JUDGMENT - BARDE V.K., J.:---Both these appeals are arising out of the same judgment delivered in Sessions Case No. 76/1992 by the Additional Sessions Judge, Beed. Hence both these appeals are being disposed of by this common judgment. 2. Criminal Appeal No. 393/1993 is filed by the four accused from same case, who are convicted, while Criminal Appeal No. 171/1994 is filed by the State against the order of acquittal recorded by the learned Additional Sessions Judge with respect to remaining 12 accused. 3. The case of the prosecution is as follows : On 5-7-1992, at about 5 p.m. at the house of Dinkar Babasaheb Tandale, at the village Deolali Panachi, a meeting was held to settle the dispute between Ramrao Dashrath Tandale and Raghunath Dhondiba Tandale. Bhima Tandale, Dadaba Tandale and Mhatardeo Tandale had attended that meeting. The meeting ended at about 7 p.m. At about 10 p.m. Machindra Tandale and others were taking meals in the house of Machindra Tandale. Then in all 17 persons, including the accused named herein, entered the house of Machindra. The accused were armed with sword, Gupti, Iron bar and stones. The accused Rajaram Tandale, Murlidhar Tandale, Gorakh assaulted Mhatradeo with Gupti. Mhatardeo received injuries on ribs. The accused Dwarkadas and Balu Tandale assaulted Dadaba Chimaji Tandale. The accused Sanjay Khade and Gorakh Bhilla hit Mhatardeo Tandale with stones. Other accused broke the door of the house. The accused were shouting and encouraging each other to beat. The accused dragged Mhatardeo from the house and on the ota of the house. Again Mhatardeo was beaten by the accused. Mhatardeo died there. His dead body was then kept on the ota in front of the house of the Police Patil. 4. Sadashiv Shamrao Mohite, Police Patil of the village, was at his field during that night. He returned home at about 6 a.m. He saw dead body of Mhatardeo on the ota of his house. He then contacted Sarpanch of the village and both of them were proceeding to give information to the relatives of Mhatardeo. On the way, Popat, brother of Mhatardeo, met them and he told on enquiry that Dadaba, father of Mhatardeo, may be at the house of Ramrao or Bhima. Police Patil then went to the house of Bhima and told Dadaba that dead body of Mhatardeo was lying in front of the house of Sadashiv. On the way, Popat, brother of Mhatardeo, met them and he told on enquiry that Dadaba, father of Mhatardeo, may be at the house of Ramrao or Bhima. Police Patil then went to the house of Bhima and told Dadaba that dead body of Mhatardeo was lying in front of the house of Sadashiv. Then Dadaba, Police Patil and others again went in front of the house of Sadashiv. They saw the dead body. Police Patil then proceeded to Police Station, Ambhora, to make a report while Dadaba was taken to Ashti for Medical treatment. 5. At Ashti Police Station a report was made that riot was going on in the village Deolali and the police force be sent for Bandobast. The village Deolali falls within the jurisdiction of Police Station, Ambhora and so, a wireless message was sent at 8.45 p.m. on 6-7-1992 from Ashti Police Station to Ambhora Police Station about the information received and Dadaba was sent to Rural hospital, Ashti, for treatment. 6. Entry regarding message received from Police Station, Ashti, was taken in Police Station Diary at Ambhora. P.S.I. Raut and other police officers proceeded to Deolali. 7. At the same time Police Patil of Deolali made a report at the Police Station orally as well as in writing that Mhatardeo Tandale was lying dead in front of his house. 8. P.S.I. Raut on going to Deolali recorded statement of Machindra and the same was treated as F.I.R. The statement was sent to Police Station for registering the crime and Crime No. 63/1992 was registered for the offences punishable under sections 302, 324, 323, 504, 452, all read with sections 149, 147 and 148 of Indian Penal Code. P.S.I. Raut took up the investigation. 9. During the course of investigation, the inquest panchnama of the dead body of Mhatardeo was prepared and then it was sent for post mortem examination. Machindra, his brother Gautam, the other two injured persons were also sent for medical treatment and report. It transpired during the course of investigation that the accused had come from Kada to Deolali by jeep belonging to accused Nanibai at about 10 p.m. on that night. So, the jeep in question was also seized by the police under panchanama. Machindra, his brother Gautam, the other two injured persons were also sent for medical treatment and report. It transpired during the course of investigation that the accused had come from Kada to Deolali by jeep belonging to accused Nanibai at about 10 p.m. on that night. So, the jeep in question was also seized by the police under panchanama. The panchnama of the place of the incident was prepared which indicated that there were bloodstains at various places on the way from the house of Machindra upto the house of Police Patil Sadashiv. The police seized bloodstained soil and bloodstained stones from the place of incident and on the way to the place where the dead body was found, while preparing panchnama. Statements of various witnesses were recorded. The articles seized from the place of the panchnama, the clothes of the deceased and injured persons and the weapons seized during the course of investigation were all sent for chemical examination and report. All the accused before the Court were arrested by the police, however, Gorakh Gaikwad, Dwarkadas Gaikwad and Shiva Pimple were absconding. Sambhaji Murlidhar Tandale, being juvenile, his matter was referred to the juvenile Court. Charge-sheet was filed against all the accused before Judicial Magistrate, First Class, Ashti. As the offences are triable by the Court of Sessions, Judicial Magistrate, First Class, Ashti committed the case to the Court of Sessions, Beed. 10. Learned Additional Sessions Judge framed charge against the accused. The accused pleaded not guilty. 11. The defence of the accused is that they are falsely involved in this case because of dispute regarding Dudh Dairy and management of the education society established by husband of Nanibai and they have also contended that because of other village politics the prosecution witnesses are giving false evidence against them. 12. Learned Additional Sessions Judge after recording evidence of the prosecution witnesses, statements of the accused, examined Sadashiv Mohite as the Court witness. Then, after hearing the arguments of both the sides, learned Additional Sessions Judge came to the conclusion that the accused Nanibai w/o Raghunath Tandale committed offence under section 148 of Indian Penal Code and sentenced her to rigorous imprisonment for six months and to pay fine of Rs. 1,000/-; in default of payment of fine, to suffer further rigorous imprisonment for one month. 1,000/-; in default of payment of fine, to suffer further rigorous imprisonment for one month. Learned Additional Sessions Judge convicted the accused No. 7 Sanjay Changdeo Khade, accused No. 11 Rajaram alias Mahadeo Sadashiv Tandale and accused No. 14 Murlidhar Sadashiv Tandale for the offences punishable under section 324 read with section 149 of Indian Penal Code, and sentenced each of them to rigorous imprisonment for one year and to pay fine of Rs. 1,000/-; in default of payment of fine, to suffer further rigorous imprisonment for three months. The three accused are further convicted for the offence punishable under section 452 read with section 149 of Indian Penal Code and each of them is sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs. 2,000/; in default of payment of fine, to suffer further rigorous imprisonment for six months. The said three accused are also convicted for the offence under section 302 read with section 149 of Indian Penal Code, and each of them is sentenced to imprisonment for life and to pay fine of Rs. 2500/-, in default of payment of fine, to suffer further rigorous imprisonment for six months. He further directed that all substantive sentences to run concurrently. He also directed that from the amount of fine Rs. 5,000/- be paid to widow of Mhatardeo, namely Sushilabai. The remaining accused were acquitted of all the offences. 13. Heard Shri Bora, learned Counsel for appellants in Criminal appeal No. 393/1993, and Shri Bhapkar, learned Additional Public Prosecutor for respondent No. 1, and Shri Chaudhari, learned Counsel for respondent No. 2 in Criminal Appeal No. 393/1993. 14. Heard Shri Bhapkar, learned Additional Public Prosecutor for appellant in Criminal Appeal No. 171/1994, and Shri N.K. Kakade, learned Counsel for respondents 1 to 12 in Criminal Appeal No. 171/1994. 15. Learned Counsel for the appellants Shri Bora has taken us through the entire evidence on record. His main contention is that the prosecution has utterly failed to bring on record the genesis of the offence. The evidence led by the prosecution witnesses, especially with respect to filing of the report at the police station, is very much confusing. 15. Learned Counsel for the appellants Shri Bora has taken us through the entire evidence on record. His main contention is that the prosecution has utterly failed to bring on record the genesis of the offence. The evidence led by the prosecution witnesses, especially with respect to filing of the report at the police station, is very much confusing. The prosecution has suppressed the report filed by Sadashiv Mohite, Police Patil at Police Station, Ambhora, while the report filed at Police Station, Ashti, when Dadaba, injured, was taken there gives entirely different story than what is stated by Machindra before the police which is treated as F.I.R. by the police. It is also strongly contended that statement of Machindra cannot be treated as F.I.R. because Sadashiv Mohite, the Police Patil, had already made a written report at the Police Station which gave information to the police that Mhatardeo was killed when Mhatardeo and Dadaba, his father, were assaulted by Bhill persons; Gorakh Gaikwad, Dwarkadas Gaikwad, Ambadas and Shivaji as per the information given by injured Dadaba. So, that information lodged at the Police Station by Police Patil ought to have been treated as F.I.R., and not a statement of Machindra recorded by P.S.I. Raut later on at village Deolali. 16. It is also argued by the learned Counsel Shri Bora for the appellants that the police have carried out the investigation most dishonestly. It is pointed out that panchnama regarding seizure of jeep, as per Ex. 52 was prepared in between 7 p.m. to 7.30 p.m. on 6-7-1992 in the presence of panchas Murlidhar Shekde and Bhagwan Tandale, however, deposition of Murlidhar Shekde indicates that on 5-7-1992, he had gone to village Bhoinj in Satara District. There he received information about death of Mhatardeo and then he returned to Kada at 10 p.m. on 6-7-1992. The prosecution is relying on his evidence to show that all the accused met him at Kada on 5-7-1992 in the evening between 4 p.m. to 6 p.m. and that they proceeded to Deolali by jeep. So, either entire evidence of Murlidhar Shekde is false or the panchnama prepared at Ex. 52, regarding seizure of jeep, is false. 17. Learned Counsel Shri Bora also pointed out that it is the prosecution case that Machindra made a report at village Deolali to P.S.I. Raut. That report was sent to Ambhora for registering the crime. So, either entire evidence of Murlidhar Shekde is false or the panchnama prepared at Ex. 52, regarding seizure of jeep, is false. 17. Learned Counsel Shri Bora also pointed out that it is the prosecution case that Machindra made a report at village Deolali to P.S.I. Raut. That report was sent to Ambhora for registering the crime. The prosecution has also tried to make out a case that Machindra had gone to Police Station, Ambhora and there the Police Station Officer referred him to medical officer for medical treatment by giving a letter. However, the prosecution witness Constable Ashok Shinde has stated in his deposition at Ex. 76 that he took the report to Police Station, Ambhora, and he went alone and he did not state that Machindra was with him. The prosecution witness Machindra has categorically stated in his deposition, Ex. 64, that the did not visit Police Station, Ambhora, either on 6th July or 7th July, 1992. However, copy of the F.I.R. forwarded to the Judicial Magistrate, First Class, Ashti, on 7-7-1992, as per the provisions of section 157 Criminal Procedure Code bears the signature of Machindra and the prosecution is not able to explain when and where Machindra signed the F.I.R. Furthermore, if Machindra was sent to Ambhora, then how is it that he was present on 6-7-1992 when the panchnama of the place of the incident was prepared by the police in between 1 p.m. to 1.30 p.m. 18. It is also argued by the learned Counsel for the appellants Shri Bora that the evidence of injured witnesses Dadaba, Machindra and Gautam does not create any confidence. In the so-called F.I.R. lodged by Machindra it is nowhere stated that Gautam was present when the incident had taken place. There is also no reference in the F.I.R. that the accused had been there in a jeep. It is alleged that accused Rajaram Tandale, Sanjay Khade and Gorakh assaulted Mhatardeo with gupti, however, medical evidence indicates that there was only one incised wound on chest of Mhatardeo. The prosecution witnesses afterwards have changed their version while giving evidence in Court and say that only Rajaram stabbed Mhatardeo with gupti. It clearly means that the prosecution witnesses are falsely implicating the accused in this case. The prosecution witnesses afterwards have changed their version while giving evidence in Court and say that only Rajaram stabbed Mhatardeo with gupti. It clearly means that the prosecution witnesses are falsely implicating the accused in this case. Learned Counsel Shri Bora has also pointed out various contradictions in the depositions of three injured persons and statements before the police which are brought on record in the cross-examination of these witnesses, and proved through cross-examination of P.S.I. Raut. 19. When the prosecution is coming before the Court with a case that 18 persons went to the house of Machindra at about 10 p.m. on the night of 5-7-1992, broke open to door, entered into the house and then assaulted Mhatardeo, his father Dadaba, Machindra and his brother Gautam, the prosecution has to make out the case that there was some common object for the accused to act in this way. However, on going through the evidence of Machindra, Ex. 64, Gautam, P.W. No. 9, and Dadaba P.W. No. 8, one cannot ascertain what was the common object of the accused for indulging in such incident. 20. The accused Rajaram is a practising Advocate. It is being brought on record through the evidence of Gautam at Ex. 72 that he himself, Machindra and their father were in jail in connection with the offence punishable under section 302 Indian Penal Code. Rajaram was their Advocate in the said matter and Rajaram had taken cash of Rs. 50,000/- and 5 Tola gold to see that they were release from the Jail, however, Rajaram could not do that work. Later on, all three of them were released from jail and they were demanding the amount and gold from Rajaram. Mhatardeo was accompanying them whenever such demands were made and, therefore, Rajaram had grudge against Mhatardeo and so the assault took place. 21. We do not find any corroboration to this theory being put forth through the evidence of Gautam. If Machindra and Gautam were demanding amount from Rajaram then Rajaram must have grudge against these two persons and not against Mhatardeo, who was accompanying them. Why Rajaram should select Mhatardeo for assault and murder? 22. 21. We do not find any corroboration to this theory being put forth through the evidence of Gautam. If Machindra and Gautam were demanding amount from Rajaram then Rajaram must have grudge against these two persons and not against Mhatardeo, who was accompanying them. Why Rajaram should select Mhatardeo for assault and murder? 22. Through the cross of the prosecution witnesses, it is brought on record that there was dispute between two groups, one led by Rajaram and another led by Dinkar Tandale and they were trying to have control over the Education Institute established by brother of Rajaram and because of this dispute the accused are falsely implicated in this case, but the prosecution witnesses have not accepted that there was such dispute and in such circumstances it cannot be said that because of this dispute the accused gathered together with the common object of assaulting the prosecution witnesses. 23. It is also being suggested that there was dispute between Raghunath Dhondiba Tandale and Rama Dashrath Tandale and both of them decided to settle the matter. Rajaram, who was representing Rama Dashrath tandale, did not like that there should be settlement and, therefore, the assault took place. However, this theory is also left hanging without creating any basis by the prosecution. So, per se it appears that the accused named in the charge-sheet had no immediate reasons to go to the house of Machindra, armed with weapons, at 10 p.m. to assault Mhatardeo and others. So, the prosecution has failed to establish that there was any reason for the persons to assault the prosecution witnesses and to cause murder of Mhatardeo. The prosecution is not able to establish that there was any common object. 24. Here we would like to mention that the learned Additional Sessions Judge, while framing the charge, has not cared to find out as to what was the common object of the accused. The charge is framed in most defective manner the common object of the unlawful assembly is not at all mentioned in the charge. Thus, the charge itself is not disclosing the common object of the accused who, according to the prosecution, had formed unlawful assembly, and the prosecution evidence also does not make out a clear case regarding what was the common object of the accused. Thus, the charge itself is not disclosing the common object of the accused who, according to the prosecution, had formed unlawful assembly, and the prosecution evidence also does not make out a clear case regarding what was the common object of the accused. Besides, the prosecution witness Machindra, Dadaba and Gautam, there is no other witness to state about the common object of the accused. Therefore, other evidence on record is of no help to the prosecution. 25. Dadaba Chimaji Tandale, P.W. No. 8, is one of the most important witness. His deposition is at Exh. 71. He has stated about the meeting which took place at the house of Dinkar Babasaheb Tandale at 5 p.m. on 5-7-1992. He has stated that about 50 persons were present for that meeting. Sahebrao, Popat and Mhatardeo and his three sons were there. So also, Rama Machindra, Gautam Dada, Amle, Ramrao Shekde and others were present. Similar evidence is given by Machindra and Gautam about the meeting. Dadaba stated that meeting ended at about 7 p.m. and the dispute was settled. After the meeting he himself, Machindra, Rama, Bhima and Mhatardeo, went to the house of Machindra for taking food. His other sons Sahebrao and Popat went to the field. He has further stated that he himself, Rama and Bhima first took the meals and Bhima went to his house. He and Rama were chitchatting while sitting in northern side of the house. Machindra and Mhatardeo were taking meals and Sitabai, mother of Machindra, was serving meals. At about 9.30 p.m., he heard noise of jeep. Gautam was outside the house. He rushed in the house and closed the door. Then heavy stone pelting started on the door. Southern side door of the house was broken. He then gives names of the accused who entered in the house. He has stated that Rajaram gave a blow of gupti to Mhatardeo on his left rib. Mhatardeo received bleeding injury. Sanjay hit Machindra with stones on head, knee and leg. Gorakh Bhill also hit Machindra with stone. Accused Sanjay, Hari and Baban assaulted Mhatardeo. Baban gave a blow of axe to Mhatardeo while Sanjay and Hari hit Mhatardeo with stone and stick. He has further stated that when he was proceeding towards Machindra. Dwarkadas raised his gupti. Sanjay hit Machindra with stones on head, knee and leg. Gorakh Bhill also hit Machindra with stone. Accused Sanjay, Hari and Baban assaulted Mhatardeo. Baban gave a blow of axe to Mhatardeo while Sanjay and Hari hit Mhatardeo with stone and stick. He has further stated that when he was proceeding towards Machindra. Dwarkadas raised his gupti. He caught the gupti and at that time Gorakh Bhill gave blow of gupti on chest on left side. He received bleeding injury. There was cut injury on his palm also. He has stated that Baban and Hari hit him with stones. Rama was also hit and was injured by stone pelting. 26. Witness Dadaba has further stated that the accused persons were causing injury to Mhatardeo with whatever instruments they were having. Nanibai was encouraging them to beat. He has stated that accused carried Mhatardeo outside the house. He remained in the house of Machindra till 12 midnight and then he went to the house of Bhima. He had gone in search of his son Mhatardeo. He has stated that wife of Bhima admitted him in the house and he remained there for whole night. 27. Dadaba has further stated that in the morning Police Patil Sadashiv informed him that Mhatardeo was killed and his body was thrown on the ota of the house of Police Patil. He saw the dead body of Mhatardeo. He felt giddiness. Then Shahdeo took him to S.T. bus stand and then he was taken by Bus to Dhamangaon. He became unconscious on the way. He gained consciousness on the third day at the hospital at Ahmednagar. He was admitted there as indoor patient. 28. In the cross-examination Dadaba has stated that his son Popat had come to the house of Bhima along with Police Patil. He has further stated that Police Patil asked him what had happened and he has stated that he could not narrate the incident to the Police Patil. Many contradictions in his statement before the police and deposition before the Court are brought on record. 29. He has stated in the cross-examination that from the house of Police Patil he went to the Bus Stand on foot. But stand was at about 300 to 400 steps from the house of Police Patil. Many contradictions in his statement before the police and deposition before the Court are brought on record. 29. He has stated in the cross-examination that from the house of Police Patil he went to the Bus Stand on foot. But stand was at about 300 to 400 steps from the house of Police Patil. He has also stated that he did not narrate incident either to Shahadeo or Bhima who were accompanying him and he has stated that he did not see Narayan Dajiba Shekde, accompanying him to the hospital. 30. So, from the evidence of Dadaba it clearly appears that he did not disclose to anybody about the incident since he left the house of Machindra. It is rather strange that Dadaba who had received the injuries during the course of incident, would keep quiet without telling anybody about who had assaulted him and why the assault took place. He did not tell about the incident to Bhima or to the Police Patil or to Shahdeo and Bhagwan who took him to Ashti, according to him. It also appears that at Ashti he did not tell anything to police about the incident. To escape from all difficult answers, he has stated that he became unconscious when he reached upto Dhamangaon and gained consciousness on the third day. 31. In this respect it is worth to refer to the evidence of the Medical Officer who examined Dadaba. Deposition of Dr. Kulkarni, P.W. No. 10, is at Ex. 73. He has stated that on 6-7-1992, at about 8.45 a.m. he examined Dadaba, there were three simple injuries on the person of Dadaba,- (1) Abrasion over the left palm, irregular. (2) Incised wound over the left chest, below left clavicle, transverse, regular borders, crepitise felt over the front chest and left axilla, size 1 ½" x ½" x ½". (3) Contusion, left buttock, ½" x ½" in six, reddish blue in colour, movements present. The Doctor has further opined that the injury Nos. 1 and 3 were caused by hard and blunt object while injury No. 2 -incised wound-was caused by sharp object. He referred Dadaba to Civil Hospital, Nagar, for further treatment. 32. The witness has further stated that the injury No. 1 on left palm could have been caused while warding off the blow and injury No. 2 could have been caused by a gupti. He referred Dadaba to Civil Hospital, Nagar, for further treatment. 32. The witness has further stated that the injury No. 1 on left palm could have been caused while warding off the blow and injury No. 2 could have been caused by a gupti. The injuries were caused within 24 hours from the time of examination. 33. In the cross-examination Dr. Kulkarni has stated that Dadaba was fully conscious at the time of examination and he gave history that on the previous night he was assaulted with stones and gupti but he did not disclose any names and he has further stated in the cross-examination that injury No. 1 on the left palm could not have been caused by sharp weapon like gupti and it also could not have been caused by a weapon having sharpness on both sides, if it is held in hand and pulled. 34. The sum and substance of evidence of Dr. Kulkarni is that the injuries found on the person of Dadaba were very minor. Dadaba was conscious and Dadaba was talking with the Doctor but he did not state the names of the assailants. What prevented Dadaba from giving names of assailants to the Doctor is not known. Dadaba has not explained in his deposition as to why he did not give names of the assailants to the Doctor. So, whenever there was occasion for Dadaba to state what had happened and who caused him injuries, he failed to make any statement. This is rather very strange behaviour. It cannot be said that either Dadaba was very old or that he was seriously injured, or that he was under the spell of fear, so he did not make any statement. The circumstances as stated by Dadaba indicate that immediately after the incident he left the house of Machindra and went to the house of Bhima. He had gone in search of his son but he did not care to search for him. He is not stating that out of fear he did not go for search of Mhatardeo after reaching the house of Bhima. He had gone in search of his son but he did not care to search for him. He is not stating that out of fear he did not go for search of Mhatardeo after reaching the house of Bhima. So, if he had energy sufficient to go to the house of Bhima and he had courage sufficient to go to the house of Bhima, he could have very well gone to the house of Police Patil situated in the same village to make a report about the incident but he avoided to report. On the next day morning, when Dadaba saw the dead body of his son Mhatardeo, he failed to make any report to the Police Patil about the incident. A person how had received injuries in the incident and a person who knows that his son received injuries and sees the dead body of his son, how is that he keeps silence. In all ordinary circumstances, he would have made report regarding the incident to the Police Patil. The evidence brought on record shows that Police Patil immediately went to the Police Station, Ambhora. He had asked Dadaba, who was injured, to accompany him. He could have gone to Police Station, Ambhora, to make a report along with the Police Patil but he did not go. No other person, knowing about the incident, went to Police Station, Ambhora, along with the Police Patil to make a report at Police Station, Ambhora. Dadaba went to Police Station, Ashti, but there he did not make any report about the incident. Why he did not make any report at Police Station, Ashti, is not at all properly explained by the prosecution. 35. It is worth noting that Dadaba had been to Police Station, Ashti Narayan Daji Shekde and Bhima Ganpat Tandale were with him. They made a report at the Police Station but Dadaba kept quiet, not only that, these two persons, Narayan and Bhima reported at the Police Station that riot was going on at Deolali, Dadaba has received injury and, therefore, he was brought for medical treatment and they also requested that the Police force be sent to Deolali for Bandobast. The accused have filed on record copy of the Police Station Diary of Ashti Police Station where the entry regarding this information is recorded. So, when such information was being given by Narayan and Bhima, Dadaba kept quiet. The accused have filed on record copy of the Police Station Diary of Ashti Police Station where the entry regarding this information is recorded. So, when such information was being given by Narayan and Bhima, Dadaba kept quiet. He did not disclose that Mhatardeo was dead. Not only that, Narayan and Bhima also did not disclose that Mhatardeo was dead. They had come from Deolali along with Dadaba, so, in all probabilities, they were knowing that Mhatardeo was dead but, no such information was given at Police Station, Ashti. The prosecution has no explanation as to why information about death of Mhatardeo was not given by Narayan and Bhima and even by Dadaba. 36. If the information given at Police Station, Ashti, is understood in proper perspective, then the immediate report to the Police was that riot was going on at Deolali. There was no report that riot had taken place at Deolali on the previous night at about 10 p.m. This very information was transmitted to Police Station, Ambhora, and it was recorded in Police Station diary at Ambhora. That Police Station diary is on record. There is also the deposition of Head constable Ajabe who states in his deposition at Ex. 77 that he received the wireless message from Police Station, Ashti, at 8.45 a.m. and he recorded it in the Police Station Diary. So, altogether different information was given at Police Station, Ashti, and Police Station, Ambhora, at the instance of Dadaba, Narayan and Bhima than what is being now pleaded by the prosecution. 37. In such circumstances, it has to be held that the prosecution is hiding very vital evidence from the Court regarding how the incident took place, who took part in the incident and when the incident took place. The prosecution cannot rely on statement of Machindra and, at the same time, on the evidence of Nanasaheb Ajabe, the Head Constable of Police Station, Ambhora, who states that some different information was received from Police Station, Ashti. Therefore, it appears that Machindra gave information to the Police, P.S.I. Raut, with some ulterior motive and after deliberation. Dadaba was asked too keep quiet and, therefore, Dadaba avoided to make any statement at Police Station. Ashti and before Medical Officer, Ashti. It means that the F.I.R. Ex. 65, lodged by Machindra cannot be believed. 38. The evidence of Sadashiv Mohite, Ex. 124, is also very important. Dadaba was asked too keep quiet and, therefore, Dadaba avoided to make any statement at Police Station. Ashti and before Medical Officer, Ashti. It means that the F.I.R. Ex. 65, lodged by Machindra cannot be believed. 38. The evidence of Sadashiv Mohite, Ex. 124, is also very important. He is the Police Patil of village Deolali. He was cited as prosecution witness in the chargesheet but he was not examined by the prosecution. After closing of the case and when the matter was pending for judgment on behalf of the defence, application was given that Police Patil of village Deolali Sadashiv Mohite be called as Court witness and it was also requested that the report lodged by the Police Patil at Police Station, Ambhora, be produced on record. The prosecution objected this application on three grounds, (i) that the application was given at late stage, (ii) nobody can be called as Court witness when the prayer is being made by the defences and (iii) that it would be unnecessary to call report lodged by the Police Patil at the Police Station. The learned Additional Sessions Judge by his order dated 26-10-1996, ordered that the Police Patil be called as Court witness under section 311 Criminal Procedure Code and further directed the Investigating Officer to submit report filed by the Police Patil at the Police Station, Ashti. 39. Sadashiv was examined as Court witness. He has stated that on 5-7-1992 he had gone to his field and he returned home on 6-7-1992, early in the morning at 6 am. When he reached near his house, he found that dead body of Mhatardeo Dadaba Tandale was lying in front of door of his house. He then went to Narayan Javane, Sarpanch of the village and told him about the dead body of Mhatardeo and asked him what had happened in the village on the previous night. The Sarpanch informed him that he returned to village at about 10.30 p.m. on 5-7-1992, and he was not knowing about what had happened, Sadashiv has further stated that he then asked Bapu Kotwal to keep watch on the dead body and then proceeded to the house of Dadaba Tandale who was residing in the field at a distance from the village. On the way Popat s/o Dadaba met them and he asked where was Dadaba and then Popat told that Dadaba might be at the house of Ramrao or Bhima. Sadashiv has stated that he then went to the house of Bhima. Dadaba was there, sleeping in one room. Bhima and his wife both were present. There was injury on chest of Dadaba and his clothes were found stained with blood. He asked Dadaba as to what had happened and Dadaba replied that Gorakh, Dwarkadas, Ambadas and Shivaji attacked. Sadashiv then told Dadaba that dead body of Mhatardeo was in front of his house. So, Dadaba, Bhima, Popat and Sadashiv all went to the house of Sadashiv, Machindra, Shahdeo, Raya, Dattu Dhoke, Gautam also came there and saw the dead body of Mhatardeo. 40. Sadashiv then stated that he asked Dadaba to accompany him to Police Station. Ambhora, to lodge the report but Dadaba told him that he wanted to go to hospital and nobody could go with him. Then he proceeded to Police Station, Ambhora, with Bapu Kotwal and asked another Kotwal Saheba Sable to keep watch on the dead body. He went to the Police Station by jeep. He reached there at about 7.30 a.m. He has stated that P.S.I. Raut, Head Constable Chavan, were present at Ambhora Police Station. He has stated that he gave the report at the Police Station. He has specifically stated that he gave report in writing to Head Constable Ajabe. He has stated that P.S.I. Raut asked him to go ahead to the village and stated that he would follow him. So, he returned to Deolali by the jeep by which he had gone to Ambhora. He has stated that Jamadar Chavan and one Constable accompanied him to Deolali. He has stated that he and Jamadar Chavan made enquiry about Dadaba and they learnt that Dadaba had gone to Ashti by Bus. Then they went to Kada by Police Jeep. There they learnt that Dadaba was taken to Ashti. Then both of them went to Ambhora and Head Constable Ajabe, informed that P.S.I. Raut had gone to Deolali. Then he and Jamadar Chavan went to Ahmednagar for recording statement of Dadaba because they had learnt that Dadaba was taken to Ahmednagar from Ashti. There they learnt that Dadaba was taken to Ashti. Then both of them went to Ambhora and Head Constable Ajabe, informed that P.S.I. Raut had gone to Deolali. Then he and Jamadar Chavan went to Ahmednagar for recording statement of Dadaba because they had learnt that Dadaba was taken to Ahmednagar from Ashti. He has stated that they reached at Ahmednagar at about 3 p.m. Jamadar Chavan recorded statement of Dadaba in the Hospital at Ahmednagar and then Sadashiv and Chavan returned to Deolali by 5.30 p.m. in jeep. 41. There is corroboration to the evidence of Sadashiv from the evidence of Dadaba, Machindra and Gautam, who all state that Sadashiv had been to the house of Bhima to inform that dead body of Mahatardeo was lying in front of house of Sadashiv. There is also corroboration to the evidence of Sadashiv from Head Constable Ajabe. He has stated at Ex. 77 that Police Patil Sadashiv made a report to the Police Station at about 8.50 a.m. oral as well as in writing. He took the entry of that report in Police Station Diary at Sr. No. 10. Original diary is produced in the Court and it shows that the entry is taken on the basis of report of Sadashiv and in this entry it is specifically written that the Police Patil gave oral as well as written report but Head Constable Ajabe states that Sadashiv informed that he saw the dead body of Mhatardeo but he was not knowing about the incident. It is the contention of the prosecution that Sadashiv gave only oral report and that too about finding the dead body of Mhatardeo and he did not know anything more and it appears that in the trial Court it was argued that Ajabe inadvertently stated that Sadashiv gave report in writing. There was no report in writing. 42. However, not only that Sadashiv states that he gave a report in writing but there is an entry in the Police Station diary of Police Station, Ambhora, at Sr. No. 10, taken on 6-6-1992, at 8.50 a.m. that the Police Patil had given a written report. That report is not coming forward in spite of the directions issued by the Additional Sessions Judge. The prosecution has failed to produce that report on record. No. 10, taken on 6-6-1992, at 8.50 a.m. that the Police Patil had given a written report. That report is not coming forward in spite of the directions issued by the Additional Sessions Judge. The prosecution has failed to produce that report on record. This clearly means that the prosecution wants to hide from the Court as to exactly what report was given by Sadashiv at the Police Station. The report might be as per the statement made by Dadaba before Sadashiv or the report might be anything else but that was the first report which police received at the Police Station, from the Police Patil of the village, who was expected to make a report as per his duty. It was necessary for the police to keep and preserve that report for production of the same in the Court but the prosecution followed a clever move; neither the report was produced before the Court along with the chargesheet nor Sadashiv was examined as prosecution witness even though named as witness in the charge-sheet nor the report, when called by the Court, was produced in the Court. 43. If Sadashiv was the first person to see the dead body of Mhatardeo then he is the most import witness to state in what condition he saw dead body of Mhatardeo. If it is the prosecution case that Dadaba and others learnt about death of Mhatardeo from Sadashiv even then, to corroborate their evidence, it was necessary to examine the Police Patil. The very fact that the Police Patil was not examined by the prosecution makes entire prosecution case doubtful. 44. From deposition of Sadashiv it does not appear that he had any reason to give false report at the Police Station or to state that he had given written report when he had not given any report or to state that Dadaba told him that the Bhill persons attacked him. Sadashiv is cross-examined at great length; both by the learned Additional Public Prosecutor and the learned Counsel for the defence but his evidence does not disclose that he had any reason to give false evidence or that he was giving false evidence. 45. Sadashiv is cross-examined at great length; both by the learned Additional Public Prosecutor and the learned Counsel for the defence but his evidence does not disclose that he had any reason to give false evidence or that he was giving false evidence. 45. So, evidence of Sadashiv makes out altogether different case than what was reported at the Police Station, Ashti, in the presence of Dadaba by Narayan and Bhima and what is being stated by Machindra in his so called F.I.R., Exh. 65. Here one more important circumstance also has to be noted that Sadashiv has stated that he had gone to Ahmednagar in the company of Jamadar Chavan to record statement of Dadaba and Jamadar Chavan recorded statement of Dadaba on 6-7-1992 at about 3 p.m. The prosecution has not examined Jamadar Chavan. Prosecution has not brought on record even the fact that the statement of Dadaba was recorded by Jamadar Chavan. On the contrary. P.S.I. Raut states that he recorded statement of Dadaba on 7-7-1992. Dadaba corroborates Raut in this respect, however, Dadaba is altogether an unreliable witness. He states that he lost his consciousness on 6-7-1992 and gained consciousness on third day in Ahmednagar hospital and how in such circumstances he could have given any statement before the P.S.I. Raut on 7-7-1992. So, it also appears that when at the instance of Machindra some statement was obtained by P.S.I. Raut, to treat the same as F.I.R., a tailor made statement of Dadaba was prepared on 7-7-1992 and now Dadaba is giving deposition according to that statement. 46. In the light of these circumstances, it is absolutely not necessary to go to deposition of Machindra and Gautam, the other so called injured persons in the said incident. No doubt there are many contradictions in their evidence also and the learned Additional Sessions Judge has observed in his judgment about the shorfalls in their depositions to indicate how the depositions are not believable but, unfortunately, he has believed the same statements to convict the accused. 47. No doubt there are many contradictions in their evidence also and the learned Additional Sessions Judge has observed in his judgment about the shorfalls in their depositions to indicate how the depositions are not believable but, unfortunately, he has believed the same statements to convict the accused. 47. When basically the prosecution is not able to prove at what time the incident took place, who participated in the alleged assault and what was the reason of the assault, all that lengthy evidence of prosecution witness Machindra and Gautam is of no use to find out whether there is so called arithmetical or mathematical corroboration to their evidence as observed by the learned Additional Sessions Judge in his judgment. Corroboration is to be sought to find out the truth in the statement but when we come to know that the statement itself is false, the corroboration would only mean that there is corroboration to the false statement and such corroboration is of no use to convict anybody. 48. Even then we would like to highlight one more point, While giving oral evidence, Machindra, Dadaba and Gautam have stated that Gautam was present at the place of incident. He was standing out when the jeep reached there. He received injuries because of the stones pelted. He immediately closed the door and informed others that those persons had arrived there in the jeep. Prosecution has led medical evidence to indicate that Gautam had received injuries on his person. But then, why Machindra is not stating in the so called F.I.R. that Gautam was present, he was outside the house and he received injuries because of stones pelted by the accused, he closed the door and informed about the arrival of the accused. It may be that Machindra was taking meals and, therefore, he could not have seen the accused coming there by jeep or accused causing injury to Gautam but then he at least ought to have mentioned that Gautam was present there, but the F.I.R. Exh. 65 is silent about the presence of Gautam and arrival of accused by jeep and this means that while giving oral evidence before the Court, these prosecution witnesses have further improved the case. 49. This fact is apparent from another circumstance also. 65 is silent about the presence of Gautam and arrival of accused by jeep and this means that while giving oral evidence before the Court, these prosecution witnesses have further improved the case. 49. This fact is apparent from another circumstance also. In the beginning the prosecution witnesses made out the case that Rajaram and two other persons caused injuries to Mhatardeo by sharp weapon but after postmortem examination report, they came to know that there was only one incised wound on the chest of Mhatardeo. So, they moulded their deposition before the Court, dropped other two persons as assailants with sharp weapon and stated that only Rajaram assaulted Mhatardeo with sharp weapon. This clever switch over by the prosecution witnesses indicates that they are bent upon involving this accused in this case, on way or the other. 50. Learned A.P.P. has argued that Machindra, Dadaba and Gautam are all injured persons. They have no reason to nail persons than the real assailants and from this point of view their evidence be believed. He has further argued that panchanama of the place of incident. Ex. 55, clearly shows that the incident had taken place at the house of Machindra. The door of the house was found broken, stones were lying inside and outside the house. There were bloodstains in the house as well as on the ota of the house of Machindra. There were bloodstains on the way from the house of Machindra upto the house of Police Patil and this circumstantial evidence must be taken into consideration to hold that the story given by the prosecution witnesses in their deposition is believable. 51. In ordinary circumstances, it is true that the injured persons and especially father of a deceased victim would not give names of some other persons than the real assailants but here it appears that all these prosecution witnesses are bent upon to give different dimension to the incident which resulted in death of Mhatardeo for the reasons best known to them. The panchanama, Ex. 55, no doubt indicates that the incident took place at the house of Machindra but how far this panchanama itself is believable. The prosecution has examined Bhima Ganpat Tandale, one of the panch witness, to prove the panchanama and it appears from his deposition that he is close relative of deceased Mhatardeo. The panchanama, Ex. 55, no doubt indicates that the incident took place at the house of Machindra but how far this panchanama itself is believable. The prosecution has examined Bhima Ganpat Tandale, one of the panch witness, to prove the panchanama and it appears from his deposition that he is close relative of deceased Mhatardeo. He was one of the persons who had attended the meeting at 5 a.m. as per the deposition given by Dadaba and others. He was also accompanying them when Dadaba took meals at the house of Machindra. He states in his deposition at Ex. 53 that on that night he was sitting on ota of his house. The house of Machindra is at a distance of 50 feet from his house. He heard loud cries and shouts and he also noticed stone pelting at the door of Machindra. He immediately went inside the house and closed doors of house. He has stated that he was suffering from pain in ribs and, therefore, he did not go ahead to see what was happening but he states that for whole night he was hearing the cries, noise and stone pelting. Then he admits in the cross-examination that Dadaba had been to his house at night and he was treated by his wife for injuries received by Dadaba. But again there are contradictions in what he has stated before the Police and what he is deposing before the Court. 52. Bhima was the next door neighbour of Machindra. In ordinary course, he must have seen the entire incident. So, he was one of the prime witnesses. He was available to P.S.I. on 6-7-1992 to prepare the panchanama of the place of the incident. Even then statement of Bhima was recorded by the police on 8-7-1992. There is no explanation from the prosecution as to why statement of Bhima was not recorded immediately. So, Bhima becomes highly interested witness and, therefore, the panchanama prepared in his presence cannot be relied upon as the true circumstantial evidence. 53. Some other circumstances also must be taken into consideration. Those are with respect to the investigation carried out by P.S.I. Raut. Deposition of P.S.I. Raut is at Ex. 81. So, Bhima becomes highly interested witness and, therefore, the panchanama prepared in his presence cannot be relied upon as the true circumstantial evidence. 53. Some other circumstances also must be taken into consideration. Those are with respect to the investigation carried out by P.S.I. Raut. Deposition of P.S.I. Raut is at Ex. 81. He states that the information was received from Ashti Police Station that riot was going on at Deolali and, therefore, he went to Deolali, along with Police Constables but he is not stating as to what he exactly saw at Deolali on reaching there. He is neither confirming the report received from Police Station, Ashti, that riot was going on at Deolali nor denying that report. In fact if that was the report then in his deposition he ought to have stated as to whether he saw any signs of any riot going on at Deolali before his arrival at Deolali. 54. The evidence of Sadashiv indicates that P.S.I. Raut was present at the Police Station when he himself made report at the Police Station. In ordinary course, P.S.I. Raut must be knowing Police Patil of village Deolali. Head Constables Ajabe must have informed that Police Patil of Deolali was present at the Police Station. So, it was his first duty to make enquiry with Police Patil regarding the report which was received from Ashti Police Station but he did not make any enquiry with the Police Patil-that is apparent from his deposition. On the contrary, Police Patil Sadashiv states that P.S.I. Raut asked him to go ahead and that he would follow him. If that is so then the role played by P.S.I. Raut in this matter becomes more suspicious. The prosecution has examined panch witness Murlidhar Shekde to prove the panchanama regarding seizure of jeep which is at Ex. 52. His deposition is at Ex. 60. Murlidhar has stated that on 5-7-1992, he had gone to Kada because he wanted to go to Bhoinj. He accordingly went to Bhoinj and there he received information on 6-7-1992 about death of Mhatardeo. So, he returned to Kada on 6-7-1992 by 10 p.m. The prosecution has examined this witness purposely to show that all the accused were at Kada, they were using the jeep of accused Nanibai and they had talked with Murlidhar in between 4 to 6 p.m. at Kada. 55. Panchnama, Ex. So, he returned to Kada on 6-7-1992 by 10 p.m. The prosecution has examined this witness purposely to show that all the accused were at Kada, they were using the jeep of accused Nanibai and they had talked with Murlidhar in between 4 to 6 p.m. at Kada. 55. Panchnama, Ex. 52, indicates that it was prepared on 6-7-1992 in between 7 p.m. to 7.30 p.m. How this panchnama was prepared in the presence of Murlidhar when he was not present at Deolali at that time. It is very clear that P.S.I. Raut has prepared a false panchnama regarding seizure of jeep. That is also apparent from the original panchnama, Ex. 52, which indicates that the whole panchnama is written in one ink and the timing of the panchnama is written in different ink and in a different handwriting. The investigation is not, therefore, honest investigation. This panchnama regarding seizure of jeep, Ex. 52, could not have been prepared in presence of Murlidhar Ramrao Shekde, the panch witness. But all these prosecution witnesses who are selected by the P.S.I. as panch witnesses are either close relatives of deceased or his near friends. 56. So, even if there is evidence that Mhatardeo had received fatal injuries and he died homicidal death the prosecution is unable to prove how Mhatardeo received the injuries and at whose hands he received the injuries. No reliance can be placed on evidence of any of the witnesses who are examined as injured eye-witnesses. The other circumstantial evidence is also not reliable. The prosecution has tried to show that weapons were seized at the instance of accused but those weapons were not bearing any bloodstains and C.A. report has drawn a blank. Prosecution has tried to make out a case that accused had come to Deolali by jeep but here again neither the evidence of Murlidhar nor the evidence of Navnath Shekde, P.W. No. 2, Ex. 56, is believable. Learned Additional Sessions Judge has shown many infirmities in the evidence of the prosecution witness No. 2 Navnath. So, we hold that the prosecution has failed to make out a case against any of the accused. 57. Before parting, we would like to point out that Sadashiv was examined as Court witness by the learned Additional Sessions Judge specifically stating that he was being called as per the provisions of section 311 of Criminal Procedure Code. So, we hold that the prosecution has failed to make out a case against any of the accused. 57. Before parting, we would like to point out that Sadashiv was examined as Court witness by the learned Additional Sessions Judge specifically stating that he was being called as per the provisions of section 311 of Criminal Procedure Code. His deposition is at Ex. 124. After his examination in chief, he is cross-examined by the advocates for the accused and, thereafter, he is cross-examined by the Additional Public Prosecutor. When a witness is called as a Court witness, no doubt with the permission of the Court, the accused as well as the prosecution can cross-examine him but then his cross-examination must be restricted to whatever he has stated in the examination-in-chief. The Court witness cannot be asked question to bring on record the contradictions in his deposition and his statement made before the police during the course of investigation i.e. under section 161 Criminal Procedure Code. Here the learned Additional Sessions Judge has allowed the Additional Public Prosecutor to cross-examine Sadashiv with reference to his statement under section 161 Criminal Procedure Code to prove the contradiction. The proviso to sub-section (1) of section 162 Criminal Procedure Code makes it very clear that only prosecution witness can be cross-examined by the defence with reference to statement made by the witness under section 161 Criminal Procedure Code only to bring on record the contradictions and the prosecution can, with permission of the Court, cross-examine the prosecution witnesses to bring out on record the contradictions in his deposition before the Court and statement before the police under section 161 Criminal Procedure Code. The Court witness or defence witness cannot be put to cross-examination with reference to his statement under section 161 Criminal Procedure Code to prove the contradictions. 58. In the case of (Tahsildar Singh v. State of U.P.)1, A.I.R. 1959(46) S.C. 1012, Their Lordships have observed in para No. 17- "... ... It (statement under section 161 Criminal Procedure Code) cannot be used for corroboration of a prosecution or a defence witness or even a Court witness. Nor can it be used for contradicting a defence or a Court witness........ ........" The same principle is followed again in various rulings of the Supreme Court and High Court to which reference is made by the learned Counsel Shri Bora. Nor can it be used for contradicting a defence or a Court witness........ ........" The same principle is followed again in various rulings of the Supreme Court and High Court to which reference is made by the learned Counsel Shri Bora. So, it was not correct on the part of the learned Additional Sessions Judge to allow the Prosecutor to put the questions to the Court witness Sadashiv to prove a contradiction in his statement before the police and deposition before the Court. 59. We would also like to observe here that the charge framed by the Additional Sessions Judge is most defective. It is already pointed out that the common object is not at all mentioned anywhere in the charge. The charge is not subdivided in proper heads and that definitely has created confusion. 60. One more circumstance has to be noted that the learned Additional Sessions Judge has observed in his judgment that the four accused who are convict were the members of unlawful assembly and he has also observed that all those who are members of the unlawful assembly are vicariously liable for any act done by any of the member of the unlawful assembly, which was committed in furtherance of the common object of the unlawful assembly. He has convicted the accused appellants Sanjay, Rajaram and Murlidhar for the offences punishable under sections 452, 324, and 302 all read with section 149, I.P.C. only on the ground that they were the members of the unlawful assembly but, surprisingly enough, when he says that Nanibai was one of the member of the unlawful assembly and she was possessing a weapon, a knife, she is not convicted along with other three accused for the said offences but convicted only for the offence punishable under section 148 of Indian Penal Code. This was altogether wrong and incorrect approach of the learned Additional Sessions Judge. If it was held that Nanibai was member of the unlawful assembly and that she was having the weapon then it follows that she was also entertaining the same common object, along with other accused, and she ought to have been convicted for the offences for which other accused are convicted. 61. If it was held that Nanibai was member of the unlawful assembly and that she was having the weapon then it follows that she was also entertaining the same common object, along with other accused, and she ought to have been convicted for the offences for which other accused are convicted. 61. Whatever it may be, on going through the entire evidence in this case, we are of the opinion that the prosecution has failed to make out the case and, therefore, the four accused, who are convicted, are entitled to acquittal. Hence Criminal Appeal No. 393/1993, is allowed. The appellants Sanjay, Nanibai, Rajaram and Murlidhar are acquitted of the offences for which they are convicted by the trial Court. The order of conviction and sentence passed by the learned Additional Sessions Judge in Sessions Case No. 76/1992 is set aside. The bail bond furnished by Nanibai stands cancelled. The appellant Sanjay, Rajaram and Murlidhar, if not required in any other case, be released forthwith. Fine amount, if paid, be refunded. 62. Criminal Appeal No. 171/1994 is dismissed. The order regarding payment of compensation to widow of Mhatardeo, namely, Sushilabai, also stands cancelled. Order accordingly. -----