JUDGMENT Per S.R.Dongaonkar, J. These two appeals and the criminal revision arise out of judgment of Assistant Sessions Judge, Khamgaon in Sessions Case No. 8 of 1987 dated 05th July, 1990, by which he convicted respondent No. 1 Arun, respondent No. 2 Prabhakar and respondent No. 3 Waman in Criminal Appeal No. 282 of 1994 for the offence punishable under Section 325 read with Section 34 of the Indian Penal Code and sentenced each of them to suffer rigorous imprisonment for three years and to pay fine of Rs. 500/-in default to suffer rigorous imprisonment for two months, while acquitting them of the offence under section 307 r/w section 34 of the I.P.C. 2. The brief facts leading to the prosecution of three respondents, who are also respondents in Criminal revision application No. 123 of 1994 and appellants in Criminal appeal No. 207 of 1994, were prosecuted for the offence punishable under Section 307 read with Section 34 of the Indian Penal Code on the allegations that in furtherance of their common intention; they committed an attempt to murder of one Arun @ Arvind S/o Laxman Kasture, r/o Bhendwad, Tahsil Jalgaon Jamod, District Buldana on 26th September, 1986 at about 9.30 p.m. It was alleged that this Arun @ Arvind (P.W.1) was a political worker having affiliation with Congress (S) party. In the year 1985-86 he had contested election of Bhendwad Gram Panchayat from Ward No. 2. One of his opponent was accused Arun i.e. respondent No. 1. At the material time, R-1 Arun was belonging to Congress (I). He was defeated in the election. It is alleged that P.W.1 Arvind was also holding other political posts. On 26th September, 1986 he had gone to attend a meeting of Jalgaon Panchayat Samittee. Thereafter he returned in jeep with Haribhau (P.W.4) and one Vishnu Mahadeo Nirmal. The said jeep was belonging to a Bank. P.W.4 Haribhau alighted from the jeep at village Madakhed. He instructed the driver of the jeep to reach P.W.1 Arvind to village Bhendwad Bk. Accordingly, P.W.1 Arvind and one Vishnu came in jeep up to the office of Gram Panchayat, Bhendwad Bk. Both of them got down from the jeep and the jeep went back. Near the office of Gram Panchayat, prosecution witnesses P.W.2 Sonaji and P.W.3 Sheshrao along with one Bajirao joined them. Thereafter, all these persons started returning to the village by cart-track road. Both of them got down from the jeep and the jeep went back. Near the office of Gram Panchayat, prosecution witnesses P.W.2 Sonaji and P.W.3 Sheshrao along with one Bajirao joined them. Thereafter, all these persons started returning to the village by cart-track road. It is alleged that P.W.1 Arvind was walking ahead of all the others and he was followed by Vishnu, P.W.2 Sonaji and P.W.3 Sheshrao. When they reached near the place of the field of one Rahim Shah, i.e. place of incident, all of a sudden; all these respondents, hereinafter referred to as 'accused', came from opposite direction. They shouted that “fellow has come” and after saying so, all of them attacked P.W.1 Arvind. It is alleged that accused Arun was armed with sickle, accused Prabhakar was armed with an axe and accused Waman was having a stick. When all these three accused attacked, P.W.1 Arvind, he suffered multiple injuries. It is alleged that P.W.1 Arvind identified all the assailants, so also P.W.2 Sonaji and P.W.3 Sheshrao. It is also alleged that accused Arun was carrying a 'torch' with him, which he used for identifying victim P.W.1 Arvind. It is also claimed that the assailants/accused thereafter fled away towards Bhendwad Bk. Then P.W.2 Sonaji and P.W.3 Sheshrao brought other villagers to the spot of incident where P.W.1 Arvind, who was noticed lying on the ground with injuries and moaning. Thereafter, the jeep was called. P.W.4 Haribhau also came there. In jeep, injured P.W.1 Arvind was taken to the Police Station, Jalgaon-Jamod. P.S.I. Tidke (P.W.13) was present there. On seeing the serious condition of the victim P.W.1 Arvind, he was directed to be taken to Primary Health Centre, Jalgaon-Jamod. A Sana entry as per Exh. 28 was recorded at Police Station. In Hospital, P.W.10 Dr. Laxman Suradkar examined P.W.1 Arvind and issued medical certificate of his injuries as per Exh. 47. In all 34 injuries out of which 26 injuries were incised wounds; were found on his person. Considering his condition, the Executive Magistrate was summoned. He recorded his dying declaration (Exh.51). Thereafter, offence was registered by P.W.13 P.S.I. Tidke as per Exh. 57. It may be stated that P.W.1 Arvind was then referred to General Hospital at Buldana. 3. During investigation, spot panchanama was prepared as per Exh.37. The articles like blood stained clothes, etc. were seized vide Exhs. He recorded his dying declaration (Exh.51). Thereafter, offence was registered by P.W.13 P.S.I. Tidke as per Exh. 57. It may be stated that P.W.1 Arvind was then referred to General Hospital at Buldana. 3. During investigation, spot panchanama was prepared as per Exh.37. The articles like blood stained clothes, etc. were seized vide Exhs. 33, 35, 41 and 44 in presence of panch witnesses; P.W.5 Nana Nirmal, P.W.6 Ananda Nirmal, P.W.7 Shankar Patil, P.W.8 Ganeshsingh Rajput and P.W.9 Mohd. Sheikh. It is necessary to mention that it is also a case of the prosecution that while lodging Sana entry No. 37, P.W.4 Haribhau Patil was with P.W. 1 Arvind. At the instance of accused Arun, P.S.I. Kuware (P.W. 12) had seized a torch on memorandum statement, which was found to be having blood stains of blood group of P.W.1 Arvind. After due investigation, accused persons came to be charge sheeted for the offence under Section 307 r/w Section 34 of the Indian Penal Code in the Court of the Judicial Magistrate, First Class, Jalgaon-Jamod. 4. On committal of the case bearing Sessions Case No. 8 of 1987, Additional Sessions Judge, Khamgaon framed charge for the aforesaid offence against the accused. They pleaded not guilty to the same. Their defence is that of total denial and false implication on account of political rivalry with P.W.1 Arvind. 5. The prosecution has led the evidence of 13 witnesses as stated above. P.W.1 Arvind Kasture is the victim himself. P.W.2 Sonaji Wankhede and P.W.3 Sheshrao Nirmal are the alleged eye witnesses to the incident. P.W.4 Haribhau Patil has accompanied injured P.W.1 Arvind to the Police Station in his jeep. P.W.10 Dr. Laxman Suradkar had examined P.W. 1 Arvind and issued medical certificate quoting his injuries as per Exh. 46. P.W.11 Kamble is X-ray Technician who has produced X-ray plates of the victim P.W.1 Arvind. P.W.12, P.S.I. Y.S. Kuware and P.W.13 P.S.I. Tidke are the investigating officers and rest of the witnesses, as stated above, are the panch witnesses to the spot panchanama, memorandum statements of accused as well as consequent recoveries etc. 6. Although accused have raised defence of false implication; they did not adduce any evidence in their defence. 7. P.W.12, P.S.I. Y.S. Kuware and P.W.13 P.S.I. Tidke are the investigating officers and rest of the witnesses, as stated above, are the panch witnesses to the spot panchanama, memorandum statements of accused as well as consequent recoveries etc. 6. Although accused have raised defence of false implication; they did not adduce any evidence in their defence. 7. Learned trial Judge, after considering the evidence on record and hearing the parties, came to the conclusion that the prosecution has established that accused were involved in assaulting the victim P.W.1 Arvind in the said incident. He also found that the medical evidence established that there were as many as 34 injuries out of which 26 injuries were incised wounds on the person of P.W.1 Arvind. He also found that prosecution has established beyond reasonable doubts that accused were the assailants who had caused those injuries to P.W.1 Arvind. He further held that offence under Section 307 r/w Section 34 of the Indian Penal Code is not made out against the accused, but the offence under Section 325 r/w Section 34 of the Indian Penal Code is only made out against them. So, he recorded the judgment of conviction for the offence punishable under Section 325 r/w Section 34 of the Indian Penal Code against the accused and sentenced them to suffer rigorous imprisonment for three years and to pay fine of Rs. 500/-, in default further R.I. for two months by each of the accused. He consequently acquitted them of the offence punishable under Section 307 read with Section 34 of the Indian Penal Code. 8. The accused then preferred Criminal Appeal No. 181 of 1990 to challenge the conviction. The complainant P.W.1 Arvind also filed Criminal Revision Application No. 199 of 1990 before this Court seeking conviction of the accused for the offence under Section 307 r/w Section 34 of the Indian Penal Code. It needs to be mentioned that the State at that time did not challenge the order of acquittal of the accused under Section 307 r/w Section 34 of the Indian Penal Code. 9. Learned Single Judge of this Court while disposing of this appeal and the revision, by his common judgment dated 11/12th January, 1994 held that the learned trial Judge was wrong in acquitting the accused for the offence under Section 307 of the Indian Penal Code. 9. Learned Single Judge of this Court while disposing of this appeal and the revision, by his common judgment dated 11/12th January, 1994 held that the learned trial Judge was wrong in acquitting the accused for the offence under Section 307 of the Indian Penal Code. According to the learned Single Judge, the learned trial Judge had given patently illegal reasoning to hold that the offence established against the accused was only under Section 325 of the Indian Penal Code. It was further observed that as the State did not prefer any appeal, the order of conviction of the accused u/s 307 of I.P.C. cannot be passed, so matter was remanded back to the learned trial Judge with the order to record the finding of conviction and for awarding sentence in accordance with law. It is necessary to note the relevant observations of this Court in the judgment delivered by the learned Single Judge in the appeal and the revision, which read thus; “......Having regard to the nature and number of injuries and gravity of incident, it is fully established that the accused persons were not intending merely to cause grievous hurt to P.W.1 Arvind. The argument as advanced in revision by Shri Mohta, the learned Counsel for the applicant-P.W.1 Arvind, has a sufficient force. Unfortunately, State has not preferred any appeal. The acquittal of the accused persons for the offence punishable under Section 307 of Indian Penal Code is wholly without any justification. In view of this I pass the following order: The appeal presented by the accused is hereby dismissed. The finding of involvement of accused in the incident leading to prosecution is hereby confirmed. The finding of acquittal for the offence punishable under Section 307 of Indian Penal Code is hereby set aside......” 10. When the matter was considered on remand by the Additional Sessions Judge, Khamgaon, he opined that the High Court has recorded the finding that the accused are guilty of the offence punishable under Section 307 r/w Section 34 of the Indian Penal Code and therefore, he could not hear the accused as to whether offence under Section 307 I.P.C. is not at all made out, so also whether offence under Section 325 only is made out, if at all, it is so, and therefore, he heard the accused only on the point of sentence and while recording conviction u/s 307 r/w sec. 34 of I.P.C., he ordered that accused be convicted for the offence under Section 307 r/w Section 34 of the Indian Penal Code and he sentenced each of them to suffer rigorous imprisonment for five years and to pay fine of Rs. 100/-, in default, to suffer simple imprisonment for three months by his judgment dated 08/6/1994. 11. This judgment of conviction and sentence was challenged by the accused in Criminal Appeal No. 207 of 1994. The State also preferred Criminal Appeal No. 282 of 1994 for seeking enhancement in the sentence. Complainant P.W.1 Arvind also preferred Criminal Revision Application No. 123 of 1994 challenging the said judgment seeking enhancement in the sentence. It may be stated that the revision applicant/complainant has sought the maximum punishment so also maximum fine that can be awarded under Section 307 of the Indian Penal Code for the accused. 12. This Court while disposing of all these three proceedings by order dated 24th October, 2005 held that both criminal appeals and the criminal revision are liable to be dismissed. Accordingly, the conviction and sentence of the accused were maintained. 13. The matter did not rest there. The accused challenged the judgment dated 24th October, 2005 of this Court in Criminal Appeal No. 630 of 2006 before the Supreme Court. The Supreme Court while disposing of the said criminal appeal, set aside the judgment of this Court and remanded the matter for fresh disposal after permitting the accused to advance contention based on Section 377 (3) of the Code of Criminal Procedure. That is how this Court is again dealing with these appeals and the revision. 14. At this stage, it is necessary to note the order of the Apex Court in Criminal Appeal No. 630 of 2006, which reads thus : “...........The only question which needs to be considered is, whether in the Appeal filed by the State for enhancement of the sentence the accused is entitled to be heard for his acquittal. We think that Section 377 (3) of the Code of Criminal Procedure is clear on this issue and does grant such a right to the accused. In this case the State filed an appeal for enhancement of the sentence. The accused attempted to argue before the High Court that he was entitled to be acquitted. Such argument was not permitted to be advanced. In this case the State filed an appeal for enhancement of the sentence. The accused attempted to argue before the High Court that he was entitled to be acquitted. Such argument was not permitted to be advanced. In the result, we set aside the impugned judgment and remit Criminal Appeal No. 207 of 1994 with Criminal Appeal No. 282 of 1994 with Criminal Revision Application No. 123 of 1994 to be heard by the High Court after permitting the accused to advance contentions based on Section 377 (3) of the Code of Criminal Procedure....” 15. It is thus obvious that judgment of this Court dated th October, 2005 in this matter, and the judgment of this Court (Single Bench) dated 11/12th January, 1994, need to be now treated as non-existent for the purpose of considering the case of the prosecution and of the accused on merits. 16. Learned Counsel for the accused Shri Joshi while raising the contentions against the impugned judgment of the learned trial Judge, has contended that it was wrong for the learned trial Judge not to hear the accused on the point that no case against them for the offence under Section 307 r/w Section 34 of the Indian Penal Code is made out. According to him, the judgment of this Court dated 11/12th January, 1994 did not conclude that the offence under Section 307 I.P.C. is made out against the accused. Further, according to him, the learned trial Judge should have heard the accused in the interest of justice, and allowed him to submit that offence under Section 307 I.P.C. was not at all made out & if at all any offence is made out, it was u/s 325 of I.P.C., and therefore, the judgment of the learned trial Judge, now impugned, as it was based on the assumption that the High Court has concluded that the offence under Section 307 of I.P.C. was established, and therefore, he had only to record that conviction as directed and to hear the accused only on the point of sentence; was totally illegal. He has specifically taken us through the grounds of the appeal of the accused, saying that the liberty of being heard to the accused as their application for adjournment was rejected, was not granted, and therefore, the impugned order of conviction and sentence of the learned trial Judge is totally illegal and liable to be set aside. In view of the order of the Supreme Court, the learned Counsel has submitted that under Section 377 (3) of Cri. P. C., the accused should have been acquitted of the charges levelled against them inasmuch as the evidence led by the prosecution is totally untrustworthy. According to him, the evidence of P.W.1 Arvind, though he is injured, is not reliable. He was prosecuted for the offence under Section 302 of the I.P.C., and therefore, his evidence is inherently weak in credibility. According to him, P.W.3 Sheshrao is also unreliable inasmuch as he has also been co-accused with P.W.1 Arvind in murder case. He also contended that the evidence of P.W.2 Sonaji is unreliable inasmuch as he is a chance witness. It is his further submission that all these three witnesses would not have identified the assailants because of darkness at the spot. The theory of identification of the accused by P.W.1 Arvind in the light of torch is totally untrustworthy and it is clearly a fabricated story to boost the prosecution case. He has also pointed out that the dying declaration of P.W. 1 Arvind cannot be pressed into service for corroborating the evidence of the alleged eye witnesses. He has further pointed out the non mentioning the names of the assailants in Sana entry (Exh.28) to contend that at the relevant time P.W.1 Arvind did not disclose the name of the assailants, and therefore, later disclosure of their names in the dying declaration (treated as previous statement of the survivor) demonstrates a total improvement as regards names of the assailants. He has contended that the observations of this Court while deciding the first proceeding and even the latter proceeding, do not substantiate the prosecution case for the offence punishable under Section 307 I.P.C. In any case, the prosecution case is not free from doubt because the victim P.W.1 Arvind has implicated the accused out of political rivalry and because of one earlier incident of his asking one woman to slap accused with 'Chappal'. Therefore, in sum, his submission is that the offence under Section 307 r/w Section 34 I.P.C. is not made out against the accused. If at all any offence is made out; it would be only under Section 325 I.P.C. as held previously by the learned trial Judge. Further according to him, the sentence imposed on the accused is quite severe and does not call for considering the age of the accused persons at the time of commission of the said offence. It is urged that the accused should be acquitted by allowing their appeal and rejecting the appeal of the State as well as revision of the complainant. 17. Learned A.P.P. Shri Adgokar in support of the State appeal as well as opposing the appeal of the accused submitted that the offence under Section 307 of the Indian Penal Code is made out against the accused. The identification of accused is obvious. Considering the nature of the injuries caused to the complainant P.W.1 Arvind, no leniency is called for, and he submitted that the sentence should be enhanced to the maximum sentence provided for such offence. He, therefore, submitted that the appeal of the accused be dismissed and they be sentenced to suffer maximum sentence as provided under Section 307 of the Indian Penal Code. 18. Shri Mohta, learned Counsel for the revision petitioner/complainant P.W.1 Arvind, has submitted that the intention of the accused to cause murder is apparent. Several serious injuries including number of incised wounds found on the person of P.W.1 Arvind clearly spells out the intention of the accused. It is his submission that only because of providence, P.W.1 Arvind has survived. He submitted that this is the case wherein maximum sentence is called for the accused. On merits, as regards conviction, he submitted that the order of the learned trial Judge is correct. 19. It is necessary to place on record that we have accorded full opportunity to the learned Counsel for the parties to make submissions in view of the circumstances of the case. It may also be mentioned that they did not rely on any reported decisions. 20. 19. It is necessary to place on record that we have accorded full opportunity to the learned Counsel for the parties to make submissions in view of the circumstances of the case. It may also be mentioned that they did not rely on any reported decisions. 20. Considering the submissions of the learned Counsel, it is obvious that the first submission of the learned Counsel for the accused that the learned trial Judge, when the matter was remanded back to him by the judgment of this Court dated 11/12th January, 1994 in Criminal Appeal No. 181 of 1990 and Criminal Revision Application No. 199 of 1990, should have granted the opportunity of hearing to the accused to submit that offence under Section 307 I.P.C. is not at all made out. According to the learned Counsel, it was wrong on the part of the Additional Sessions Judge, Khamgaon, to hold that, that point was not left open by this Court while deciding the matter in appeal and the revision. According to him, the observations of the learned trial Judge that the High Court has held that accused should have been convicted under Section 307 I..C. and the Court was expected to hear the accused persons on the point of sentence only, were incorrect. Therefore, according to him, as the learned trial Judge did not accord the opportunity of hearing that offence under Section 307 I.P.C. is not made out, though it was necessary, the matter should be again remanded back to the trial Judge for considering this aspect. He has also submitted that learned trial Judge has on receiving the matter in view of aforesaid order of this Court, should have again placed the matter for hearing on merits as well as on the point of sentence. He has also submitted that the application for adjournment (Exh.79) was moved before the learned trial Judge, which was rejected, and therefore, the learned Counsel did not have opportunity to apprise the trial Court on the point of sentence, and therefore also this matter should be remanded back to the trial Judge for appropriate hearing and fresh decision according to law. 21. In order to appreciate this contention, it is necessary to see the order of this Court in the aforesaid appeals and revision. We have quoted some part of the said order above. 21. In order to appreciate this contention, it is necessary to see the order of this Court in the aforesaid appeals and revision. We have quoted some part of the said order above. It needs to be mentioned that this Court while deciding this matter, has observed that taking into account the incised wounds, the learned Additional Sessions Judge was not justified in recording the finding of even for the offence punishable under Section 325 of the Indian Penal Code, and further it was observed, “according to me, the reasoning as adopted by the learned Additional Sessions Judge is patently illegal”. It would be thus seen from the observations in the said decision, which are quoted above, this Court had found that it is fully established that accused persons were not intending to cause grievous hurt to complainant Arvind and it has been observed that, unfortunately the State has not preferred any appeal, the acquittal of accused persons for the offence under Section 307 of the Indian Penal Code is wholly without jurisdiction. The finding of acquittal for the offence punishable under Section 307 I.P.C. was set aside, appeal against conviction filed by the accused was dismissed and the revision of the complainant was allowed and the matter was remitted back to the learned Additional Sessions Judge, Khamgaon for recording the finding on conviction and awarding sentence in accordance with law. The finding on conviction that was to be recorded, as envisaged, was none else than one under Section 307 r/w Section 34 of the Indian Penal Code, which is quite obvious from the tenor of the order of this Court. 22. All these circumstances, when the conviction of the appellants under Section 325 I.P.C. was considered to be insufficient and they were found liable for offence under Section 307 I.P.C., in view of the number of incised wounds found on the person of the complainant, it goes without saying that it would not have been proper or rather it would have been illegal to come to other conclusion on the part of learned Additional Sessions Judge. Therefore, he, in our opinion, could not have decided that offence under Section 307 I.P.C. is not made out when matter was remanded to him. Therefore, he, in our opinion, could not have decided that offence under Section 307 I.P.C. is not made out when matter was remanded to him. It goes without saying that had there been an appeal by the State for getting the accused convicted for the offence under Section 307 I.P.C., it would have been allowed. As only revision was allowed, this Court could not record that finding and pass appropriate sentence. Therefore, it is not possible to hold that the observations of the learned trial Judge that he cannot go beyond the findings recorded by this Court that the offence proved against the accused was one under Section 307 I.P.C. are incorrect. 23. Learned Counsel for the accused has submitted that even now the matter should be remanded back to the trial Court for allowing accused to address the trial Court that offence under Section 307 of the Indian Penal Code is not made out against them. 24. Here it is necessary to bear in mind that none of the parties has challenged the order of this Court dated 11/12th January, 1994. Even the accused did not challenge that order. The tenor of the order is evident that the case established against the accused was under Section 307 I.P.C. and not under Section 325 I.P.C. As such, when the matter was remitted back to the trial Court, it was for recording appropriate finding on the conviction for the relevant offence and then to proceed in accordance with law i.e. to hear the accused on the point of sentence and to pass appropriate sentence. 25. This Court is now dealing with the case in which the accused have challenged the conviction under Section 307 r/w Section 34 of the I.P.C. The State in appeal and the complaint in revision are claiming enhancement in sentence. The matter was decided by this Court by the judgment dated 24th October, 2005 and the appeals and the revision were dismissed. 26. When on appeal of the accused, the Apex Court considered the matter. the accused were held to be entitled to be heard for claiming acquittal in view of the provisions of Section 377 (3) of Cri. P.C. The provisions of Section 377 (3) Cri. P. C. read thus: “377. Appeal by the State Government against sentence. - (1) ................... (2) ................... the accused were held to be entitled to be heard for claiming acquittal in view of the provisions of Section 377 (3) of Cri. P.C. The provisions of Section 377 (3) Cri. P. C. read thus: “377. Appeal by the State Government against sentence. - (1) ................... (2) ................... (3) When an appeal has been filed against the sentence on the ground of its inadequacy, [the Court of Session or, as the case may be, the High Court] shall not enhance the sentence except after giving to the accused a reasonable opportunity of showing cause against such enhancement and while showing cause, the accused may plead for his acquittal or for the reduction of the sentence”. Thus, it is obvious that the accused have to be given reasonable opportunity of showing cause against the enhancement of sentence and while showing cause, accused may plead for his acquittal or for reduction of his sentence. Learned Counsel for the accused was accorded full opportunity to make submissions to claim acquittal or reduction in sentence. In these circumstances, each of the parties to the proceeding has been granted ample opportunity so as to avoid any prejudice. Therefore, in our opinion, it is not necessary to remit the matter again back to the trial Court for fresh decision, more so, because the accused had not preferred any appeal to challenge the order of this Court of 11/12th January, 1994. Therefore, the submission of the learned Counsel for the appellant in this regard is far from acceptance. 27. While claiming acquittal, learned Counsel for the accused has submitted that the prosecution case is unreliable. He has submitted that P.W.1 Arvind is an interested and injured witness; so also P.W.3 Sheshrao, who is co-accused in a murder case. P.W.2 Sonaji has deposed in favour of P.W.1 Arvind and in favour of the prosecution for his acquaintance. All of them due to darkness at the time of incident could not have identified the assailants. According to him, the first Sana entry lodged in Police Station at the instance of P.W.1 Arvind did not mention the names of appellants. They were for the first time mentioned in his dying declaration, upon which F.I.R/crime was registered. According to him, P.W.1 Arvind was having inimical terms with the accused, therefore, he had reason to falsely name them as assailants. They were for the first time mentioned in his dying declaration, upon which F.I.R/crime was registered. According to him, P.W.1 Arvind was having inimical terms with the accused, therefore, he had reason to falsely name them as assailants. He has also submitted that the evidence of these witnesses is riddled with improvements. According to the learned Counsel, the reasons recorded by the learned trial Judge are incorrect, and therefore, the accused should not have been held guilty of the offence charged. He further contended that as the Medical Officer P.W.10 Dr. Suradkar has opined that the injuries found on the person of the complainant were not serious and if no complication was there, they could have been healed within 10-15 days would show that the accused did not have any intention to cause murder of the complainant P.W.1 Arvind. He has also submitted that important witness Bajirao has not been examined, and therefore, the evidence of interested witnesses cannot bring home the guilt of the accused. Thus, according to him, the prosecution case is unreliable; the prosecution witnesses are interested and inimical to the accused, as such, their evidence cannot be held trustworthy to base the conviction of the accused. Further, if at all they are found reliable, the case made out against the accused is not for offence under Section 307 of the Indian Penal Code, at the most it could be under Section 324 or 325 of I.P.C., as it was held by the learned trial Judge initially. As regards sentence, he has submitted that accused are innocent persons, they are only earning members of the family, and therefore, leniency should be shown to them. 28. The learned Counsel for the revision petitioner as well as A.P.P. for the State have opposed this submission strongly and supported the reasons recorded by the trial Court and even by this Court, while deciding the matters two times. 29. On perusal of the judgment of the learned trial Judge dated 15/7/1999, it would be seen that learned trial Judge has given cogent and convincing reasons for recording conviction of the accused. He has rightly held that the accused were the assailants who caused the complainant the injuries mentioned in the medical certificate recorded by P.W.10 Dr. Suradkar. 30. 29. On perusal of the judgment of the learned trial Judge dated 15/7/1999, it would be seen that learned trial Judge has given cogent and convincing reasons for recording conviction of the accused. He has rightly held that the accused were the assailants who caused the complainant the injuries mentioned in the medical certificate recorded by P.W.10 Dr. Suradkar. 30. It would be seen that the evidence of the complainant is supported by the evidence of P.W.3 Sheshrao and P.W.2 Sonaji, so also P.W.4 Haribhau to some extent as he had gone with the complainant to the Police Station. It would also be seen that P.W.1 Arvind has given complete details of the incident, so also P.W.2 Sonaji and P.W.3 Sheshrao. Assuming that P.W.3 Sheshrao is facing trial with P.W.1 Arvind in a murder case, that fact by itself will not discredit his evidence. The inimical terms between the accused and .P.W.1 Arvind are not disputed. They had contested elections against each other. There was one incident of asking one orphan girl to hit accused Waman by slap of Chappal, because he had teased her at the instance of complainant .P.W.1 Arvind. It is pertinent to note that there is nothing substantial in cross examination of P.W.2 Sonaji to discredit his version. He has denied the material suggestions. The contradictions brought on record with respect to some part of his statement before the Police, cannot make him an untrustworthy witness. 31. We have already pointed out above that all these three witnesses corroborating each other have deposed in terms of prosecution case, The question as regards their identification of the accused as assailants in the darkness has been rightly dealt with by the learned trial judge. It is held by him rightly that they being the persons of the same village, knowing each other, the identification of the assailants i.e. all the accused by the prosecution witnesses cannot be termed as doubtful. 32. It is true that first Sana entry which is at Exh.28 recorded at about 10.30 p.m., does not disclose the names of the assailants. It is tried by the learned Counsel for the accused to earn benefit of the same. But, it would be seen that the requisition which is issued by the Investigating Officer for getting the complainant medically examined, did mention the name of assailants. It is tried by the learned Counsel for the accused to earn benefit of the same. But, it would be seen that the requisition which is issued by the Investigating Officer for getting the complainant medically examined, did mention the name of assailants. The relevant requisition can be found at Exh.58, which shows that the Medical Officer was requested to examine the complainant/injured Arvind saying that the persons namely Arun Nirmal, Prabhakar Nirmal and Waman Tayade had assaulted the injured by means of sickle and sticks. Therefore, non-mention of the names of assailants in Sana entry is not a fatal consequence for the prosecution. 33. Thereafter the dying declaration of the complainant was recorded, which was in turn treated as First Information Report. The said dying declaration recorded by the Executive Magistrate at about 1158 hrs. on the same day clearly gives details of the incident and the names of the assailants. It also mentions that witnesses Sonaji and Sheshrao were with him at the relevant time who was following them along with two others. Considering the consequences of the circumstances, this dying declaration, i.e. the statement of the victim/complainant which appears to be recorded immediately after the incident and because the complainant survived, was not treated as dying declaration. But fact remains that it was a statement made by the complainant/injured immediately after the incident, and therefore, the observations of the Apex Court in AIR 1983 SC 126 – Maqsoodan & others Vs. State of U.P. in para 7, which read thus, are attracted. “..........When a person who has made a statement, may be in expectation of death, is not dead, it is not a dying declaration and is not admissible under Section 32 of the Evidence Act. In the instant case, the makers of the statements Exts. Ka-22 and Ka-23, are not only alive but they deposed in the case. Their statements, therefore, are not admissible under Section 32; but their statements however are admissible under Section 157 of the Evidence Act as former statements made by them in order to corroborate their testimony in Court...” 34. Here is the case where complainant P.W.1 Arvind was assaulted. He had suffered as many as 34 injuries, out of which 26 were incised wounds. Here is the case where complainant P.W.1 Arvind was assaulted. He had suffered as many as 34 injuries, out of which 26 were incised wounds. He was taken immediately to the Police Station by P.W.4 Haribhau, wherein Sana entry of his assault was taken and he was referred to Medical Officer for examination with a written requisition, in which names of the assailants were mentioned. Thereafter his statement was recorded by the Executive Magistrate, in which he gave narration of the incident. Thereafter FIR was recorded. All this was done within two hours of the incident. It is difficult to believe that the complainant in such case would involve the accused falsely just because of political enmity, if the real culprits would have been others. 35. The identification of the accused in the present case is stated to be because of the torch and because of the acquaintance of the accused with the complainant though because of rivalry. The enmity is double edged weapon which can make a person to implicate others falsely, it can also be a reason or it can also provide motive for commission of the offence. In this case, considering totality of the circumstances, it is not possible to hold that the complainant would spare the real culprits and involve the present accused falsely for the serious assault on him. 36. The learned trial Judge has also held the identification of the accused proved on the basis of the light of the torch which was possessed none else by the accused Arun. 37. As regards the torch, P.W.12 Yadaosingh Kuware (Exh.54) has deposed about the seizure of the cell battery at the instance of accused Arun. It is pertinent to note that the Chemical Analyser's report (Exh. 68) shows that the torch (battery) was found to have blood stains, moreover human stains of blood of group 'A' . Blood group 'A' is of the complainant. The accused failed to lead any evidence to explain the existence of human blood on the said torch. The learned trial Judge has rightly drawn the inference in favour of prosecution on that basis. 38. Blood group 'A' is of the complainant. The accused failed to lead any evidence to explain the existence of human blood on the said torch. The learned trial Judge has rightly drawn the inference in favour of prosecution on that basis. 38. For the forgoing reasons, it is difficult to find fault with the judgment of the learned trial Judge to the effect that the prosecution has established that the accused were the assailants who had caused the injuries on the person of P.W.1 Arvind at the relevant time. We do not find any fault with the reasoning adopted by the learned trial Judge in this behalf. 39. This leads to a question as to which offence has been made out against the accused. As already pointed out above, by the judgment of this Court dated 11/12th January, 1994, the acquittal of the accused for the offence under Section 307 I.P.C. was found to be wholly without justification. To consider this aspect, it is necessary to closely examine the injuries found on the person of the complainant/victim. Complainant P.W.1 Arvind has deposed about the same. Learned trial Judge while delivering the first judgment has observed that the Medical Officer has stated that the injury to the scalp was dangerous one, yet his evidence is sufficient to show that at the material time the general condition of the patient was stable and normal and the victim was fully conscious with normal reflexes. Moreover, no fracture was caused to the skull, which indicated that the injury was not caused with sufficient force. He also observed that; “ It is true that multiple incised wounds have been caused to the victim, but that will not convert the offence one under Section 307 I.P.C., unless there is a clear intention on the part of the accused to commit murder.” In this case, specially in the light of the evidence of Dr. Suradkar, it can be held that prosecution has proved that accused had common intention to murder the victim P.W.1 Arvind Kasture and for that he held that it is proved that their intention was to voluntarily cause hurt to the victim, and therefore, he came to the conclusion that the offence made out against the accused for one under Section 325 of the Indian Penal Code. 40. It is evident from the evidence of P.W.10 Dr. 40. It is evident from the evidence of P.W.10 Dr. Suradkar who has examined the complainant that he had found 34 injuries on the person of the complainant, out of them majority of the wounds were incised wounds. They were on the vital parts of the body. It is stated by him in evidence that the certificate is in his handwriting, it bears his signature, which is at Exh.47 and the contents of the same are correct. He further stated that the injuries which he had referred in his certificate are possible by the blows of an axe, by a sickle and stick produced before the Court. Injury to the skull is considered on vital part of the body and it is dangerous to life. In the present case, he has specifically stated that the injuries which were caused on the skull, on head and neck on back side were dangerous. The injuries which which were caused to head, neck and on account of bleeding from all the injuries, the patient could have lost his life. It is true that in cross examination he has stated that; “In my opinion, if there would not have been complication, the patient could have been recovered within 10 to 11 days. When the patient was admitted in the hospital, his general condition was quite normal.” In our opinion, such stray statement in cross examination cannot wipe out the impact of his evidence in examination in chief which is based on the factual aspects of the nature and extent of the injuries on the person of complainant-P.W.1 Arvind. The incised wounds on all over the body which were caused by axe, sickle and stick on skull, head, neck and backside cannot spell out any other intention than that of causing death of the complainant. True that he had survived, but fact remains that with these injuries without any intensive and good treatment, he could not possibly have survived. It is not necessary to see the nature of injuries to gather the intention of the assailants. Even when any assault is caused with an intention to commit murder, in some cases it may result in no injury or may cause a small injury. In the present case, there were so many injuries, many of them were incised wounds and all over the body of the complainant. Even when any assault is caused with an intention to commit murder, in some cases it may result in no injury or may cause a small injury. In the present case, there were so many injuries, many of them were incised wounds and all over the body of the complainant. It is impossible to hold that the accused did not have any intention but to kill the complainant. More so, because of the weapons they had used and the place of incident they had chosen for assault. Therefore, we are of the clear opinion that the prosecution has established that the accused have committed offence punishable under Section 307 r/w Section 34 of the Indian Penal Code. 41. This takes us to the question of sentence. The learned Counsel for the accused has submitted that the accused are young persons, they are the only earning members of their families. This aspect has been dealt with by the learned trial Judge while imposing sentence against the appellants. He has considered the submissions of the Counsel for the parties in details. He had also heard the accused one by one on the point of sentence. He has also recorded that he had called Advocate Shri Hingane and heard him on the point of sentence. Needless to mention that Advocate Shri Hingane had appeared for all the accused. After considering the submissions of the learned Counsel, he had inflicted a sentence of rigorous imprisonment for five years and fine of Rs. 1,000/-in default, simple imprisonment for three months on each of the accused. 42. The same contentions to pray for lenient view are advanced here. 43. It is necessary to mention that the attack on the complainant was brutal. It was out of political rivalry. The learned trial Judge has observed that there is no reason to show leniency to them as they have committed heinous crime. Considering the nature of the injuries found on the person of the complainant, although we are not satisfied with the sentence awarded by the learned trial Judge, mentioned above, we do not propose to enhance the same considering the period that has passed since the commission of the offence, i.e. of about almost 20 years. Needless to say that we do not see any sufficient reason to reduce that sentence. Needless to say that we do not see any sufficient reason to reduce that sentence. We may also add that even if complainant P.W.1 Arvind is told to have been convicted for the offence of murder, that fact by itself will not justify the lenient view for the accused. It cannot be treated as mitigating circumstance, more so, because this sentence has been considered to be adequate by this Court while delivering the judgment dated 24th October, 2005. In the result, therefore, we find that both the appeals and the revision need to be dismissed. The same are dismissed. The appellants/ori. accused are allowed to surrender within four weeks to serve out the remaining sentence. Ordered accordingly.