Judgment M. G. GAIKWAD, J. ( 1 ) THIS appeal is directed against the judgment dated 20-2-2003, in Sessions Case No. 21/2002 whereby these appellants have been convicted for the offence punishable under section 302 read with 34 of the indian Penal Code and sentenced to imprisonment for life and to pay fine of Rs. 500/- each, in default of payment of fine, to undergo simple imprisonment for one month. ( 2 ) THE facts giving rise to this appeal are as under. The incident in question was alleged to have taken place on 22-1-2002. It was reported to Police Station, Newasa by PW5 Narsingh Mohan Gavane by his complaint (Exh-21 ). On this complaint, PW10 ASI Laxman Pawar registered an offence punishable under section 302 of the Indian Penal Code vide CR No. 17/02. Further investigation was conducted by PW11 Police Inspector pandharinath Kedare. ( 3 ) THE incident as reported by complaint (Exh-21) was alleged to have taken place on the alleged day in between 2. 30 to 3. 00 p. m. near the field of accused No. 1 on the bank of Godavari river within the jurisdiction of village galnimb. Deceased Mohan Gavane along with his family members including his sons PW5 Narsing, PW6 Devising and his wife PW9 Chandrabhaga was staying on the bank of river by erecting a hut. Accused, whose land is also on the side of bank of river, had their farm house in their field. Deceased was mainly doing a business of fishing. They used to plant watermelons in the alluvial land. The accused claiming to be the owners of the said land used to take objection to the deceased and were giving threat to kill in case they cultivate that alluvial land. On the day of incident, PW5 Narsing had gone to the river to catch the fishes. His brother PW6 Devising had gone in the village on a cycle to fetch fertilizer. Their mother PW9 Chandrabhaga along with her daughter-in-law was in their watermelon crop and were busy in the work of cutting the grass. Deceased mohan was taking his cattle towards the well. While he was proceeding from the field of accused, accused Ramkishan rushed towards him having an axe. His sons sadashiv and Kakasaheb also rushed towards deceased Mohan while uttering abuses. That time, they were having swords in their hands. Deceased mohan was taking his cattle towards the well. While he was proceeding from the field of accused, accused Ramkishan rushed towards him having an axe. His sons sadashiv and Kakasaheb also rushed towards deceased Mohan while uttering abuses. That time, they were having swords in their hands. Deceased Mohan was caught hold by accused Nos. 2 and 3 and fell him down on the ground. Thereafter, accused No. 1 inflicted a blow by axe on the head of the deceased. This incident was witnessed by PW5 Narsing as well as PW9 Chandrabhaga who were at some distance. They immediately rushed to the spot. Before their arrival, accused had left the spot and ran away. PW6 Devising who was coming towards the field had seen the accused who were running away from the spot. Deceased mohan was unconscious. With the help of one Shivaji Mule, PW5 Narsing took deceased Mohan to the village and from the village, he carried him to a doctor at salbatpur. However, on the way, deceased Mohan succumbed to the injuries and dr. Pralhad Nagargoje (PW7) declared him dead. Thereafter, complaint (Exh-21) was lodged and offence was registered. In the investigation, PW11 P. I. Kedar visited the hospital at Newasa and recorded inquest panchanama on the deadbody of deceased Mohan in presence of panch witness Hiralal Takare. The deadbody of deceased Mohan was referred for post-mortem and PW7 Dr. Nagargoje conducted autopsy on the dead-body. Dr. Nagargoje noticed the following injuries on the dead-body of deceased Mohan. (i) Lt. upper eye lid and left eye brow was swollen with echymosis. (ii) There was incise wound at left occipitoparietal region, which was measuring 10 cm x 2 cm x bone deep. Injury was spindle shape maximum width was in middle part - i. e. 2 cm and that width was tappered to both ends of wound. Wound margins of skin are clean- cut and gaping was present. On internal examination, Dr. Nagargoje noticed fracture of left occipito parietal bone admeasuring 9 cm x 1 cm. The doctor also noticed brain matter had come out, Dura and Epidura cut with cerebral haemorrhage. According to the doctor. the cause of death of deceased Mohan is "cardio-respiratory failure due to coma due to injury to vital organ, brain. PW7 Dr. Nagargoje issued post-mortem notes (Exh-25 ). All the three accused were arrested in the same night. The doctor also noticed brain matter had come out, Dura and Epidura cut with cerebral haemorrhage. According to the doctor. the cause of death of deceased Mohan is "cardio-respiratory failure due to coma due to injury to vital organ, brain. PW7 Dr. Nagargoje issued post-mortem notes (Exh-25 ). All the three accused were arrested in the same night. At the instance of accused No. 1, weapon of assault axe was alleged to have been discovered in presence of panch witness PW3 Abu Deshmukh. The clothes of the deceased as well as articles seized from the spot and the axe discovered on the information of accused No. 1 came to be forwarded to the Chemical Analyser. Chemical Analyser issued Chemical Analysers reports (Exh-39 to Exh-41 ). The blood of the deceased as well as accused No. 1 was opined to be of group "o" and the blood of group "o" was found discovered on the clothes of the deceased as well as on the axe discovered at the instance of accused No. 1. Completing other formalities of investigation, charge-sheet came to be filed against all the three accused for the offence punishable under section 302 read with 34 of the indian Penal Code as well as for the offence punishable under sections 504 and 506 read with 34 of Indian Penal Code. The case came to be committed to the court of Additional Sessions Judge at Shrirampur. ( 4 ) CHARGE at Exh-4 came to be framed against the accused for the offence punishable under section 302 and 506 read with 34 of the Indian Penal Code. The defence put forth by the accused at the trial was of total denial. According to the accused, some unknown persons who are on enmical terms with the deceased had caused his death. ( 5 ) AT the trial, as many as eleven witnesses have been examined on behalf of the prosecution. PW1 Hiralal Mannulal proved inquest panchanama (Exh-15 ). PW2 Shashikant Dhondu proved the fact of seizure of the clothes of the deceased under panchanama (Exh-17 ). PW3 Abu Deshmukh and PW4 Manik Bhaurao did not support the prosecution case. The spot panchanama came to be proved by investigating Officer PW11 P. I. Kedar. PW5 Narsing, PW6 Devising and PW9 chandrabhagawere examined as eye witnesses. Dr. PW2 Shashikant Dhondu proved the fact of seizure of the clothes of the deceased under panchanama (Exh-17 ). PW3 Abu Deshmukh and PW4 Manik Bhaurao did not support the prosecution case. The spot panchanama came to be proved by investigating Officer PW11 P. I. Kedar. PW5 Narsing, PW6 Devising and PW9 chandrabhagawere examined as eye witnesses. Dr. Nagargoje (PW7) is the autopsy surgeon who proved post-mortem notes (Exh-49) and the death to be a homicidal one. The learned Additional Sessions Judge relying upon the evidence of PW5 Narsing and PW9 Chandrabhaga held all three accused guilty for the offence punishable under sections 302 read with 34 of the Indian Penal Code. Though the death is the result of axe blow given by accused No. 1 alone, said act is held to be an act in furtherance of common intention of all three accused and all the three accused have been convicted for the offence punishable under sections 302 read with 34 of Indian Penal Code. All of them came to be acquitted of the offence punishable under sections 504 and 506 read with 34 of Indian penal Code. ( 6 ) FEELING aggrieved with the order of conviction and sentence, the appellants/original accused preferred the present appeal. ( 7 ) ON behalf of PW5 Narsing, Criminal Application No. 611/2005 is preferred by which he sought permission of this Court to intervene in the appeal. This application came to be allowed and learned advocate Shri Temkar appearing on behalf of the applicant is permitted to assist the learned Assistant Public prosecutor. ( 8 ) ON behalf of the appellants, learned advocates Shri Chatterji and Shri damle advanced argument before us that the appellants have been convicted relying upon the evidence of three eye witnesses who are closely related to the deceased. Relations of the deceased with the accused were strained. According to them, considering the situation of the site, it does not appear probable that any one of them had seen the incident. So, the order of conviction recorded against the appellants is not sustainable. Submission has also been made that the act of accused No. 1 cannot be said to be an act in furtherance of common intention with accused Nos. 2 and 3. There is no evidence to show that they had shared the common intention with accused No. 1. So, the accused Nos. Submission has also been made that the act of accused No. 1 cannot be said to be an act in furtherance of common intention with accused Nos. 2 and 3. There is no evidence to show that they had shared the common intention with accused No. 1. So, the accused Nos. 2 and 3 who have been convicted on account of vicarious liability are entitled for acquittal as there is no evidence against them. On behalf of accused/appellant No. 1, it is submitted that it is a case of single blow and is not a pre-planned attack. So, at the most, the offence committed by him could be under section 304 (Part-II) of Indian Penal code. So, the order of sentence be modified. On the other hand, learned APP Shri K. G. Patil supports the order of conviction. According to him, the presence of two eye witnesses i. e. PW5 narsing and PW 9 Chandrabhaga cannot be doubted. Both of them had seen the actual incident of assault by accused No. 1 on the deceased. Their evidence is also consistent that the accused Nos. 2 and 3 along with accused No. 1 rushed towards the deceased. Deceased was caught hold by accused Nos. 2 and 3 and they fell him on the ground and thereafter, accused No. 1 gave blow by axe, thus, these circumstances proved that this act of accused No. 1 is an act in furtherance of common intention of all the accused. So, the order of conviction recorded against all the three accused is justified and needs no interference. ( 9 ) THOUGH the prosecution had examined eleven witnesses at the trial, the order of conviction against the appellants has been recorded relying upon the evidence of two eye witnesses PW5 Narsing and PW9 Chandrabhaga. Their evidence is held corroborated by the evidence of PW6 Devising who had seen the accused running away from the spot and accused No. 1 had an axe with him. The death of deceased Mohan is held to be homicidal one relying upon the evidence of Medical Officer PW7 Dr. Nagargoje who had conducted the autopsy on the dead-body of Mohan. In this appeal also, on behalf of the appellants, the finding that deceased Mohan met a homicidal death is not seriously challenged. The incident in question was alleged to have occurred in between 2. 30 to 3. Nagargoje who had conducted the autopsy on the dead-body of Mohan. In this appeal also, on behalf of the appellants, the finding that deceased Mohan met a homicidal death is not seriously challenged. The incident in question was alleged to have occurred in between 2. 30 to 3. 00 p. m. PW5 Narsing shifted his father when he was unconscious to Rural Hospital at newasa, but the doctor declared Mohan as dead. Thereafter, he lodged complaint (Exh-21), on which PW10 ASI Laxman Pawar registered an offence. After registration of the offence, inquest panchanama (Exh-15) came to be recorded in presence of PW1 Hiralal. The blood stained clothes of the deceased also came to be seized in presence of PW2 Shashikant Dhondu Chakranarayan under panchanama (Exh-17 ). Thereafter, PW7 Dr. Nagargoje conducted autopsy on the dead-body of Mohan. Dr. Nagargoje noticed swelling on the left upper eye and second injury incise wound on left occipitalparietal region measuring 10 cm x 2 cm x bone deep. On internal examination, Dr. Nagargoje noticed fracture of left occipitoparietal bone with damage to the brain. Doctor opined that the death is the result of this injury. Injury No. 2 is opined to be sufficient in ordinary course of nature to cause death. This evidence remained un-shattered. So the death is proved to be homicidal death. The finding to that effect recorded by the learned additional Sessions Judge does not require interference as the said finding is based on the medical evidence, which is unchallenged. ( 10 ) THE accused/appellants have been held guilty for the offence of murder of deceased Mohan relying upon the evidence of two eye witnesses, PW5 narsing and PW9 Chandrabhaga. In this appeal, on behalf of the appellants, credibility of these two witnesses is challenged and attempts were made to show that they had not seen the incident, so the order of conviction is not sustainable. In view of these submissions made on behalf of the appellants, scrutiny of the evidence of these two witnesses is essential. PW5 Narsing gave account of the incident as under. "the incident happened on 22-1-2002. That time, I had gone to the river with net for fishing. The time was 2. 00 p. m. At that time, my father was taking the animals for allowing water to a well. At that time, it was about 2. PW5 Narsing gave account of the incident as under. "the incident happened on 22-1-2002. That time, I had gone to the river with net for fishing. The time was 2. 00 p. m. At that time, my father was taking the animals for allowing water to a well. At that time, it was about 2. 30 p. m. , my father was passing near from the land of Ramkisan madhav Shelke. At that time, all the three accused were coming towards my father by addressing abuses. Ramkisan Madhav Shelke was holding an axe in his hand. Sadashiv and Kakasaheb were holding swords in their hands. The accused uttering the words as "madarchot Amhi Sagun sudha Amchaya Jagewar Tumi Karbujachiwadi Lawali". The accused came near my father, thereafter accused Kakasaheb and Sadashiv caught my father. Thereafter, they had fallen down my father on the ground and accused No. 1 hit a blow of axe at the head of my father. He was at a distance of about 70 to 75 feet from the place of offence. As soon as my father sustained blow of axe, I noticed noise of his shouting. Immediately, I rushed towards my father and found that he sustained bleeding injuries. Before I reached at the spot, the accused had ran away. " ( 11 ) A lengthy cross-examination of this witness PW5 Narsing was held about the place where he was at the relevant time and from where he could witness the incident. It has come on record that in the nearby area of the scene of offence, there are small hillocks and ditches. From the map prepared by PW8 baban Lad and the statement of this Revenue Inspector Baban, it has come on record that in the nearby area of the scene of offence, there were hillocks of height of 10 to 15 feet. Argument is advanced that, PW5 Narsing who was in the river must not have witnessed the incident. From the evidence of PW8 Babaan, the Revenue Inspector and the map prepared by him, it is clear that scene of offence is in the field of the accused. Godavari river bed is towards northern side of that field. On the bank of river, there was residence of deceased and in the alluvial lands, they had planted watermelons. According to PW5 Narsingh, he had gone to the river for fishing. Godavari river bed is towards northern side of that field. On the bank of river, there was residence of deceased and in the alluvial lands, they had planted watermelons. According to PW5 Narsingh, he had gone to the river for fishing. Nowhere, he has stated that he was in the river bed, but he claims that he was at a distance of 70 feet from the place of offence. Even in the cross-examination, itwas suggested to him that he was at a distance of 70 feet. So, even the defence is not disputing that he was at a distance of just 70 feet from the place of offence. From the map (Exh-27), it is clear that there was a standing wheat crop in the field of accused where the incident did occur. This Revenue Inspector has not shown any standing trees in between the scene of offence and the river bed. No doubt, this witness admits that there were thorny bushes in the said area. His general statement that there were hillocks of height of 10 feet by itself would not be sufficient to infer that the scene of offence was not visible from the place where PW5 Narsing was standing. In spite of lengthy cross-examination, no material could be elicited at the behest of the accused to discredit this witness. It was suggested to him that he had not seen the actual incident and his father was assaulted by unknown persons and lying in an unconscious condition. There are no circumstances in support of this defence. In view of the statement made by PW5 Nursing that he had heard shouting of his father, so his attention was drawn towards the scene of offence and he had seen the incident, submission is advanced that actual blow is not seen by him. This submission is found without any merit. He has specifically stated that when a blow of axe was given on the head of his father, his father raised cry, so he rushed towards the spot. That means, a blow actually given was seen by him and at the same time, he heard shouts of his father. So, it is not a case that after hearing hue and cry, his attention was diverted towards the scene of offence and he had not seen the incident. As such, testimony of PW5 Narsing is found reliable. That means, a blow actually given was seen by him and at the same time, he heard shouts of his father. So, it is not a case that after hearing hue and cry, his attention was diverted towards the scene of offence and he had not seen the incident. As such, testimony of PW5 Narsing is found reliable. He had seen the actual blow given by accused No. 1 on the head of his father. Hence, it establishes that accused No. 1 is responsible for causing the injury to the deceased which resulted into his death. ( 12 ) PW9 Chandrabhaga also claims to be an eye witness, alleging that at the relevant time, she was in the field where they had planted watermelon. Her evidence about the incident is that at about 2. 30 to 3. 00 p. m. , her husband Mohan was taking his cattle towards the well. Accused rushed towards him while uttering abuses. She had seen accused Sadhashiv and Kakasaheb rushed towards her husband and they had caught hold the hands of deceased Mohan and had fallen him down and thereafter accused No. 1 gave a blow of axe to Mohan and she immediately rushed towards the spot. Material omission, which amounts to contradiction, has been brought on record in the cross-examination of PW9 chandrabhaga. At the time of earlier statement, she has not disclosed that accused Nos. 2 and 3 had caught hold the hands of her husband. She is unable to give explanation for the same. So, as regards the act of accused Nos. 2 and 3, her version that they caught the hands of her husband and fallen him on the ground does not appear to be reliable. However, her version is consistent that she had seen accused No. 1 who had given axe blow on the head of her husband and immediately, she rushed to the spot. No material could be elicited on behalf of the defence to falsify her version. ( 13 ) EVIDENCE of PW5 Narsing and PW9 Chandrabhaga is consistent that they had seen the incident of actual assault from the distance of about 70 feet. As regards act of the accused, the story narrated by both of them is consistent that the accused No. 1 gave blow by axe on the head of the deceased. They have not alleged that accused Nos. As regards act of the accused, the story narrated by both of them is consistent that the accused No. 1 gave blow by axe on the head of the deceased. They have not alleged that accused Nos. 2 and 3 caused any injuries to the deceased. At the time of autopsy, only one injury was found on the head and the another is near the left eye brow. So, it is a case of single blow inflicted on the deceased. The evidence of two eye witnesses beyond doubt proves that accused No. 1 is the author of the said injury. Question remains as to whether accused Nos. 2 and 3 had shared common intention and as to whether the act of accused No. 1 can be said to be the act in furtherance of common intention of all three accused. PW5 Narsing has stated that all three accused rushed towards his father and uttered abuses, according to PW5 Narsing, accused Nos. 2 and 3 had swords in their hands, but he has not alleged any overtact to them i. e. assault by them with swords on the deceased. His mother, PW9 Chandrabhaga, who is another witness of the incident, has not stated that accused Nos. 2 and 3 at the relevant time had swords in their hands. Both of them made an attempt to show some overt act to accused nos. 2 and 3 stating that they had caught the deceased and falling him on the ground. But as regards this overt act, the evidence of PW9 Chandrabhaga is found to be an improvement. So, the story deposed by these witnesses regarding overt act of accused Nos. 2 and 3 is not consistent and found to be improbable. Mere presence of these accused at the scene of offence by itself cannot be considered to be a circumstance to show that all three accused had any preplan to attack the deceased. Admittedly, the incident did occur in their field. Their residence is also in that field at some distance. It cannot be presumed that they were aware that at the relevant time, deceased will appear on the scene in their field. There are absolutely no circumstances on record to show any pre-plan of accused Nos. 1 to 3 to attack deceased Mohan. Their presence in their own field is natural. As regards their overt act, evidence of two witnesses is inconsistent. There are absolutely no circumstances on record to show any pre-plan of accused Nos. 1 to 3 to attack deceased Mohan. Their presence in their own field is natural. As regards their overt act, evidence of two witnesses is inconsistent. If they had any pre-plan to attack the deceased, in that case, they could have attacked the deceased with the weapons in their hands. PW5 Narsing states that they had swords in their hands, but the very fact is not disclosed by his mother pw9 Chandrabhaga. As regards their act to catch hold deceased, statement of chandrabhaga (PW9) is found to be an improvement. The overt act of accused nos. 2 and 3 in the incident itself is doubtful. It is not a case that the accused nos. 2 and 3 caught hold the deceased and facilitated accused No. 1 to inflict the fatal blow. Even PW5 Narsing is not claiming that the fatal blow was inflicted by accused No. 1 on the deceased when deceased was caught hold by accused Nos. 2 and 3. The story about the act of accused Nos. 2 and 3 to catch hold deceased is not supported by PW9 Chandrabhaga, which is found to be an improvement made by her. So, on account of their presence at the scene of offence, it cannot be held that they also shared the common intention. It appears from the evidence on record that at the relevant time, deceased was proceeding with his cattle from the field of the accused. So, the accused abused him and thereafter, accused No. 1 gave blow by axe to deceased Mohan. This act of accused No. 1 cannot be said to be an act in furtherance of common intention of all three accused. ( 14 ) AS held by the Apex Court in case of Pandurang and others vs. State of hyderabad, reported in AIR 1955 SC 216 , the common intention presupposes prior concert. It requires a pre-arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all. There must have been a prior meeting of minds. It requires a pre-arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all. There must have been a prior meeting of minds. The prior concert and arrangement can, and indeed often must be determined from subsequent conduct, for example, by a systematic plan of campaign unfolding itself during the course of the action which could only be referable to prior concert and prearrangement, but the inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case. ( 15 ) AS discussed to above, in the present case, there are no circumstances to show any pre-concert or pre-arrangement between the three accused and the act of accused No. I cannot be said to be an act in furtherance of any such plan. As such, the evidence of two eye witnesses only establishes that accused No. 1 inflicted fatal blow which resulted in death of deceased Mohan. Except mere presence of accused Nos. 2 and 3, no overt act of accused Nos. 2 and 3 is proved in the incident. An attempt made to show their overt act by these two witnesses was not found reliable. So, the accused Nos. 2 and 3 cannot be said to have shared common intention with accused No. 1, and they cannot be held vicariously liable for the act of accused No. 1. But accused No. 1 alone is responsible for his own act causing death of deceased Mohan by inflicting a blow by an axe. ( 16 ) ON behalf of accused No. 1, submission has been advanced that the act of accused No. 1 amounts to culpable homicide not amounting to murder, because he inflicted single blow. This submission cannot be accepted. The accused No. 1 rushed towards the deceased having an axe. He has chosen a vital organ head and hit axe with such a force that there was a fracture of occipital and parietal region and the brain was damaged. So, this single blow can be said to be an act with intention to cause death and accused No. 1 is thus guilty for the offence punishable under section 302 of Indian Penal Code. So, this single blow can be said to be an act with intention to cause death and accused No. 1 is thus guilty for the offence punishable under section 302 of Indian Penal Code. ( 17 ) THE evidence of PW6 Devising is accepted by the trial Court and held that it corroborates the evidence of eye witnesses. Admittedly, PW6 Devising in the alleged afternoon had gone in the village and was not present at the scene of offence. According to him, in the afternoon, he was coming towards their field on his cycle and at about 3. 15 p. m. , he had seen all three accused running away from their farm house and accused No. 1 was holding axe in his hand. When he came to the spot, he had seen his father lying in an injured condition. In the cross- examination, he has admitted that he might have reached spot at 3 p. m. He admits that he has not stated the actual time when he reached the spot. He also admits that he has not stated that he has seen the accused running away from their field where the sugarcane was standing. In view of this statement, his version that he had reached the spot immediately after the incident was over and had an opportunity to see the accused running away from the spot, is doubtful. ( 18 ) DISCOVERY of axe at the instance of accused No. 1 is accepted to be a corroborative circumstance. PW3 Abu Deshmukh in whose presence the discovery was alleged to have been made, did not support the prosecution case. Said discovery at the instance of accused No. 1 is proved by the evidence of investigating Officer P. I. Pandharinath Kedare (PW11 ). However, as per the c. A. Report, blood of group "o" was found on the said axe. Blood of deceased was of "o" group. Blood group of accused No. 1 is also of "o" group. As admitted by the investigating officers, accused No. 2 had reported this incident to pw10 by his complaint (Exh-30), alleging that his father was assaulted by the deceased and witnesses. Because of injuries on the person of accused No. 1, he was referred for medical examination by issuing yadi (Exh-31 ). So, one fact is clear that accused had also sustained injuries in the incident. Because of injuries on the person of accused No. 1, he was referred for medical examination by issuing yadi (Exh-31 ). So, one fact is clear that accused had also sustained injuries in the incident. Blood group of accused No. 1 as well as deceased is one and the same group, which was found to be "o" group. So, this discovery loses its importance. ( 19 ) THE evidence of two eye witnesses PW5 Narsing and PW9 chandrabhaga is found consistent. Both of them are found to be reliable witnesses. By their evidence, it is established beyond doubt that accused No. 1 inflicted blow by axe on the head of the deceased, which blow proved to be fatal and deceased died because of the injury. As discussed to above, the evidence of these two witnesses about any overt act of appellant Nos. 2 and 3 is inconsistent and not found reliable. Their presence at the scene of offence is irrelevant as it was their own field. There is no evidence, direct or circumstantial, to show that accused Nos. 2 and 3 had also shared the common intention with accused No. 1 to cause death of deceased. As such, the order of conviction recorded by the learned Additional Sessions Judge against the accused Nos. 2 and 3 is not sustainable. So, their appeal needs to be allowed and acquit them of the charge with which they were charged and convicted. However, the evidence of these two eye witnesses proved the guilt of accused No. 1 beyond reasonable doubt. So, the order of conviction as against accused No. 1 does not suffer from any infirmity. Hence the appeal of accused No. 1 needs to be dismissed confirming the order of his conviction and sentence as recorded against him. ( 20 ) IN the result, we partly allow the present appeal. The order of conviction and sentence for the offence punishable under sections 302 read with 34 of Indian Penal Code, recorded by the IInd Additional sessions Judge, Shrirampur in Sessions Case No. 21/2002 against the appellants no. 2 and 3, namely, Sadhasiv s/o Ramkishan Shelke and Kakasaheb s/o ramkisan Shelke, respectively is hereby quashed and set aside. The appellants no. 2 and 3/original accused Nos. 2 and 3 are acquitted of the offence punishable under section 302 read with 34 of Indian Penal Code. Their bail bonds shall stand cancelled. 2 and 3, namely, Sadhasiv s/o Ramkishan Shelke and Kakasaheb s/o ramkisan Shelke, respectively is hereby quashed and set aside. The appellants no. 2 and 3/original accused Nos. 2 and 3 are acquitted of the offence punishable under section 302 read with 34 of Indian Penal Code. Their bail bonds shall stand cancelled. Fine, if any paid by these two appellants be refunded to them. Criminal appeal of appellant No. I/original accused. No. 1, namely, ramkishan s/o Madhav Shelke is dismissed, confirming the order of conviction and sentence for the offence punishable under section 302 read with 34 of Indian penal Code, recorded against this appellant by IInd Additional Sessions Judge, shrirampur by his judgment dated 20-2-2003, rendered in Sessions Case No. 21/2002. Appeal partly allowed.