JUDGMENT - AGUIAR A.S., J.:---By this appeal under section 378 of the Code of Criminal Procedure, 1973, the State of Maharashtra has impugned the judgment and order dated 16th May, 1996 passed by the Additional Sessions Judge, Pune in Sessions Case No. 60 of 1986 acquitting all the accused persons of the offence under sections 302, 326, 324, 153, 332, 337, 149, 147 and 148 of the Indian Penal Code, 1860 (I.P.C. for short) with which they were charged. The said judgment and order of acquittal is based inter alia on the following ground, viz., that the witnesses are interested persons and that they have deposed against the accused persons on account of enmity with the accused that the prosecution case is discredited by the medical evidence and the evidence of Police Officer; that the evidence of carrying gupti in necked condition is doubtful and that the statement of P.W. 2 the complainant is not the F.I.R. 2. Briefly, the prosecution is that : There are two factions in village Shivari, taluka Purandhar, District Pune, one headed by accused No. 3 Shankar Magut Kamathe and other headed by Sarpanch Baban Dashrath Kamathe to which the complainant belongs. An annual festival and fair used to be held in the Yamai Temple in the village and these two factions used to perform religion ceremonies and Chabinas in the temple separately. On 12th April, 1985, there was the usual annual fair and Kavad procession. A quarrel took place as to who should give shoulder to the Kavad but the police present at Bandobast duty settled the dispute and the procession was completed at the temple at about 7 or 8 p.m. Later, at night, Chabina was held and both the rival groups started performing their ceremonies separately. There were loud speakers put by both the sides. At about 4.30 a.m., one Suresh Kaluram Kamathe climbed up on the shop outside the temple premises for adjusting the loud speaker. Immediately, accused Nos. 1 and 2 pulled him closely and started assaulting him with fists and kicks blows. Seeing this Suresh's father Kaluram and brother Sudhakar went to his rescue: Kaluram bent over Suresh who was on the ground to save him from the beating. At that moment, accused No. 1 took out the gupti from under his pant near the waist and struck a blow on the back of Kaluram. Seeing this Suresh's father Kaluram and brother Sudhakar went to his rescue: Kaluram bent over Suresh who was on the ground to save him from the beating. At that moment, accused No. 1 took out the gupti from under his pant near the waist and struck a blow on the back of Kaluram. Kaluram fell down on the ground and started bleeding. At the same time, accused Nos. 3 and 4 were assaulting Sudhakar with sticks. Sudhakar also fell down. One Dnyaneshwar, who came to the rescue of Sudhakar was also given a gupti blow by accused No. 2. It is alleged that Sudhakar also received a gupti blow on his back from accused No. 2. This was followed by stone throwing. Kaluram was taken inside the temple. All the 19 accused are alleged to have thrown stones on the witnesses who received injuries. Even some of the Police Constables who were on Bandobast duty appear to have sustained injuries. After the stone throwing subsided Kaluram was taken in a truck to the Government Dispensary at Saswad. However, Kaluram expired in the truck before reaching the hospital. The Medical Officer examined Kaluram in the Government Dispensary and declared him dead. Shortly thereafter police arrived and statement of P.W. 2 Madhukar, son of deceased Kaluram was recorded, which is treated as F.I.R. and offence registered. Police took charge of blood lying on the spot. Panchanama (Exh. 58) was drawn and statements of 17 witnesses including Suresh and Baban were recorded. Some of the accused persons had gone to Jejuri. Accordingly, police went there and arrested accused Nos. 1, 2, 5, 6, 12, 13 and 19. The gupti (Article No. 18) was recovered at the instance from accused No. 1 under panchanama and subsequently accused Nos. 2 and 3 also produced sticks after making discovery statements. The gupti and the blood stained clothes were sent to Chemical Analyser. The gupti was found stained with blood of Group A which was of deceased Kaluram. The blood stains on clothes of the accused were of the human blood of Group A. The pyjama of accused No. 6 was blood stained which was seized under panchanama. The clothes of the injured persons were also attached under panchanama. Inquest pachanama was also drawn on the dead body of Kaluram and dead body was referred for post-mortem examination. 3. Accused Nos. 1 and 2 are real brothers. The clothes of the injured persons were also attached under panchanama. Inquest pachanama was also drawn on the dead body of Kaluram and dead body was referred for post-mortem examination. 3. Accused Nos. 1 and 2 are real brothers. They belong to party of accused No. 3. All the other accused also belong to party of accused No. 3. Deceased Kaluram and his sons Suresh, Sudhakar and Madhukar belong to Sarpanch Baban's group. 4. After filing of charge-sheet the learned Magistrate committed the accused persons to the Sessions Court where charges were framed against accused No. 1 under section 302 I.P.C. and under section 302 read with section 149 of I.P.C. against all the accused persons. Accused No. 2 was individually charged for the offence under section 326 of I.P.C. Then all the accused were charged for the offences under section 326 read with section 149 of I.P.C. and also under sections 324 and 337 read with section 149 I.P.C. and sections 353 and 332 read with section 149 of I.P.C. in addition to the charges under sections 147 and 148 of I.P.C. 5. All the accused persons pleaded not guilty to the charges. The defence of accused No. 1 is one of total denial. He denies having committed the alleged offence and claims that on account of poor response to the complainant's party for the Chabina ceremony, the complainant's party were upset and started throwing stones at the crowd gathered as a result and there was confusion and people started running helter-skelter. It is suggested that some miscreants in the crowd might have struck a blow with knife on the deceased Kaluram and other persons and the complainant and other witnesses have falsely implicated accused persons on account of their enmity with the complainant's party. 6. The learned trial Judge concluding that the prosecution has failed to prove the charges against the respondent accused for want of satisfactory and reliable evidence, acquitted all the accused of the charges. Hence this appeal by the State. 7. We are aware that an order of acquittal requires no interference unless it suffers from grossly unreasonable assessment of the evidence on record or is vitiated by any manifest illegality resulting in failure of justice. Hence this appeal by the State. 7. We are aware that an order of acquittal requires no interference unless it suffers from grossly unreasonable assessment of the evidence on record or is vitiated by any manifest illegality resulting in failure of justice. After hearing the learned A.P.P. and after going through the impugned judgment and the evidence on record, we find that the said judgment of acquittal is based on certain assumptions, inferences and conjectures resulting in misreading of the evidence and failure to properly appreciate the evidence on record which is clear and cogent. 8. The learned trial Judge erred in dismissing the evidence of the complainant P.W. 2 as that of interested witness just because he is the son of the deceased or because he happens to belong to the rival faction of Sarpanch Baban. The Supreme Court in the case of (Hari Obula Reddy v. State of A.P.)1, reported in A.I.R. 1981 S.C. 82 laid down certain precautions while appreciating the evidence of the interested witnesses. One of first such precautions is to establish "whether the presence of the witness at the scene of crime at the material time was probable?" Apparently, keeping in mind this precaution, the learned trial Judge has embarked upon the discussion of minute details to show that P.W. 2 could not have been in a position to have witnessed the incident, namely, of accused No. 1 inflicting the blow with a gupti in the back of deceased Kaluram and of the assault on Sudhakar by accused Nos. 3 and 4 with sticks or accused No. 2 Vishnu striking Dnyaneshwar with gupti on the back or accused Nos. 5, 6, 7, 8 and 9 throwing stones. According to the learned trial Judge, the mere presence of P.W. 2 in the crowd, whose presence is not denied, is not enough unless it is shown that the witness was really present near about place so as to able to watch the incident of assault. We do not find any merit in the reasoning of the learned trial Judge on this aspect so as to disbelieve the testimony of P.W. 2 who has deposed to having seen his father Kaluram being stabbed by accused No. 1 and seeing his brother Suresh being pulled down by accused Nos. We do not find any merit in the reasoning of the learned trial Judge on this aspect so as to disbelieve the testimony of P.W. 2 who has deposed to having seen his father Kaluram being stabbed by accused No. 1 and seeing his brother Suresh being pulled down by accused Nos. 1 and 2 and assaulted and his father Kaluram falling on Suresh in order to protect him from beating and accused No. 1 taking out gupti and stabbing on his father in the back. No doubt in the melee where there is a substantial crowd it would be difficult for the witnesses to indicate the exact position which they were witnessing that evening that was unfolding at the scene of offence. But, if it is established that the witness was near about the spot where the incident took place then there is no reason to disbelieve the ocular testimony of the witness. In this case, it is not disputed that P.W. 2 Madhukar was at the scene of offence and that he was participating also in the Chabina along with others, namely, P.W. 6 Sudhakar, P.W. 3 Suresh, P.W. 4 Baban and P.W. 5 Dnyaneshwar. His presence at the scene of offence having been established, there is no reason to disbelieve his testimony and the same cannot be discarded merely because he happens to be related to the deceased. And he belongs to rival faction of the sarpanch Baban group, it cannot be said that he had any motive in falsely implicating accused No. 1 in the murder of his father. 9. The complainant's oral testimony is corroborated by his statement which has been treated as F.I.R. There is nothing in the cross-examination which has shaken the oral testimony of P.W. 2 requiring this Court to disbelieve him. The evidence of P.W. 2 appears to be cogent and clear and we do not see any reason why the same was not found acceptable to the trial Judge. 10. From the reasonings in the judgment it appears that the trial Judge has thought it fit to reject the evidence of P.W. 2 in view of certain infirmities in the prosecution story apparent from the oral testimony of P.W. 6 Sudhakar the brother of P.W. 2 who was also assaulted by accused Nos. 3 and 4 with sticks and received a blow with gupti from accused No. 2. 3 and 4 with sticks and received a blow with gupti from accused No. 2. The learned trial Judge has on the basis of certain admission made by P.W. 2 concluded that the presence of the witness at the material time is unnatural and improbable. 11. Reference is made to the cross-examination of P.W. 6, wherein, P.W. 6 has admitted that 5 to policemen were attending Bandobast duty and that some policemen were on the par and some were on the Northern side and that when the stone throwing started the police intervened and started dispersing the crowd. P.W. 6 in his cross-examination has also stated that he received a beating with sticks on his head and other parts of the body. He has, however, admitted in the cross-examination that he did not disclose the incident of beating to anybody prior to his statement being recorded by the police. P.W. 6 has also admitted that he, Dnyaneshwar and Baban are being prosecuted for stone throwing and causing damage to the matador. It is contended that this is not natural conduct on the path of P.W. 6. If he had received such a severe beating and also a stroke of gupti he would have disclosed this fact to some person or the other before his statement was recorded by the police. Hence the conduct of P.W. 6 is not natural and therefore no reliance can be placed on his testimony. Moreover, it is also pointed out from the medical report that P.W. 6 has not sustained any injury with gupti in the incident. Therefore, the presence of P.W. 6 at the material time at the spot is doubtful. 12. Again on the basis of evidence of P.W. 7 and P.W. 8 i.e. Police Constables who were on Bandobast duty at the temple during the Chabina, the learned trial Judge has disbelieved the story of the prosecution case as set out by the various eye-witnesses including the complainant P.W. 2. According to the testimony of P.W. 7 and P.W. 8 Police Constables there was crowd of 400 to 500 persons in both the Chabina. On the Northern side of the par there were 250 to 300 people. According to the testimony of P.W. 7 and P.W. 8 Police Constables there was crowd of 400 to 500 persons in both the Chabina. On the Northern side of the par there were 250 to 300 people. There was exchange of words over the speakers between two rival groups which went on for 15 minutes and since the crowd could not be pacified despite their efforts, P.W. 7 was sent by the Head Constable to summon more police aid. P.W. 8 has stated that stone pelting started after the exchange of words which went on for 10 to 15 minutes and he was specifically stated that two of the accused, namely, accused No. 6 Maruti Ananta Abanave, accused No. 9 Sampat Anna Kamathe were pelting stones. P.W. 8 in his cross-examination has admitted that when the exchange of words started people who were sitting got up; there was confusion and due to the crowd it was not possible to make out who was doing what; that while they were there stone throwing started and within 2 to 3 minutes they got away from the scene of offence. From the evidence of these witnesses it cannot be said that anything has come on record in their evidence which contradicts or is contrary to the evidence of P.W. 2 complainant. In fact, the conduct of P.W. 7 and P.W. 8 appears dubious. Admittedly, the deceased Kaluram was stabbed at the place and he was taken by his sons directly to the Saswad Government Dispensary. It is surprising that when this incident of stabbing took place the Police Constables were nowhere at the scene. P.W. 8 has admitted that 2 to 3 minutes after the stone throwing started they went aside. That is they left the scene of offence since there was no policeman at the scene of offence and the complainant had no option but to directly take the deceased directly took the deceased Kaluram to Saswad Government Dispensary. Had the Constables P.Ws. 7 and 8 been present at the scene of offence, they would perforce have been required to rush to the aid of Kaluram and take him to the hospital. There is nothing in the testimony of P.W. 7 and P.W. 8, P.W. 8 which contradicts or detracts the testimony of P.W. 2. Had the Constables P.Ws. 7 and 8 been present at the scene of offence, they would perforce have been required to rush to the aid of Kaluram and take him to the hospital. There is nothing in the testimony of P.W. 7 and P.W. 8, P.W. 8 which contradicts or detracts the testimony of P.W. 2. The testimony of P.W. 7 and P.W. 8 neither corroborate the testimony of P.W. 2 nor in any way contradicts the said testimony of P.W. 2 which stands unchallenged. The testimony of P.W. 2 being clear and cogent has to be accepted. 13. So far as P.W. 6 is concerned, some serious doubts have been created as to his presence at the scene of offence. Hence his testimony does not help to corroborate the evidence of P.W. 2 complainant. But neither does his testimony in any way contradicts that of P.W. 2. Thus, despite the infirmities in the testimony of P.W. 6, P.W. 7 and P.W. 8, the testimony of the complainant P.W. 2 stands unchallenged. Nothing has been brought on record in the evidence of P.W. 2 himself to disbelieve his presence at the scene of offence and that he has witnessed the actual incident of stabbing of his father Kaluram by accused No. 1 with gupti and also seen accused Nos. 3 and 4 beating his brother P.W. 6 Sudhakar and accused No. 2 giving blow of gupti on the back of Sudhakar. P.W. 3 Suresh, to whose rescue the deceased rushed while he was being assaulted by accused Nos. 1, 2 and 3 and who had fallen on the ground, has deposed that while his father bent over him to save him from the beating, the accused No. 1 took out the gupti from his under waiste his pant and stabbed his father on the back. There is nothing in the cross-examination of P.W. 3 to disbelieve him. Again P.W. 4 Baban Parvati Limbhore has also deposed to having seen Suresh being pulled down by accused No. 1 and accused Nos. 1 and 2 giving a stroke of gupti on the back of Kaluram. Apart from showing that P.W. 4 belongs to sarpanch Baban group, nothing has been brought out in his cross-examination to discredit his evidence. P.W. 5 Dnyaneshwar Shankar Kamathe has also deposed :- "While Suresh was turning the speaker, accused No. 1 pulled him down. Accused Nos. 1 and 2 giving a stroke of gupti on the back of Kaluram. Apart from showing that P.W. 4 belongs to sarpanch Baban group, nothing has been brought out in his cross-examination to discredit his evidence. P.W. 5 Dnyaneshwar Shankar Kamathe has also deposed :- "While Suresh was turning the speaker, accused No. 1 pulled him down. Accused Nos. 1 and 2 started beating him. Kaluram father of Suresh came near to save him. Kaluram bent over Suresh to save him. At that moment accused No. 1 gave the stroke of gupti on the back of Kaluram. Kaluram fell down. I went near to help him. Accused No. 2 gave the stroke of gupti on my back. I was frightened. Accused No. 3 was instigating his people. Shankar's people started throwing stones. Accused Nos. 5, 7, 8, 11 and 16 were pelting stones. I was frightened. The blood came out. I enter the temple. I became unconscious." Apart from the fact that he also belongs to the sarpanch Baban group and that he is being prosecuted for throwing stones and causing injuries to some of the accused persons nothing has been brought out in his cross-examination to disbelieve him or discredit his testimony. 14. Thus, it is seen that the testimony of P.W. 2 complainant is not only corroborated by the F.I.R. but also by the evidence of P.W. 3 , P.W. 4 and P.W. 5. Even without such corroboration the evidence of P.W. 2 is clear and cogent and clearly implicates accused No. 1 in the murder of Kaluram. So far as accused No. 2 is concerned, it has come on record in the evidence of P.W. 2 that accused No. 2 Vishnu gave the stroke of gupti on the back of P.W. 5 Dnyaneshwar. P.W. 5 also in his evidence stated that accused No. 1 gave stroke of gupti on the back of Kaluram: Kaluram fell down: he went to help him; accused No. 2 gave stroke of gupti at his back. The medical evidence of P.W. 10 Dr. Sandhya P. Shirale confirms the stab injury viz. incised wound on left side upper and lateral aspect of left scapula measuring 1" x ¼" x ½". The injury was bleeding profusely. The edges of the injury were sharp and clear and the injury was caused by sharp cutting object. The medical evidence of P.W. 10 Dr. Sandhya P. Shirale confirms the stab injury viz. incised wound on left side upper and lateral aspect of left scapula measuring 1" x ¼" x ½". The injury was bleeding profusely. The edges of the injury were sharp and clear and the injury was caused by sharp cutting object. The injury would have been dangerous if patient could have gone in a shock as there was profused bleeding. The said injury was stab wound caused by sharp pointed object. The stab injury sustained by P.W. 6 Sudhakar has been proved by the evidence of P.W. 11 Dr. Milind Navnit Shah who has noted the incised would on the left scapula measuring 1 cm. x 0.5 cm. x 0.25 cm. and that the said injury was caused by sharp object, but the injury was merely incised wound but not penetrating or stab wound. Thus accused No. 2 is directly responsible for the stab injuries caused to P.W. 5 Dnyaneshwar and P.W. 6 Sudhakar. The medical evidence of P.W. 9 Dr. Shaikh who did post-mortem examination on the dead body of Kaluram has clearly established injury No. 3 viz. punctured wound of 2.5 cms. x ½ cm. x 11 cm. at 2 cms. left lateral to the first thoracic spine on shoulder has opined that the said injury was caused by sharp pointed object and the said injury together with internal damage may be caused by article No. 18 before the Court (i.e. gupti) and the said injury No. 3 together with internal damage is sufficient in the ordinary course of nature to cause death and the patient could die under such circumstances within 15 to 30 minutes. That the death was due to shock due to extensive haemorrhage inside thoracic cavity due to puncture of arch of aorta. Thus the medical evidence has clearly established that the death of Kaluram was on account of stab wound sustained by him which was inflicted on deceased by accused No. 1 with gupti and hence accused No. 1 is to be held responsible for the murder of deceased Kaluram. Thus the medical evidence has clearly established that the death of Kaluram was on account of stab wound sustained by him which was inflicted on deceased by accused No. 1 with gupti and hence accused No. 1 is to be held responsible for the murder of deceased Kaluram. From the evidence of eye-witnesses and medical evidence, it is clear that accused No. 2 is liable for stab injuries caused to P.W. 5 Dnyaneshwar which stab wound was fairly serious and could have proved fatal and also the stab wound though not serious caused to P.W. 6 Sudhakar. So far as accused No. 3 is concerned, his role was one of assaulting Sudhakar (P.W. 6), the son of deceased Kaluram and also instigating others to assault and finish him of. The evidence of P.W. 2 complainant is clear and cogent and is corroborated by other eye-witnesses such as P.W. 3 Suresh who was the victim of the initial assault and P.W. 4 Baban and P.W. 5 Dnyaneshwar. Infirmities in the evidence of P.W. 6 Sudhakar notwithstanding, P.W. 2 has clearly implicated accused Nos. 1, 2 and 3 as stated above and hence the order of acquittal so far as accused Nos. 1, 2, 3 and 4 are concerned, will have to be set aside and they will have to be convicted of the offences with which they are charged. 15. Regarding of incident of stone throwing, in which the rest of the accused have been implicated, it must be noted that the stone throwing started after the incident of assault on Suresh and after stabbing of Kaluram with gupti by accused No. 1. Though P.W. 2 has implicated accused Nos. 5, 6, 7, 8 and 9 in the incident of stone throwing, as a result of which some of the witnesses were injured, the other witnesses have not corroborated P.W. 2 on this aspect. P.W. 3 does not state anything about the stone throwing by the accused. P.W. 4 Baban states that he received stroke from stone thrown by accused No. 17. He has also named accused Nos. 8, 14 and 16 as involved in stone throwing. However, he claims that only 4 to 5 persons were involved in stone throwing. P.W. 5 has implicated accused Nos. 5 , 7, 8, 11 and 16 with the incident of stone throwing and P.W. 6 has only implicated accused Nos. He has also named accused Nos. 8, 14 and 16 as involved in stone throwing. However, he claims that only 4 to 5 persons were involved in stone throwing. P.W. 5 has implicated accused Nos. 5 , 7, 8, 11 and 16 with the incident of stone throwing and P.W. 6 has only implicated accused Nos. 7, 8, 16 and 19 in the incident of stone throwing. In a free-for-all where scores of persons are involved it is difficult to say exactly which injury was caused by stroke of which stone pelted by which person. It is on record that both sides indulged in pelting each other with stones. It is also on record that each side indulged in pelting the other side with stones. P.W. 5 has admitted that he has been prosecuted for throwing stones and causing injures to some of the accused persons and that Baban, Sudhakar and several others are co-accused in his case. Similarly, P.W. 6 has admitted that prosecution is pending against him, Dnyaneshwar and Baban for stone pelting and causing damage to the Matador. Thus, in the absence of clear and cogent evidence as to who caused the injuries by stone throwing, the rest of the accused, who are implicated in the stone throwing will have to be given benefit of doubt and their acquittal will therefore have to be confirmed. 16. There is therefore strong and sufficient evidence on record to convict accused No. 1 under section 302 of I.P.C. and accused Nos. 2, 3 and 4 for causing simple hurt. Accused No. 2 has used gupti for causing injury to Sudhakar who was examined by P.W. 11 Dr. Milind Navnit Shah, who had noted that there was contused lacerated wound on the scalp midline measuring 2 cms. x 1 cm, incised wound on the left scapula measuring 1 cm x 0.5 cm x 025 cm. and abrasion on the right middle toe. According to Dr. Milind (P.W. 11) injuries No. 1 and 2 could have been caused by sharp object. However he clarified that injury No. 1 was caused by hard and blunt object, injury No. 2 by sharp object and injury No. 3 also could have been caused by sharp object. He also clarified that injury No. 1 may be caused by stick. According to him all the injuries were simple. The medical evidence therefore supports the ocular evidence. 17. He also clarified that injury No. 1 may be caused by stick. According to him all the injuries were simple. The medical evidence therefore supports the ocular evidence. 17. The learned A.P.P. contended that accused Nos. 2, 3 and 4 are also required to the held guilty under section 302 read with 34 of I.P.C. but we are not in agreement with the learned A.P.P. The act of accused No. 1 in stabbing the deceased on the back with gupti in his hand was an independent act and knowledge of the same cannot be attributed to other accused. Therefore, we pass the following order : ORDER Appeal is partly allowed. The order of acquittal of accused Nos. 1, 2, 3 and 4 is set aside. Accused No. 1 Changdeo Nivrutti Kamathe is convicted under section 302 of I.P.C. and is sentenced to suffer life imprisonment. Accused No. 2 Vishnu Nivrutti Kamathe, accused No. 3 Shankar Mugut Kamathe and accused No. 4 Bhanudas @ Bhalchandra Gulab Kamathe are convicted of the offences under section 323 read with 34 of I.P.C. and they are sentenced to pay fine of Rs. 5,000/- each or in default R.I. for three months each. Bail bond furnished by accused Nos. 2, 3 and 4 stands cancelled. Fine to be paid within 4 weeks of today. The order of acquittal of the rest of the accused viz. accused Nos. 5 to 19 is confirmed. Accused No. 1 Changdeo Nivrutti Kamathe to surrender before the trial Court within four weeks from today. Thereafter bail bond furnished by accused No. 1 to stand cancelled. Office to communicate this order to the trial Court. Appeal partly allowed. -----