- (1.) The appellants accused have filed this criminal appeal challenging the judgment and order of conviction and sentence passed against them under section 302 read with section 34 I.P.C. by the Bombay High Court Bench at Aurangabad on 5-9-1990. The first appellant is the husband of the third appellant and the second appellant is their son. The prosecution case in brief is as under: Appa (since deceased) was the brother of A-1 and Chandrakant. In a partition between these three brothers by metes and bounds each one was cultivating the land fallen to his share. Their lands are situated at Village Khudawadi, Taluka Tuljapur in District Osmanabad. There was, however a dispute between Appa and A-1 in respect of the location of foot-track. On 25-9-1987 at about 5.00 p.m., Appa was working in this field whereas his daughter, Sarubai (P.W. 2) was grazing the cattle near about the place of incident. The appellants were also doing their agricultural work in their own land. According to the prosecution the appellants came to the land of Appa and started assaulting him with axes and sickle. Sarubai (P.W. 2) seeing the assault caused by appellants came near the place of incident and requested them not to assault her father. A-1 and A-2 were assaulting with axes whereas A-3 was assaulting with a sickle. Due to this assault Appa fell down and made a signal to his daughter Sarubai to go to the abadi and call her mother Ambubai (P.W. 1). Sarubai (P.W. 2) went to the house but finding that her mother was not there, she left the message with her aunt Muktabai, wife of Chandrakant that she be informed to come to the field with a bullock cart as Appa was assaulted by the appellants. She then came back to the place of incident. Ambubai (P.W. 1) when returned home from work, Muktabai conveyed the message to her and thereafter she requested Shivaji (P.W. 4) to get a cart. Shivaji then brought the cart from Maruti and then they reached the place of incident. At that time Appa was bleeding profusely and was unable to speak. Sarubai (P.W. 2) told her mother that the appellants had assaulted him. Ambubai and Shivaji then put Appa into the cart and left for the dispensary at Naldurg. The doctor on duty declared him dead. Ambubai (P.W. 1) then went to the police station and lodged the first information report (Ex. 3) at about 10.15 p.m. After registering the F.I.R. the Investigating Officer proceeded to the hospital and thereafter to the place of incident. During the course of investigation, statements of various persons came to be recorded. The accused came to be arrested on 26-9-1987 and in pursuance of their statements the incriminated articles were seized. After completing the investigation the appellants were put up for trial for an offence punishable under section 302/34 I.P.C.
(2.) The appellants denied the charge and claimed to be tried. According to them they have been falsely implicated in the present crime. They had neither gone to the field of Appa nor they had assaulted him. They pleaded that they are innocent and be acquitted.
(3.) The prosecution in support of its case principally relied upon the evidence of eye-witness Sarubai (P.W. 2) (minor) aged about 10 years. Ambubai (P.W. 1), Shivaji (P.W. 4) and Shanker (P.W. 5) were the main witnesses to corroborate the evidence of Sarubai. The prosecution also relied upon the various panchnamas including the panchnamas relating to the recovery of incriminating articles. Dr. Onkar Swami (P.W. 3) performed the autopsy on the dead body of Appa and his report is at Ex. 15. The appellants did not lead any evidence in defence.;