical evidence rules out the assault by pipe and it is in the light of this evidence, that the evidence of eye witnesses has to be scrutinized. 14. The testimony of both the eye-witnesses regarding assault by pipe cannot be accepted. According to Ruprao (P.W. 1), the appellant Vinod had assaulted the deceased, initially, with an iron pipe and the accused-appellant Raja had assaulted the deceased on his head by an axe. According to Santosh (P.W. 3), the appellant Vinod had dealt a blow of pipe on the head of Tulsidas. Santosh (P.W. 3) has stated that the appellant Raja had assaulted Tulsidas by means of an exe on his head, back and legs. According to Santosh (P.W. 3), the appellant Vinod had dealt a blow of pipe on the head of Tulsidas. Santosh (P.W. 3) has stated that the appellant Raja had assaulted Tulsidas by means of an exe on his head, back and legs. The Medical Officer found injuries on the head right back side, as also, on the leg region namely left thigh and left knee. Therefore, the evidence of Santosh (P.W. 3) that the appellant Raja had assaulted the deceased by means of an axe on his head, back and legs is duly supported by the medical evidence on record. 15. Ruprao Akolkar (P.W. 1) had stated that the appellant Raja had assaulted the deceased on his head with an axe and there is a corresponding injury on the head. However, he spoke of exchange theory of weapons and has attributed subsequent assault by an axe by the appellant Vinod on the back and on legs of the deceased. There is, thus, apparent discrepancy between the evidence of Santosh (P.W. 3) and the evidence of Ruprao (P.W. 1). However, the evidence of both the said witnesses speaks of assault by the appellant Raju on the deceased by an axe on his head and according to the Medical Officer Dr. Chavan (P.W. 6), the injury No. 1, by itself, was sufficient, in the ordinary course of nature, to cause death. Therefore, insofar as appellant Raju is concerned, prosecution has been able to establish that the appellant Raju had given axe blow on the head of deceased, on the account of which he died. The axe blow was given with force in as much as left parietal bone of skull was fractured and there was also bleeding in the brain. Intention to kill is, thus, clearly established by the prosecution on the part of appellant Raju. 16. Coming to the case of the appellant Vinod, the assault by iron rod does not get corroboration from the medical evidence and there is apparent discrepancy between the evidence of Santosh (P.W. 3) and Ruprao (P.W. 1) on the question of exchange of weapon which is spoken by Ruprao (P.W. 1), but Santosh (P.W. 3), who has also seen the incident, does not speak of the same. But, according to him, assault by axe on the head, back and legs of the deceased was carried out by the appellant Raju on the deceased. But, according to him, assault by axe on the head, back and legs of the deceased was carried out by the appellant Raju on the deceased. Nevertheless, it is pertinent to note that both these witnesses had spoken categorically that the appellant Vinod was moving along with the appellant Raju prior to the incident and at that time of incident, he was along with the appellant Raju. It is pertinent to note here that the appellant Vinod had gone to the house of deceased at about 8.30 a.m. on the day of incident and had threatened the wife of deceased, in absence of the deceased, that since they had made report against him, he shall take care of them. Thereafter, the appellant Vinod was moving along with Raju, against whom the prosecution has duly established that he had assaulted the deceased with an axe. Immediately after the incident also, the appellant Vinod along with Raju had gone to the hotel of Amrutrao, father of Santosh (P.W. 3) and demanded snacks from him and on refusal, asked him if he needs beating. This shows that both the appellants had gone to the hotel of father of Santosh (P.W. 3), apparently with a view to threaten Santosh and his father, inasmuch as the witness Santosh was a witness to the incident. In addition, after the incident, the appellant Vinod is said to have gone to the house of deceased once again and told P.W. 2 Rajkanya that one more person is to be taken care of. This would mean that one person has been taken care of and one more person is to be taken care of. In view of all these circumstances we are of the view that the appellant Vinod had entertained common intention with the appellant Raju to kill the deceased and actually, the deceased was killed. Therefore, applying section 34 of the Indian Penal Code to the facts and circumstances of the case, we are of the view that the appellant Vinod is also guilty of murder of the deceased. 17. It has been noticed by us that the trial Court has imposed fine of Rs. 1,000/- each on the appellants and in default of payment of fine, has imposed sentence of two years' rigorous imprisonment. It is rather highly excessive sentence in default of payment of fine of Rs. 1,000/-. 17. It has been noticed by us that the trial Court has imposed fine of Rs. 1,000/- each on the appellants and in default of payment of fine, has imposed sentence of two years' rigorous imprisonment. It is rather highly excessive sentence in default of payment of fine of Rs. 1,000/-. We, therefore, reduce the sentence in default of payment of fine from two years rigorous imprisonment to three months. 18. For the aforesaid reasons, we do not find any merit in both the appeals and both the appeals are hereby dismissed, subject to the modification relating to the sentence in default of payment of fine as stated above. Appeals dismissed. -----