Judgement R. K. BATTA, J. :- The appellants have been convicted by III Additional Sessions Judge, Thane vide Judgment dated 29-11-1997 for various offences. They have been held guilty for the offence of rioting under S. 148 of IPC and sentenced to suffer R. 1, for one year and to pay a fine of Rs.200/- each in default to suffer S. I. for 15 days; for the offence of murder under S. 302 read with 149 of IPC and sentenced to imprisonment for life as also to pay a fine of Rs.1000/- each in default to suffer S. I. for three months; for voluntarily causing hurt under S. 324 read with 149 of IPC and sentenced to suffer R. I. for one year and to pay a fine of Rs. 200/- each in default to suffer S. I. for 15 days. In addition they have also been held guilty under S. 37 read with 135 of the B. P. Act and sentenced to suffer S. I. for two months and also to pay a fine of Rs.100/- each in default to suffer S. I. for ten days. All the sentences have been ordered to run concurrently. The appellants have been given benefit of set off under S. 428 of Cr. P.C. for their detention during the pendency of the trial. 2. In all 35 accused had been put up for trial, but except the appellants all other co-accused have been acquitted. Appellants challenge their conviction and sentence in this appeal. 3. The prosecution case, in brief, is that there is two groups in the village and there was long standing rivalry between the two groups. One group was controlled by the deceased Ganpat Dalvi who was the sarpanch of village Sawad and the other group was headed by Patil group. Somewhere in the year 1986 Ankush S. Dalvi brother of deceased Dalvi was murdered. 4. On 27-3-1994 there was turmeric ceremony on account of the marriage of son of Devram Dattatraya Mali with the daughter of Shanivar Dadaji Dalvi. The turmeric ceremony was separately held at the house of Devram Mali and Shanivar Dalvi. The turmeric ceremony at the residence of Shanivar Dalvi was attended by the deceased Ganpati Dalvi as also P.W.Z. Shanivar Lahu Dalvi. The turmeric ceremony was separately held at the house of Devram Mali and Shanivar Dalvi. The turmeric ceremony at the residence of Shanivar Dalvi was attended by the deceased Ganpati Dalvi as also P.W.Z. Shanivar Lahu Dalvi. At the turmeric ceremony which was held at the house of Devram Mali, original accused No. 6, Ravindra Patil is reported to have touched the person of P.W. 11 Surekha, on account of which Somnath Mhatre P. W. 7 questioned him. After this incident Somnath Mhatre, Ramdas Mhatre, Haribhau Mhatre, Kantabai Mhatre and Laxman Mhatre came near the old house of Ganpat. At this stage at about 11.45 P. M. the accused armed with swords, iron bars, gupti, axe, stones are reported to have come near the old house of Ganpat Dalvi and pelted stones. The deceased Ganpat Dalvi is reported to have assaulted by original accused Nos. 2, 3, 5, 6, 7, 28 and 33, (the details of which we shall refer to at a later stage). Besides the assault on deceased Ganpat the others who were present there at the time of incident were also assaulted and they are, Shanivar Dalvi P.W.2 the nephew of deceased Ganpat, Ravindra P.W. 3 son of deceased Ganpat, Gurunath P. W. 4 son of deceased Ganpat, Ramdas P.W. 5, Somnath P. W. 6, Somnath Hari Mhatre P.W. 7, Janabai Dalvi P. W. 8 wife of deceased Ganpat and Laxman Mhatre P. W. 10. 5. Initially charges were framed on 1-3-1997 but the charges were reframed on 2-7-1997. The trial Court has accepted the evidence of the eye witnesses and on the basis of the evidence on record, came to the conclusion that the appellants have formed an unlawful assembly for committing murder of deceased Ganpat Dalvi and for that purpose had carried with them deadly weapons including swords, axe, iron bars, stones etc. The trial Court found that original accused Nos 2, 3, 5, 6, 7, 28 and 33 had actually assaulted the deceased and the other appellants were fully aware of the formation of unlawful assembly as a result of which they are vicariously liable for the murder of Ganpat and held guilty for the charge of murder of deceased Ganpat. The trial Court found that original accused Nos 2, 3, 5, 6, 7, 28 and 33 had actually assaulted the deceased and the other appellants were fully aware of the formation of unlawful assembly as a result of which they are vicariously liable for the murder of Ganpat and held guilty for the charge of murder of deceased Ganpat. The trial Court has also found that the prosecution had proved the charge relating to rioting under S. 148, IPC, causing voluntarily hurt by dangerous weapon under S. 324, IPC as also for offence under S. 37 read with 135 of the B. P. Act. 6. We have heard the learned advocate for the appellants and the learned A. P. P. at length who took us through the evidence of the relevant witnesses. 7. The learned Advocate for the appellant has basically made the following submissions before us. i) All witnesses examined by the prosecution are partition witnesses who have animous against the appellants on account of long standing enmity and rivalry as also because they belong to different factions. In this connection it is also urged that the witnesses are either related to the deceased or they are accused in the counter case, as a result of this as many as 35 persons were implicated without material evidence against them. ii) The scene of offence, which is old house of Ganpat in the FIR, has been shifted to in front of the house of Babu Dalvi. There is no mention of "Dhara Mara" in the FIR nor there is any whisper in the FIR of the use of axe by the original accused No. 28. iii) The witnesses do not speak of specific role of each accused, weapons or the parts of the body on which the assault was made. iv) The presence of Ravindra P.W. 3 and Janabai P.W. 8 who are son and wife respectively of the deceased Ganpat, does not figure in the FIR and both of them gave a different version vis-a-vis the deposition of P.W. 2 Shanivar Patil and in fact the evidence of P.W. 4 Gurunath runs counter to the evidence of P.W. 2 Shanivar as according to him no assault took place in front of the house of Ganpat. v) Though there is a story of pelting of stones in the FIR yet, the prosecution did not prove that story. v) Though there is a story of pelting of stones in the FIR yet, the prosecution did not prove that story. Further no charge was framed in this respect. vi) The discoveries alleged to have been made at the instance of appellants, cannot be relied upon since none of them have stated that they had concealed the weapon which is said to have been recovered. vii) It is urged that in respect of the appellants, who have not taken part in the assault on deceased Ganpat or no overt act is attributed to the appellants in relation to the assault on deceased Ganpat, the prosecution has failed to prove that they shared common object to kill Ganpat, as a result of which those appellants who have not taken direct part on the assault of deceased Ganpat cannot be held guilty for the murder of deceased Ganpat by virtue of Section 149, IPC. We shall refer to this argument in detail while dealing with the case on merits. viii) The prosecution has not explained the injuries suffered by some of the appellants in the course of the incident, as a result of which genesis of the prosecution case cannot be believed. 8. The learned A.P.P. on the other hand urged before us that the FIR is not an encyclopedia in which minute details are required to be given; that minor contradictions in the evidence are hallmark of the truth of the prosecution case; that the Haldi incident which triggered the crime in question is admitted and the presence of the appellants at the scene of offence is not disputed; that not only the prosecution has established the participation of all the appellants in the crime but also the formation of unlawful assembly; the common object of which was to kill deceased Ganpat; that the appellants at whose instance the recoveries of weapons have been made, have categorically stated in the memorandum under Section 27 that they had concealed the weapons and as such the recoveries have been duly established by the prosecution against the accused. According to the learned A.P.P. the trial Court by an elaborate judgment, after discussing all relevant evidence on record, has correctly appreciated the prosecution evidence in the light of the well settled principles of appreciation of evidence and that no interference whatsoever is called for in the judgment, which is impugned in this appeal. 9. According to the learned A.P.P. the trial Court by an elaborate judgment, after discussing all relevant evidence on record, has correctly appreciated the prosecution evidence in the light of the well settled principles of appreciation of evidence and that no interference whatsoever is called for in the judgment, which is impugned in this appeal. 9. The prosecution has examined as many as 23 witnesses in support of the charges. We shall now refer to the material evidence of the witnesses upon which reliance has been placed by the prosecution. The FIR was lodged by Shanivar Dalvi P.W. 2. Even though it is urged that prosecution witnesses are partisan witnesses, there is long standing enimity and they belong to different factions, yet and it has not been contended that their testimony on account of the same is required to be rejected. It is now well settled that the testimony of partisan witnesses does require close scrutiny in order to find out the truth in their testimony. According to the learned Advocate for the appellant, the complainant P.W. 2 in the FIR had given a generalized version on the basis of imagination and the genesis of assault is not only, not duly established but it does not get any corroboration from the independent witnesses. P.W. 2 Shanivar has stated that he along with the deceased Ganpat had gone to the turmeric (Haldi) programme at the house of Shanivar Dadaji Dalvi. He along with the deceased Ganpat returned at about 11.45 p.m. to the court yard of old house of Dalvi which is occupied by him and at that time Somnath, Ramdas, Haribhau, Kantabai, Laxman came there rushing. The accused came there with weapons namely swords, axe, iron bars, gupti, stones and shouted "Dhara Mara". As pointed out by the learned Advocate for appellants, there is no reference to "Dhara Mara" in the FIR. According to P.W. 2, original accused No. 9 Gopinath and accused No. 7 Ramu Patel gave stick blows to him as also accused No. 4 Sainath Patil hit sticks on his knee. As pointed out by the learned Advocate for appellants, there is no reference to "Dhara Mara" in the FIR. According to P.W. 2, original accused No. 9 Gopinath and accused No. 7 Ramu Patel gave stick blows to him as also accused No. 4 Sainath Patil hit sticks on his knee. It is further stated that accused No. 2 Pandit dealt blow of sword on the head of deceased Dalvi, original accused No. 3 Anant dealt blows of iron bar on the person of deceased Ganpat, original accused No. 28 Bhagwan hit on the head of deceased Ganpat by axe, accused No. 33 Eknath hit stick blows on the person of deceased Ganpat. He also states that the others were also beaten but he could not tell which of the accused had beaten or assaulted on which part of the body of the other witnesses. It has been urged by the learned Advocate for the appellants that in the FIR this witness has not given details of what weapon they had and who had assaulted the deceased Ganpat, nor the parts of the body nor the number of blows were given in the FIR, nor that original accused 28 Bhagwan was having axe with him and that in the FIR there was ominous allegation with no specific details as a result of which the testimony of P.W. 2 cannot be accepted. We have to bare in mind that the incident took place in the dead of the night and the FIR was promptly lodged at 2.30 a.m. In the incident large number of accused are reported to have taken part and in such eventuality it would be rather difficult for anyone to give complete details of assault as also the number of blows or the parts of the body on which the assault was made. It may also be pointed out that in a case where large number of accused are reported to have carried out the assault, the evidence of all the witnesses, who might have seen some part of the assault, is required to be co-ordinated. The presence of this witness on the spot cannot be doubted. His testimony as to the assault on deceased Ganpat as also on him goes to show that he was present at the time of the incident. The presence of this witness on the spot cannot be doubted. His testimony as to the assault on deceased Ganpat as also on him goes to show that he was present at the time of the incident. Besides this, it has also to be borne in mind that FIR is not an encyclopedia in which all minute details are required to be given. According to P.W. 2 Shanivar he was assaulted with sticks by original accused Nos. 4, 7 and 9. The medical evidence shows that he had suffered abrasion over knee joint over petella, abrasion on right illiac fossa, scratch mark on right scapular region, swelling and tenderness as also abrasion on right ankle joint. P.W. 2 has also stated that accused No. 2 Pandit had given a blow of sword on the head of deceased Ganpat, accused No. 3 Anant had dealt with blows of iron bar on the person of deceased Ganpat, accused No. 28 Bhagwan had hit on the head of the deceased Ganpat by axe and accused No. 33 Eknath gave stick blows on the person of the deceased Ganpat. His evidence gets corroboration from other oral and medical evidence on record. According to medical evidence deceased Ganpat had received 10 injuries on his person which read as under : 1) Incised wound right frontal skull bone 5 cm long, 3 cm deep through bone, transverse direction regular margin, fracture skull bone, sharp cutting edge. 2) Incised wound left parital region 4 cm. x 3 cm. deep through bone, vertical direction, blood oozing, fracture skull bone-sharp cutting edge. 3) Incised wound 5 cm. x 3 cm. deep left parital parallel to the 2nd wound vertical direction, fractured skull bone, object sharp and cutting edge. 4) Stab wound 2 cm. deep x 3 cm. long through skull bone, left parital bone near 3rd wound. Cause more or less pointed weapon-knife or dagger. 5) Lacerated wound - occipital region 3 x2 cm. through bone, transverse direction, irregular edges, object-blunt object like rod or stone, 6) Right external tear 5 cm. long mid 1/3 transverse direction object sharp cutting edges, 7) Contusion mid 1/3rd noise, right side face 2 cm. broad, skin black coloured, object hard object. 8) Right wrist joint - fracture dislocation no colour changes over wound, 9) Scar mark 6 cm. long mid 1/3 transverse direction object sharp cutting edges, 7) Contusion mid 1/3rd noise, right side face 2 cm. broad, skin black coloured, object hard object. 8) Right wrist joint - fracture dislocation no colour changes over wound, 9) Scar mark 6 cm. long resided coloured, angle of both scapula in between object sharp cutting edges, 10) Left ear behind contusion 3 cm. broad skin black coloured object-hard. The internal injury which were corresponding to above said external injuries were as follows and have been mentioned in column No. 19. 1) Injury under the scalp - right frontal, pariental, parietal occipital region, lacerated under the schad (sic). 2) Communicated fracture frontal bone right side, transverse direction, fracture bone but no displacement of fagment, (ii) communicated fracture partial bone left side vertical direction, fracture bone but no displacement of fagment. 3) Brain left lateral lobe covering tear blood and brain matter ozzing brain turn into pieces other lobe congested, unnatural size. 4) The external injury Nos. 1 to 3 can be caused by Art. No. 35 (Axe) now shown to me, an also swords (Art. Nos. 28, 34 and 36 and 37), now shown to me. All the injuries mentioned in column No. 17 can be caused by swords (Art. Nos. 25, 29 and 36) now shown to me, injury Nos. 5, 7, 8 and 20 can be caused by Iron Bars and hard sticks (Art. Nos. 21 to 23, 26 and 27) now shown to me. Injury Nos. 6 and 9 can be caused by swords (Art. Nos. 28 and 34) now shown to me. 5) The external injury might have been caused before 7 to 8 hours from my examination. The probable cause of the death was due to cardio respiratory imbrasement due to intra cardinal haemorrhage due to head injury. Accordingly, I had prepared P.M. notes. The original notes now shown to me is the same. Its contents are correct. It bears my signature. It is at Exh. 50. The assault, as revealed by P.W. 2, by the appellants in the course of his testimony is corroborated by the corresponding injuries on the person of deceased Ganpat. 10. Accordingly, I had prepared P.M. notes. The original notes now shown to me is the same. Its contents are correct. It bears my signature. It is at Exh. 50. The assault, as revealed by P.W. 2, by the appellants in the course of his testimony is corroborated by the corresponding injuries on the person of deceased Ganpat. 10. At this stage we would like to deal with the argument advanced by the learned Advocate for the appellant that the scene of offence has been changed from in front of the old house of Ganpat to in front of the house of Babu Dalvi. In this connection, our attention has been drawn to the evidence of P.W. 2 that according to him the incident took place in front of the old house of deceased Ganpat and he was assaulted in the courtyard of Ganpat. The trial Court had in fact dealt with this aspect and found on the basis of evidence recorded that though the incident had started near the old house of deceased Ganpat yet it continued up to the house of Babu Dalvi where the deceased had fallen. Number of witnesses have stated that the appellants had chased them from near the old house of deceased Ganpat till the house of Babu Dalvi and while they were being chased they were assaulted. In fact, the panchanama of the scene of offence which was drawn at the instance of P.W. 2 shows that the assault on deceased Ganpat had taken place in front of the courtyard of Babu Dalvi. There is thus no merit in the submission of the learned Advocate for the appellant in this respect. 11. A number of witnesses had been examined by the prosecution in support of the case of the prosecution in respect of the assault by the appellants on deceased Ganpat. P.W. 3 Ravindra who had also received injuries in the incident, has stated that he had gone to the old house for study. He also speaks of his father Ganpat, Shanivar, Somnath and Ramdas having come in front of the old house. He also speaks of the presence of his brother Gurunath who had also came there. He also stated that the accused came and while coming pelted stones on the old house on account of which they went towards the new house as they were being chased by them. He also speaks of the presence of his brother Gurunath who had also came there. He also stated that the accused came and while coming pelted stones on the old house on account of which they went towards the new house as they were being chased by them. According to him in front of the courtyard of the house of Babu Dalvi original accused No. 7 Ramu gave a stick blow on his father deceased Ganpat. Accused No. 2 Pandit and accused No. 5 Ashok dealt with sword blows on his father's head. Accused No. 28 Bhagwan gave axe blow on his father's head. We have already referred to the injuries found on the person of the deceased in the assault which corroborates the ocular evidence on record. According to him when his father was being assaulted he threw his body on his person. There is no doubt as pointed out by the learned Advocate for appellants that there is no reference of this fact in the FIR. This is a minute detail of the incident and it may not be possible to record every minute detail in the FIR lodged in the circumstances referred to above. He further states that accused No. 5 Ashok gave a sword blow on his head, accused No. 7 Ramu gave stick blows to him. The medical evidence shows the following injuries on the person of this witness : 1) CLW 5 cm. long x 3 cm.deep x 2 cm. long transverse line in sharp occipital region bleeding, no clinical fracture tenderness. 2) Contusion (Rt) side chest, tenderness, no swelling. 12. The cause of the said injuries is sharp object like sword and hard object like stick or iron rod. The assault on this witness is thus duly proved through medical evidence. The learned Advocate for the appellant submits that the evidence of this witness cannot be believed since he does not even refer to the presence of his mother and she having thrown herself over the deceased Ganpat as stated by her. In an incident of this nature where large number of people are involved at the time of the incident, minor variations here and there are bound to be there. It is pointed out by the Apex Court that no case is free from such variations. There is no reason whatsoever to disbelieve the testimony of this witness. In an incident of this nature where large number of people are involved at the time of the incident, minor variations here and there are bound to be there. It is pointed out by the Apex Court that no case is free from such variations. There is no reason whatsoever to disbelieve the testimony of this witness. He not only stood the test of cross-examination but he could not also be shaken in the course of cross-examination. 13. The next eye-witness examined by the prosecution is Gurunath P.W. 4 who is also the son of deceased Ganpat. He has stated that his brother Ravindra P.W. 3 had gone to study in their old house where his uncle stays; his father had gone to attend the function of the daughter of Shanivar; that at about 11 p.m. he heard commotion/noise from the side of his old house and as such he went there. He found that accused No. 2 Pandit Patil and 30 to 35 persons came out of the house of Vithal Patil and original accused No. 1 Shripad Patil was hurling stones shouting "Dhara Mara" and after seeing them they started running towards their new house. In the courtyard of Narayan Patil they were captured and accused No. 5 Ashok and accused 6 Ravindra were hitting him by means of sword. Accused 5 Ashok hit on his head and the sword blow of Ravindra accused No. 6 hit on his left leg, below knee. He further stated that accused No. 5 Ashok then started assaulting his father Ganpat, accused No. 28 Bhagwan hit by axe on the head of his father and accused No. 2 Pandit gave sword blow on the head of his father. The injuries on the person of deceased Ganpat as spoken by this witness are corroborated by the medical evidence. On the person of this witness Gurunath the following injuries were found : 1) CLW (Rt) parietal region 3 x 2 cm. bleeding no clinical fracture, margin regular. 2) Contusion (Rt) shoulder joint, moments painful swelling fracture dislocation of (Rt) shoulder joint. 3) Scratch mark 1/2 cm. deep x 5 long, transverse line, (Rt) side chest. 4) CLW (Rt) upper 1/3 of knee joint, tenderness moments painful 1 x 1/2 cm. bleeding. 5) Abrasion (Rt) knees joint, reddish colour (Lt) knee joint and (Lt) elbow joint reddish colour tenderness no swelling. According to Dr. 3) Scratch mark 1/2 cm. deep x 5 long, transverse line, (Rt) side chest. 4) CLW (Rt) upper 1/3 of knee joint, tenderness moments painful 1 x 1/2 cm. bleeding. 5) Abrasion (Rt) knees joint, reddish colour (Lt) knee joint and (Lt) elbow joint reddish colour tenderness no swelling. According to Dr. Ashok, P.W. 1, injuries were caused by sharp and hard object. There are corresponding injuries on the parital region as also on the leg below knee. It has been pointed out by the learned Advocate for the appellants that though witness has stated that P.W. 3 Ravindra was assaulted by many yet Ravindra himself, does not say so. He has merely made general statement of assault by number of accused on his brother Ravindra, Somnath and Ramdas by means of stick, sword and other weapons, which, by itself, is not sufficient to discard the testimony of this witness. 14. The next witness examined by the prosecution is Ramdas P.W. 5. He is not related to deceased Ganpat. He was present at the Haldi programme in the house of Jayaram/Devram. He has further stated that accused No. 6. Ravindra teased Surekha in the Haldi programme at the house of Devram and there was not exchange of words between Somnath and Ravindra. Thereafter he along with others went to the old house of deceased Ganpat. Somnath had already gone prior to him to the old house. Ganpat's son Ravindra, Gurunath, nephew Somnath were present there. At that time members of Patil group assembled at the house of Vithal Patil father of accused No. 3. Thereafter 30/35 persons from Patil community came with weapons like sticks, axes iron bars, and were shouting "Dhara Mara". They came to the old house of surpanch for assault and as a result of which they started running being frightened towards the new house of surpanch. In front of the courtyard of Babu Dalvi and Narayan Dalvi, accused No. 7 Ramu gave stick blow on the head of Ganpat, accused No. 2 Pandit and accused No. 5 Ashok gave sword blows on the hand of Ganpat, accused No. 28 Bhagwat gave axe blow on the head of Ganpat. He confirms in the cross-examination that the assault on surpanch lasted for 2/3 minutes and he had seen the same while standing in front of the door step of Babu Dalvi. He confirms in the cross-examination that the assault on surpanch lasted for 2/3 minutes and he had seen the same while standing in front of the door step of Babu Dalvi. The assault, as stated by this witness, is corroborated by medical evidence on record. He has further stated that at the entrance of the house of Babu Dalvi accused No. 6 Ravindra hurled stone on his head. On the person of this witness the following injuries are found : 1) CLW - 5 cm. deep (Rt) parital region blood oozing from wound clinical fracture tenderness. 2) Contusions - over forehead, front of nose, bleeding found nose, fracture nosal bone. 3) Contusion (Rt) scapular region, tenderness no swelling no external mark. The evidence of this witness does not suffered from any infirmity and there is no reason to discard his testimony. 15. The next witness examined by the prosecution is Somnath Lahu Dalvi, P.W. 6 nephew of deceased Ganpat, who has stated that he was in the old house of Ganpat and at about 11 to 11.30 p.m. Somnath Hari Mhatre came and informed the sarpanch about the untoward incident which took place in the Haldi programme at the house of Jayaram/Devram. He was informed about the incident of teasing of P.W. 11 Surekha by accused No. 6 Ravindra. He also states that members of the group of Patil had assembled at the house of Vithal Patil. He also speaks of the shouting of "Dhara Mara" and hurling of stones at the old house of deceased Ganpat on account of which they started running towards the new house of deceased Ganpat, but they were chased by the accused. Near the house of Narayan Dalvi somebody pelted stone and he then fell down. He saw accused No. 2 Pandit, accused No. 6 Ashok Patil who gave sword blows on the head of deceased Ganpat. Accused No. 28 Bhagwan had given axe blow on the head of Ganpat. The assault as deposed by this witness on deceased Ganpat is corroborated by the injuries found on the person of Ganpat. On the person of this witness the following injuries were noticed. 1) CLW 3 x 2 cm. over ocipital region, reddish colour blood oozing from wound, regular margin tender no clinical fracture. 2) Contusion - right wrist joint lower 1/3 of forearm moments painful. 3) Contusion lower 1/3 of forearm, tenderness of swelling. On the person of this witness the following injuries were noticed. 1) CLW 3 x 2 cm. over ocipital region, reddish colour blood oozing from wound, regular margin tender no clinical fracture. 2) Contusion - right wrist joint lower 1/3 of forearm moments painful. 3) Contusion lower 1/3 of forearm, tenderness of swelling. This witness was cross-examined at length but could not be shaken. There is no reason whatsoever to discard the testimony of this witness. 16. The next eye-witness examined by the prosecution is P.W. 7 Somnath Hari Mhatre. He is stated to be present at the programme of Haldi in the house of Jayram and speaks of accused No. 6 Ravindra having touched Surekha while she was dancing. He also states that there was exchange of hot words between him on one hand and the accused No. 6 Ravindra, accused No. 4 Sainath and accused No. 10 Arun on the other hand and he was assaulted by them. He then came to the old house of deceased Ganpat. He speaks of some sort of settlement having taken place there. He further stated that 30/35 persons from the party chased them and they were having swords, sticks and axes. He saw accused No. 2 Pandit, accused No. 5 Ashok and accused No. 12 Pandharinath and accused No. 16 Jagannath were having sword in their hands and accused No. 4 Sainath and accused No. 28 Bhagwan were having axes. He also saw accused No. 27 Hari was having gupti and accused No. 7 Ramu and others had sticks with them and also iron bars. According to him accused No. 5 Ashok gave sword blow on his head due to which he fell down and was removed. On his person the following injuries were found. 1) Tenders (Rt) side forehead, no swelling seen. 2) Tenderness no swelling (Lt) side chest no swelling, no external marking seen. This witness does not speak of assault on others but the testimony of this witness to some extent corroborates the testimony of other witness regarding weapons which some of the accused were having at the time of the incident. 17. The prosecution has then examined Janabai P.W. 8 who is the wife of the deceased. She has stated that her son Ravindra had gone to the old house for study purposes. Her husband had gone for the Haldi programme. 17. The prosecution has then examined Janabai P.W. 8 who is the wife of the deceased. She has stated that her son Ravindra had gone to the old house for study purposes. Her husband had gone for the Haldi programme. She herself and Gurunath were in their house. On hearing the commotion, her son Gurunath went in that direction and after sometime she has heard commotion from the side house of Narayan Dalvi. She went there and found 30/35 persons from Patil group at that place. She stated that they were assaulting her son Gurunath and Ravindra and nephew Shanawar and Somnath as also Ramdas by means of stick, sword and iron bars. She further stated that accused No. 2 Pandit, accused No.5 Ashok hit sword on the head of her husband and accused No. 28 Bhagwan hit on the head of her husband by an axe. The other witnesses have also spoken about the assault by these appellants on the deceased Ganpat and corresponding injuries are found on the person of the deceased. She also states that he fell down after receiving axe blow and this witness threw herself on his body. She also stated that accused No. 2 Pandit gave her kick blows. On her person tenderness on both scapular region, was found. Though, this witness was confronted with her police statement regarding assault on head only but her testimony that accused Nos. 2, 5 and 8 had assaulted with sword and axe could not be shaken. Though, there is no reference to her in F.I.R., yet the said omission is not sufficient to discard her testimony. 18. P.W. 9 Kantabai has stated that deceased Ganpat is not related to her. On 27-3-1994 her brother Somnath P.W. 7 had gone to Haldi programme at the house of Devram. At about 11 to 11.30 p.m. she heard loud noise and went towards the side of the old house of deceased Ganpat where she saw 30/35 persons from Patil group pelting stones at the house of deceased Ganpat. According to her, accused No. 5 Ashok Patil hit a sword on the head of her brother. She and her parents also were hurt in stone pelting. She saw swords in the hands of accused No. 2 Pandit, accused No. 5 Ashok and accused No. 6 Ravindra and an axe in the hands of accused No. 28 Bhagwan. According to her, accused No. 5 Ashok Patil hit a sword on the head of her brother. She and her parents also were hurt in stone pelting. She saw swords in the hands of accused No. 2 Pandit, accused No. 5 Ashok and accused No. 6 Ravindra and an axe in the hands of accused No. 28 Bhagwan. She has identified the said articles, Medical evidence shows that she had received one CLW 1" x 1/2" on the right side frontal region and it was bleeding. The medical evidence thus gives credence to her version that she was injured in the incident and saw sword in the hands of accused No. 2 Pandit, accused No. 5 Ashok, accused No. 6 Ravindra and an axe in the hands of accused No. 28 Bhagwan. 19. P. W. 10 Laxman Hadku Mhatre has stated that on 27-3-1994 at about 11 to 11.30 p.m. he started from his house for going to field. On the way he saw 30/35 persons from Patil group gathered in front of the house of Kishore Patil. Some of them were pelting stones at the old house of Ganpat. From out of them accused No. 2 Pandit, accused No. 5 Ashok, accused No. 6 Ravindra had swords with them while accused No. 28 Bhagvan had axe with him. He has further stated that accused No. 5 Ashok gave sword blow on his head while accused No. 6 Ravindra gave sword blow on his right hand. On his person following injuries were found by the medical officer. 1) CLW (Lt) side frontal Region, bleeding regular margin 3 cm. long x 1/2 cm. deep, bleeding transverse line, no clinical fracture. 2) Contusion - (Rt) shoulder joint tenderness moment painful. 3) CLW (Rt) mid 1/3 of forearm, bleeding 1 x 1 cm. no clinical fracture. According to Dr. Ashok, P.W. 1, injuries Nos. 1 and 3 could be caused by sword and injury No. 2 could be caused by stick/iron bar. The injuries on his person corroborate his version of assault by accused No. 5 Ashok as also accused No. 6 Ravindra by sword. 20. P. W. 11 Surekha Dalvi has stated that she had gone for Haldi programme at the house of Jayram at about 10 p.m. and was dancing along with other girls. The injuries on his person corroborate his version of assault by accused No. 5 Ashok as also accused No. 6 Ravindra by sword. 20. P. W. 11 Surekha Dalvi has stated that she had gone for Haldi programme at the house of Jayram at about 10 p.m. and was dancing along with other girls. Accused No. 6 touched her body; and she questioned him as to whether she did not have mother and sister. Somnath Mhatre also questioned accused No. 6 Ravindra in the same terms after which there was hot exchange of words. This incident is reported to have triggered the entire incident in question. In fact there is no challenge to this incident having taken place. 21. P. W. 12 Babu Dalvi had stated that at about 11.00 to 11.30 p.m. he heard hue and cry in his courtyard and when he opened the door and came to otla in front of his house about 30/35 persons of Patil group were present there. According to him accused No. 2 Pandit, accused No. 5 Ashok and accused No. 5 Ravindra were having swords in their hands while accused No. 28 Bhagwan was having axe in his hand. He stated that those persons assaulted Ganpat Dalvi. 22. P.W. 14 Ganesh Dalvi has stated that he had taken his pair of bullocks to village Ravindra for participation in race on 27-3-1994 and at about 11.00 to 11.30 p.m. he came back in the village. When he reached near the house of Narayan Dalvi he heard some commotion and loud voices of Patil people. He also found that surpanch Ganpat and his sons Gurunath and Ravindra and nephew Somnath and Shanwar stood in front of the house of Babu Dalvi. He further stated that persons from Patil group chased them and were giving calls "Dhara Mara" and were armed with weapons. He could identify 5/6 persons namely Pandit accused No. 2, Anant accused No. 3, Ashok accused No. 5, Bhagwan accused No. 28. He also stated that accused No. 2 Pandit, accused No. 5 Ashok assaulted on the head of Ganpat by means of sword and when wife of surpanch intervened accused No. 2 Pandit gave kick blows to her. There is no challenge at all to the testimony of this witness vis-a-vis the assault on deceased Ganpat as also on his wife. 23. There is no challenge at all to the testimony of this witness vis-a-vis the assault on deceased Ganpat as also on his wife. 23. Thus, from the cumulative evidence on record it is crystal clear that accused No. 2 Pandit, accused No. 3 Ananta, accused No. 5 Ashok and accused No. 6 Ravindra, accused No.7 Ramu, accused No. 28 Bhagwan and accused No. 33 Eknath have assaulted the deceased. Accused No. 2 Pandit is reported to have assaulted with sword on the head of the deceased (as stated by P. W. 2 Shaniwar, P. W. 3 Ravindra, P. W. 4 Gurunath, P. W. 5 Ramdas, P. W. 6 Somnath, P. W. 8 Janabai and P. W. 14 Ganesh Dalvi); accused No. 3 is reported to have assaulted the deceased with iron bar (as stated by P. W. 2 Shaniwar); accused No. 5 is reported to have assaulted the deceased on his head with sword (as stated by P. W. 3 Ravindra, P. W. 4 Gurunath, P. W. 5 Ramdas, P. W. 8 Janabai and P. W. 14 Ganesh); accused No. 6 is reported to have assaulted the deceased with sword (as stated by P. W. 6 Somnath); accused No. 7 Ramu is reported to have assaulted the deceased with stick blows (as stated by P. W. 3 Ravindra Dalvi, P. W. 5 Ramdas); accused No. 28 Bhawan is reported to have assaulted the deceased on his head with axe (as stated by P. W. 2 Shaniwar, P. W. 3 Ravindra, P. W. 4 Gurunath, P. W. 5 Ramdas, P. W. 6 Somnath and P. W. 8 Janabai); and accused No. 33 Eknath is reported to have assaulted the deceased with stick blows (as stated by P. W. 2 Shaniwar) and all these accused have actually taken part in the assault on the deceased and the deceased suffered injuries on account of the said assault and succumbed to the injuries. According to Dr. Ashok P. W. 1 the death was due to head injury. According to him injury Nos. 1 to 3 on his person could be caused by axe and also swords and the injuries mentioned in column 17 can be caused by sword and injury Nos. 5, 7, 8 and 10 can be caused by iron bars and hard sticks. Injury Nos. 6 and 9 can be caused by sword. According to him injury Nos. 1 to 3 on his person could be caused by axe and also swords and the injuries mentioned in column 17 can be caused by sword and injury Nos. 5, 7, 8 and 10 can be caused by iron bars and hard sticks. Injury Nos. 6 and 9 can be caused by sword. The common object of causing death by these appellants is, therefore, duly established. The injuries on the other witnesses examined by the prosecution have also been established by oral and medical evidence. 24. The Apex Court in Sukhan Raut v. State of Bihar reported in (2001) 10 JT (SC) 77 : (2002 Cri LJ 560) has laid down that once it is established that unlawful assembly had common object, it is not necessary that all persons forming the unlawful assembly must be shown to have committed some overt act for the purposes of incurring the vicarious liability for the offence committed by a member of such unlawful assembly. It is further pointed out under Section 149 the liability of the other members of such unlawful assembly for the offence committed during the continuance of the occurrence, rests upon the fact whether the other members knew before hand that the offence actually committed was likely to be committed in prosecution of the common object. 25. In Bolineedi Venkataramaiah v. State of Andhra Pradesh reported in AIR 1994 SC 76 : (1994 Cri LJ 61), the Apex Court while dealing with the case, where the witnesses are interested witnesses, has laid down that their evidence has to be subjected to greater scrutiny and one of the tests applied is whether the specific overt acts are attributed to them so that the omnibus allegations may not be accepted so as to rule out the possibility of implicating some innocent persons. In appreciating evidence of this kind of witnesses the Courts have always considered that such of those accused to whom specific overt acts have been attributed consistently and the same is corroborated by the medical evidence and the circumstances of the case, can safely be convicted. 26. We have already referred to the overt act of assault committed by accused No. 2 Pandit, accused No. 3 Ananta, accused No. 5 Ashok, Accused No. 6 Ravindra, accused No. 7 Ramu, accused No. 28 Bhagwan and accused No. 33 Eknath. 27. 26. We have already referred to the overt act of assault committed by accused No. 2 Pandit, accused No. 3 Ananta, accused No. 5 Ashok, Accused No. 6 Ravindra, accused No. 7 Ramu, accused No. 28 Bhagwan and accused No. 33 Eknath. 27. Insofar as accused No. 4 Sainath and accused No. 9 Gopinath are concerned neither any overt acts of assault on the deceased are attributed to them nor it is possible to hold on the basis of evidence on record that they had at any stage entertained common object of killing the deceased Ganpat. Therefore the said accused No. 4 Sainath and accused No. 9 Gopinath cannot be held guilty for the murder of deceased Ganpat and as such they are entitled for acquittal on the said charges. 28. In addition to the overt acts of assault on deceased Ganpat, the police has also made recoveries under Section 27 of the Evidence Act. At the instance of accused No. 2 Pandit, police recovered a sword on the information given by him which was recorded in the memorandum which has been proved. The memorandum itself states that the accused No. 2 Pandit had made a statement that he had concealed the sword behind his house near the bund of field. The same has been proved by panch P. W. 20. Besides this, panch P. W. 20 has also deposed about the disclosure made by accused No. 6 Ravindra and the consequent discovery of sword from the cattle shed. In the memorandum itself it is stated that the same was concealed by him by digging. The memorandum and the recovery have been proved by P. W. 20. Likewise P. W. 20 also proved the disclosure made by accused No. 28 Bhagwan, recorded in the memorandum and the consequent recovery of axe at his instance from heap of wood. In this memorandum, accused No. 28 Bhagwan has also stated that he has concealed the axe and he will produce the same. Police also recovered sword at the instance of accused No. 5 Ashok, under Section 27 of the Evidence Act from fran stick behind his house. The memorandum shows that it was concealed by him. 29. Police has also recovered a stick at the instance of Eknath accused No. 33. The disclosure was made by accused No. 33 in the memorandum and the stick was produced from the stack of grass. The memorandum shows that it was concealed by him. 29. Police has also recovered a stick at the instance of Eknath accused No. 33. The disclosure was made by accused No. 33 in the memorandum and the stick was produced from the stack of grass. The memorandum shows that accused No. 33 Eknath has informed that he had concealed the stick there. Likewise police also recovered an iron strip on the disclosure made by accused No. 3 Ananta which was recorded in the memorandum from the courtyard of his house. The memorandum also shows that the same has been concealed by the accused No. 3 Ananta. 30. The criticism levelled by the learned advocate for the appellant is that the panch in the evidence has not stated that the weapons were concealed and as such recoveries of weapons at the instance of accused/appellants have no value. He has placed reliance in Pohalya Motya Valvi v. State of Maharashtra reported in AIR 1979 SC 1949 : (1979 Cri LJ 1310) wherein Apex Court has made a distinction between the expression "Thevaleja" and "Thevala". He has also contended that the authorship of concealment which is required to be established has not been proved. We have already pointed out the memorandums in which the information given by the recorded, in pursuance of which the recovery of weapon has been made. Hence, it is clear that the accused/appellants had concealed the weapons. It is now well settled that discovery of fact referred to in Section 27 of the Evidence Act, is not the object recovered, but the fact embraces the place from which the object is recovered and the knowledge of the accused about it. Hence, it is clear that the accused/appellants had concealed the weapons. It is now well settled that discovery of fact referred to in Section 27 of the Evidence Act, is not the object recovered, but the fact embraces the place from which the object is recovered and the knowledge of the accused about it. This ratio has received the approval of the Apex Court in successive decisions namely Jaffar Hussain Dastagir v. State of Maharashtra reported in (1969) 2 SCC 872 : (1970 Cri LJ 1659), K. Chinnaswamy Reddy v. State of Andhra Pradesh reported in AIR 1962 SC 1788 : (1963 (1) Cri LJ 8), Earabhadrapa v. State of Karnataka reported in (1983) 2 SCC 330 : (1983 Cri LJ 846), Shamshul Kanwar v. State of U. P., reported in (1995) 4 JT (SC) 159 : ( AIR 1995 SC 1748 ), State of Rajasthan v. Bhup Ram reported in (1997) 1 JT (SC) 479 and State of Maharashtra v. Bharat Fakira Dhiwar reported in (2001) 9 JT (SC) 407 : (2002 Cri LJ 218). The Swords Exhs. 18 and 19 and axe Exh. 20 were found to be stained with blood. Human blood was found on all the articles Exhs. 1 to 23 which were sent to C. A. 31. There was no serious challenge in relation to the conviction of the appellants under Section 148, I. P. C. for rioting, conviction under Section 324 read with 149, I. P. C. as also under Section 37 read with 135 of B. P. Act. The common object of the assembly was to assault the members of the group of Ganpat. All appellants except appellant No. 4 Sainath and accused No. 9 Gopinath entertained the common object to kill Ganpat. The appellants were armed with deadly weapons as such the offence under Section 148, I. P. C. stands proved against them. The appellants also caused hurt by dangerous weapon in furtherance of their common object to assault members of the group of deceased Ganpat and in the process caused injuries with dangerous weapons like sword to P. W. 3 Ravindra and P. W. 4 Gurunath. According to Ravindra P. W. 3 accused No. 5 Ashok assaulted him with sword on his head. Accused No. 2 Pandit and accused No. 3 Ananta aimed sword blows on him. According to Ravindra P. W. 3 accused No. 5 Ashok assaulted him with sword on his head. Accused No. 2 Pandit and accused No. 3 Ananta aimed sword blows on him. P. W. 4 Gurunath has stated that accused No. 6 Ravindra had assaulted him with sword on his left leg and accused No. 5 Ashok assaulted him with sword on his head. The appellants are also reported to have assaulted the witnesses with sticks and stone. Therefore charge under Section 324 read with 149, I. P. C. is duly established. For carrying weapons for the purposes of commission of the offence, charges under Section 37 read with 135 of B. P. Act has also been made out. 32. The learned advocate for the appellant had also submitted before us that the prosecution has not explained the injuries found on the person of some of the appellants. Prosecution did examine the doctor and proved the injuries found on the person of some of the appellants at the time of their arrest. However, there is nothing on record to come to the conclusion that the said injuries were received by some of the appellants at the time of commission of the offence in question nor there is anything to suggest that the said injuries were caused to some of the appellants by any of the prosecution witnesses. The defence has not put up any case whatsoever to suggest that the injuries on the person of some of the appellants were caused in the course of the incident by the prosecution witnesses. Therefore the prosecution is not required to explain the said injuries on the person of some of the appellants, as there is nothing on record to show that the said injuries were caused during the course of the incident in question. This argument therefore does not help the appellants in any manner. 33. For the aforesaid reasons the appeal is partly allowed insofar as the conviction of the appellant No. 3/accused No. 4 Sainath Patil and appellant No. 7/accused No. 9 Gopinath Patil under Section 302 read with 149 of I. P. C. is concerned. 34. The appeal filed by other appellants for murder of Ganpat under Section 302 read with 149 of I. P. C. is dismissed. 35. 34. The appeal filed by other appellants for murder of Ganpat under Section 302 read with 149 of I. P. C. is dismissed. 35. The challenge in the appeal in relation to conviction and sentence under Sections 148, 324 read with 149 and Section 37 read with S. 135 of the P. B. Act is dismissed. 36. The appeal stands disposed in aforesaid terms. 37. Appellant No. 2/Accused No. 3 Ananta Vithal Patil, appellant No. 6/accused No. 7 Ram Shambhu Patil and appellant No. 9/accused No. 33 Eknath Govind Patil who are on bail shall be taken into custody for serving the sentences imposed on them. The other appellants namely appellant No. 1/accused No. 2, appellant No. 4/accused No. 5, appellant No. 5/accused No. 6 and appellant No. 8/accused No. 28 who have been convicted are already serving sentence as they were not released on bail. 38. The appellants shall be entitled to set off under Section 428 of Cr. P. C. in accordance with law. Order accordingly.