JUDGMENT - PALSHIKAR V.G., J.:-The accused Nos. 1 to 11 in the original sessions Case No. 155 of 1994 were prosecuted for offence under section 302 read with 149 of Indian Penal Code for causing international death of two persons in Kolhapur City. The sessions case was tried by II Additional sessions Judge, Kolhapur who acquitted accused Nos. 4, 8 and 10 and convicted rest of the accused under section 302 read with 149 of I.P.C. Accused No. 9 was also convicted under section 302 simplicitor. All the accused being aggrieved by their conviction have preferred these various appeals. 2. (a) The Criminal Appeal No. 48 of 1996 is filed by accused No. 5 who has been sentenced under section 302 read with 149 of I.P.C. (b) Criminal Appeal No. 65 of 1996 is filed by accused No. 7 who has been convicted under section 302 read with 149 of I.P.C. to suffer imprisonment for life. (c) Criminal Appeal No. 92 of 1996 is preferred by accused No. 9 challenging his conviction under section 302 I.P.C. and both accused Nos. 9 and 11 challenging their conviction under section 302 read with 149 of I.P.C. (d) Criminal Appeal No. 96 of 1996 is filed by accused No. 3 questioning his conviction and sentence under section 302 read with 149 of I.P.C. (e) Criminal Appeal No. 97 of 1996 is preferred by accused Nos. 1 and 2 questioning their conviction under section 302 read with 149 of I.P.C. requiring both of them to suffer imprisonment for life. (f) Criminal Appeal No. 114 of 1996 is preferred by accused No. 6 who was sentenced to suffer imprisonment for life under section 149 of I.P.C. (g) There is also a Revision Application bearing Criminal Revision Application No. 48 of 1996 preferred by original complainant questioning the acquittal of accused Nos. 4, 8 and 10. 3. The learned Counsel appearing for various appellants and the learned P.P. appearing for the State agree that since the appeals arise out of only one Sessions case bearing No. 155 of 1994, they can be conveniently heard and decide together by a common order. Hence the hearing was taken up together and this order will govern and decide all those appeals mentioned above. 4. With the assistance of the learned Counsel appearing for both the sides, we have reappreciated the entire evidence on record. Hence the hearing was taken up together and this order will govern and decide all those appeals mentioned above. 4. With the assistance of the learned Counsel appearing for both the sides, we have reappreciated the entire evidence on record. The prosecution story stated very briefly is that the complainant and his group and accused No. 9 and his group are political rivals for years together. There have been cases of assaults and murders intra parties and there is undisputed proven enimity between the parties. 5. According to the prosecution, the incident occurred on 21st October, 1993 around 12 and 12.30 in the noon when all these accused persons with the common object of murdering Shivaji Patil and Baburao Patil belonging to the group of the complainant, were duly armed with swords, axes, gupties etc. and were waiting for the victims Shivaji Patil and Baburao Patil to come on the road. It is alleged that they were waiting for these victims on the ring road, near Narshin colony. 6. When these victims Shiraji Patil and Baburao Patil came on a motor cycle near the place where the accused were lying armed waiting for these persons, they were accosted by the accused persons, who formed a threatening semi circle or line around them and at the instance or command of accused No. 9, first Shivaji Patil was assaulted. Both Shivaji and Baburao started running away from the scene of offence and were chased by the accused persons, assaulted with the weapon which they were having, as a result of which both of them died. An F.I.R. was thereafter lodged by the complainant, investigation was carried out and the 11 accused persons were prosecuted. 7. The prosecution examined in all 21 witnesses to prove its case. Of these 21 witnesses, P.Ws. 1 to 7 are panch witnesses who proved either the seizure or spot panchanama or recoveries etc. P.W. 8 is Dr. Abhay, who conducted the post mortem of both the dead bodies and opined that the death was homicidal. P.Ws. 11 and 12 are eye-witnesses to the incident of assault. P.W. 13 is the complainant who proved the F.I.R. P.Ws. 16, 17, 19, 20, and 21 are police officials involved in the investigation. P.W. 8 is Dr. Abhay, who conducted the post mortem of both the dead bodies and opined that the death was homicidal. P.Ws. 11 and 12 are eye-witnesses to the incident of assault. P.W. 13 is the complainant who proved the F.I.R. P.Ws. 16, 17, 19, 20, and 21 are police officials involved in the investigation. The prosecution has also proved via the evidence of seven panchas mentioned above, the recovery of axe at the instance of accused No. 9 and recovery of dagger at the instance of accused No. 1. It is on reappreciation of the entire evidence that we have to consider the rival contentions which are as under : 8. Shri Shirish Gupte the learned Senior Counsel appearing on behalf of the accused No. 5, appellant in Criminal Appeal Nos. 92 and 97 of 1996, led the arguments assisted by several lawyers mentioned above. The conditions revised on behalf of all the appellants stated briefly are that : a) There are material contradictions, omissions and improvements in the testimonies of P.Ws. 11 and 12 who are alleged to be the eye-witnesses by the prosecution. Their evidence is liable to be rejected. b) So rejected there is no evidence on record to prove that the accused were the persons who committed the murders. c) The recoveries as held by the trial Judge are doubtful. The proof is not cogent and therefore the recoveries cannot be acted upon. d) The trial Judge himself according to the learned Counsel has rejected the recovery evidence as also the evidence of Chemical Analyser and the conviction rests solely on the testimony of eye-witnesses, which as aforesaid are liable to be disbelieved. 9. According to the learned Counsel the testimonies of eye-witnesses, i.e. P.Ws. 11 and 12, suffer from several severe infirmities and illegalities. Their statements were recorded under section 161 of the Criminal Procedure Code by the police. Their statements were recorded under section 164 of the Criminal Procedure Code before the Judicial Magistrate and they have also deposed in Court. Their deposition in Court, according to the learned Counsel, is full of improvements, designed omissions and factual material contradictions. What is stated in Court does not find place in the earlier statements. Their statements were recorded under section 164 of the Criminal Procedure Code before the Judicial Magistrate and they have also deposed in Court. Their deposition in Court, according to the learned Counsel, is full of improvements, designed omissions and factual material contradictions. What is stated in Court does not find place in the earlier statements. What is stated in earlier statement is largely improved in the Court deposition and such statement of evidence, according to the learned Counsel, is liable to be rejected in toto. 10. According to the learned Counsel, there is no appeal by the prosecution, not is there any contention on behalf of the prosecution that the evidence on which recoveries are made and evidence of Chemical Analyser is wrongly rejected by the trial Court and should be taken as corroborative evidence to these eye-witnesses. 11. These submissions were countered by the learned A.P.P. appearing in these various appeals. They contended that even if the evidence of recoveries and C.A. is rejected, as done by the trial Court, testimony of P.Ws. 11 and 12 is strong enough to confirm the conviction as was recorded by the trial Judge. According to them, there are no improvements, in the deposition made in the Court. Omissions regarding certain inconsequential happenings or mentionings cannot vitiate the entire testimony of the witnesses. The witnesses have been cross-examined by several defence lawyers. The submission of the prosecutors is also that some of the contradictions which are sought to be highlighted by the defence have come into existence because of leading questions asked in the cross-examination by various lawyers of the accused persons. To illustrate one question is asked by Counsel for accused No. 5 and to that leading question the witness answers A. Another question has put by another lawyer of accused No. 9, leading the answers on the same point in a different manner and a different answer is elicited from the witness and both these answers are pleaded before the Court as contradictions requiring disbelieving of the witnesses. The submission being that such contradictions which are brought out in the cross- examinations only need not vitiate the testimony, if otherwise it is of a sterling quality. According to the prosecution the deposition are acceptable, as explained the incident as it occurred, it cannot be said that P.Ws. The submission being that such contradictions which are brought out in the cross- examinations only need not vitiate the testimony, if otherwise it is of a sterling quality. According to the prosecution the deposition are acceptable, as explained the incident as it occurred, it cannot be said that P.Ws. 11 and 12 are chance witnesses and therefore the conviction as recorded by the trial Court is liable to be confirmed. 12. We have to examine these contentions in the light of the evidence that has been recorded and the fact that the entire evidence of recovery has been rejected by the trial Court, the entire evidence of C.A. has been rejected by the trial Court and now it is only on the reappreciation of the ocular testimony of P.Ws. 11 and 12 which will depend the result of these appeals. We will not in extenso what has been stated by these witnesses. 13. P.W. 11, whose testimony is recorded as Exh. 84 and is at page 198 of the paper book, is Subhash. He deposed that on the date of the incident i.e. on 21-10-1993 around noon, he was returning after purchase of grass to his home. On the way he met Sanjay a friend of him and he asked Sanjay whether he would accompany the witness Subhash. The witness then deposed that Sanjay agreed to join the witness after he finished his work of getting medicines. The witness proceeded to his cart, the purchased grass loaded and started homewards. While he was so proceeding, he saw Sanjay coming from the opposite direction to join him on the road. The witness Subhash was sitting on the bullock cart and witness Sanjay was walking down towards him. When they saw the victims Shivaji and Baburao driving down towards Sanjay from behind Subhash on a motor cycle. Then the accused persons came out on the road and obstructed Shivaji and Baburao and accused No. 9 issued command of assault and the accused persons were assaulted. P.W. 11 Subhash gives detailed description as to how all the accused persons came. He describes who assaulted whom at the instance of accused No. 9. He deposes of seeing accused No. 9 giving axe blow on the person of Shivaji at the same time he has not attributed any overt act to any other accused. P.W. 11 Subhash gives detailed description as to how all the accused persons came. He describes who assaulted whom at the instance of accused No. 9. He deposes of seeing accused No. 9 giving axe blow on the person of Shivaji at the same time he has not attributed any overt act to any other accused. He then states that the victim Baburao had already ran away with Shivaji when accused No. 9 commanded that do not spare Baburao who was then running. When the accused were running to catch Baburao, they saw witness Subhash in the cart who got afraid, jumped out of the cart and hid himself in the crop of sugarcane in the nearing field. When the accused went away he came out and saw that Shivaji was lying injured or dead. Then he also noticed that Baburao was also lying injured or dead. He then narrated the entire incident to P.W. 13 Sarjerao who went to the Police Station, told the police that some murder has taken place and took the police to the scene of offence where after witnessing who has been murdered he gave his statement to the police which were recorded and later on converted in the F.I.R. 14. We will consider the contentions raised by the learned Counsel for the defence after considering this evidence at a later state. We will first note the deposition of P.W. 12 Exh. 89. He is the eye-witness Sanjay. He states that he met P.W. 11 Subhash when he was in the market for purchasing certain medicine and was asked by P.W. 11 to come to the field along with P.W. 11 for cutting grass. He agreed to join his friend Subhash later on. After purchasing necessary medicines he went home, had his meal and then went to join Subhash in the field. While he was so approaching by the ring road he was P.W. 11 Subhash coming in a cart full of grass and he was walking towards him. It was then that he saw Shivaji and Baburao both victim, coming down towards him on a motor cycle from behind P.W. 11. He then saw the accused persons assaulted Shivaji at the instance of accused No. 9. He identifies the accused persons, described what weapon they held and was also afraid. It was then that he saw Shivaji and Baburao both victim, coming down towards him on a motor cycle from behind P.W. 11. He then saw the accused persons assaulted Shivaji at the instance of accused No. 9. He identifies the accused persons, described what weapon they held and was also afraid. He thereafter met the brother of the victim and told him about the assault of Shivaji and went home. This witness is also extensively cross-examined and his testimony is asked to be disbelieved which is of various improvements, omissions and contradictions etc. as aforesaid. It is the evidence of these two witnesses which is the foundation of conviction by the learned trial Judge under section 302 read with 149 of I.P.C. We have to examine the submission regarding the rejection of the evidence of these two persons as made by the learned Counsel appearing on behalf of various appellants. 15. We will once again in brief note the submission as made by the learned Counsel and as understood by us : a) The prosecution has failed to examine independent witnesses. The incident according to the prosecution has occurred on a road in the noon and therefore presence of several other persons on the road cannot be ruled out. None has been examined though there were localities in the near vicinity. Therefore it creates a doubt regarding factual presence of these witnesses who according to the defence are therefore chance witnesses. b) The learned trial Judge having rejected the entire evidence on the point of recovery of articles and the evidence on the point of Chemical Analysers reports, basing their conviction only on the statements of these two witnesses would be an illegality and should therefore be avoided. c) The police during the course of investigation had recorded the statements of these witnesses under section 161 of Cri.P.C. They have also recorded statements of these persons before the Judicial Magistrate as contemplated by section 164 of the Cri.P.C. and the trial Judge himself has recorded the position of these witnesses in the Court. Taking into consideration the serious and material contradictions, omissions and improvements as disclosed by the learned Counsel argued for various appellants, reliance of such witnesses unsupported by any other evidence is impermissible in law and therefore the order of conviction is bad. 16. Taking into consideration the serious and material contradictions, omissions and improvements as disclosed by the learned Counsel argued for various appellants, reliance of such witnesses unsupported by any other evidence is impermissible in law and therefore the order of conviction is bad. 16. We will consider these contentions in the light of the settled principles of law in this regard. The conviction is recorded under section 302 read with 149 of I.P.C. It is a settled principle in law that it is only under section 161 of Cri.P.C. that a Police Officer making investigation under Chapter XII can examine witnesses acquainted with the facts of that case. He can reduce what has been told to him into writing. But no oath can be subscribed to it and no affirmation affixed. It is also established position that such a statement recorded under section 161 of Cri.P.C. is not a substantive evidence which can be used during the trial only for the purposes of pointing out to the witnesses whose statement it is that he has stated differently earlier and has failed to say which is now tried to say in the Court or which has failed to say while recording the statement. 17. The user of statement recorded under section 161 Cri.P.C. is therefore restricted to proof of bringing on record (i) contradictions, (ii) omissions and (iii) improvement. Contradiction is when one statement is made under 161 and a contrary statement is made in Court. The omission is omit to depose something in Court which was stated in 161 statement. An improvement is stated something in Court which was omitted in 161 statement. The user of a statement recorded under section 161 is thus restricted for establishing these three things only. Provisions of section 161 are very clear. It is an empowering section because of which a Police Officer can examine orally any persons supposed to be acquainted with the facts and circumstances of the case. It is therefore a duty cast on the Police Officer to so examine witnesses during the course of investigation. Failure on the part of police to do so or the decision of the police regarding adequacy of such statements should not have any bearing on appreciation of evidence unless it is very material. To illustrate, a crime has been committed and 100 persons have sent it. Failure on the part of police to do so or the decision of the police regarding adequacy of such statements should not have any bearing on appreciation of evidence unless it is very material. To illustrate, a crime has been committed and 100 persons have sent it. Police recorded statements of 15 persons and came to a conclusion that 15 statements by eye witnesses is enough for the purposes of prosecution in this case. Those persons are later on examined in Court. Their deposition cannot be discredited or ignored because there were 85 other witnesses whose statement under section 161 could have been recorded but not recorded by the police. The appreciation of evidence must contain discussion of evidence available on record. Unless it is established that material prejudice is caused to the accused for non-examination of some of the persons who so witnessed in the occurrence, it would not be a valid and substantial ground to reject the ocular evidence of these persons for these reasons. 18. Sub-section (2) of section 161 of Cri.P.C. further provides or mandate a person whose statement is being recorded under the section to truthfully answer the questions relating to such case put to him by the officer. It is therefore obvious that when the police is recording a statement, what the police factually does is question the person and recorded the gist of his answers. If police do not question the witness in relation to something which may have happened and therefore there is no answer which is reduced into writing under 161 Cri.P.C., the witness cannot be discredited for not stating something which he states in the Court. Such statement in the Court without there being a corresponding statement under 161 cannot in such circumstances be termed as improvement. If it pertains to insignificant fact which has no bearing on the facts and the evidence of that case. In effect minor improvements, contradictions or omissions are liable to be ignored, while appreciating the evidence of a witness as a whole. 19. Section 164 of Cri.P.C. permits any Judicial Magistrate to record any statement made to him in the course of an investigation at any time during the course of investigation or even thereafter. In effect minor improvements, contradictions or omissions are liable to be ignored, while appreciating the evidence of a witness as a whole. 19. Section 164 of Cri.P.C. permits any Judicial Magistrate to record any statement made to him in the course of an investigation at any time during the course of investigation or even thereafter. The section requires that he is not bound to make a confession and that, if he does so any confession he may make may be used against him as evidence. The position of statements recorded under section 164 by Magistrate is different than the statements recorded by police under 161 only in one way the statement made under 164 can be used against the witness or the maker of the statement whereas the statement made under section 161 cannot be a sole evidence except where there is difference in appreciation of the statements made during to course of trial. While appreciating the evidence in cases where statement under section 161 Cri.P.C. is made, where statement under section 164 Cri.P.C. is made, and while deposing in Court, all there is available. 20. We have to keep these basic principles in mind while appreciating the arguments made by Shri Shirish Gupte the learned Counsel appearing on behalf of the appellants. Lot of stress has been put by the Counsel on several omissions, contradictions and improvements, which according to him are material and therefore require rejection of the evidence of these two eye-witnesses. We will consider the evidence of both these witnesses and the submissions made in that regard by Shri Gupte. 21. P.W. 11 Subhash states that he knew the deceased Shivaji and Baburao and also knew all the accused present in the Court. He then says that on the date of the incident around 10 a.m. he proceeded to the land of Rajaram Patil for bringing the grass in a cart which he had purchased earlier. He then states that he met Sanjay a friend near the bus stop and asked him whether he would accompany Subhash. The friend replied that he would do so after completing his work. What the work was is not asked by the witness not told to him by the friend, who incidently is examined as P.W. 12. The witness then proceeds to tell how he went to the land of Rajaram Patil and cut down the grass. The friend replied that he would do so after completing his work. What the work was is not asked by the witness not told to him by the friend, who incidently is examined as P.W. 12. The witness then proceeds to tell how he went to the land of Rajaram Patil and cut down the grass. He also describes the ways he used to come back. He then states that when he was so coming back near the Narsinh Colony, he saw his friend Sanjay coming towards him near the divertion. He then stated that Shivaji and Baburao then came from his back side and crossed him and they were riding on motor cycle. They were then obstructed by some people who came from the crop of sugar cane in the land of Raghunath Patil. He then proceeds to name all the accused persons and describes the manner in which they were armed with. He then heard accused No. 9 commanding others to assault both Shivaji and Baburao. Hearing it both of them started running backwards. The assailants started following them. The witness saw accused No. 9 giving a blow of axe on the back side of victim Shivaji. The witness then goes on describing how the assault proceeded. This therefore is an eye-witness account of Subhash. This witness has been cross-examined by several lawyers representing several accused persons separately. In the cross-examination by the Advocate of accused Nos. 1 to 3 and 6, witness has denied the suggestion that there was no crop of sugar cane in the filed of Raghunath Patil. He admits that his statement was recorded by police under section 161 Cri.P.C. and by the Magistrate under section 164 of Cri.P.C. He was then questioned as to whether he has stated before the police the inter se relationship of the accused. His answer was in the affirmative. But it is not reflected in the statement as recorded by police under section 161. Firstly, it is not an improvement. Because factually he might have told the police what the relationship is and considering it to be immaterial, the police did not record. Or he was not questioned about the intense relationship between the accused and therefore no answer was given. It is only in the cross-examination, the question put to him by the Counsel for accused Nos. 1 to 3 when says how the relationship was. Or he was not questioned about the intense relationship between the accused and therefore no answer was given. It is only in the cross-examination, the question put to him by the Counsel for accused Nos. 1 to 3 when says how the relationship was. Even if this can be said to be technically an improvement, it has no bearing on the case. What was the inter se relationship between the accused is not material for deciding whether they committed a crime or not. He then proceeds to answer the question in the cross-examination, in relation to his statement under section 164 as recorded by the learned Magistrate. In answer to a question he has very categorically stated that he could not run because crop of sugar cane was standing. The suggestion being that did he went into the crop for hiding, running. He has stoutly denied it. From the suggestion, as also from the answer, it is quite evident that sugar cane crop was standing in the field. 22. In the cross-examination for some other accused, the witness told that he had told the police or the Magistrate in his statement that the height of crop was 10 to 12 ft. and the distance was about 400 ft. and the answer to the question does not find in the statement as he does not know why it has not recorded. This is sought to be used as a major improvement. The contention all along being that there was no crop in the field at all. The witness states that there was sugarcane crop and he ran into it. He might have told the police what was the height of the crop. He might not have so told because he might not have been questioned as to what was the height of crop in which he ran for hiding. In any even the height of the crop is not material for determining the veracity of the statement made by the witness. If the witness makes a statement that there is crop and factually there was no crop or the witness makes a statement there was no crop but factually there was crop, then the improvement can be termed as material because it would have a definite bearing on the appreciation of the evidence of that witness. If the witness makes a statement that there is crop and factually there was no crop or the witness makes a statement there was no crop but factually there was crop, then the improvement can be termed as material because it would have a definite bearing on the appreciation of the evidence of that witness. If a witness says that there was crop and factually there was none, then he is tried to say something which could not have been happened namely the height of the crop. If crop was not there he could have been seen further more things and several others could have seen the assault. The fact that the crop was there, therefore being material and finds place in all these statements. The height of the crop was so much, is not an improvement which would shake the testimony of this witness. 23. Exh. 85 is the statement recorded before the Magistrate under section 164 of Cri.P.C. In this statement also he has stated all material facts. There is however no mention of the conversation between him and his friend Sanjay regarding their meeting again. Absence of that statement under 164, cannot mean that his statement to that effect in Court is an improvement. In all fairness it must be stated that it was also not so contended. We are elaborating all these so much to establish the fact that in order to discredit the testimony of a witness, it is necessary that it is riddled with material improvements, contradiction or omissions. It is pertinent to note that he does say before the Magistrate also and due to fear he hidden in the crop of Raghunath Patil. In our opinion therefore there is no reason why the testimony of this witness should be discarded. Certain minor improvements, contradictions, or omissions are natural in every deposition. If they are absent the argument is always advanced that the witness is speaking parrot like and therefore a tutored witness and therefore should not be believed. Presence and absence of improvement, omissions and contradiction is therefore required to be assessed or appreciated in its proper perspective in order to denounce or rejects the testimony of a witness and the improvements, omissions and contradictions should be such as would have material bearing on the veracity of the statement of that man. Presence and absence of improvement, omissions and contradiction is therefore required to be assessed or appreciated in its proper perspective in order to denounce or rejects the testimony of a witness and the improvements, omissions and contradictions should be such as would have material bearing on the veracity of the statement of that man. There is no reason why testimony of such witness should be disbelieved as a matter of course. The witness has been questioned in cross-examine on the point of arms as also on the point of which accused held what weapon. His answer were strait forward. Error in one place or two cannot be used to require discrediting the entire testimony of witness. For all these reasons, we see no cause to reject the testimony of P.W. 11 Subhash. 24. That takes us consideration of the testimony of P.W. 12 Sanjay. He states that he had been to the medical shop for bringing medicines and while returning from the shop he met Subhash P.W. 11. He states that Subhash asked him to accompany Subhash for bringing the grass from the land of Rajaram Patil. The witness agreed to meet him only after reaching the medicine in the home. The witness then went home, took meals and started towards the field of Raghunath Patil. He came on the ring road and was walking down towards Vashi. Near the bifurcation he saw a Maruti van standing. He proceeded further and saw P.W. 11 coming towards the village in his cart loaded with grass. He then deposed that Shivaji and Baburao overtook the cart by their motor cycle and after sometime some persons came out of the crop in the land of Raghunath Patil and confronted Shivaji and Baburao from the motor cycle. He then states that he can identify the accused persons and described the manner how they were armed. He also says that accused No. 9 told others to attack Shivaji on which both left the motor cycle and started running backwards. He then specifically stated that accused Nos. 1 to 3, 5 to 6 and 9 to 11 started chasing both Shivaji and Baburao. He saw accused No. 9 running towards Shivaji and inflicted axe blow on his back. He saw accused No. 9 again assaulting the victim and when Baburao tried to interfere accused No. 9 threatened him and asked others not to leave Baburao. 1 to 3, 5 to 6 and 9 to 11 started chasing both Shivaji and Baburao. He saw accused No. 9 running towards Shivaji and inflicted axe blow on his back. He saw accused No. 9 again assaulting the victim and when Baburao tried to interfere accused No. 9 threatened him and asked others not to leave Baburao. Therefore Baburao started running towards the temple of Narsoba and the accused started chasing him. When the accused persons has crossed the cart of Subhash P.W. 11, Subhash jumped from the cart and ran in the land of Raghunath Patil. The witness then admits that he has also frightened and started running from a short cut first towards the ring road and then towards Fulewadi. He then deposed that while has was so running he met the brother of Shivaji and one more person, whom he stopped and told about the assault on Shivaji. He then went home. Thereafter about an hour or so, police vehicle came towards Fulewadi and witness went towards Narsinha colony. He then proceeds to state that his statement was recorded by the police and thereafter by Magistrate. He is also extensively cross-examined by various lawyers representing various accused. 25. His testimony in para 7 is heavily criticised by the learned Counsel appearing for the accused which pertains to statement made before the Magistrate. In this paragraph he has questioned about certain omissions which occurred in the statement made before the Magistrate under section 164, or it is the submission of the learned Counsel that what is now stated in the deposition by this witness in relation to these facts not having been stated earlier in the 164 statement, is an improvement and therefore it should be ignored. The witness is quality of substantial improvements and therefore is required to be discredited. We will consider in detail what the omission or improvement is. He has stated, according to him, (i) he did state before the Magistrate that he then returned home. (ii) He told the Magistrate that he took meal and then started proceeding towards the land of Raghunath Patil. (iii) He told the Magistrate that after crossing a distance of 300 ft. from the van he saw Subhash P.W. 11. (iv) He stated before Magistrate that all the accused that is accused Nos. (ii) He told the Magistrate that he took meal and then started proceeding towards the land of Raghunath Patil. (iii) He told the Magistrate that after crossing a distance of 300 ft. from the van he saw Subhash P.W. 11. (iv) He stated before Magistrate that all the accused that is accused Nos. 1 to 3, 5 to 7 and 9 to 11 started chasing both Shivaji and Baburao. (v) He stated before the Magistrate that Shivaji turned towards the land of Raghunath Patil. (vi) He also stated before the Magistrate that all the accused started following Baburao. (vii) He stated before the Magistrate that all the accused crossed the cart of Subhash. (viii) He also stated before the Magistrate that when these accused crossed the cart of Subhash, Shubhash jumped from the cart and he was frightened and therefore he went to the ring road. He then states that he cannot tell the reason why these statements do not find place in the recording of the Magistrate under section 164. The statement is at Exh. 19. He has stated in the statement that he saw Subhash coming with grass loaded in the cart. He has stated that Baburao and Shivaji were coming from behind Subhash. He has also stated before the Magistrate that crop of sugar cane was standing in the field of Raghunath Patil. He did state before the Magistrate that from that sugar cane crop the accused persons named by him came out. He has explained in the Magisterial statement how every accused was armed. He has stated the words in which accused No. 9 resighted the words assault the victim, the words are "what are you seeing, assault him". He describes before the Magistrate how the victim started running how they were hit and how Subhash jumped from the cart and how he told the brother of the deceased about the incident and how he returned home. 26. It will thus be seen that everything which was material was stated before the Magistrate. The distance of 300 ft. was not stated. The fact that meal was taken was not stated. The fact that he stated before the Magistrate that all the accused started chasing Shivaji and Baburao is also there in 164 statement. Therefore the submission that material fact has not been stated is false. The distance of 300 ft. was not stated. The fact that meal was taken was not stated. The fact that he stated before the Magistrate that all the accused started chasing Shivaji and Baburao is also there in 164 statement. Therefore the submission that material fact has not been stated is false. Similar is the case about the statement regarding the accused being armed etc. From the aforesaid analysis it would be clear that there is no material improvement, omissions and contradictions existing in the evidence of this witness. Failure of a witness to tell in meters, centimetres and millimetres the distance can only be used to brand them as layers. Apart from that none of such errors have been committed by this witness. We see no reason why he should be disbelieved. 27. In our opinion there fore the learned trial Judge was absolutely right in accepting the oral testimony of these two witnesses to the effect that it is these accused persons who within the sight of these two witnesses assaulted the two victims which assault resulted in their death. 28. Factually and legally no corroboration of such ocular testimony is necessary, but there is ample in the present case. What these persons have deposed, was seen and was told by them immediately thereafter to some, who has been examined in the Court. For instance P.W. 13 is the complainant who lodged the F.I.R. In para 2 of his deposition he states that Subhash P.W. 11 met him on the spot and told him how the accused persons were armed and who assaulted whom. He is therefore a witness to whom immediate disclosure of the fact seen by P.Ws. 11 and 12 was made. From the testimony of this witness it is evident that he was told all material facts which occurred and which met at the time of metrix of the witness. The testimony of P.W. 13 therefore gives substantial corroboration to the testimony of P.Ws. 11 and 12 when they say that they saw the assault on the victim in the manner they described. There was contemporary record on what complainant is made which is Exh. 92 the F.I.R. In that also he has stated the material particulars which he came to know from the eye-witness. 11 and 12 when they say that they saw the assault on the victim in the manner they described. There was contemporary record on what complainant is made which is Exh. 92 the F.I.R. In that also he has stated the material particulars which he came to know from the eye-witness. The contents of the F.I.R. and the testimony of P.W. 13 are therefore provide substantial corroboration to the eye-witness account of P.Ws. 11 and 12. 29. That takes us to the contention of the learned Counsel that even if the testimony of these eye-witnesses is accepted conviction of all the appellants was not proper. Eye-witness account of both these witnesses do not state any overt act being committed by anybody else than accused No. 9. He therefore contends that merely because they were present at the time when the assault took place by accused No. 9, it cannot be said that they did share the common object. However we must note that the presence of these persons cannot be disputed that they were armed is duly proved that they were commanded by accused No. 9 to assault the victim is also well established. It is in the light of these established facts that we have to consider whether application of section 149 I.P.C. to these persons is proper or not. Section 149 I.P.C. reads as under : 149. Every member of unlawful assembly guilty for offence committed in prosecution of common object.-If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence." 30. It will be seen that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, then he is guilty of that offence. We have therefore to see whether the assembly of the accused persons was unlawful or not. It is undisputedly proved on record by cogent evidence that there was long standing enimity between the two groups. That there have been assaults and counter assaults in these two groups previous of the date of incident. We have therefore to see whether the assembly of the accused persons was unlawful or not. It is undisputedly proved on record by cogent evidence that there was long standing enimity between the two groups. That there have been assaults and counter assaults in these two groups previous of the date of incident. That there have been prosecution of both the parties is also established. Therefore there can be no doubt when persons with such background coming together armed with weapons and hiding in sugarcane crop, they so assemble with the intention of or with the object of assaulting the members of other party. The fact that gathering of these accused persons in the crop of Raghunath Patil was an unlawful assembly. It was not an assembly for eating sugarcane in the field of Raghunath Patil. It was an assembly to assault Shivaji and Baburao for their acts or statements earlier made, which resulted in prosecution of some of the members of the accused persons. 31. It is in evidence of both the P.Ws. 11 and 12 that when the accused persons came out of the crop and stopped Shivaji and Baburao, a call was given by accused No. 9 to assault and in obedience of that call, all the appellants started chasing the victims. The call was to assault. The chasing of the victims by the appellant is the overt act. The common object being assault on these two persons, belonging to the rival group, that assault was committed and it has seen by P.Ws. 11 and 12 and factually both the victims died on the spot. All these appellants in our opinion, had gathered with the common object of teaching a lesson to these two persons belonging to the rival group. They had the object of murdering the victims and therefore they were armed with lethal weapons. It cannot be said that their object was only to teach a lesson these and that being the object they would have only carried stick with them and not axes, sword and gupties. The action of the accused has to be seen and appreciated for coming to the conclusion whether he had that object. In our opinion, each of the appellant had gathered in the crop duly armed and waiting for the victim, who were witnesses in the counter case. The action of the accused has to be seen and appreciated for coming to the conclusion whether he had that object. In our opinion, each of the appellant had gathered in the crop duly armed and waiting for the victim, who were witnesses in the counter case. We have therefore no hesitation in holding that application of 149 I.P.C. to the facts of present case was correctly made and no error can be found in the same and we therefore see no reason to interfere with the judgment and order of conviction. 32. That takes us to the question of criminal appeal challenging the acquittal of accused Nos. 4, 8 and 10. From the scrutiny of the evidence as done by us above, it is obvious that P.W. 11 does not have mention their presence. P.W. 12 proves their presence at 3 to 400 ft. away from the spot on the ring road. Beyond that no act is contributed to them. Assuming that they were the persons belonging to the party of the accused, it cannot be said that they were waiting on road for the victims to finish and kill them. Such inference in the circumstances no doubt would be impermissible. There is no evidence on record to prove that these persons i.e. accused Nos. 4, 8 and 10 were members of the unlawful assembly. There is no evidence to this effect. Merely because they belong to a particular group their presence cannot be linked with the assembling of the appellants. They may have connections with the accused. After following and accepting the principles of appreciation of evidence, we see no substance in the Revision Application and the same is also dismissed. 33. In the result all the appeals and the Revision Application fails and are dismissed. Appeals dismissed. -----