JUDGMENT :- These two appeals are filed to take exception to the conviction of the appellants for offences punishable under Sections 304(1), 326, 324 and 323 read with Section 149 and Sections 147 and 148 of I.P.C. recorded by the learned Second Additional Sessions Judge, Gondia in Sessions Trial No.15/ 90 before him. 2. Facts which led to prosecution and conviction of the appellants are as under: All the accused persons, as also the victim were residents of village Nimgaon (Indora). All of them were seeking work as laborers under the Employment Guarantee Scheme on Bodalkasa dam on Nimgaon (Indora) canal road. Deceased Gulab Mahadeo Gurve and prosecution witnesses Chango Govind Tete, Niranjan Vithoba Rinayat, Bhaiyalal Chandulal Dhomne, Ganeshnath Harinath Rajput and others had been employed on this work. Accused no.l Shama @ Shamrao Tarachand Furkunde and other accused persons and their family members could not be employed on this work. They were working on Dhamniwada nursery on 5-4-1989. The victims party heard Mirabai, wife of accused no.2, Bhaiyalal Tarachand Furkunde gave them filthy abuses saying that they got the work because they bared their wives before the E.G.S. authorities. Accused no.l Shama @ Shamrao Tarachand Furkunde was also present there. Attempts of complainant Domnath Harinath Rajput and deceased Gulab Mahadeo Gurve to ask Mirabai not to use such language annoyed accused no.l Shama @ Shamrao Tarachand Furkunde got annoyed who charged at the person of Gulab Mahadeo Gurve as well as Domnath Harinath Rajput with knife. Accused no.2 Bhaiyalal Tarachand Furkunde intervened. Accused no.l Shama @ Shamrao Tarachand Furkunde, however left threatening that he would deal with the victims party in the evening. 3. In the evening when the victims party found that the accused persons had gathered and were conspiring, deceased Gulab Mahadeo Gurve accompanied by witnesses Chango Govinda Tete, Niranjan Vithoba Rinayat and Bhaiyalal Chandulal Dhomne went to police station to give a report in respect of the incident in the afternoon. While Gulab Mahadeo Gurve and Domnath Harinath Rajput went to the police station at 8 p.m., witnesses Chango Govinda Tete, Niranjan Vithoba Rinayat and Bhaiyalal Chandulal Dhomne kept a watch near bus stand of Tiroda. P.W.l Bhaiyalal Chandulal Dhomne's mother, Dhurpatabai w/o. Chandulal Dhomne, saw that the accused had gathered with sticks, chains and other weapons and were talking about assaulting someone and, therefore, informed witnesses Ganeshnath Harinath Rajput, Ramnath Gopinath Rajput and Prabhunath. P.W.l Bhaiyalal Chandulal Dhomne's mother, Dhurpatabai w/o. Chandulal Dhomne, saw that the accused had gathered with sticks, chains and other weapons and were talking about assaulting someone and, therefore, informed witnesses Ganeshnath Harinath Rajput, Ramnath Gopinath Rajput and Prabhunath. They felt that the accused will attack Gulab Mahadeo Gurve and Domnath Harinath Rajput. Therefore, they too went to police station Tiroda and informed their friends at Tiroda about the impending attack. 4. Deceased Gulab Mahadeo Gurve and seven other witnesses were returning to their village by bicycle from Tiroda. At about 8.30 p.m. all of a sudden they were assaulted by stones. Accused no.l Shama @ Shamrao Tarachand Furkunde was armed with an iron rod. Accused no.8 Narayan Rupchand Furkunde and accused no.14 Kunjilal Hari Fuikunde were armed with chains and other accused were armed with sticks. They attacked deceased Gulab Mahadeo Gurve, Domnath Harinath Rajput and Ganeshnath Harinath Rajput. Gulab Mahadeo Gurve received injuries by iron rod including a fracture and fell down on ground. Domnath Harinath Rajput also received head injuries. Witnesses Bhaiyalal Chandulal Dhomne, Niranjan Vithoba Rinayat and Ramnath Gopinath Rajput escaped with one or two injuries. Friends of Gulab Mahadeo Gurve ran away from the spot leaving their bicycles in order to save their Jives. Some villagers from Bhivapur had noticed accused persons. Information about the incident was conveyed to the police station Tiroda. Villagers of Bhivapur took the injured in the bullock-cart to the police station and offence was registered and investigation commenced. Gulab Mahadeo Gurve succumbed to his injuries on 6-4-1990. After completion of the investigation, charge-sheet was sent up which was duly committed by the learned Judicial Magistrate First Class to the Court of Session a Gondia. 5. Villagers of Bhivapur took the injured in the bullock-cart to the police station and offence was registered and investigation commenced. Gulab Mahadeo Gurve succumbed to his injuries on 6-4-1990. After completion of the investigation, charge-sheet was sent up which was duly committed by the learned Judicial Magistrate First Class to the Court of Session a Gondia. 5. All the 16 accused, who had bee I sent up for trial, were charged for forming at unlawful assembly with the common object omitting murder of Gulab Mahadeo Gurve while being armed with deadly weapons, a members of such unlawful assembly, having committed the murder of Gulab Mahadeo Gurve having caused injuries to Gulab Mahadeo Gurve and Domnath Harinath Rajput with dangerous weapon having caused simple injuries to Bhaiyalal Chandulal Dhomne, Niranjan Vithoba Rinayat and Ramnath Gopinath Rajput in prosecution of common object of such assembly and thereby having committed offences punishable under Sections 147, 148, 302 read with Sections 149,324 read with 149,323 read with 149 of I.P.C. All the accused pleaded not guilty of the said charge and hence were put on trial, in the course of which prosecution examined as many as 17 witnesses and the defence examined two witnesses. After considering the prosecution evidence in light of the defence raised, the learned Additional Sessions Judge convicted the appellants as indicated below: (A) Convicted for offence punishable under Section 304(i) read with Section 149 of LP.C. and sentenced to RI for 10 years and fine of Rs.100/- in default SI for 1 month. Accused nos.l Shama, 6 Jairam, 8 Narayan, 11 Manohar and 14 Kunjilal. (All appellants in Criminal Appeal No.432/ 1995) (B) Convicted for offence punishable under Section 326 read with Section 149 of LP.C. and sentenced to RI for 3 years and fine of Rs.l 00/- in default 5I for one month. Accused nos.2 Bhayyalal, 5 Rajhans, 10 Tiku, 12 Nandkishor, 13 Deoram, 15 Brijlal and 16 Yuvraj. (All appellants in Criminal Appeal 431/1995) (C) Convicted for offence punishable under Section (i) 147 of I.P.C. and sentenced to RI for one year and fine of Rs.100/- in default SI for one month (ii) Section 323, 324 read with Section 149 and sentenced to RI for 6 months fine of Rs.I00/- in default Slone month. (All the appellants in both the appeals). (All the appellants in both the appeals). (D) Convicted for offence punishable under Section 148 of I.P.C and sentenced to RI for one year and fine of Rs.l00/- each in default SI for one month. Accused nos. 1 Shama, 8 Narayan and 14 Kunjilal (Appellants in Criminal Appeal No.432/1995) Aggrieved by their aforesaid conviction and the sentences imposed upon them, these two appeals have been preferred. 6. Appellants Deoram Sitaram Shende and Yuvaraj Dadu Rinayat in Criminal Appeal No.431/1995 were reported to have died and hence appeals by them were ordered to have abated on 26-4-2006. 7. I have heard Advocate Daga for the appellant in Criminal Appeal No.432/1995. The learned counsel for the appellants in Criminal Appeal No.431/1995 was not available though repeated called on 9-1-2006. Since, none was present for the appellants in Criminal Appeal No.431/1995, summons were issued to the appellants so that they could appear and for pressing their appeals. Summonses in respect of two of the appellants who were reported to have died were received and hence, the appeal was ordered to be abated. Other appellants 1 to 4 and 6 were reported on 14-3-2006 to have been served. Yet, when the appeal came up for hearing on 19-9-2006, none appeared for them. Therefore, with the help of the learned Additional Public Prosecutor and the learned counsel in the other appeal, I have gone through the record to examine as to whether the appeal had any merit. 8. Gulab Mahadeo Gurve had met with his death in the incident. Said Gulab Mahadeo Gurve was examined by P.W.14 Dr. Satish jaiswal who found that Gulab Mahadeo Gurve had 9 injuries described by him in Certificate EX.21 1. According to doctor out of them the following 5 injuries were grievous and had a potential of creating life threatening complication. (1) Pseudo incised lacerated wound over right lateral side of occuptio prital region on head with heamatoma of about 2" deep in center upto bone laceration of external table of bone can be noted on palpatation injury is of 1" X W' oblique in direction. (2) contusion with heamatoma with black eye over Rt. eye including Rt. arbital fossa with abrasions of irregular sizes over upper & lower eye-nose & superior cilliorey border. Internally, subconjuctical bleeding present with laceration of conjuctive and cornea. Vission absent. Source of light absent. (3) Contusion with heamatoma over left eye. (2) contusion with heamatoma with black eye over Rt. eye including Rt. arbital fossa with abrasions of irregular sizes over upper & lower eye-nose & superior cilliorey border. Internally, subconjuctical bleeding present with laceration of conjuctive and cornea. Vission absent. Source of light absent. (3) Contusion with heamatoma over left eye. Pupils normal reacting vision sluggish. (4) Multiple contusions over bilateral side of back obliqually placed with irregular margins with complaint of pain in Rt. lateral side of scapular region at T 6 to Lt. region with haematoma, tender, urine not passed Querry heamatoma of Rt. kidney. (5) Incised wound over Rt. lateral border of the lower 1/3 of Lt. humerous X W' X W' em. deep up to muscles with fresh bleeding. 9. Eventually after Gulab Mahadeo Gurve succumbed to his injuries Dr. Jaiswal had conducted post-mortem examination along with Dr. Kamble and proved the notes of his postmortem examination are at Ex.212. Dr. Jaiswal stated that the death has occurred due to subdural haemorrhage in Rt occipital region, extravassation of blood from menengial arteries of brain, infrascapular haemarrhage of Rt kidney & laceration of Rt kidney "peranchyma". There can therefore be no doubt that the nature of injuries observed in Ex.211 and 212 were homicidal in nature. 10. The learned counsel for the appellants submitted that P.W.14 Dr. Jaiswal has not been able to explain as to how injury no.9, incised wound over Rt. lateral border of the lower 1/3 of Lt. humerous, could have been caused by hard and blunt object. The weapons which have been used in assault are stated to be bicycle chain, sticks and iron rod. Though these objects have been described as hard and blunt, bicycle chains or even iron may have the edges which may create a cut, which may result in an incised wound. Therefore, this itself is insignificant and does not discredit the version of the witnesses or the doctor. 11. Dr. Jaiswal had also examined P.W.2 Domnath Harinath Rajput and had found injuries mentioned in certificate at EX.209 which comprised of a bone deep lacerated wound over frontal occipital bone with irregular margin of size 4 inch X 1 inch with laceration of external table of skull under injury, a bone deep lacerated wound over left supra "cilliorry arch", multiple contusions with abrasion over left fist, multiple contusions over back and multiple contusion with abrasions over both lower limbs. 12. Dr. Jaiswal had also observed two abrasions and two contusions of a simple nature on P.W.4 Ganeshnath Harinath Rajput as mentioned in his certificate at Ex.21O. 13. Dr. Jaiswal stated that the police had recorded statement of victim Gulab Mahadeo Gurve in his presence when Gulab Mahadeo Gurve was in a position to give statement. He proved his attestation on the statement EX.93. This statement in the nature of dying declaration was supposed to have been recorded in presence of three panchas, who have been examined as P.W.5 Surajlal Babulal Harin Khede, P.W.6 Shankar Sitku Katre and P.W.7 Ramesh Babulal Patle. Of them P.W.5 Surajlal Babulal Harin Khede, P.W.6 Shankar Sitku Katre, did not support the prosecution on the dying declaration. P.W.7 Ramesh Babulal Patle stated that such a dying declaration was recorded in his presence between mid night and 1 a.m. and that he was standing near the cot of Gulab where statement were recorded. PSI Nimgade who recorded this statement, has not been examined. In this statement the victim had identified Shama @ Shamrao Tarachand Furkunde, Kunjilal Hari Furkunde and Narayan Rupchand Furkunde as the persons who had assaulted him by means of bicycle chains, iron rod and sticks. He has also mentioned that Nandkishor FuIchand Furkunde had also assaulted him. He has then given the genesis of the incident and has also stated that there were about 15 to 16 assailants. According to him, the incident was witnessed by P.W.I Bhaiyalal handulal Dhomne, P.W.2 Domnath Harinath Rajput, P.WA Ganeshnath Harinath Rajput, P.W.3 Chango Govinda Tete, one Prabhunath and others. 14. After having considered the victims account of assault on him, it may be appropriate to go to the evidence of the incident tendered by the witnesses, named by the victim as the persons who had witnessed the assault. The following chart shows as to which of these witnesses stated about assault by which of the appellant with, which weapon. (A) Assault on deceased Gulab Witness Participant Weapon (1) Bhaiyalal C. Dhomne Accused 1,6,8,11,14 A/1-iron rod A/8, 14-chain A/6, 11 –stick. 2) Domnath -do- -do- 3) Chango A/1, 2, 14 & the rest of A/1 & 2 iron rod A/14 & rest accused. sticks 4) Ganeshnath A/1, 8, 11 & 12 A/1, 8, 11, 12 iron rods 8) Ramnath A/1, 4, 6, 8, 14 A/1, 14-iron rod. A/8 Chain A/6 stick (B) Assault on P.W.1. 2) Domnath -do- -do- 3) Chango A/1, 2, 14 & the rest of A/1 & 2 iron rod A/14 & rest accused. sticks 4) Ganeshnath A/1, 8, 11 & 12 A/1, 8, 11, 12 iron rods 8) Ramnath A/1, 4, 6, 8, 14 A/1, 14-iron rod. A/8 Chain A/6 stick (B) Assault on P.W.1. Bhaiyyalal 1) Bhayyalal A/1 Stick. 3) Chango A/1, 2, 14 & the rest A/1 –iron rod A/14 & the rest sticks. (C) Assault on P.W.2 Domnath (2) Domnath A/1, 2, 12, 14 A/1-iron rod A/2, 12-stick A/14-chain (3) Chango A/1, 2, 14 & the rest A/1, 2-iron rod A/14 & rest sticks 4) Ganeshnath A/1, 2, 6, 8 A/1 iron rod A/8-chain (8) Ramnath A/1, 3, 6, 8 A/3, 6-stick (D) Assault on P.W.4 Ganeshnath (4) Ganeshnath A/5, 10, 13, 16 A/5, 10, 13, 16-sticks. (E) Assault on P.W.8 Ramnath (8) Ramnath Biram, A/13 Deo ram & A/5, 13-sticks Names of accused as per the judgment of trial Court : Accused No. Name 1. Shama alias Shamrao s/o Tarachand Furkunde. 2. Bhaiyalal. s/o. Tarachand Furkunde. 3. Gulab s/o. Hari Furkunde. 4. Dhanlal s/o Jiwan Mendhe. 5. Rajhans S/o hagru raut 6. Jairam S/o Dasru Bawnthade 7. sukhram s/o rupchand Furknde 8. Narayan s/o Rupchand Furkunde 9. Vithal s/o Rupchand Furkunde 10. Tinku alias Tikaram s/o Rupchand Furkunde 11. Manohar s/o. Fulchand Furkunde. 12. Nandkishor s/o. Fulchand Furkunde. 13. Deoram s/o. Sitaram Shende. 14. Kunjilal s/o. Hari Furkunde. 15. Brijlal s/o Hari Furkunde. 16. Yuvaraj s/o Dadu Rinayat. 15. The other prosecution witnesses examined are P.W.9 Sukhram Baxi Uke, who was supposed to have seen the accused going with weapons has turned hostile. P.W.11 Harichand Pandu Mankar and P.W.12 Chunilal Laxman Meshram were to state about the seizures and observers in course of investigation. They too have turned hostile. P.W.13 Mahe Fasul s/o. Abdul Gaffar has stated that he had been called by the police to witness seizure of underwear and banyan (vest) of accused Shama @ Shamrao Tarachand Furkunde vide Ex.183, banyan and pajama of Narayan Rupchand Furkunde vide Ex.184, banyan and full pant of Kunjilal Hari Furkunde vide Ex.185, banyan and full pant of Nandkishor Fulchand Furkunde vide EX.186. He further states that accused no. 1 Shama @ Shamrao Tarachand Furkunde stated in his presence that he would produce iron rod used in commission of offence and memorandum was made Ex.l77. He further states that accused no. 1 Shama @ Shamrao Tarachand Furkunde stated in his presence that he would produce iron rod used in commission of offence and memorandum was made Ex.l77. He states that the rod was discovered and seized vide Ex.178. According to him accused Narayan Rupchand Furkunde stated that he would produce chain, and a memorandum was accordingly made vide Ex.179. Upon production the chain was seized EX.180. Likewise accused Kunjilal Hari Furkunde agreed to produce chain and a memorandum was drawn up vide Ex.187 and the chain was seized upon its production EX.188. 4 or 5 other accused agreed to produce sticks which were accordingly produced and seized vide memoranda and seizures EX.189 to 206. 16. P.W.10 Dhurpadabai w/o. Chandulal Dhomne stated about prior incident. She is not an eye-witness of the assault. P.W.15 Niranjan Vithoba Rinayat stated that when the stones pelting began, he dropped the bicycle and ran away and thus, has not seen the incident. He did not support the prosecution. 17. P.W.16 Dr. Rekha Dubey had examined P.W.l Bhaiyalal Chandulal Dhomne, 8 Ramnath Gopinath Rajput, 15 Niranjan Vithoba Rinayat and found that each of them had a contusion as stated by her in her report Ex.226 to 228. P.W.17 Khemraj Bakaram Kukde conducted investigation. 18. On behalf of accused on Barku Pandu Mankar and Gyaniram Jago Ghormare were examined as defence witnesses. Both these witnesses stated that the accused were with them till 9 p.m. in the incidental day to rule out the charge that the accused could have been engaged in the incident near nursery near the village. 19. After considering this evidence the learned trial Judge convicted and sentenced the appellants as mentioned earlier. 20. Advocate Daga, the learned, counsel for the appellant in Criminal Appeal No.432/1995 submitted that the learned trial Judge was not justified in convicting some of the accused for offence punishable under Section 326 and the appellants in Criminal Appeal No.432/1995 of offence punishable under Section 304 Part I of IPC when their roles were similar, and particularly where they were alleged to have indulged in the assault in prosecution of common object of unlawful assembly. He submitted that there was no intention behind the assault and said assault could not have been attributed to the appellants. He submitted that there was no intention behind the assault and said assault could not have been attributed to the appellants. He further submitted that though names of appellants Jairam Dasru Bawanthade (accused no.6) and Manohar Fulchand Furkunde (accused no.2) did not appear in the dying declaration Ex.93, they were still convicted for the offence punishable under Section 304 Part-I of I.P.C. Therefore, according to him the conviction of appellants in Criminal Appeal No.432/1995 are not sustainable. 21. His Learned Adversary Advocate Lanjewar, Additional Public Prosecutor for the State, submitted that absence of reference to Jairam Dasru Bawanthade and Manohar Fulchand Furkunde in the dying declaration Ex.93 does not necessarily mean that they had not participated in the assault. The incident had taken place at about 9 p.m. on a village road where 16 persons were alleged to have launched a murderous attack on victim Gulab Mahadeo Gurve and his friends. Therefore, according to the learned Additional Public Prosecutor failure of Gulab Mahadeo Gurve to notice all his assailants is as natural as his failure to recount the names of all of them, when his dying declaration was recorded, in view of the fact that he had sustained severe injuries, and died shortly after being admitted to the hospital. Therefore, the learned APP rightly submitted that absence of names of two appellants in the dying declaration has hardly any significance since their participation was seen by other witnesses. 22. The learned APP next submitted that the distinction between the roles of those who have been convicted by the learned Additional Sessions Judge for offence punishable under Section 304 Part-I and 326 is explained by the learned Judge in para-31 of his judgment. Rather than going by the wholesale implication of all in an attack which led to death of Gulab Mahadeo Gurve, the learned trial Judge has rightly concluded that the nature of assault launched would be indicative of the extent to which object in prosecution of which unlawful assembly was formed, was shared. Rather than going by the wholesale implication of all in an attack which led to death of Gulab Mahadeo Gurve, the learned trial Judge has rightly concluded that the nature of assault launched would be indicative of the extent to which object in prosecution of which unlawful assembly was formed, was shared. He submitted that all the members of a mob indulged in rioting or causing injuries need not share the common object and if the learned Judge found that the appellants in Criminal Appeal No.431/1995 did not share the common object of causing death of Gulab Mahadeo Gurve, on the basis of roles played by them, it could not be said that the Judge has unwarranted discriminated between the two groups of accused persons. On the other hand the learned APP submitted that this depicts a judicious approach taken by the learned Additional Sessions Judge. This contention may not be exactly in tune with the doctrine of vicarious liability of every member of unlawful assembly for an act done by even one member of such assembly in prosecution of common object. However, since State has not challenged conviction of appellants in Criminal Appeal No.431/1995 for lesser offence, it would not be :i proper to reopen their convictions and at the j same time, it would not be permissible to ignore ) active participation of appellants in Criminal Appeal No.432/1995 in the murderous assault which attracts culpability even without recourse to vicarious liability. 23. The learned counsel for the appellants in Criminal Appeal No.432/1995 R. M. Daga next submitted that the evidence of 4 prosecution witnesses who had seen the incident is discrepant and, therefore, unworthy of belief. He submitted that P.W.1 Bhaiyalal Chandulal Dhomne had lodged a report with the police which is at Ex.8!. In this report this witness alleged that accused no.1 Shama @ Shamrao Tarachand Furkunde threw a stick at him which hit his right hand. The witness however stated in his report that when he was running away from the spot accused Manohar Fu1chand Furkunde, Nandkishore Fu1chand Furkunde ran after him but he managed to run away. The witness had further stated in his report that when he was running away he heard the shouts of 'Oh, I am dying'. Therefore, according to the learned counsel for the appellant since Bhaiyalal Chandulal Dhomne ran away, he was not an eyewitness to the incident. The witness had further stated in his report that when he was running away he heard the shouts of 'Oh, I am dying'. Therefore, according to the learned counsel for the appellant since Bhaiyalal Chandulal Dhomne ran away, he was not an eyewitness to the incident. As rightly pointed out by the Additional Public Prosecutor, it is not the story of Bhaiyalal Chandulal Dhomne that he had ran away at the beginning of the incident itself. Even in his report at Ex.81 he had stated that the accused persons had assaulted them with sticks, iron rod, chains and stones and thereafter, he started running out of fear. He may not have seen the incident till the end, but the assault which was very much seen by him, and described in his evidence is not shown to contrary to his report at Ex.81. 24. The learned counsel for the appellants next submitted that P.W.2 Domnath Harinath Rajput claimed to have stated in his police statement that accused Kunjilal Hari Furkunde had assaulted deceased Gulab Mahadeo Gurve with chain but was unable to state as to why this was missing from his police statement. Therefore, according to the learned counsel this improvement warrants disbelief in the evidence of Domnath Harinath Rajput. As for P.W.3 Chango Govinda Tete, the learned counsel submitted that Chango Govind Tete states the time of incident as 10 a.m., whereas the other witnesses do not stretch the incident to that point of time. This witness stated before the police that accused no.14 Kunjilal Hari Furkunde was armed with a chain, but in his evidence he stated that accused no.I4 Kunjilal Hari Furkunde was armed with the stick. 25. As regards evidence of P.W.4 Ganeshnath Harinath Rajput, the learned counsel for the appellant submitted that Ganeshnath Harinath Rajput had admitted in para 3 of his cross-examination that he wrongly stated in examination-in-chief that all the accused assaulted Gulab Mahadeo Gurve with a iron rod. He claimed to have told the police that Narayan Rupchand Furkunde, Shama @ Shamrao Tarachand Furkunde and assaulted P.W.2 Domnath Harinath Rajput with a chain but was not in a position to state as to why the police had not written it in his statement. He claimed that accused Deoram Sitaram Shende, Rajhans Hagru Raut and Yuvraj Dadu Rinayat assaulted him with stick. He claimed that accused Deoram Sitaram Shende, Rajhans Hagru Raut and Yuvraj Dadu Rinayat assaulted him with stick. He admitted that he had not stated the names of remaining accused before the police. Commenting of the witness P.W.S Ramnath Gopinath Rajput, the learned counsel for the appellants submitted that Ramnath Gopinath Rajput claimed that he had not stated before the police that he had been hit by stone pelting and could not explain as to why the police had written said fact in his statement. In cross-examination for accused no.15, he had stated that accused Brijlal Hari Furkunde. He claimed to have stated accused Brijlal Hari Furkunde assaulted with stick but could not explain as to why the police had not so recorded in his statement. Therefore, the learned counsel for the appellants submitted that in view of these omissions and contradictions, the evidence of these witnesses was not worthy of belief, particularly in the context of previous quarrel which had taken place. 26. The learned Additional Public Prosecutor submitted that these contradictions are extraordinarily minor in nature. They rather give ring of truth to the evidence, which would have otherwise attracted the criticism of the witnesses coming out with a story with orchestrated harmony, which would have been indicative of cooking up a story or having been tutored before the entering the witness box. As regards the previous dispute, the learned APP submitted that Gulab died in an assault, and PW's have sustained injuries. It cannot be imagined that Gulab would die or witnesses would injure themselves to implicate the accused persons. 27. The learned Additional Public Prosecutor pointed that the evidence of P.W.14 Dr. Satish Shyambabu Jaiswal and P.W.16 Dr. Rekha Dubey would show that the eye-witnesses had sustained injuries on the day of the incident. Considering the number of injuries sustained by five prosecution witnesses and the victim Gulab Mahadeo Gurve, the assault by appellants of the magnitude described is perfectly natural. He submitted that the learned Additional Sessions Judge has held the five appellants in Criminal Appeal No.432/1995 guilty of homicide of Gulab Mahadeo Gurve only after ascertaining the involvement of these five appellants coming from the evidence of eye-witness which was tendered. He submitted that the learned Additional Sessions Judge has held the five appellants in Criminal Appeal No.432/1995 guilty of homicide of Gulab Mahadeo Gurve only after ascertaining the involvement of these five appellants coming from the evidence of eye-witness which was tendered. As that chart in respect of evidence of these eye-witnesses would show the complicity of appellants in Criminal Appeal No.432/1995 in the assault on Gulab Mahadeo Gurve which led to his death is proved beyond doubt. 28. The learned counsel for the appellants in Criminal Appeal No.432/1995 further submitted that the story of the witnesses is that they were returning after giving a report to the police and were aware that some Incident was likely to take place. He stated that all these persons were proceeding by bicycle one behind the other, at some distance from each other. Therefore, it was difficult to believe that they could have seen the incident. True it is that all the witnesses may be travelling on the bicycle one behind the other. It does not however follow that they could not have seen the incident unless evidence is brought to show that topography wa~ such that it was not possible for a person on say third or fourth bicycle to see what was happening to the first bicyclist. 29. The learned counsel for the appellants in Criminal Appeal No.431/1995 was not available. Summons had been sent to the appellants there after Advocate Bapat and Advocate Motghare has appeared for these appellants but again at the time of hearing of this appeal they were not available. All the same with the help of Additional Public Prosecutor and even the learned counsel for the appellants in Criminal Appeal No.432/1995, I have gone through the evidence about complicity of appellants in Criminal Appeal No.431/1995 in the incident for which they have been convicted for offence punishable under Sections 323, 324 (?) and 326 read with 149 and Sections 147 and 148 of the I.P.C. The evidence which has already indicated in the chart above would show that these persons were armed with bicycle chains and iron or sticks which are dangerous weapons. By these instruments they have inflicted injuries on victim Gulab Mahadeo Gurve which were serious in nature and they ultimately led to Gulab Mahadeo Gurve's death. By these instruments they have inflicted injuries on victim Gulab Mahadeo Gurve which were serious in nature and they ultimately led to Gulab Mahadeo Gurve's death. They had also inflicted injuries with these dangerous weapons on the other prosecution witnesses as has been described by them. The evidence of these witnesses have already been discussed and all the contradictions and omissions which are pointed out are minor in nature not warranting disbelief in the evidence tendered. In view of this there is no infirmity in the conclusions reached by the Additional Sessions Judge about involvement of these appellants tod in the offences for which they have been convicted. 30. The learned counsel for the appellants in Criminal Appeal No.432/1995 next submitted that all these appellants were in custody for about 4 to 5 years after their conviction, and since their release on bail, have been settled in life. He therefore, submitted that fine to be imposed on them could be increased, and their substantive sentence may be reduced so that the appellants are not required to go in jail. The learned Additional Public Prosecutor opposed said submission. He submitted that the learned Additional Sessions Judge has been extremely judicious in identifying the roles of accused person separately and serving them just desert. He submitted that given the magnitude of attack launched by the appellants, for reasons which were really trifling, the sentences imposed cannot be said to be excessive. He submitted that the fact that the appellants are settled in life since being enlarged on bail is not relevant. Since the appellants are found to have committed culpable homicide in which death has been caused by an act of causing such bodily injuries as were likely to cause death, the punishment of RI of 10 years imposed upon appellants in Criminal Appeal No.432/1995 is appropriate. Convictions of these appellants and appellants in Criminal Appeal No.432/1995 for other offences are just and sentenced imposed upon them are not harsh or excessive. In view of this the appeals have no merit and are dismissed. Hence, the following order is passed. Both the appeals are dismissed. The appellants shall surrender to their bail within a month, failing which the trial Court shall take steps to have the appellants arrested to serve the sentences. In view of this the appeals have no merit and are dismissed. Hence, the following order is passed. Both the appeals are dismissed. The appellants shall surrender to their bail within a month, failing which the trial Court shall take steps to have the appellants arrested to serve the sentences. The proceedings so far as appellants no.5 Deoram s/o. Sitaram Shende and 7 Yuvraj s/o. Dadu Rinayat in Criminal Appeal No.431/1995 are concerned, abate, since the said appellants had died. Order accordingly.