JUDGMENT PER K.U. CHANDIWAL,J. :- . The Appellants/Original Accused Nos.1,2 and 3 have challenged the order of conviction of 1st Ad-hoc Additional Sessions Judge, Satara in Sessions Case No.101 of 2001 dated 24.4.2006 The learned 1st Ad-hoc Additional Sessions Judge convicted Accused No.1 Avinash, Accused No.2 Sambhaji, Accused No.3 Ramchandra for the offence punishable under Sections 302, 504 and 506 r/w. 34 of I.P.C. and directed to undergo rigorous imprisonment for life and to pay a fine of Rs.5,000/- in default R.I. for three months for the offence punishable under Section 302 r/w. 34 of I.P.C. Accused Nos.1,2 and 3 were sentenced to the imprisonment of three months for the offence punishable under Section 504 r/w. 34 and 506 r/w. 34 of I.P.C. 2. Accused No.3/Appellant No.3 Ramesh is the father of Accused No.1 Avinash and Accused No.2 Sambhaji. The Original Accused No.4 was wife of Accused No.3 Ramchandra. The learned Addl. Sessions Judge has acquitted Original Accused No.4. The Accused and deceased Sharad are residing close to each other. Deceased Sharad is the nephew of Accused No.3 Ramchandra. The parties had dispute in relation to ancestral property as the deceased Sharad and his family members nursed a impression that their ancestral property is illegally got mutated by Accused No.3 Ramchandra in the name of his wife Lilabai without giving requisite share to the deceased and his father Sahebrao. 3. On 8.5.2001 at around 3 p.m. a quarrel ensued between Accused Nos.1,2 and 3 and the deceased Sharad when Sharad was returning from market. The Accused/Appellants assaulted the deceased Sharad, his brother Kiran and other family members by iron pipe, sticks and iron angle. Accused No.1 inflicated a fiercely attack of iron angle at the head of Avinash resulting in his suffering profussed bleeding head injury, he was taken to local hospital, then at Civil Hospital, Satara and from there Sharad was shifted to Sasoon Hospital, Pune. Sharad Sadashiv Bhise expired in hospital on 9.5.2001. The Accused/Appellants were put under arrest on the same day. PW-4 Sambhaji Bhise, brother of deceased lodged F.I.R. against the Accused dated 8.5.2001 before Vathar Police Station. PW-9 Sudam Darekar took over investigation from 9.5.2001 by recording statement of two witnesses. Spot panchanama (Exhibit 88) was drawn. On 11.5.2001, apparels of the Accused and on the person of injured/deceased were taken charge (Exhibit 37). PW-4 Sambhaji Bhise, brother of deceased lodged F.I.R. against the Accused dated 8.5.2001 before Vathar Police Station. PW-9 Sudam Darekar took over investigation from 9.5.2001 by recording statement of two witnesses. Spot panchanama (Exhibit 88) was drawn. On 11.5.2001, apparels of the Accused and on the person of injured/deceased were taken charge (Exhibit 37). On 13.5.2001 based on disclosure statement of Accused No.1 Avinash recorded below Exhibit 108, the incriminating article iron angle, iron pipe and sticks which were concealed in the shed abutting the house of the Accused was taken charge under panchanama (Exhibit 109). Apparels of Accused Avinash were taken charge (Exhibit 80). 4. On 14.6.2001 seized apparels sent to the office of C.A.(Exhibit 149). Charge-sheet was filed before the Judicial Magistrate, First Class, Goregaon on 6.8.2001 and case was committed to the Sessions Court of Satara on 14.8.2001. 5. Charge below Exhibit 23 was explained to all the Accused on 22.5.2002. They challenged the same and claimed the trial. 6. The Accused put forth the defence that they are falsely implicated for the dispute relating to the partition of property. On 8.5.2001 at about 02.45 p.m. the deceased Sharad and his other family members rushed to the pan shop of Accused No.1 and under influence of liquor Sharad and his associates assaulted the Accused, then while proceeding on Scooter, Sharad and Vijay met with accident and Sharad suffered injury. 7. The Accused have also examined defence witness Dr. Bhagwan Mohite to show that on 9.5.2001 they were referred for medical examination and such injury certificate are at Exhibit 128 to 131. 8. In order to establish the case prosecution has examined 9 witnesses. PW-1 Satish M. Pisal is the panch and witnessed spot as pointed by Shankar Bhise and also noticed blood stains at the place. Police took charge of the earth mix with blood and also sample earth (panchanama (Exhibit 88). The place of incident is 11 feet away from Apna Tailors. In the cross examination he confirmed that the Accused has a shed abutting to the Pan Shop and owns his house. PW-2 Kiran Sharad Bhise is the son of deceased while PW-3 Sagar is another son of the deceased. They are eye witnesses to the incident. PW-4 Shankar Bhise the real brother of deceased Sharad, lodged F.I.R., on the basis of information received from his nephew. PW-2 Kiran Sharad Bhise is the son of deceased while PW-3 Sagar is another son of the deceased. They are eye witnesses to the incident. PW-4 Shankar Bhise the real brother of deceased Sharad, lodged F.I.R., on the basis of information received from his nephew. PW-5 Appasaheb G. Dhaigude (Exhibit 97) is attached to Wathar Police Station as A.S.I. He has recorded F.I.R. vide C.R. No.20 of 2001. He has also recorded F.I.R. of Accused No.3 Ramchandra Sahebrao Bhise dated 9.5.2001 at 8.00 a.m. (Exhibit 98). PW-6 Chandrakant Bapu Chavan alongwith one Indrajeet Rakshe attended the Police Station on 13.5.2001 where Accused No.1 Avinash Ramchandra Bhise was present and the Accused No.1 desired to make a disclosure statement to point out the place of concealment of the weapon, such statement is at Exhibit 108 and at instance of Accused No.1 iron pipe and stick which was concealed in a plastic bag was taken charge by the panchanama Exhibit 109. Panch has identified the Article Nos.6,7 and 18 to be iron angles, iron pipe and stick respectively. PW-7 is Dr. Shrikant Suresh Chandekar, Assistant Lecturer in Forensic Medical Department, Sasoon Hospital, Pune, on 9.5.2001 he was on duty received dead body of deceased Sharad Sadashiv Bhise alongwith inquest panchanama and he carried out postmortem on the dead body between 8.30 p.m. to 9.30 p.m. He recorded external and internal injuries during post mortem. On his notes (Exhibit 115) the external injuries are as under :- (a) Injection marks :- right wrist, left forearm flexor middle 3rd. (b) Stitched wound over mid frontal region, vertical, starting 4.5 cm above nasion going upwards, backwards for 6.5 cm. with 5 stitches. Abrasion at posterior end on stitched wound 1 x 1 cm. (c) He found corresponding internal injuries to Injury No.2 in head, haematoma under scalp involving left temporal & bilateral fronto-parietal regions measuring 19 x 22 cm. Saggittally oblique depressed comminuted fracture involving frontoparietal junctional region on left measuring 0.5 to 0.8 cm. Crack fractures extending from it to a right frontal 5 cm. and (b) left parietal 4 cm. oblique. Dura underlining depressed fractured torn exta dural haemorrhage over mid frontoparietal region correspondingly. Subdural haemorrhage all over, prominently on left. Left frontol lobe shows haemorrhagic infraction blood clots were present. Liquifactive necrosis extending to left parietal lobe, bony pieces from fractured bones embedded in brain matter. and (b) left parietal 4 cm. oblique. Dura underlining depressed fractured torn exta dural haemorrhage over mid frontoparietal region correspondingly. Subdural haemorrhage all over, prominently on left. Left frontol lobe shows haemorrhagic infraction blood clots were present. Liquifactive necrosis extending to left parietal lobe, bony pieces from fractured bones embedded in brain matter. In his opinion, all above mentioned injuries were antemortem. PW-8 Dr. Bhagwan Rajaram Mohite while attached to Primary Health Centre, Kinai, had examined Kiran Sharad Bhise on 11.05.2001 and found injury on 1 cm. x 1 cm. on middle finger of left hand. It was the injury caused due to hard and blunt object and issued medico-legal certificate (Exhibit 117). He is also examined as defence witness. PW-9 Sudam Vithal Darekar carried investigation in the matter. 9. Based on the evidence of Medical Officer PW-7 and postmortem notes (Exhibit 115), the inquest (Exhibit 33) (admitted), the medical certificate of death (Exhibit 36)(admitted) coupled with evidence of PW-2 and PW-3, it is not in dispute that Sharad Sadashiv Bhise had a homicidal death caused due to assault and it was a head injury which was an unnatural death. 10. The tenor of cross examination and the defence put forth by the Accused vide Exhibits 98 and 123 enables to draw a irresistible conclusion that on 8.5.2001 between 2.15 p.m. to 3.00 p.m. there was a scuffle between the Accused at one end and the deceased Sharad. 11. The learned defence Counsel claimed that the recovery of iron angles could not be accepted. No independent witnesses are examined. The conviction to Accused Nos.2 and 3 for death of Sharad is grossly erroneous as it is not even the case of prosecution that Accused Nos.2 and 3 have assaulted the deceased. The delay in recording statement of the witnesses is ignored. 12. Before us, Mr. Mundargi also canvassed that there was no pri-meditation for Accused No.1 who assaulted deceased and the weapon of assault is not a natural weapon used, nor the Accused No.1 carried the weapon with him. 11. The incident has taken place in front of Apna Tailor, 11 feet away at Wathar to Waghdeo Chawk Road. The Pan Shop owned by Accused No.1 Avinash is at a distance of 43 feet from the said place. The Accused has a shed abutting the Pan Shop and in the house he resides with his family. 12. 11. The incident has taken place in front of Apna Tailor, 11 feet away at Wathar to Waghdeo Chawk Road. The Pan Shop owned by Accused No.1 Avinash is at a distance of 43 feet from the said place. The Accused has a shed abutting the Pan Shop and in the house he resides with his family. 12. The dispute over the property which Accused No.3 got transferred to the name of his wife Lilabai is the root cause between the parties. The two eye witnesses saw that Accused Avinash, Ramchandra and Sambhaji were beating their father Sharad. According to PW-2 Kiran, Ramchandra instigated his son Accused No.1 to kill Sharad. The Accused No.1 Avinash brought the iron angle and assaulted Sharad by iron angle resulting in Sharad suffering bleeding head injury. At Exhibit 81 is the photograph of the deceased Sharad which demonstrate that he was quite a stout and healthy person. The single blow by use of iron angle has covered virtually entire skull part of head of the deceased which caused fracture and the victim was smashed due to this head injury. The nature of injury neckedly seen in photograph (Exhibit 81) coupled with the evidence of Medical Officer having found bone pieces pierced in brain will not be allowing us to presume that the death of Sharad was due to fall from scooter. This most illusory defence is raised by the Accused calculatedly, to skip the penal liability. 13. Accused No.1 could have necessarily covered the distance of 43 feet from the spot within a minute or so. It was his personal knowledge that there was a angle lying near his house - pan shop and inspite of Sambhaji armed with a iron rod the speedy movement by Accused No.1 in bringing the iron angle speaks of his mental set up and also intention and knowledge to kill the victim Sharad. The force applied to Sharad by Accused No.1 as stated earlier simply cannot be ignored by branding it as act of sudden provocation. Accused No.2 Sambhaji was holding a iron pipe and he assaulted to PW-4, resulting in haemorrhage to PW-4. PW-3 Sagar saw the Accused obstructing Sharad in front of their house and threatening "Tula Lai Masti Ali Ahey" and they started assaulting Sharad. Accused No.2 Sambhaji was holding a iron pipe and he assaulted to PW-4, resulting in haemorrhage to PW-4. PW-3 Sagar saw the Accused obstructing Sharad in front of their house and threatening "Tula Lai Masti Ali Ahey" and they started assaulting Sharad. The intervention by PW-3 Sagar or other relative Sunita did not reflect in its positive effect as Accused No.1 took the iron angle and gave a fatal injury to Sharad. The non-examination of other witnesses will not be changing the prospects of the prosecution case. The requirement for us is, to scrutinize evidence of PW-2 and PW-3 with care and caution. The manner in which the incident has taken place, and manner in which Accused themselves approached Police by filing F.I.R. vide Exhibit 98, undoubtedly established presence of PW-2 and PW-3 at the spot and witnessing the incident of assault to Sharad. It is correct the parties were on cross terms over share of ancestral property but by that scale itself their evidence cannot simply be thrown away. The mind set up of PW-2, PW-3 needs to be looked. Accused No.1 had given fetal blow to Sharad, and naturally, their prima concern was to shift Sharad for immediate medical assistance. In this situation one should expect accurate time or standing position of each Accused. 14. It was argued that statement of PW-2 was recorded on 11.5.2001 and it is a delayed recording, with calculated motives. The fact situation cannot be ignored. Sharad was assaulted on 8.5.2001 at 2.30 p.m., in such bleeding condition to save his life he was taken initially to the dispensary of Dr. Sawant and at his insistence they went to Public Health Centre at Pimpode Budruk, on the advice of the Medical Officer, Sharad was required to be taken at Civil Hospital, Satara and then at Sassoon Hospital, Pune. It is not in dispute that on 9.5.2001 at 4.00 p.m. Sharad expired while under medical treatment at Sassoon Hospital, Pune. The ritual of post mortem was naturally (Exhibit 115) carried in the night of 9.5.2001 has also taken time and thereafter, the funeral. In such contingency to expect the grieved sons to come forward to give statement to Police ignoring their father’s health will be rubbing spice to their feelings. When they could have little solace, the Police has rightly recorded the statement on 11.5.2001. In such contingency to expect the grieved sons to come forward to give statement to Police ignoring their father’s health will be rubbing spice to their feelings. When they could have little solace, the Police has rightly recorded the statement on 11.5.2001. It is important that PW-2 had also suffered injury which was simple in nature. His presence at spot is not disputed by Accused. Consequently, the delay in recording statement will not be deem to be an approach by Police to weave a false case against the Accused. We do not find any other reason to dis-believe evidence of PW-2 and PW-3, we totally rely on it. The medical evidence and the C.A. reports also corroborate to their testimony. The evidence of these two witnesses also cannot be rejected on the ground of previous enmity. Their evidence put together does not suggest any embellishment or disproportionate projection to role of Accused. 15. The delay in sending copy of F.I.R. to the Magistrate under Section 157 cannot be taken seriously because the same was dispatch to the Magistrate on 8.5.2001 at 22.00 hours. However, the date 9.5.2001 is advanced to 8.5.2001. It cannot be disputed that F.I.R. was received at Magistrate Court on 9.5.2001. The F.I.R. even if treated to be a manufactured document will not be so treated to be with bias. The F.I.R. is lodged by PW-4 brother of the deceased who resides at Satara and did not witness the incident. He simply put the Police machinery in the acceleration as is disclosed at Exhibit 96. 16. PW-6 acted as a panch in respect of seizure of articles at the instance of Accused No.1. He has read the panchanama before entering in the Court. However, on this ground alone he cannot be dis-believed as Exhibit 109 provide the topography of the shed of the Accused No.1 which is in possession of Accused No.1, further, it cannot be said that it was a open place having access to anybody. That apart, when the incident has taken place, initially Accused No.1 threw the iron angle on the spot. However, when the victim was taken by his sons and relatives to the hospital, it was Accused No.1 who had designedly removed said weapon and concealed it in his shed beneath plastic bags. That apart, when the incident has taken place, initially Accused No.1 threw the iron angle on the spot. However, when the victim was taken by his sons and relatives to the hospital, it was Accused No.1 who had designedly removed said weapon and concealed it in his shed beneath plastic bags. The assault to the deceased is caused by the same iron angle as the C.A. report (Exhibit 99) established that it had human blood stains connecting to the Accused No.1. There is no plausible explanation from the Accused about the blood stain of the group of Sharad on their apparels. The simple denial of seizure of clothes or angle loose significance to focus on it. 17. The evidence disclosed that Accused No.2 Sambhaji was armed with iron pipe and has assaulted Kiran PW-4 but he did not assault Sharad. It was Avinash Accused No.1, who assaulted Sharad at his head by the iron angle. 18. The common intention is a question of fact which needs to be inferred from facts and circumstances of each case. It can be developed at various stages of the events if all the Accused were sitting or coming together, it is obvious they had no intention to kill Sharad as there was no weapon with Accused No.1 or Accused No.2 except the iron rod with Accused No.2. The evidence of PW-2 Kiran though disclose that other Accused instigated Accused No.1 However, it cannot be said that there was any instigation from Accused No.2 Sambhaji or Accused No.3 Ramchandra. PW-2 states that Accused No.3 Ramchandra asked Avinash that he should assault Sharad and should kill him. However, such statement from Accused No.3 even if it was given will not amount to sharing common intention. There was no overt act by Accused No.3 when he allegedly ask Accused No.1 to kill Sharad. As at that moment, Accused No.1 had no weapon with him. The allegations of participation by Accused No.2 and Accused No.3 with Accused No.1 giving blow will not be amounting to their overt act or form instigation to share common intention with Accused No.1. There was absolutely no deliberation or consultation between Accused No.1 and his father Accused No.3 or Accused No.2 to kill the victim. The Accused Nos.2 and 3 as stated earlier have provenly not assaulted Sharad. Sharad died only on account of assault on head caused by Accused No.1. There was absolutely no deliberation or consultation between Accused No.1 and his father Accused No.3 or Accused No.2 to kill the victim. The Accused Nos.2 and 3 as stated earlier have provenly not assaulted Sharad. Sharad died only on account of assault on head caused by Accused No.1. The medical evidence shows that there was only one head injury sustained by Sharad, it was the severe blow given by Accused No.1, which landed on the head of the deceased, and he was required to be taken to hospital in the injured condition where he expired on 9.5.2001. In this situation we do not find any role of Accused Nos.2 and 3 in killing Sharad. However, as stated earlier, Accused No.1 knew that he had a iron angle which he brought by covering 43 ft. distance and squash the same at the head of Sharad with force. 19. PW-8 is also examined as a defence witness by the Accused. He has examined the Accused and they were sent with list to Police and the medical certificate are at Exhibits 128 to 131. The nature of injuries recorded in Exhibits 128 to 131 were not deep, were superficial and simple in nature and could not be feasible easily as admitted by Dr. Mohite. The injury on Ramchandra could not be seen as it was covered by shirt. 20. The evidence of PW-2 and PW-3 established that Accused Nos.2 and 3 abused PW-2 and PW-3 including deceased Sharad. They gave the deceased and other witnesses criminal intimation by threatening them. Hence, offence under Section 504 r/w. 34 and 506 r/w. 34 is proved against Accused No.2 and Accused No.3. The offence under Section 302 r/w. 34 is not proved against Accused Nos. 2 and 3. 21. Hence order :- Appeal is partly allowed. (a) Conviction and sentence of Accused No.1 Avinash Ramchandra Bhise for the offence punishable under Section 302, 504 and 506 of I.P.C. is confirmed. (b) Conviction and sentence of Accused No.2 Sambhaji Ramchandra Bhise and Accused No.3 Ramchandra Sahebrao Bhise for the offence punishable under Section 302 r/w. 34 of I.P.C. is set aside. (c) Conviction of Accused Nos.1 to 3 for the offence punishable under Section 504 r/w. 34 of I.P.C., Section 506 r/w. 34 of I.P.C. is confirmed. (b) Conviction and sentence of Accused No.2 Sambhaji Ramchandra Bhise and Accused No.3 Ramchandra Sahebrao Bhise for the offence punishable under Section 302 r/w. 34 of I.P.C. is set aside. (c) Conviction of Accused Nos.1 to 3 for the offence punishable under Section 504 r/w. 34 of I.P.C., Section 506 r/w. 34 of I.P.C. is confirmed. (d) Accused No.2 has already undergone sentence and so far Accused No.3 is concerned, the sentence is reduced to what is undergone.