Judgment :- A.I.S. Cheema, J. 1. Criminal Appeal No. 264/2011 is by original accused No.4 Amol Dada Hivrale while Criminal Appeal No. 359/2011 is by original accused No.1 Nilesh Abhiman Gaikwad and accused No.3 Anil Gulab Yashwante. These accused along with original accused No.2 Mahindra Jagannath Salvi and original accused No.5 Sandip Uttam Bhivsane were tried before Additional District and Sessions Judge, Shrirampur in Sessions Case No. 55/2009. The appellants – accused have been convicted under Section 302 read with 34 of the Indian Penal Code, 1860 (“IPC” in brief) for committing murder of one Bharat Sahebrao Dhokne and sentenced to suffer imprisonment for life. They have also been convicted for attempting to commit murder of complainant Sachin Ashok Dhokne and under Section 307 read with 34 of IPC, they have been sentenced to suffer rigorous imprisonment for seven years. Under both sections they have also been imposed fine and sentence to be suffered in default. All the accused came to be acquitted for offences punishable under Section 323, 504 read with 34 of IPC. Accused No.2 Mahindra and accused No.5 Sandip were acquitted of offences punishable under Section 302, 307 read with 34 of the IPC. Trial Court directed payment of compensation of Rs.5,000/-to complainant – injured Sachin Ashok Dhokne from the fine. Thus, these appeals by three accused who came to be convicted. 2. Case of the prosecution in brief can be stated to be as under : (a) Complainant Sachin Ashok Dhokne and deceased Bharat Sahebrao Dhokne were residing at Siddharthnagar, Ward No.1 Shrirampur. Accused Nilesh Gaikwad was also residing in the same locality. On 07.08.2009 at about 8.00 to 8.30 p.m. Accused Nilesh Gaikwad had abused father of Sachin Dhokne in Siddharthnagar Square. Bharat Dhokne is uncle of complainant Sachin. Both of them went to the house of accused No.1 Nilesh and asked him why he had abused Ashok Dhokne (the father of Sachin). In exchange of words, Bharat Dhokne slapped accused no.1 Nilesh Gaikwad and Sachin and Bharat came back. After some time, accused No.1 Nilesh Gaikwad along-with 34 other persons went to the house of complainant Sachin. At that time, the matter came to be resolved. (b) The incident relating to present matter is of 08.08.2009. On that day, at about 2 p.m. complainant Sachin Ashok Dhokne along-with his uncle Bharat Dhokne had gone near Bharat Gas Agency at Shrirampur. At that time, the matter came to be resolved. (b) The incident relating to present matter is of 08.08.2009. On that day, at about 2 p.m. complainant Sachin Ashok Dhokne along-with his uncle Bharat Dhokne had gone near Bharat Gas Agency at Shrirampur. The place is on Shrirampur – Newasa road. They had gone to the place, as near Bharat Gas Agency they had given mobile for repair, which was belonging to Bharat Dhokne. At such time, accused No.1 Nilesh Gaikwad, Accused No.3 Anil Yeshwante and accused No.4 – Amol Hivrale assaulted Bharat Dhokne. Accused Nilesh gave blow by chopper and accused Anil Yeshwante gave blow by sword on the neck of Bharat Dhokne. At such time, accused Amol kept holding complainant Sachin. When Sachin was trying to escape from clutches of accused Amol Hivrale, the accused Anil Yeshwante gave blow by sword on the head of Sachin. Accused No.2 Mahindra reached the spot on motorcycle and gave first blows to the chest of Sachin. All accused then ran away on motorcycle. Bharat Dhokne had fallen on the ground on the spot with grievous injuries. Sachin had also sustained grievous injuries. He ran to his house and informed his family. Family members of Bharat Dhokne went to the spot and took him to Sakhar Kamgar Hospital. Sachin Dhokne was taken to the hospital by one Dnyneshwar Magar. At Sakhar Kamgar Hospital, Bharat Dhokne was declared dead and Sachin filed the F.I.R. while he was admitted in Sakhar Kamgar Hospital which was forwarded to Shrirampur City Police Station and crime No. 243/2009 under Section 302, 307, 323, 504 read with 34 of IPC and under Section 4 read with 25 of Arms Act came to be registered. Inquest panchanama was drawn and the postmortem was conducted on the same day. Spot panchanama was prepared and from the spot rexine cover of the chopper and two pairs of footwear were seized. Police collected sample of blood from blood which had fallen on the spot. Blood stained clothes of deceased Bharat Dhokne were seized. Blood stained clothes of complainant Sachin also came to be seized. Accused Nos. 1, 2 and 3 came to be arrested on the same day. Accused No.1 Nilesh was arrested and blood stained chopper was also seized from him. Clothes of accused Nos. 1 and 3 had blood stains. Clothes of accused Nos. Blood stained clothes of complainant Sachin also came to be seized. Accused Nos. 1, 2 and 3 came to be arrested on the same day. Accused No.1 Nilesh was arrested and blood stained chopper was also seized from him. Clothes of accused Nos. 1 and 3 had blood stains. Clothes of accused Nos. 1, 2 and 3 were seized, when they were arrested. (c) Injured complainant Sachin was shifted from Sakhar Kamgar hospital to Shirdi Sansthan Hospital in the same evening for better treatment. On 09.08.2009, accused no.3 Anil gave memorandum statement and motorcycle used at the time of incident and blood stained sword came to be seized at village Padhegaon. Police completed investigation and seized articles were sent to Chemical Analyser and reports were obtained. In the investigation it transpired that accused no.5 Sandip provided sword which was used at the time of incident. Thus, State filed charge-sheet against accused Nos. 1 to 5. Judicial Magistrate, First Class, Shrirampur committed the matter to the Court of Sessions and charge was framed against all the five accused persons under Section 302 read with 34 of IPC, Section 307 read with 34 of IPC, Section 323 ead with 34 of IPC and Section 504 read with 34 of IPC. Prosecution brought on record oral evidence of 10 witnesses. Documentary evidence was also proved. Accused, who had denied the Charge, took the defence of being falsely implicated. They claimed that unidentified assailants were responsible for the incident and they have been falsely implicated. The learned Additional Sessions Judge, Shrirampur considered the evidence and by judgment dated 26.04.2011 has convicted the appellants – accused while the other two accused came to be acquitted, as mentioned earlier. 3. Aggrieved by the judgment of conviction and sentence, in the appeal by accused no.1 Nilesh and accused No.3 Anil, it has been claimed and argued that if the quarrel had been settled on 07.08.2009, there was no motive for the incident on 08.08.2009; person to whom mobile was given for repairs was best witness to the incident, but he has not been examined; if there was exchange of hot words before the incident started, grave and sudden provocation can not be ruled out and Section 302 of IPC would not be attracted, and that, the evidence shows that the accused reached the spot from different directions and so there was no premeditation. In the appeal by accused no.4 Amol, it has been claimed and argued that acts attributed to Amol in the incident are not sufficient to hold him guilty under Section 302 of IPC. He had released the complainant Sachin before Sachin was injured and so he should not be held liable even for Section 307 of IPC. There was no blood on his clothes and so the evidence is not reliable that complainant, who came to be injured on the head, was held by him. The appellants – accused thus want that the judgment of conviction be set aside and claim that they should be acquitted. 4. There is evidence on record of PW10 Investigating Officer, P.I. Shrikant Padole, which shows that soon after incident when he went to the hospital, he was informed that Bharat Dhokne had expired. In fact Memo Exhibit 90 of the Hospital records that Bharat was brought dead at 2 p.m. A.S.I. Thorat prepared the inquest panchanama Exhibit 54. There is evidence of PW 1 Panch Sunil Magar regarding the inquest panchanama. PW 8 Dr. Anil Momle has deposed that he received letter Exhibit 71 for conducting postmortem. The letter clearly mentions the crime number also. Dr. Anil claims that he conducted the postmortem between 5.45 p.m. to 6.45 p.m. and found the following injuries : 1. Incised cut injury on left side of neck size 12 cm X 5 cm X 6 cms cutting skin superficial deep plasma muscle deep fascia. Carotid vessels external jugular veins deep upto C 4 and C 5 Vertical it was extending from carotid triangle to posterior triangle of neck of left side. 2. Incised cut wound on right posterior triangle of neck size 5 cm X 2 cm X 2 cms 3. (I) left arm at upper end cut injury of size 3.5 cm x 1 cm x 0.5 cm (ii) left arm lower end cut injury of size 6 cm X 0.5 cm X 0.5 cms (iii) Cut injury skin deep on right side of chest and abdomen anterior. Size 15 cm X 0.5 cm X 0.5 cms (skin deep) Evidence is that cause of death of Bharat Dhokne was hemorrhagic shock due to cut injury of major vessels of neck. Doctor has proved postmortem report at Exhibit 72. Size 15 cm X 0.5 cm X 0.5 cms (skin deep) Evidence is that cause of death of Bharat Dhokne was hemorrhagic shock due to cut injury of major vessels of neck. Doctor has proved postmortem report at Exhibit 72. According to doctor, injury no.1 was possible by chopper and injury no.2 was possible by sword which were shown to him at the time of evidence. As per the Medical evidence even injury no.2 could cause death due to heavy bleedings. The cross examination of PW-8 Dr. Anil has brought on record the fact that there are less chances of survival in case of injury no.1, even if the medical treatment is immediately provided and patient is immediately operated. In the cross examination, the evidence of doctor cannot at all be said to be shattered. It is clear on record that Bharat Dhokne suffered culpable homicide. 5. As regards injuries to the complainant PW7 Sachin Ashok Dhokne, his own evidence shows that at the time of incident accused Anil had given blow of sword on his head and blood was oozing from his head injuries. The cross examination brought on record details that injury was on the right portion of head above his ear. Evidence of PW 7 Sachin is that he was taken to Sakhar Kamgar hospital by one Dnyaneshwar. According to him, he lodged the F.I.R. while he was admitted in Sakhar Kamgar hospital. The cross examination of PW-10 Shrikant Padole brought on record the document Exhibit 92 which shows that Sakhar Kamgar hospital referred Sachin to higher center. Evidence shows that on 08.08.2009 itself injured Sachin was taken to Shirdi trust hospital at 8.50 p.m. for neurological examination. Primary treatment had already been done at Sakhar Kamgar hospital. As per Dr. Raju he found sutured wound on back side of right ear. Patient was well oriented and fully conscious. There was also abrasion on left knee of Sachin. As per Dr. Raju there was fracture of occipital region. Extra dural heamotama 29 X 49 mm was recorded. According to doctor nature of said injury was grievous injury and cause of the head injury was sharp edged weapon. Doctor proved certificate Exhibit 74 in this regard. His evidence is that due to such head injury sustained by Sachin death is possible. Doctor deposed that injury of Sachin was possible by sword which was before the Court. According to doctor nature of said injury was grievous injury and cause of the head injury was sharp edged weapon. Doctor proved certificate Exhibit 74 in this regard. His evidence is that due to such head injury sustained by Sachin death is possible. Doctor deposed that injury of Sachin was possible by sword which was before the Court. Cross–examination of Dr. Raju shows that the evidence of doctor was supported even by C.T. Scan record which he had brought. Cross examination shows that the head injury had not touched the brain matter. Thus, it appears he got saved. Doctor denied that injury no.1 was not dangerous to life in ordinary course. Inspite of cross examination, the evidence of Dr. Raju is not shattered. Keeping in view the oral and medical evidence on record, the prosecution has proved that PW-7 Sachin was inflicted such injury which in ordinary course of nature was sufficient to cause death. 6. Regarding the incident dated 07.08.2009, there is evidence of PW6 Macchindra Dhokne, the brother of deceased Bharat and PW 7 Sachin Dhokne. If the evidence of PW 7 Sachin is perused, he has deposed that on 07.08.2009 at about 8.00 p.m. when his father Ashok Dhokne was in Siddharthnagar Square, the accused Nilesh had abused his father and his uncle Bharat Dhokne was present there. After hearing the abuses, Bharat Dhokne had come to PW 7 Sachin and informed him about the incident. Thereafter, PW-7 Sachin and his uncle Bharat went to the house of Nilesh and asked him why he had abused Ashok Dhokne. There was exchange of words and at such time, Bharat Dhokne slapped Nilesh Gaikwad (accused No.1). Then they returned home. After some time, accused No.1 Nilesh Gaikwad along-with four to five other persons went to the house of complainant Sachin. However, at that time, the matter was settled but Nilesh Gaikwad returned to his house saying that he will see him in the next morning. Regarding this incident, PW 6 Macchindra has stated that on 07.08.2009 at about 7.00 to 7.30 p.m., accused no.1 Nilesh Gaikwad had abused Ashok Dhokne and Bharat Dhokne had slapped accused Nilesh Gaikwad. PW 6 Macchindra deposed that on the same day at 8.30 p.m. accused Nilesh along-with accused No.2 Mahindra, accused No.3 Anil and accused No.4 Amol had come but the quarrel was settled. PW 6 Macchindra deposed that on the same day at 8.30 p.m. accused Nilesh along-with accused No.2 Mahindra, accused No.3 Anil and accused No.4 Amol had come but the quarrel was settled. PW6 Macchindra has deposed that while going accused Nilesh had said that he will see later on. Evidence of PW6 Macchindra has been questioned by the accused persons on the plea that he claimed to have stated to the Police that one day before the incident, the incident relating to accused Nilesh abusing Ashok Dhokne had taken place at about 7.00 to 7.30 p.m. It is claimed that omission regarding this has been proved through the Investigating Officer PW-10. Trial Court clearly recorded that omission related only regarding the time. Regarding the incident of earlier day, PW-7 Sachin was also cross-examined. It has been brought on record in the cross examination that for incident dated 07.08.2009 no F.I.R. was filed. Incident of Bharat Dhokne slapping Nilesh Gaikwad on 07.08.2009 happened on the road infront of house of accused Nilesh. The house of accused Nilesh is at Siddharthnagar square. Siddharthnagar is slum area and thickly populated. Accused Nos. 2 to 4 are not residents of Siddharthnagar. Inspite of cross–examination of PW s 6 and 7, regarding their evidence relating to incident dated 07.08.2009, no such material has come on record so as to disbelieve them regarding the broad incident that on prior day deceased had slapped accused no.1 Nilesh and Nilesh had expressed anger about the same. 7. As regards the incident dated 08.08.2009, PW-7 Sachin Dhokne has deposed that at about 2 p.m., he along-with his uncle Bharat Dhokne went to the mobile shop which is opposite the office of Bharat Gas company for mobile handset which was given for repairs. At that time, accused No.1 Nilesh, accused No.4 Amol and accused no.3 Anil came there. Accused No.1 was having chopper and accused No.3 was holding a sword. Accused No.4 Amol caught complainant Sachin and accused No.1 Nilesh gave chopper blow on the neck to his uncle Bharat and accused No.3 Anil gave blow by sword on the neck of Bharat. PW-7 Sachin has deposed that at this time, he was trying to escape from the clutches of accused No.4 Amol and at that time, accused No.3 Anil gave a blow by sword on the head of Sachin. PW-7 Sachin has deposed that at this time, he was trying to escape from the clutches of accused No.4 Amol and at that time, accused No.3 Anil gave a blow by sword on the head of Sachin. The evidence is further that the accused no.2 – Mahindra Salvi came to the spot at that time. He came on motorcycle and took away the other three accused. Bharat Dhokne had bleeding injuries over his neck and he had fallen down. Blood was oozing from head injury of Sachin. He went to his house and informed his family members. He deposed that his friend, Dnyneshwar Magar took him to Sakhar Kamgar hospital and family members of Bharat Dhokne brought Bharat also to Sakhar Kamgar hospital. During medical treatment, Bharat Dhokne expired. PW7 Sachin has deposed that regarding such incident he filed F.I.R. which is at Exhibit 67. 8. Evidence of PW-10 Investigating Officer, P.I. Shrikant Padole shows that on 08.08.2009 at about 2.00 p.m. he received telephone call that on Shrirampur – Newasa road, opposite office of Bharat Gas, 3 to 4 persons assaulted two persons by chopper and sword and the injured had been admitted to Sakhar Kamgar hospital. His evidence is that he went to that hospital and came to know that Bharat had already expired and that the injured Sachin was admitted. His evidence is that he gave letter to the doctor, if the injured was in condition to give statement and medical officer endorsed that the patient was conscious. He deposed that he then recorded F.I.R. of injured Sachin and forwarded the same with A.S.I. Shelar to register the crime. The offence was accordingly registered. According to him, he has taken the endorsement of Medical Officer even on the F.I.R. when he recorded the same. Evidence of this Investigating Officer shows the further investigation was done by him. Evidence of PW 1 Sunil Magar shows that on 08.08.2009 between 3.30 to 4.00 p.m. at Sakhar Kamgar hospital, the inquest panchanama Exhibit 54 was recorded. The witness is also panch of the spot and it transpired from his evidence that between 4.30 to 5.30 p.m. he had gone to the spot which is opposite Bharat Gas Company on Shrirampur-Newasa road and spot pachanama came to be recorded. The witness is also panch of the spot and it transpired from his evidence that between 4.30 to 5.30 p.m. he had gone to the spot which is opposite Bharat Gas Company on Shrirampur-Newasa road and spot pachanama came to be recorded. From the spot the cover of chopper and two pairs of chappals were seized and police had collected samples of blood lying on the road. PW 10 is supported regarding these documents at Exhibit 54 and 55, by PW1 Sunil. 9. The prosecution has drawn support from the evidence of PW3 panch Krushna Ashok Umap. He has deposed that on 08.08.2009, PW10 P.I. Padole had called him and seizure panchanama of the clothes of the deceased Exhibit 60 was prepared. The panchanama was drawn between 6 to 6.45 p.m. The clothes of deceased were produced by the Police Constable Alam Papa Patel who had received the same from doctors after postmortem. The clothes were blood stained. 10. The blood stained clothes of injured Sachin were produced by his father Ashok Dhokne before the Police on 08.08.2009 and panchanama drawn between 7.30 to 8.15 p.m. Regarding this, there is evidence of PW 4 panch Bharat Tribhuan, who has proved Exhibit 62. 11. Then there is evidence of PW2 panch Baban Borge whose evidence shows that Police had seized the clothes from the person of accused Nos. 1, 2 and 3 after arresting them and panchanama was drawn between 9.30 to 10.30 p.m. of 08.08.2009. The panchanama shows that the shirts worn by accused Nilesh and accused Anil had blood stains on them. PW-10 P.I. Padole has deposed and the arrest panchanama Exhibit 48 of accused No.1 Nilesh which was admitted by the defence shows that when he was arrested the chopper having blood stains, (which was before the Court) was seized. 12. Evidence of PW-5 panch Vitthal Galphade and PW-10 P.I. Padole is that on 09.08.2009, the accused No. 3 Anil volunteered to show where the motorcycle which was used at the time of incident and sword has been kept. Police recorded the memorandum at Exhibit 64. Ignoring contents self implicating the accused, the memorandum shows that the accused in presence of panchas volunteered to produce the articles and had taken the police and the panchas to a spot in village Padegaon. It was near a well. Police recorded the memorandum at Exhibit 64. Ignoring contents self implicating the accused, the memorandum shows that the accused in presence of panchas volunteered to produce the articles and had taken the police and the panchas to a spot in village Padegaon. It was near a well. The motorcycle was hidden in thorny bushes and sword was under heap of stone and earth. PW-5 deposed regarding the description of sword and deposed that same was blood stained. The motorcycle was of SUZUKI make. At the time of evidence, panch could not recall the registration number of the motorcycle. According to panch, police seized the motorcycle and sword. The sword was sealed in cloth and his signature was obtained on the seal. Other panch was also present. According to the witness, the spot was near the field of one Pandharinath Gaware. Witness identified sword before the Court as the same. 13. What can be said from the evidence of PW-6 and PW-7 is that on 07.08.2009, the incident did take place wherein Bharat had slapped accused no.1 Nilesh. Due to the slapping it appears that accused Nilesh went to the place of complainant Sachin but the tempers were pacified. Accused Nilesh still does not appear to have been satisfied and had said that he would see on the next day. The incident was referred to in the very first instance when the complainant Sachin gave F.I.R. after the incident of 08.08.2009. It has been argued that the omission has been proved in the evidence of PW6 Macchindra regarding the timing of part of incident dated 07.08.2009. We find this not to be material. The cross examination of complainant Sachin brought on record the various details. It appears that Bharat Dhokne was residing at some distance from the house of Sachin and in between there are 10-15 houses. It has to be remembered that he is referring 10-15 houses of slum area which is thickly populated. So the distance may not be much. Complainant was working on Garbage vehicle of the Municipal Council. PW7 Sachin deposed that the house of person who repairs the mobile was opposite Bharat Gas Company and he did not know the name of the said person. It was brought on record that Sachin and Bharat Dhokne talked between themselves at about 12 noon regarding getting the mobile handset. Complainant was working on Garbage vehicle of the Municipal Council. PW7 Sachin deposed that the house of person who repairs the mobile was opposite Bharat Gas Company and he did not know the name of the said person. It was brought on record that Sachin and Bharat Dhokne talked between themselves at about 12 noon regarding getting the mobile handset. In the cross examination, the witness was asked and he stated that they stopped with the said person for 15-20 minutes but they could not receive the mobile handset from him as the same was yet not repaired. It is tried to be argued referring to such evidence that the person with whom the complainant and Bharat met for the purpose of mobile has not been examined as it was just before the incident took place. 14. It may be mentioned that the witness was deposing in relative terms by saying that they met mobile repairer at “about 1.45 p.m.” and talked to him for “15-20 minutes”. The evidence of PW-7 Sachin is that he along-with Bharat had gone to the mobile shop where the mobile was given for repairs. The incident, however, has occurred on the road. PW-7 has deposed that they were at a distance of 10-15 ft. from the door of house of person to whom the mobile handset was given for repairs. Even if the PW-7 Sachin and Bharat had gone to the place of such person, who repairs mobile, it appears that when they came on the spot infront of house or shop of mobile repairer, the incident occurred. The mobile repairer may have been in his shop/house. Looking to the details of the incident, it may have occurred quickly as there must have been seething anger in the mind of accused Nilesh due to the incident of earlier day. Only because the mobile repairer has not been examined does not affect the case of prosecution as the evidence of PW-7 who received the grievous injuries to his head appears to be reliable. 15. In the cross examination of PW-7 accused sought details and he deposed that accused Nilesh Gaikwad and Amol Hivrale were seen coming to the spot from eastern side and accused Anil was seen coming from western side. Further details were taken from this witness who works on Garbage Vehicle regarding directions. 15. In the cross examination of PW-7 accused sought details and he deposed that accused Nilesh Gaikwad and Amol Hivrale were seen coming to the spot from eastern side and accused Anil was seen coming from western side. Further details were taken from this witness who works on Garbage Vehicle regarding directions. It was brought on record that when accused Nilesh and Amol came to the spot, this witness was facing towards east and when he saw, they were at a distance of 25-30 feet; and that, while accused Nilesh and Amol were coming to the spot of incident, Nilesh was towards north and Amol was towards southern side. We find that much cannot be made from such cross examination of this labourer, who had suffered almost fatal injuries. Gist remains that when these people were near mobile repairer’s shop accused Nos.1,3 and 4 reached the spot and incident occurred. Further cross examination of PW-7 is that he was asked if he had said that accused Nos. 1, 3 and 4 came to the spot from one direction. The witness stated that he did not say so. The contradiction was marked in F.I.R. Exhibit 67, as if it is some statement where it was recorded that when the complainant was at spot opposite Bharat Gas office with his uncle “from front they saw Nilesh Gaikwad, Amol Hivrale, Anil, whose full name was not known, coming”. We do not give value to such contradiction brought on record as F.I.R. is not supposed to be recording graphic details. Persons coming from front may have been earlier coming from different directions. If the F.I.R. says that these persons came infront and incident took place, it cannot be said that there are contradictions. The details as to how exactly accused Nos. 1, 3 and 4 approached the spot were extracted from the witness in the cross examination. Regarding any given incident various details can be sought from a witness. After extracting details in the cross examination, they cannot then be celebrated or criticized as omissions. 16. From the cross examination of PW-7, where details have taken that accused Nilesh and Amol came from one side and accused Anil came from another side, it is tried to be argued by the learned counsel for the accused that it shows that there was no common intention or premeditation. 16. From the cross examination of PW-7, where details have taken that accused Nilesh and Amol came from one side and accused Anil came from another side, it is tried to be argued by the learned counsel for the accused that it shows that there was no common intention or premeditation. But then, it can be said to be an attempt to encircle the victims due to the incident of earlier day. Spot panchanama shows it was road going East-West with houses on the North and South. Accused Nilesh having chopper and Amol approached from eastern side and accused Amol approached from western side having a sword. In cross examination of PW-7 it was extracted from him that when these accused were approaching, he did not expect such type of incident. In his further cross examination, the witness stated that when accused Nilesh started abusing then he felt that such type of incident and quarrel can take place. We find that not much can be made from such cross examination as what the witness was thinking when accused were noticed at 25-30 feet does not make difference looking to the actual incident which soon occurred. It has been argued that if PW-7 was given head injury by accused Anil by means of sword, it was surprising to say that he was being held by accused Amol. The evidence of PW-7 shows that when the accused came there, there was no exchange of words but only accused abused for 25 seconds and the incident took place. The actual incident is not very long where accused Amol caught PW 7 Sachin by his hands from behind and accused no.1 and accused no.3 gave blows by chopper and sword on the neck of Bharat. Simultaneously, PW-7 Sachin was trying to get himself released, and it appears that he was given a sword blow by accused no.3 on the head. Such incident may have been over in short time. The evidence of PW-7 shows that when accused Anil was dealing blow by sword accused Amol released his hands from behind. In such situation, naturally, accused Amol had no risk of injury. 17. It has been argued that PW-10 Shrikant Padole has deposed that at 2 p.m. he received telephonic call about the incident but he did not record that information as F.I.R. and went to the hospital and recorded the F.I.R. from Sachin. In such situation, naturally, accused Amol had no risk of injury. 17. It has been argued that PW-10 Shrikant Padole has deposed that at 2 p.m. he received telephonic call about the incident but he did not record that information as F.I.R. and went to the hospital and recorded the F.I.R. from Sachin. The evidence of PW 10 shows that what he was informed was that on Shrirampur – Newasa road opposite office of Bharat Gas Company, “34 persons” had assaulted two persons by chopper and sword and injured persons were admitted to Sakhar Kamgar Hospital. The cross examination of Investigating Officer shows that he did not feel necessary to effect the entry about said telephone call in Station diary and he did not inquire during investigation as to who had informed him on telephone. It shows that the person who had informed had not revealed his identity. The informant had not disclosed his identity and had given vague information that 34 persons assaulted. Thus there was no definite or clear information regarding the assault and what had happened in the assault. In the matter of “Dhananjoy Chatterjee alias Dhana V/s State of W.B.” reported in (1994) 2 SCC 220 , it was held that vague and indefinite information given on telephone cannot be treated as F.I.R. Thus, no fault can be found with PW-10 P.I. Padole. In fact in the present matter, PW-10 acted very swiftly. He appears to have reached the hospital almost immediately. The incident occurred at about 2 p.m. and after reaching the hospital, he gave letter Exhibit 79 to the Medical Officer to know if the injured was in condition to give statement. Doctor appears to have endorsed on the letter that patient is conscious. There is then some further endorsement which is not legible but date has been put and time was recorded which appears to have overwriting. Learned counsel for the accused tried to say that, correction in timing makes the document doubtful. It is further argued that after writing down F.I.R. PW10 has forwarded the same to the Police Station vide direction Exhibit 89 and in Exhibit 89 the portion of time was left blank. We find that the letter Exhibit 89 mentions that the P.I. had recorded the complaint of the injured on the same day of 08.08.2009 and same was being forwarded. We find that the letter Exhibit 89 mentions that the P.I. had recorded the complaint of the injured on the same day of 08.08.2009 and same was being forwarded. No doubt, the portion of time remained blank, however, F.I.R. Exhibit 67 appears to have been registered on 08.08.2009 at 15.15 hours i.e. 3.15 p.m. The evidence of P.W.10 shows that when he recorded the complaint of injured Sachin he had also obtained endorsement of concerned Medical Officer on the F.I.R. The F.I.R. Exhibit 67 shows endorsement by doctor that the patient is in a state of giving the statement. Signature of the doctor has the date as 08.08.2009 and time as 3.00 p.m. There is no reason to doubt such endorsement by the doctor. Merely because in the forwarding letter or order Exhibit 89 time remained to be mentioned does not caste doubt on other evidence. On registration of F.I.R. within no time further investigation was done and so many steps were taken like recording inquest panchanama, getting postmortem done, making recovery of clothes, recording spot panchanama and even arrests were done in the same half a day. Inquest panchanma Exhibit 54 records time as done between 3.30 to 4 p.m. Crime number 243/2009 is mentioned in it. Naturally crime was registered before that. There is lot of material to show that quick F.I.R. was recorded and prompt investigation done. There is further no reason to doubt the evidence of PW7 who had suffered such grievous injury and whose evidence is consistent with F.I.R. which he had lodged while he was admitted at Sakhar Kamgar Hospital. Evidence shows that by evening he had already been shifted to Shirdi Trust Hospital at Shirdi. 18. It has been argued that although PW-6 Macchindra claims that from the spot he had taken his injured brother Bharat Dhokne to the hospital, his clothes did not get blood stains. On this basis, the submission is that Macchindra cannot be relied on as witness, who carried injured Bharat to hospital. We find that when a person carries the injured to hospital, it depends upon the facts of the case, whether or not the person is likely to have blood stains on his own clothes. On this basis, the submission is that Macchindra cannot be relied on as witness, who carried injured Bharat to hospital. We find that when a person carries the injured to hospital, it depends upon the facts of the case, whether or not the person is likely to have blood stains on his own clothes. In the present matter, PW-6 Macchindra has not claimed to have been present at or around the spot when the incident occurred or that moment assailants left he rushed to pick up his brother. Facts of the present case show that it was PW-7 Sachin, who was on the spot and himself an injured. Sachin appears to have run from the spot immediately after he was released by accused no.4 Amol. Evidence of PW6 Macchindra shows that from Siddharthnagar, the spot where the incident occurred, was at a distance of hardly 23 minutes by walk. Thus, when he was injured, it was natural conduct for PW 7 Sachin to immediately rush home and inform the incident so that he gets help and also help gets sent to his injured uncle Bharat, who was on the spot. Evidence of PW 6 Macchindra shows that coming to know of the incident, he had gone to the spot with 78 persons. Naturally, he had other persons to help him. PW 6 has deposed that when injured Sachin Dhokne had come to his house, one lady had kept covered injury by cloth and she had kept her palm on the said head injury. This is natural conduct to cover or hold the injury to stop loss of blood. Main bleeding injuries of Bharat were on his neck. It is natural to help the victim by covering the injuries and to take the victim to the hospital. It is not a case of splash of blood in the incident. In the circumstances, only because the clothes of PW 6 Macchindra did not have blood stains is not a reason to doubt his evidence that he had helped to take injured Bharat to hospital. 19. Evidence of PW7 Sachin is that he had sustained injury over his right portion of head above ear and after incident he went running to his house first. His brother Santosh and friend Dnyaneshwar were at his house at that time and no others were in the house. 19. Evidence of PW7 Sachin is that he had sustained injury over his right portion of head above ear and after incident he went running to his house first. His brother Santosh and friend Dnyaneshwar were at his house at that time and no others were in the house. He deposed that he did not enter his house and informed his brother Santosh and Dnyaneshwar while he was outside the door of his house and Dnyaneshwar Magar took him to Sakhar Kamgar hospital, while his brother Santosh went to the house of Bharat Dhokne. In view of such evidence of injured Sachin, the evidence of PW6 Macchindra that injured Sachin himself told him the incident will have to be ignored as PW-7 has deposed that it was Santosh who went to the house of Bharat Dhokne to inform. This difference in version of PW-6 and PW-7 cannot be treated as fatal to the prosecution as it does not relate to main incident. Bharat died in the incident and PW-7 Sachin was grievously injured is a matter of record supported by the oral evidence of PW-7 Sachin and Medical evidence. In the circumstances, no undue weightage can be attached to the differences in details of periphery part of incident. 20. It has been argued that the Chemical Analyser’s Report shows that grouping of blood on the clothes of accused no. 4 Amol was reported as inconclusive. However, if the evidence of PW-10 P.I. Padole is perused, it shows that he was able to arrest the accused no.4 Amol only on 12.08.2009. Thus, Amol had opportunity to tamper with blood which was on his clothes. In any case, C.A. Report Exhibit 96 shows that blood stains on the clothes of Amol were of human origin. Evidence of PW-10 is that he had sent Police Naik Garudkar along-with letter Exhibit 87 and the seized clothes as well as sword and chopper and blood samples to Chemical Analyser and obtained the acknowledgment Exhibit 88. C.A. Report shows that there was blood on the T Shirt, Underwear and Full Pant of deceased Bharat which was of `AB’ group and Full shirt, sandow Baniyan and Full pant of injured Sachin, which was of `B’ group. There are their respective blood groups. On the shirts of accused No.1 Nilesh and accused No. 3 Anil there were blood stains of `B’ group. There are their respective blood groups. On the shirts of accused No.1 Nilesh and accused No. 3 Anil there were blood stains of `B’ group. Chopper had blood stains of `B’ group. While group on the sword and cotton swab was reported as inconclusive but human blood. Evidence of Dr. Momle shows that deceased Bharat had not merely two incised cuts on his neck but also had (i) injury to left arm at upper end cut injury, (ii) left arm lower end cut injury, (iii) left forearm upper end cut injury and there was yet another cut injury which was skin deep on right side of chest and abdomen anterior. PW-7 Sachin himself had in addition to the contused lacerated wound on occipital region an abrasion to his left knee which could have been caused by hard and blunt object. The ocular evidence of PW-7 does not give details how these other injuries on the person of Bharat and the abrasion to his own knee were caused. In the heat of moment, it is likely that PW-7 may not have been able to mentally register all the details of the incident in which he was trapped. Thus, although, the causing of injury by accused Anil on the head of Sachin by sword and blood group of injured Sachin gets connected to the Shirt of accused No.1 Nilesh having blood stains, particulars as to how blood group of injured Sachin was on the shirt of accused No.3 Anil is not connected. It appears that minute details of the incident how it occurred have not been deposed to by PW-7, may be because he himself suffered severe blow on his head and missed details as simultaneous actions mere taking place at the time of incident. 21. It has been argued that the injury inflicted by accused no.3 Anil was not fatal injury so he at the most may be convicted under Section 304 II of IPC. For this, the learned counsel referred to Exhibit 67 F.I.R. where injured Sachin had reported that accused Nilesh gave blow by chopper on “Gala” and accused Anil gave blow by sword on “Maan” of Bharat. In the cross examination of PW-7, the accused brought on record the differences witness made of these terms. For this, the learned counsel referred to Exhibit 67 F.I.R. where injured Sachin had reported that accused Nilesh gave blow by chopper on “Gala” and accused Anil gave blow by sword on “Maan” of Bharat. In the cross examination of PW-7, the accused brought on record the differences witness made of these terms. It was deposed that he knows difference between neck and throat and he called front portion of neck as throat i.e. “Gala” and back portion is called by him as neck i.e. “Maan”. The learned counsel for accused tried to submit that the injury no.2 noticed in the postmortem can be stated to be by accused Anil and the evidence of doctor is that the injury no.1 was such that there would be very less chance of survival even if the medical treatment is immediately provided. While regarding injury no.2, it was stated that if heavy bleeding takes place due to deepness, the death was possible. We do not think that any such factors can weigh to give accused Anil benefit of Section 304 II of IPC. All the three accused had reached the spot carrying sword and chopper and all the three knew what they were doing. Giving such serious injuries on the neck to deceased Bharat where he appears to have not even been able to reach hospital alive shows that the intention was to cause his death. 22. It has been argued that the accused no.4 Amol had merely held victim Sachin and so at the most he should be held responsible for offence under Section 307 of IPC. Considering over all facts of the matter, we do not accept this argument. Accused Amol had definite and clear role in the whole incident where while Bharat was being assaulted, he had to prevent Sachin from interfering. (We will discuss this further in the next paragraph.) Thus, not merely for attack on victim Sachin, he is also responsible for the act of assault on Bharat, which was in furtherance of common intention. 23. It has been argued that accused No.4 Amol had merely held the injured at the time of incident and so he should not be held guilty under Section 302 of IPC. We find that the argument is not maintainable. The evidence brought on record itself shows that accused Nilesh along-with accused Amol had approached the spot from eastern side on the road. We find that the argument is not maintainable. The evidence brought on record itself shows that accused Nilesh along-with accused Amol had approached the spot from eastern side on the road. Nilesh was carrying chopper and accused Amol must be said to be sharing the common intention as to why accused Nilesh was approaching Bharat and Sachin with a chopper. One day earlier incident was the cause. Accused Anil was approaching the spot from western side. As mentioned earlier, it indicates that these accused had common intention to ensure that Bharat and Sachin should not be able to run away. Inter alia, the trial Court rightly relied on the case of “NanduRastogi @ Nandji Rastogi V/s State of Bihar” reported in “(2002) 8 Supreme Court Cases 9” that to attract Section 34 of IPC, it is not necessary that each one of the accused must assault the deceased. It is enough if it is shown that they shared a common intention to commit the offence and in furtherance thereof each one played his assigned role by doing separate acts, similar or diverse. In the matter of NanduRastogi, the Supreme Court referred to the facts of that case which were eloquent that the role played by Bal Mukund Rastogi of preventing the prosecution witnesses from going to rescue of the deceased was the role played by him with a view to achieve the ultimate objective of killing Shankar Rastogi. The Hon’ble Supreme Court had applied Section 34 of IPC. In the present matter also, we find that immediately after reaching Bharat and injured Sachin, accused Amol caught hold of the hands of injured Sachin so that he should not be able to help his uncle Bharat to whom accused no.1 Nilesh and accused No.3 Anil attacked with the help of chopper and sword. In the earlier day incident, injured Sachin had also taken part and gone along-with Bharat to accused Nilesh when Bharat had slapped Nilesh. Naturally, the anger was also against injured Sachin and after Bharat he was also given blow on his head by sword by accused Anil. When such blow was being given at that time accused No.4 Amol left his hands. The intention was obvious. Injured Sachin was assaulted by means of sword and suffered injuries as mentioned above. Naturally, the anger was also against injured Sachin and after Bharat he was also given blow on his head by sword by accused Anil. When such blow was being given at that time accused No.4 Amol left his hands. The intention was obvious. Injured Sachin was assaulted by means of sword and suffered injuries as mentioned above. It is apparent that accused persons, who acted in furtherance of common intention of each other intended to murder Bharat and were knowing that injuries which they were causing Sachin can cause death of victim Sachin. The circumstances were such that if Sachin had expired, they would have been guilty of murder. Thus, the accused nos. 1, 3 and 4 in furtherance of common intention of each other are guilty of murder of Bharat and attempting to commit murder of PW7 Sachin. 24. It has been argued that if quarrel on earlier day was settled, there was no motive for the incident on 08.08.2009. From the record we find that the earlier day incident was rather the cause for the incident dated 08.08.2009. Other argument is that if there was exchange of hot words before the incident started, grave and sudden provocation can not be ruled out. This also deserves to be rejected. The evidence shows that after accused nos. 1, 3 and 4 approached the spot, there were sudden abuses from the side of accused and the attack took place. There are no particulars to show that Bharat and injured Sachin behaved in such a manner that it could be said that they gave any provocation. 25. The learned Additional Sessions Judge considered the evidence. Looking to the Medical evidence, the Court concluded that the death of Bharat Dhokne was homicidal. Looking to the oral and documentary evidence, the discoveries and recoveries, the Court concluded that the offence under Section 302, 307 read with 34 of the IPC had been proved against accused Nos. 1, 3 and 4. Regarding the accused No.2 Mahindra Salvi, it was observed that the evidence on record was that he came to the spot on motorcycle after the assault was over. He did not participate in the incident. 1, 3 and 4. Regarding the accused No.2 Mahindra Salvi, it was observed that the evidence on record was that he came to the spot on motorcycle after the assault was over. He did not participate in the incident. Although, it was mentioned in the F.I.R. that accused Mahindra had given fist blows on the chest of Sachin, the witness was silent at the time of evidence in the Court and so there was no evidence to prove that accused Mahindra actually participated in the assault. Regarding accused No. 5 Sandip it was observed that there was no iota of evidence of his involvement or being on the spot. The Court thus held that accused Nos. 2 and 5 were entitled to be acquitted. Trial Court also considered the applicability of Sections 323 and 504 of IPC and found that there was no sufficient evidence that the accused Mahindra dealt blow of fist over chest of Sachin. It was held that it was not shown that the abuses were provocative. The offence was held as not to be proved under Section 323 and 504 of IPC. There is no appeal against such acquittal. 26. We have considered the record. We do not find any material contradiction or omission to throw out the case of prosecution. We have considered the arguments and gone through the judgment of trial Court. The trial Court has properly assessed the evidence and come to right conclusion that accused persons Nos.1, 3 and 4 are guilty of offence under Section 302, 307, both read with 34 of the IPC. There is no perversity in the judgment. For the reasons we have discussed earlier, we find that reasonings recorded by trial Court are perfectly maintainable. We do not think that any other view can be taken or is necessary to be taken. We thus maintain the conviction and sentence of the accused persons. 27. The Appeals stand dismissed.