JUDGMENT - V.P. SALVE, J.:---This appeal is filled against the conviction and sentence passed by the Additional Sessions Judge, Parbhani, for offences punishable under sections 147, 148, 302 and under section 302 read with section 149 of the Indian Penal Code. The incident resulting in death of Baburao son of Raghuji Mirase resident of Puina village Taluka Kalamnuri, District Parbhani is dated 24th June, 1983, at about 4.30 p.m. It is the case of prosecution that appellants Nos. 1 to 7 who where accused No. 1 to 7 before the trial Court assaulted the deceased Baburao with stones and caused his death. The appellants were convicted for offence of murder of Baburao under sections 147, 302 read with section 149 of the Indian Penal Code but acquitted them under section 302 of the Indian Penal Code simpliciter. They were also acquitted for an offence punishable under section 148 of the Indian Penal Code. They were sentenced to imprisonment for life. The appellants have challenged the conviction and sentence before us. We have heard Mr. M.R. Daga at length and we have further heard Mr. A.H. Kapadia, Counsel for the appellants and Shri. R.G. Deo, Public Prosecutor, for the Respondent-State of Maharashtra. 2. In all 14 witnesses were examined by the prosecution. P.W. 1 is Deorao son of Dhondbarao Chavan. He is a 'panch' witness to the spot panchnama. He states that on 25-6-1983 he and one Piraji were called in the land of Gangadhar in the area of village Puina for the purpose of recording a panchanama of the place of offence. He saw two stones and blood shed to some extent on earth on the road. He thereafter has changed and says that there was only one stone at the place of offence and did not see any thing. He states that he has signed the panchanama. He further states that stones, earth, bicycle, etc. were seized and admits the correctness of the panchanama. He says that he cannot identity the articles attached from the place of offence. Nothing much has been brought out in the cross-examination nor is this witness important for the prosecution. However, he has simply identified the spot where the incident is alleged to have taken place. 3. P.W. 2 Baburao Gadhe is the panch witness to the seizure of saree which Bhimabai mother of the deceased was wearing on the date of incident. Nothing much has been brought out in the cross-examination nor is this witness important for the prosecution. However, he has simply identified the spot where the incident is alleged to have taken place. 3. P.W. 2 Baburao Gadhe is the panch witness to the seizure of saree which Bhimabai mother of the deceased was wearing on the date of incident. The saree, it appears, has bloodstains. P.W. 3 Abdul Nabi, is a witness to the seizure of one shirt and Dhoti seized from accused No. 3 Maroti. One bush-shirt on the person of accused No. 2 Bharat was also seized in the presence. He says that only one accused was wearing pant and rests were wearing Dhotis but he does not remember which of the accused was wearing the pant. All the clothes were seized vide Exhibit 19 from the person of accused persons and they had faint red colour suggestive of blood stains which were perhaps washed, P.W. 4 Chandrasinha is a witness to the seizure of clothes belonging to the deceased. P.W. 5 Subhash Kamthikar is the Medical Officer who examined the deceased Babu who was brought to him at Kalamnuri Police Station of 24-6-1983 at about 9.10 p.m. He had nine injuries on his person which are as follows: 1. Lacerated wound on the right parietal region: 2"x1/2"x1/2. 2. Lacerated wound in the middle of the head 11/2"x1/2"x1/2. 3. Lacerated wound on the occipital region 1"x1/2"x1/2. 4. Lacerated wound just above the right populated fosse ½"x1/2"x1/2. 5. Irregular confusion on the right palpation I found fracture of right fumbler in the middle rectus muscle 4"x3". 6. Abrated contusion on the left lower 1/3rd of the upper leg 3"x1". 7. Abrasion 1" 1/2" on the right shin of tibia. 8. Lacerated wound on the left shin of tibia ½"x1/2"x1/2". On palpation I found fracture of tibia lower 1/3rd. 9. Abrasion on the lumberregion 1"x1/2". According to him, all these injuries were ante-mortem. On internal examination he found blood clots in the right parietal bone below the right scalp; depressed type of fracture of right parietal bone in the middle; brain congested, blood clots in the right parietal and frontal lobe of the brain. He also found plural, both lungs, pericardium and heart congested. He further found whitish froth in trachea blood clots in the right ventricles. He also found plural, both lungs, pericardium and heart congested. He further found whitish froth in trachea blood clots in the right ventricles. On opening the fractured area, he found crack like fracture on both the sides of the legs and presence of blood clots. He found liver, pancreas, spleen congested. He preserved the viscera and in his opinion Babu Mirase died due to shock on account of head injury and fracture of bones of lower extremity. He opined that the injuries noted by him on the dead body of Babu were possible with article 8, stones that were before the Court. According to the Medical Officer P.W. 5 Subhash) the injuries found by him on the corpse of Babu were sufficient in the ordinary course of nature to cause his death. Nothing much has been brought out in the cross-examination of this witness except that in the viscera which was sent for chemical examination, 83 mg and 55 mg of thyl alcohol per 100 GMS. Was found. According to him, the analysis of viscera disclosed that Babu was dead-drunk. He opined that it could be one of the causes of deceased Babu not speaking and going into the shock. He did not agree with the suggestion of the defence that sticks could cause some of the injuries be caused by sticks. According to him, injuries Nos. 1 and 2 are on vital part of the body and such injuries may cause immediate shock to the victim. 4. Bhimabai w/o Raghoji Mirase-mother of the deceased-is examined as P.W. 6. She states that her other son Rustom is alive. Her son Babu died. She has no other son; Mandabai is the wife of deceased Babu had no issue. Her two daughters are married and they are residing with their respective husbands. She was at the time of her evidence, residing at village Palodi, Taluka Kalamnuri. Two to four acres of land was purchased by her in the area of Palodi. She says that they were the native of village Puina and were having lands at Puina. Her husband sold these lands. She was having 2 acres and 5 gunthas of land in the area of Puina village which was sold as Bharat, Ganesh and Mansingh (accused persons) started to quarrel with her. She belongs to Maratha community. Accused persons namely: Ganesh, Bharat, and Mansingh belong to Hatkar community. Her husband sold these lands. She was having 2 acres and 5 gunthas of land in the area of Puina village which was sold as Bharat, Ganesh and Mansingh (accused persons) started to quarrel with her. She belongs to Maratha community. Accused persons namely: Ganesh, Bharat, and Mansingh belong to Hatkar community. Bharat and Ganesh are brothers inter se. Mansingh is their relative. Maroti and Ananda are brothers inter se. Maroti and Ananda are out of brotherhood of Ganesh. She knows accused Nos. 1 to 7. According to her, there was only one family of Mirase at Puina. There are other houses belonging to the Maratha community. She had sold her land to accused No. 5 Mansingh for Rs. 30,000/- executed sale-deed of that land. She did not obtain the consent of her deceased son. Without consulting Babu, she had executed that sale-deed. Rustom, the other son, was at Hingoli when she executed that sale-deed. Her son Babu used to say that her land should not be purchased by anybody and in case anybody purchased it, would amount to poison with oneself. Inspite of that she executed the sale deed of her lands. They left village Puina after she sold that land. She knows Laxmibai of Kalamnuri but does not know her surname or the name of her husband. She had leased her land in favour of said Laxmibai and obtained amount for the purpose of celebration of marriage of her daughter before she sold that land to Mansingh. That land was under irrigation. At the time of registration of the sale-deed her son Babu was present. Half an hour before the registration of that sale-deed her son Babu, told Ganesh and Mansingh not to purchase her land as it was a poison for them. Her family members were having customary rights by way of family honour regarding pola festival as well as different religious ceremonies including marriages and in order to enjoy such rights one of the members of their family was bound to go to Punia and so Babu used to go Puina in that connection. The accused persons had asked Babu not to come to Puina and they used to threaten him that they would beat him in case he would come to Puina. Baburao son of Bajirao Patil was Sarpanch of Gram panchayat, Puina, when she executed the sale-deed of land. The accused persons had asked Babu not to come to Puina and they used to threaten him that they would beat him in case he would come to Puina. Baburao son of Bajirao Patil was Sarpanch of Gram panchayat, Puina, when she executed the sale-deed of land. She does not know as to what sort of relations were in existence between the accused persons in this case, the said Baburao Sarpanch and his family members. Her son Rustom resided at Hingoli since last 8 years on account of fear of beating. He resides at Hingoli since when he got himself married. On a Friday, at about 4.30 p.m. (ten months before her evidence was recorded) her son Babu was beaten. She, her husband and Babu were residing in a hut in the land purchased by them in the area of village Palodi at the time of incident. She was residing in the plot allotted to her by the Government in the hutment area by the side of tank since two months prior to the incident. She was staying alone, as it was necessary for someone to reside there out of their family members. Her husband and her son were residing in the hut in the land at Palodi. The wife of Babu had gone to her parent's house to attend the marriage of her brother. The distance between Palodi and Puina is about 2 to 3 miles and the distance between Puina and Kalamnuri is about two miles. Her son Babu came from Kalamnuri in order to see her. Babu met her near the chamber of water, which is in front of her hut. She had gone there to drink water and in the meanwhile Babu come there on bicycle. She asked him as to why he had come there. He told her that he had come to talk to her. She told him to return back to their land as their talks were over. Babu told her that he wanted to take Darshan of the deity. She told Babu not to go to take Darshan of the deity as persons was bent upon beating him. Babu told her that he was surrounded at Kalamnuri (by persons) only to beat him. Babu went to take Darshan of the deity to temple. 5. According to her, Babu was of a good behaviour. After some time accused Nos. She told Babu not to go to take Darshan of the deity as persons was bent upon beating him. Babu told her that he was surrounded at Kalamnuri (by persons) only to beat him. Babu went to take Darshan of the deity to temple. 5. According to her, Babu was of a good behaviour. After some time accused Nos. 1 to 7, who was before the Court, came from Kalamnuri by walk. She questioned Maroti on the information given to her by Babu as to why he had tried to beat Babu at Kalamnuri. Maroti told her that he would not beat Babu and denied as to what she had told him. Accused Nos. 1 to 7 then proceeded ahead towards Puina village. She followed them, on account of information given to her by Babu earlier. Accused No. 1 to 7 saw her son Babu coming on bicycled forms Puina side after taking Darshan of deity. Accused Nos. 1 to 7 started beating her son Babu with the stones from the stone-pile. Accused Bharat and Ganesh gave stone-blows on the head of Babu by catching hold of these stones in their hands. Accused Mansingh also gave stone-blows on the head of Babu. Ananda and Maroti pelted stones on the legs of Babu. Bhainarao assaulted Babu with stone on his waist. The stones were sufficiently big in size. The stones were bigger than the coconut size. She identified five stones (Article No. 8) which were before the Court as the same stones with which her son was assaulted. She further states that Bharat pulled down her son Babu from the bicycled and thereafter Babu was assaulted with stones. She started shouting. Nobody came there. Babu became unconscious. Accused Nos. 1 to 7 who are now before the Court ran away and she started weeping. Meanwhile Bapuji son of Gangaram Shinde r/o Puina came from Kalamnuri side. He was looking after the goats then. He went near Babu. She was afraid and started weeping saying 'Babu Babu'. She kept the head of Babu on her thing. Babu asked her for water to drink by sign. She asked Bapuji to bring water. Bapuji brought water in the cup made of leaves. She administered water to Babu, witness Bapuji then went away to his house at Punia. Babu was unconscious. She was afraid and started weeping saying 'Babu Babu'. She kept the head of Babu on her thing. Babu asked her for water to drink by sign. She asked Bapuji to bring water. Bapuji brought water in the cup made of leaves. She administered water to Babu, witness Bapuji then went away to his house at Punia. Babu was unconscious. Babu told her that Bharat, Ganesh, Ananda, Maroti, Bhainarao, Mansing and Pandit had beaten him. Babu was not in himself when she administered him the water. Babu disclosed the names of accused persons after he drank water. He regained consciousness after he drank water. Babu was having injuries on upper part of his head, on the both sides of his head, backside of his head, on his both legs. Babu was having pant and shirt of Grey colour on his person at the time of the incident. He was also having red coloured trousers on his person at the time of incident. The clothes on his person were stained with blood. She further states that one bullock-cart known as 'Damni' belonging to Audhutrao came there. It was going to Kalamnuri. It had come from Puina village side. Kailash brother of audhutrao was in that bullock-cart. Vithal who is the husband of sister of Audhut was with Audhutrao. Audhutrao was also in that bullock-cart. Audhutrao was having injury on his mouth and that injury was bleeding then. The bullock-cart proceeded ahead. The persons in that bullock-cart named above was about to wait but all of them went away when they saw accused Nos. 1 to 7. According to her, Babu was beaten on the road in the land of Gangarao. That road is bullock cart road. Bajirao Police Patil came on the spot. He saw injuries on the person of Babu. He told her that he would inform the incident to the Police and asked her to wait on the spot. She told him the names of persons who had beaten Babu. Gyanba Kotwal came on the spot. By that time Police Patil had already gone ahead to Kalamnuri Police Station to inform about the present incident. She and Kotwal sat near Babu. After sunset when there was just dark police van came on the spot. Police saw injuries on the person of Babu. Police took Babu in that van to Kalamnuri Hospital alongwith her. By that time Police Patil had already gone ahead to Kalamnuri Police Station to inform about the present incident. She and Kotwal sat near Babu. After sunset when there was just dark police van came on the spot. Police saw injuries on the person of Babu. Police took Babu in that van to Kalamnuri Hospital alongwith her. Babu was taken inside the Hospital and he was admitted there. Babu asked water to drink and he drank water in lying -down position. The person who gave injection to Babu asked to tell the names of assailants. Babu disclosed the names of five persons in broken words. Babu died after disclosing the names of these five persons in the Hospital. She has identified the clothes (Articles Nos. 1,2 and 5) which were on the person of Babu before the Court. The Court made a remark that the witness started weeping when she saw the clothes of her deceased son Babu. In cross-examination of this witness, nothing much has been brought out except that in the Police statement there are omissions about the details of the assault attributing specific blows to specific accused persons. We are of the view that it is possible that this witness who was at a far distance form the place of incident and who was following accused Nos. 1 to 7 may not have seen actually which of the accused hit with stones what part of the body. To the extent the argument of learned Counsels for the accused that she has exaggerated this part of the story while deposing before the Court, is acceptable. The omission brought out on record are not in conformity with the procedure to be followed under section 162 of the Criminal Procedure code especially Explanation (2). It is by now well settled that an omission in the police statement has to be brought out in the context of immediately preceding statement. Unless that is done what is exactly brought out, as contradiction of statement of the witness may not be of any use. It is by now well settled that an omission in the police statement has to be brought out in the context of immediately preceding statement. Unless that is done what is exactly brought out, as contradiction of statement of the witness may not be of any use. We find in para 10, there is a general statement recorded about the omissions contained in the statement of the witness before the police and at the end of that para she has been asked whether she can assign any reason as to why all the above facts are not mentioned in her statement recorded by the Police on 24-6-1983 to which her attention was drawn. For example it was suggested that she had stated before the Police that bullock-cart known as Damni came from Puina village side and it was going to Kalamnuri. Audhutrao, Kailas and Vithal were in that Bullock cart and Audhut was having bleeding injury on his mouth. We have read the statement of this witness recorded by the Police and we find that it is as under :--- ^FkksM;k osGkus xkokdMwu neuh vkyh- eh ckkcqps eaqMds ?ksmu xkMhr cly-s iksyhl ikVhy neuh ekxs vkyk- R;kyk eh vls lkaxhrys dh] ek>s ckcwl ekjya- rqEgh iksyhl LVs'kuyk tk o lkaxk-^ In para 11 again her statement was recorded by Judicial Magistrate, First Class, Kalamnuri, on 21-7-83 which was relied on by the defence Counsel for the purpose of showing contradictions. One of the omissions brought out in the cross-examination is that though she has stated before the Magistrate that Babu informed her on the spot the names of his assailants it is not mentioned in her statement (Exh. 32) recorded by the Magistrate. We have read this statement and we find that there is an omission of the fact that Babu was disclosed the names of assailants to her on the spot and which are stated by her before the Magistrate. The only omission is that she states before the Court that she had disclosed these names of the assailants to Police Patil when he came on the spot which fact is not stated by her before the Magistrate. The other omission brought out form this statement (Exh. The only omission is that she states before the Court that she had disclosed these names of the assailants to Police Patil when he came on the spot which fact is not stated by her before the Magistrate. The other omission brought out form this statement (Exh. 32) is that she has not stated before the Magistrate that their family members were having customary right by way of family honour regarding Pola festival as well as different religious ceremonies including marriages and in order to enjoy such rights one of their family members was bound to go to Puina. According to us, this is not a contradiction by omission. The law is well settled that unless it is a material omission it cannot be treated as a contradiction. It appears that the trial Court is of the view that he has to decide the question whether this omission is significant or not at the time of hearing arguments after recording of the evidence. It is obviously an incorrect approach. On page 82 of the paper book we have an application of Public Prosecutor objecting to the recording of omissions bereft of context or use of alternative words as equivalent to contradiction. Example given in the application is that the witness, namely, Bhimabai, had stated in the police statement that due to Manpan, they used to visit village Puina frequently on such occasions. It appears that before the Court she stated in paragraph 12 of her statement that, "Our family members were having customary rights by way of family honour regarding festivals and religious ceremonies and to enjoy such rights our family members used to go to Puina". It must be very clear that an omission must be such, first as to materially affect the testimony of the witness so as to discredit him or her, and, secondly, it must be an omission as to a make out a contradiction patently. 6. Referring back to (Tahsildar Singh and another v. State of U.P.)1, reported in A.I.R. 1959 S.C. 1012, the example given is very pertinent and a Judge recording the evidence and contradictions in relation to the police statement must keep in his view the example given in the said Tahsildar Singh's case. 6. Referring back to (Tahsildar Singh and another v. State of U.P.)1, reported in A.I.R. 1959 S.C. 1012, the example given is very pertinent and a Judge recording the evidence and contradictions in relation to the police statement must keep in his view the example given in the said Tahsildar Singh's case. The historical judgment in the Tahsildar Singh's case, which necessitated a change in the law in the legislation in the shape of Explanation, was based on the following observation of Subba Rao, J. "Where a particular statement is not expressly recorded, a statement that can be deemed to be part of that expressly recorded can be used for contradiction, not because it is an omission strictly so-called but because it is deemed to form part of the recorded statement; such a fiction is permissible by construction only in the following three cases : (i) When a recital is necessarily implied from the recital or recitals found in the statement; (ii) a negative aspect of a positive recital in a statement; and (iii) a statement before the police and before the Court cannot stand together." The Explanation was brought in the Code of Criminal Procedure in the main text of the section based on this decision. The material observations are to be found in paragraph 26 in the judgement (page 1026), which are as under :--- " From the forgoing discussion the following propositions emerge"; (1) A statement in writing made by witness before a Police Officer in the course of investigation can be used only to contradict his statement in the witness box and for no other purpose; (2) statements not reduced to writing by the Police Officer cannot be used for contradiction; (3) though a particular statement is not expressly recorded, a statement that can be deemed to be part of that expressly recorded can be used for contradiction, not because it is an omission strictly so-called but because it is deemed to form part of the recorded statement; (4) Such a fiction is permissible by construction only in the following three cases; (i) when a recital is necessarily implied from the recital or recitals found in the statement; illustration; in the recorded statement before the police the witness states that he saw A stabbing B at a particular point of time, but in the witness box he says that he saw A and C stabbing B at the same point of time; in the statement before the police the word 'only' can be implied i.e., the witness saw A only stabbing B; (ii) a negative aspect of a positive recital in a statement : illustration; in the recorded statement before the police the witness says that a dark man stabbed B, but in the witness box he says that a fair man stabbed B; the earlier statement must be deemed to contain the recital not only that the culprit was a dark complexioned man but also that he was not of fair complexion; and (iii) when the statement before the police and that before the Court cannot stand together; illustration : the witness says in the recorded statement before the police that A after stabbing B ran away by a northern lane, but in the Court he says that immediately after stabbing he ran away towards the southern lane; as he could not have run immediately after the stabbing, i.e. at the same point of time, towards the northern lane as well as towards the southern lane, if one statement is true, the other must necessarily be false." 7. In A.I.R. 1968 Bom. In A.I.R. 1968 Bom. 127 (Palaniswami Vaiyapuri v. State)2, following the Tahsildar Singh's case, Naik, J., has held : "That takes us to the evidence of witness Shrikrishna Pingale (P.W. 11). He was working as car attendant on that day having taken over from Mohammed Hussein. The evidence given by Pingale is of great importance. (After discussing the evidence of the witness his Lordship proceeded). "The evidence of Pingale would, therefore, establish the fact that the accused came up to Dadar and that he must have left the compartment as soon as the train arrived at Dadar station. Another circumstance which has some significance is the fact that the witness had seen the accused going towards the tea stall with an empty cup and saucer at Kalyan station. The witness was asked to state whether he told the police that the accused had a talk with him at Kirkee. This question was disallowed by the Court as it was indeed to elicit a mere omission. In our view, the learned trial judge was right in disallowing the question because of the decision of the Supreme Court in Tahsildar Singh's case, A.I.R. 1959 S.C. 1012, to the effect that an omission is not relevant unless the same amounts to a contradiction……". 8. The earlier view taken in Tahsildar Singh's case has been reiterated by the Supreme Court in A.I.R. 1964 S.C. 1563 (Dahyabhai Chhaganbhai Thakkar v. State of Gujarat)3. 9. The latest case is reported in A.I.R. 1979 S.C. 1234 (Matadin and others v. State of U.P.)4. The ratio of this case is that, "small omissions and statement given by the witnesses before the police do not justify a finding that the witnesses concerned are liars." The relevant observations of the Supreme Court to be found in paragraph 3. Which is as follows :--- "The learned Sessions Judge had rejected the evidence of the eyewitness on wrong, unconvincing and unsound reasons. The sessions Judge appears to have been swayed by some insignificant omissions made by some of the witnesses in their statement before the Police and on the basis of these omissions dubbed the witnesses as liars. The Sessions Judge did not realize that the statements given by the witnesses before the Police are meant to be brief statements and could not take the place of evidence in the Court. The Sessions Judge did not realize that the statements given by the witnesses before the Police are meant to be brief statements and could not take the place of evidence in the Court. Where the omissions are vital, they merit consideration, but mere small omissions will not justify a finding by a Court that the witnesses concerned are self-contained liars. We have carefully perused the judgement of the Sessions Judge and we are unable to agree that the reasons that he has given disbelieving the witnesses are good or sound reasons. The High Court was, therefore, fully justified in reversing the judgement passed by the trial Court. We are satisfied that this is a case where the judgement of the Sessions Judge was manifestly wrong and perverse, and was rightly set aside by the High Court….." 10. On the basis of this settled law, the order dated 27-3-1984 passed by the learned trial Judge (at page 83 of the Paper Book) is not in consonance with the law laid down that it was for the Judge to consider whether the omissions brought on record are relevant and significant in the context at the time they were being brought to the notice of the witness and decide whether such omissions were contradictions and were such as to merit any consideration for the purpose of recording the same. His approach that these contradictions and omissions can be looked in at the time of final arguments is, therefore, not correct. By such avoidance, justice suffers and sometime the accused may be prejudiced. However, we find that in this case the accused are not prejudiced though the order is bad in law. 11. The next witness is Abdul Qayam Shaikh Nawab (P.W. 7). It is the case of the prosecution that he is an owner of a bicycle shop. He had given one bicycle bearing Taxi No. 13 on hire to the deceased Babu Mirase at about 4.30 P.M. on the 24th day of the month which he does not remember. However, this date according to him, was previous to the date when he came to know about the maramari which caused murder of Babu Mirase. The cycle was seized by the police (Article No. 7 ). The original register was brought by him and nothing much has been found from the cross-examination of this witness. 12. However, this date according to him, was previous to the date when he came to know about the maramari which caused murder of Babu Mirase. The cycle was seized by the police (Article No. 7 ). The original register was brought by him and nothing much has been found from the cross-examination of this witness. 12. Laxmibai Dhage is witness No. 8 for the prosecution. According to her, Babu Mirase of Puina was known to her. The mother Bhimabai had leased her land in her favour and so she know Babu. This was one year before i.e., before her statement was recorded on 28-3-1984. Laxmibai knows all the accused and she identified them. According to her, Babu died mine months ago from the date of her evidence. He had met her on a Friday at about 2.00 p.m. before his death in the bazaar at Kalamnuri. He met her in front of a cloth shop of Shaligram Burse. Accused Nos. 1 to 7 and deceased Baburao were on the road. The accused had surrounded Babu and all of them were abusing Babu. She was selling mangoes in front of the shop of Burse at that time. She asked accused Nos. 1 to 7 as to why they were quarrelling. Accused Nos. 1 to 7 dispersed away from the spot. Next day, she came to know that Babu died in the hospital. So, she went to the hospital at Kalamunri and saw the dead body of Babu. His cremation took place by the side of the road leading to the hospital at Kalamnuri. Again, in cross examination, nothing much has been found out to shake her testimony. The prosecution has examined this witness only to show that there was a previous quarrel between the accused persons and deceased Babu. On the contrary, in the cross examination her testimony unfolds a fact that there was such an incident in which Babu was surrounded by the accused persons and was being abused. The questioning of this witness on lease of land is most irrelevant and the contradictions in the police statement brought out in the cross-examination are, therefore, meaningless. She has denied all contrary suggestions made to her and there is no reason to disbelieve her. 13. Next witness Gangadhar alias Bapuroa Bajirao Shinde (P.W. 9). He was Sarpanch of Gram Panchayat, Puna for about ten years. He has passed Matriculation examination. She has denied all contrary suggestions made to her and there is no reason to disbelieve her. 13. Next witness Gangadhar alias Bapuroa Bajirao Shinde (P.W. 9). He was Sarpanch of Gram Panchayat, Puna for about ten years. He has passed Matriculation examination. He was member of Agriculture Produce Committee, Kalamnuri, His father was Police Patil of village Puna before six months of the recording of his evidence. He was removed as Police Patil on account of his old age. Avadhut Vithalrao Maske is the son of his sister. He is a native of Jawla. His land was acquired for Islampur dam, so he had come to village Puna and he reside at present at Puna. Kailas was younger brother of Avadhut. The witness and his father reside jointly. They have 2-1/2 acres of land, out of 47 acres, under irrigation and there is an oil engine installed on the well. Babu alias Chutta son of Raghoji Mirase used to work on the oil engine and on the witness's land. He was a native of Puina. The said Babu was having two acres landed, property at Puina, but it was standing in the name of his mother Bhimabai. Babu did not intend to sell the land to accused No. 5 Mansingh, but accused No. 5 purchased that land from mother Bhimabai. Babu had told accused No. 5 that he should not purchase that land as it was nothing else but a packet of poison. This witness identified accused Nos. 1, 2, 3, and 6 present before the Court as the persons who had assaulted Babu about two years ago (in relation to his statement recorded in the Court) in a bazaar at Kalamnuri and a case was filed against those four persons under section 151, Cri.P.C., Rustom, younger brother of Babu, was going on horse and at that time Rustom was attacked. In that attack, the horse was killed. There was a criminal case instituted which was going on in the Court of Kalamnuri at the time the witness was examined. He named accused No. 1 Ganesh, accused No. 2 Bharat, accused No. 3 Maroti and accused No. 6 Babanrao among with Kundlik son of Baburao, Anandrao son of Gyanbarao and accused No. 4 Anandrao son of Sadbarao. Who had attacked the said Rustom in which incident the horse was killed. He named accused No. 1 Ganesh, accused No. 2 Bharat, accused No. 3 Maroti and accused No. 6 Babanrao among with Kundlik son of Baburao, Anandrao son of Gyanbarao and accused No. 4 Anandrao son of Sadbarao. Who had attacked the said Rustom in which incident the horse was killed. He refers to another incident which happened nine years ago when Baburao son of Gangaram had attacked Babu alias Chutta with a sword and a case was field at Kalamnuri for the offence punishable under section 326 of the Indian Penal Code. A compromise had taken place in that case. On 15-6-1983, Babu alias Chutta had come to village Puina to attend one marriage. Accused Nos. 1 to 7 attacked the said Babu, himself rescued Babu then. Next day, accused No. 3 Maroti had field criminal case against the said Babu and it was tried in the Court at Kalamnuri. On 24-6-1983 murder of Babu Mirase took place. On that day, at about 9.00 a.m., the witness had gone to Bolda Bazaar in order to purchase some vegetables in the Bullockcart known as Damni, His son Prabhakar and his sisters son Aradhut were with him. They returned from Bolda bazaar at about 2.30 to 3.00 p.m. The distance between Puina and Bolda bazaar at about 4 miles. When the said Damni came near village Puina, in the land known as Khari he saw Babu alias Chutta being beaten when he was in the land of Gangarao son of Govindarao on road known as Kalamnuri road. He saw accused No. 1 Ganesh, accused No. 2 Bharat, accused No. 3 Maroti, accused No. 4 Anandrao, accused No. 6 Babanrao and accused No. 7 Pandit throwing stones on the person of the said Babu alias Chutta. He saw maramari going on. He identified the accused persons before the Court. The person who was being attacked was lying on the ground and witness did not know the name of the person who was being stoned by pelting. He came to know that the person lying down on the ground was Babu alias Chutta. He got down from Damni. His sister's son Avadhut was driving that Damni then. He was following that Damni. Accused No. 1 Ganesh, accused No. 2 Bharat, accused No. 3 Maroti and accused No. 5 Mansingh came in front of the Damni and started pelting stones at them. He got down from Damni. His sister's son Avadhut was driving that Damni then. He was following that Damni. Accused No. 1 Ganesh, accused No. 2 Bharat, accused No. 3 Maroti and accused No. 5 Mansingh came in front of the Damni and started pelting stones at them. The remaining three accused persons proceeded ahead by the side of Damni at a distance of about 50 ft. They went towards the village. Avadhut fell down on the ground on account of assault at the hands of accused No. 1 Ganesh, accused No. 2 Bahrat, accused No. 3 Maroti and accused No. 5 Mansingh by pelting stones. He became unconscious. When Avadhut fell down unconscious, this witness ran away towards his house on account of apprehension of danger to his life. His son Prabhakar ran away towards Buddha Wada. Kailash, who is brother of Avadhut, Kuber son of Vithalrao, Vithal son of Kishanrao, resident of Sandas, took Avadhut in that Damni to Kalamnuri hospital as Avadhut had sustained injuries. Avadhut lodged a complaint in the Police Station about that incident and told him about it on next day morning. When he was going to his house while running, his father was in the house and he asked him as to why he was running and told him that Avadhut was being beaten. His father followed Damni by walk to Kalamnuri Police Station. Afterwards, he came to know in the village that murder of Babu was committed by accused Nos. 1 to 7 by assaulting him. He was not knowing the person whom accused Nos. 1 to 7 had attacked at the time of actual assault, but came to know of the name of the victim as Babu alias Chutta subsequently after he reached home. This witness was examined on 28-3-1984. However, he claims at the time he was being cross examined by voluntary disclosure that the he was beaten in the bazaar at Kalamnuri on the ground as to why he gave statement as a witness in this case and that he should not be a witness in the case before the Court. The assault was made on 6-8-1983 at about 5 p.m. Jagdeorao son of Gangaram, Uttamrao son of Ramrao, Kundlik son of Babarao, Manik son of Khandbarao had attacked him and since then he has left the village. The assault was made on 6-8-1983 at about 5 p.m. Jagdeorao son of Gangaram, Uttamrao son of Ramrao, Kundlik son of Babarao, Manik son of Khandbarao had attacked him and since then he has left the village. Some 8 to 10 days thereafter, the wives of the assailants named by him lodged a false complaint in Kalamnuri Court against him. He thereafter changes and says that the complaint was lodged with the police at Kalamnuri. The case against him was false, according to him. The Damni belonged to Gangarao son of Govindrao. The distance between that land (Khari) and Maroti temple is about 50 ft. He again changed and said that it was about 50 paces. The land was towards southern side of the Maroti temple. In order to go to Puina village from Kalamnuri, one has to cross stream before entering village Puina. That stream is adjacent to Maroti temple. It is towards the eastern side of Maruti temple. The distance between Khari and Damni and stream referred to above is about 50 to 75 ft. The stream bed is about 150 ft. in width. There are no bushes on either side of the stream, but there only two trees by the side of the temple near the stream and two to three Babul trees. There is again a contradiction tried to be brought out in relation to the police statement, which is marked 'A' by the Court below, which is perhaps relating to some abuses being given on 14-6-1983. In the evening at Mangwadi. The contradictions and omissions brought out in the cross-examination in relation to the police statement again are neither material nor very relevant and, therefore. According to us, the testimony of this witness is not shaken. On the contrary, it was argued before us by the learned Counsel for the appellants accused that admittedly there was enmity between this witness and his party and the party of the accused persons. There was no enmity between the deceased Babu and the accused persons. On the contrary, we find that in the cross-examination a particular question was put to the witness directing his attention to a portion marked 'B' in his statement which is to the effect that Babu used to live with his party. There was no enmity between the deceased Babu and the accused persons. On the contrary, we find that in the cross-examination a particular question was put to the witness directing his attention to a portion marked 'B' in his statement which is to the effect that Babu used to live with his party. As this is brought out by way of contradictions, it is obvious that such a suggestion is made that Babu was also a member of the party of this witness, who was the leader, as against the party of the accused persons. The argument of the learned Advocated for the appellants-accused is contrary to the suggestion made and from the other evidence, we are convinced that there was sufficient enmity between the deceased Babu and the accused persons. The cross examination thereafter is in relation to the enmity between the two parties and the rest of the cross-examination is in relation to the incident that happened near Damni when his nephew Avadhut was assaulted. Only one point was tried to be argued by the learned Counsel for the appellants-accused before us, trying to shake the testimony of this witness that if he had known the names of all the accused persons as attacking Babu and had come to know from Bhimabai the name of the victim Babu, why did he not make a report immediately to the Kalamnuri Police Station, but waited till about 10 p.m. to make the report. The answer is not far to be seen. Answer to this argument is contained in the report made to the police. In the last portion of the report, we find that the took the victim in the police jeep to Kalamnuri hospital and the victim Babu died around 9.30 p.m. It is obvious that he returned to the police station around 10 O'clock and made the report. We, therefore, do not find any infirmity in the testimony of this witness any where and hold that he has seen the incident in which the deceased Babu was attacked by all the accused-appellants by pelting of stones. 14. The other important witness is P.W. 14 Madhukar Uttamrao Kulkarni P.S.I., Kalamnuri. He supports the story given out by Bhimabai and also Bapurao. 14. The other important witness is P.W. 14 Madhukar Uttamrao Kulkarni P.S.I., Kalamnuri. He supports the story given out by Bhimabai and also Bapurao. He recorded statements of witness as early as he could after the death of deceased Babu around 9.30 p.m. He prepared spot panchanamas and carried out other details of investigation attaching one bicycle, five stones, blood-stained earth, etc. from the place of occurrence. According to him, the accused had absconded and he tried to trace them. The evidence of absconding is always a weak evidence and the learned Sessions Judge has rightly not laid any stress on this part of the evidence. In the cross-examination, excepting bringing out the omissions and contradictions, which we have held are not very material, nothing much has been elicited from this witness. We, therefore, find no reason to disbelieve this witness. 15. Thus, by cognent and reliable evidence, the prosecution has proved that all these seven accused with the common object assaulted Babu and pelted stones, some stones hit his head. Though it cannot be asserted exactly as to who caused the head injury, we are inclined to accept the prosecution story that all the accused persons, who were on inimical terms with Babu, which is amply demonstrated by evidence on record, wanted to assault him and did so with this common object and pelted stones, some stones hitting his head causing the fatal injury. 16. The Chemical Analyser's report also supported the prosecution inasmuch as the blood-stained saree of Bhimabai as reported by the Chemical Analyser, was stained with blood and it is supporting Bhimabai's version that she took the head of deceased Babu on her lap when he was lying down having received injuries to his head. The Additional Sessions Judge has rightly separated the chaff from the grain and sifted the evidence properly and has rightly come to the conclusion that all the accused person formed an unlawful assembly with the object of assaulting deceased Babu and did assault him resulting in his death. 17. The only question that worries us is whether we should believe Bhimabai when she says that accused Bharat and Ganesh gave stone blows on the head of Babu by catching hold of the stones in their hands. She further says that accused Maruti also gave stone below on the head of Babu. 17. The only question that worries us is whether we should believe Bhimabai when she says that accused Bharat and Ganesh gave stone blows on the head of Babu by catching hold of the stones in their hands. She further says that accused Maruti also gave stone below on the head of Babu. This is, according to us, an embellishment in the testimony of Bhimabai, which can easily be separated and we, therefore, hold that it is not necessary to rely on Bhimabai to that extent. However we hold that all the accused persons pelted stones at deceased Babu. Some of which hit his head causing the fetal injury and, therefore the offence according to us, falls not under section 302 read with section 149, but under section 304, Part II, read with section 149 of the Indian Penal Code. 18. Shri Deo, the learned Additional Public Prosecutor argued before us that the injury inflicted is sufficient in the ordinary course of nature to cause the death, which actually resulted in death. The case, therefore, falls under Clause " Third " of section 300. He has relied upon three decision of the Supreme Court, namely : (1) A.I.R. 1972 S.C. 952 (Gudar Dusadh v. State of Bihar)5, (2) A.I.R. 1973 S.C. 486 (Gurchan Singh and other v. State of Haryana)6, A.I.R. 1977 S.C. 1756 (Mahadeo Ganpat Badawans and others v. State of Maharashtra)7. None of these cases are applicable to the instant case, because the earlier two cases relate to injury being caused on head with the help of lathi (1972 )and with kaives, Khasi and hockey stick (1973). The only case which is reported in A.I.R. 1977 S.C. 1756 has some resemblance with the facts of the present case. However, in that case also, some of the accused were armed with stones and they all beat the deceased. Therefore, the facts of that case also cannot be on par with that of the present case. We, therefore, do not accept the argument of Shri. Deo, learned learned Additional Public Prosecutor, in maintaining the conviction under section 302 read with section 149 of the Indian Penal Code. As indicated, we have already altered the charge under which we want to convict the accused-appellants. According to us, sentence of five years R.I. should be sufficient in the circumstances of the case. 19. As indicated, we have already altered the charge under which we want to convict the accused-appellants. According to us, sentence of five years R.I. should be sufficient in the circumstances of the case. 19. We, therefore, convict the accused-appellants under section 149 read with section 304 Part II, Indian penal Code, and sentence each of them to undergo rigorous imprisonment for five years. Rest of the convictions and sentences of the accused-appellants are maintained. However, the sentences would run concurrently. 20. This Criminal appeal is accordingly disposed of. Order accordingly. -----