JUDGMENT (ORAL) S.W. Puranik, J. - The two appellants are real brothers. They were original accused Nos. 1 and 2 alongwith 8 other accused in Sessions Case No. 153 of 1987. Their trial took place before the Additional Sessions Judge, Pune presided over by Shri K.D. Kochargaonkar. All those 10 accused were charge sheeted for various offences including Section 302 read with Section 149 of the Indian Penal Code, Sections 147, 148, 149 read with Section 452 of the Indian Penal Code and also under Section 302 read with Section 34, Indian Penal Code. The learned Sessions Judge by his Judgment rendered on 12th February 1988 acquitted accused Nos. 4 to 10 of all the charges levelled against them. He held accused No. 3 guilty of the offence under Section 323, Indian Penal Code and sentenced him to pay fine of Rs. 25/- or in default simple imprisonment for four days. While he sentenced accused Nos. 1 and 2 for the offence under Section 302 read with Section 34, Indian Penal Code and sentenced them to suffer imprisonment for life. He also held accused No. 1 guilty for an offence under Section 452, Indian Penal Code but did not award any separate sentence in that regard. Accused No. 3 has paid up the fine and has chosen not to prefer appeal. The remaining accused namely accused Nos. 1 and 2 have preferred this appeal challenging the said sentence. 2. Briefly stated the prosecution case was that the accused persons belonged to one Hargude family of village Kesnand-Taleran Wadi of Taluka Haveli, District, Pune. This family had some inimical relations with a cousin family staying in the immediate neighbourhood to which the deceased Manik Hargude belonged. It was the case of the prosecution that on 20th January 1987 in the night the 10 accused persons had gone with lathis to the house of deceased Manik and were asking him to come out and were abusing. At that time his wife Ratan protested and sought help of a senior member of the family namely Popat Darekar P.W. 1. the complainant. Popat Darekar P.W. 1- Complainant came on the spot and requested accused not to quarrel in the night and settle the dispute in the morning. All the accused persons then went away. 3. At that time his wife Ratan protested and sought help of a senior member of the family namely Popat Darekar P.W. 1. the complainant. Popat Darekar P.W. 1- Complainant came on the spot and requested accused not to quarrel in the night and settle the dispute in the morning. All the accused persons then went away. 3. It is further the case of the prosecution that on the next day early morning at about 5.30 or 6.00 a.m. Popat Darekar P.W. 1 and his brother Keru had just got up and were waiting for tea when Ratan, wife of Manik suddenly started shouting and came to him for help saying that her husband Manik was being assaulted by the accused persons. P.W. 1- Popat then rushed to the place where stone wall was half constructed and saw accused No. 1 forcibly entering the hilt of deceased Manik and forcibly dragging Manik in half sleepy condition out of his hut in front of the common courtyard. He also saw accused No. 1 giving a stick blow with both hands upon the chest of deceased Manik whereby he fall down. At the same time Popat grabbed the stick from the hands of the accused and took it away. He also pleaded with him not to attack Manik. In the meantime he saw accused No. 2 Waman picking up a big stone from nearby and dropped it on the chest of the victim Manik. He also claims to have seen the remaining accused assaulting Manik, one by one. Victim Manik fell unconscious. Attempt to provide drinking water to Manik also failed. The accused left the place and Complainant Popat went on bicycle to a distance of about 4 miles to reach Police outpost Lonikand where he lodged his complaint which is F.I.R. Exh. 25. 4. The prosecution has also examined Ratan, wife of deceased Manik at P.W. 2. She also narrates about the previous night's incident when the accused had threatened her husband Manik and on her intervention Popat Darekar had come and asked the accused to go back and settle the dispute in the morning. 25. 4. The prosecution has also examined Ratan, wife of deceased Manik at P.W. 2. She also narrates about the previous night's incident when the accused had threatened her husband Manik and on her intervention Popat Darekar had come and asked the accused to go back and settle the dispute in the morning. She then narrates that on the early hours of 21st January 1987, while she and her husband were sleeping in their hut accused persons and in particular accused No. 1 entered the hut and forcibly dragged her husband Manik by the cuff of his collar and took him in the common courtyard. She followed them and saw accused No. 1 giving a powerful stick blow on the chest of deceased Manik. She also saw accused No. 2 Waman dropping a huge stone on the chest of the deceased. She then also narrates about the part of assault played by other acquitted accused persons. 5. On receipt of the F.I.R. at about 8-30 a.m. P.I. Godse P.W. 6 came to the scene of offence by which time, the injured Manik was already removed to the Hospital where he was reported dead. Investigating Officer conducted the spot panchanama and recorded the statements of Popat P.W. 1, Ratan P.W. 2 and nine other eyewitnesses. During the investigation accused persons were arrested. It is alleged that accused No. 1 Sonba made a statement to the police recorded in the presence of panch as under Section 27 of the Evidence Act and a discovery memorandum Exh. 30 came to be recorded. In the presence of the panchas discovery memorandum of stick was recovered from the loft in the hut of accused No. 1 which was seized under Panchanama Exh. 31. In the spot panchanama Exh. 21 of the scene of offence the Investigating Officer noticed that there were no bloodstain marks anywhere at the scene of incident. He however noted that there were small and big stones scattered as well as fixed in the grounds at the place of incident. He seized two stones at random which were fixed to the ground. 6. On information received in the afternoon about the death of victim Manik an inquest panchanama was held and the dead body was forwarded for post-mortem which was conducted by Dr. Chintalwar P.W. 3. His notes are at Exh. 28. He seized two stones at random which were fixed to the ground. 6. On information received in the afternoon about the death of victim Manik an inquest panchanama was held and the dead body was forwarded for post-mortem which was conducted by Dr. Chintalwar P.W. 3. His notes are at Exh. 28. The Medical Officer noticed as many as 18 external injuries without any bleeding on various parts of the body. During the internal examination he noticed contusion right parital and contusion of the occipital region. He however, did not notice any fracture of the skull. He also noticed fracture of ribs on the left side Nos. 3, 4, 5 and 6 and of the sternum. Dr. Chintalwar also deposed that external injuries Nos. 1 and 2 corresponded with fracture of ribs and skull. In the opinion of the Medical Officer, the cause of death was shock due to injuries. 7. On the basis of the evidence recorded with particular reference to the two eye-witnesses P.W. 1-Popat and P.W. 2Ratan, Medical Officer - P.W. 3 and the Investigating Officer P.W. 6 P.I. Godse Chintalwar, the learned Sessions Judge found that the prosecution case has failed to establish any case against accused Nos. 3 to 10 in respect of Section 302 read with Section 34, Indian Penal Code, Section 302 read with Section 149 and Section 452, Indian Penal Code. He however held accused No. 3 guilty of offence under Section 323 and sentenced him to pay fine and held accused Nos. 1 and 2 guilty of offence under Section 302 read with Section 34 of the Indian Penal Code. In addition he found accused No. 1 guilty under Section 452 but he did not award any separate sentence. Hence this appeal. 8. With the assistance of Shri R.S. More, learned Counsel appearing for the Appellants and Shri S.B. Patil, learned Additional Public Prosecutor, we have gone through the entire record and papers as also the evidence and impugned Judgment. 9. The Appellant submits that the prosecution has failed to bring home the guilt under Section 302, Indian Penal Code against both the appellants. The appellants also submit that on proper appreciation of the entire evidence, it would appear that if at all, the appellant No. 1 may be guilty of causing simple hurt by means of stick blow. 9. The Appellant submits that the prosecution has failed to bring home the guilt under Section 302, Indian Penal Code against both the appellants. The appellants also submit that on proper appreciation of the entire evidence, it would appear that if at all, the appellant No. 1 may be guilty of causing simple hurt by means of stick blow. He referred to several omissions and contradictions in the F.I.R. and the complainant's version as also the exaggerated nature of evidence deposed to by the two eye-witnesses who are closely related to the deceased. 10. Shri S.B. Patil, learned Additional Public Prosecutor supported the impugned judgment and submitted that the presence of the two eye-witnesses even though interested was natural and they have given consistent version of the incident which the trial Court has rightly accepted. 11. We have narrated above in detail the prosecution case as was tendered before the trial Court. It consisted of the 10 accused persons have conjointly attacked one unarmed individual with various weapons such as sticks, stones and iron vessel (Ghamela) used for construction activity. It was the specific case of the prosecution that almost all the accused persons had attacked with the common object of eliminating the deceased Manik. We nave also seen that for cogent reasons rendered by the learned trial Judge, the prosecution case has failed in respect of the accused Nos. 3 to 10 on the charge of murder. On inquiry the learned Public Prosecutor informs us that the State has not preferred any appeal against the acquittal of accused Nos. 3 to 10. In these circumstances, the prosecution case in so far as these acquitted accused are concerned cannot be taken into consideration. At any rate the case as against them laving failed, the prosecution case itself has considerably weakened the case that remains now is the act played by accused Nos. 1 and 2 in the attack on deceased Manik and whether the evidence establishes the offence under Section 302 read with Section 34, Indian Penal Code against both of them. 12. At any rate the case as against them laving failed, the prosecution case itself has considerably weakened the case that remains now is the act played by accused Nos. 1 and 2 in the attack on deceased Manik and whether the evidence establishes the offence under Section 302 read with Section 34, Indian Penal Code against both of them. 12. Apart from the weakening of the case of the prosecution by result of majority of the accused being acquitted, we also find another infirmity in that, the Investigating Officer admittedly recorded the statements of 9 other eye-witnesses on the very date of the incident but for reasons best known to the prosecution, the other 9 witnesses have not been examined at the trial and the prosecution is made to rest only on the testimony of the wife of the deceased and the relative of the deceased, this inspite of the fact that Ratan P.W. 2 admits not only the presence of Shivaji who had intervened in the quarrel and also the presence of other immediate neighbours having their huts in front of Manik's hut, we find that this infirmity also further shakens the edifice of the remaining prosecution case. 13. Coming to the eye-witness account, in the deposition of Pop at P.W. 1 it is seen that in his F.I.R. he has nowhere stated that accused No. 2 Warn an picked up a stone and dropped it on the person of the deceased. It must be noted that the F.I.R. was lodged within a couple of hours of the incident and yet this material omission from a detailed report running into three pages is a further fatal shock to the prosecution in so far as the allegation of overact by accused No. 2 is concerned. It is for the first time that Popat P.W. 1 has deposed to in his evidence that it was accused No. 2 who picked up the stone and dropped it on the chest of Manik coupled with the non-examination of independent and available eye-witnesses the interested testimony becomes cloudy because of this exercise. The benefit in that regard will have to be given to accused No. 2 Waman. The benefit in that regard will have to be given to accused No. 2 Waman. Even otherwise there is infirmity in respect of assault by stone by accused No. 2 because we find that in the panchanama of scene of offence the Investigating Officer had noticed several stones near the place of incident and Popat P.W. 1 had not pointed out the particular stone which was used as weapon of offence by accused No. 2. We also find from the panchanama that two stones which were embedded in the ground were attached by the Investigating Officer on his own. Thus, the weapon of offence allegedly weighing 6-1/2 Kg. stone Art. l looses its significance. Further we find that the post-mortem notes indicate several contusion marks on the person of the deceased. Therefore, no particular stone injury either near the chest or over other parts can be attributed to accused No. 2 and that too in the absence of any reference to the use of stone in the F.I.R. We have also taken note of the fact that the deceased had fallen at a place where there were stones scattered and embedded in the ground. The cause of injuries could be of different nature and if the injury was caused by pushing stone on the chest, we would have expected some cut marks or bleeding injuries of contused laceration because of the sharp edges of stone. With all these infirmities we have no hesitation to hold that prosecution case as appears against accused Nos. 1 and 2 cannot stand scrutiny and they will have to be given benefit of doubt. 14. In so far as the prosecution case against accused No. 1 is concerned, we find that eyewitness account of Popat P.W. 1, Ratan P.W. 2 and Dr. Chintalwar P.E. 3 who has noticed a weal mark injury of 8" in length on the chest of the deceased which according to the doctor, is possible by a forcible stick blow. The use of stick by accused No. 1 is also narrated in the F.I.R. Exh. 25. In addition, there is a discovery memorandum by accused No. 1 Sonba who has recovered this stick used from the loft of his hut. The use of stick by accused No. 1 is also narrated in the F.I.R. Exh. 25. In addition, there is a discovery memorandum by accused No. 1 Sonba who has recovered this stick used from the loft of his hut. It was urged on behalf of the appellants that possession of a stick in the house of an agriculturist is a common phenomenon but in the special circumstances of the case and with the consistent eye-witness account supported by medical evidence, we find that the discovery of the stick lends support to the weal mark injury sustained by the deceased. However, this is the only injury caused, even accepting the entire eye-witness account, by accused No. 1 because admittedly, both eyewitnesses narrated that the stick was immediately snatched after the first blow was given by accused No. 1. Therefore, the sole injury by stick cannot be made the basis for the offence under Section 302, Indian Penal Code. If at all the offence would be of causing grievous injury which has resulted in consequential fracture on the sternum to Manik as defined in Clause Seventhly in Section 320, Indian Penal Code. Mere fracture of the rib and sternum cannot be the cause of death since the opinion of the doctor at the end of the postmortem report states that he died of the cumulative effect of all the injuries resulting in shock. Therefore, Appellant No. 1 will have to be acquitted of the offence under Section 302, Indian Penal Code. 15. In so far as his conviction under Section 452, Indian Penal Code is concerned, we also find that the eye-witnesses account of Popat P.W. 1 and Ratan P.W. 2 is consistent with the fact that accused No. 1 had dragged the deceased from out of his hut on the fateful morning. P.W. 2 Ratan has further given effective account of the forcible entry of accused No. 1 inside the hut where he picked up the deceased Manik from his cot by the cuff of his collar and pulled him out into the common courtyard. It is in these circumstances, the entry with criminal intention is punishable under Section 452, Indian Penal Code and the conviction for the same will have to be maintained. 16. In the result, the appeal is partly allowed. The conviction and sentence imposed upon accused Nos. It is in these circumstances, the entry with criminal intention is punishable under Section 452, Indian Penal Code and the conviction for the same will have to be maintained. 16. In the result, the appeal is partly allowed. The conviction and sentence imposed upon accused Nos. 1 and 2 under Section 302 read with Section 34, Indian Penal Code is quashed and set aside. However, we convict accused No. 1 appellant No. 1 for the offence under Section 325, Indian Penal Code and sentence him to suffer the imprisonment already undergone by him. We confirm the conviction of accused No. 1 for the offence under Section 452, Indian Penal Code but we do not award separate sentence for the said offence. 17. We direct that the accused No. 1 and accused No. 2 be set at liberty forthwith, if not required otherwise. Appeal partly allowed.