Judgment P. V. HARDAS, J. ( 1 ) BY these appeals the appellants-original accused in the trial challenge their conviction and sentence for offence punishable under section 302 read with sec. 149 of I. P. C. , 148 of I. P. C, 324 read with sec. 149 of I. P. C. and sentence of imprisonment for life and fine of Rs. 2,000/- each, with a default stipulation of undergoing further R. I. for six months, r. I. for one year and fine of Rs. 500/- each, in default of payment of fine each accused to further undergo R. I. for one month and R. I. for one year and to pay fine of Rs. 500/-, in default of payment of fine each accused to undergo further R. I. for one month restively, by the 4th Additional Sessions judge, Parbhani, by judgment dated 11. 12. 2003, in Sessions Trial No. 154 of 2002. Since both the appeals challenge the same judgment of the Trial court, both the appeals are being decided by this common judgment. ( 2 ) SUCH of the facts as are necessary for the decision of this appeal can briefly be stated thus :- p. W. 8 A. P. I. Subhash Laxman Anmolwar was attached to police station, Purna as A. P. I. On 10. 7. 2002 P. W. 4 Uttam came to the police station at about 6. 45 a. m. and informed P. W. 8 A. P. I. Anmolwar that he and the other family members had been beaten. Since P. W. 4 Uttam was in a frightened condition and was not in a position to speak properly, apparently his complaint was not scribed and, therefore, P. W. 8 A. P. I. Anmolwar along with other staff and P. W. 4 Uttam went to the area of dhangar Takali where the huts of P. W. 4 Uttam and others were situated. On reaching the scene of the offence, they noticed dead bodies of Gyanu dhage and Sanjay Dhage lying at two different places. Similarly they noticed that about 7 to 8 persons were injured. P. W. 9 P. I. Rathod started recording the inquest panchnama of the dead body of Gyanu and P. W. 8 a. P. I. Anmolwar was requested to shift the injured to the Government hospital, Purna for treatment. Similarly they noticed that about 7 to 8 persons were injured. P. W. 9 P. I. Rathod started recording the inquest panchnama of the dead body of Gyanu and P. W. 8 a. P. I. Anmolwar was requested to shift the injured to the Government hospital, Purna for treatment. After taking injured for treatment at the government Hospital and after returning from the hospital, complaint of p. W. 4 Uttam at Exh. 42 came to be recorded. On the basis of the said complaint, an offence vide Crime No. 65 of 2002 under sections 302, 149, etc. of I. P. C. came to be registered. P. W. 9 P. I. Rathod drew the inquest panchnama of the dead body of Sanjay Dhage in the presence of P. W. 7 lawman and another panch. The same is at Exh. 47. Inquest panchnama of Gyanu is at Exh. 47. After the registration of the offence, P. M. 9 P. I. Rathod received copy of the first information report and thereafter drew the scene of the offence panchnama at Exh. 49 in the presence of panchas. From the scene of the offence where the dead body of Gyanu was lying, one rough stone, blood stained earth, broken pieces of bangles and control soil came to be seized. From the spot where the dead body of Sanjay was lying blood mixed soil and control soil came to be seized. A rough sketch of the scene of the offence came to be drawn which is at Exh. 49. The dead bodies of Sanjay and Gyanu were referred for postmortem examination and post mortem was conducted by P. W. 3 Dr. Dwarkadas Zanwar. He noticed the following external injuries on the dead body of deceased sanjay:-1. Lacerated injury on left temporal region, measuring about 1-1/2 x 3/4th inches, there was corresponding fracture of under linening bone; 2. Contusion on back right loin region in direction measuring about 2-1/2 inches; 3. Contusion on right gluteal region transverse in direction 3 x 1/2 inch; 4. Contusion on right gluteal region, oblique in direction 2 x 1/2 inch. ; 5. Lacerated injury on posterior surface of it elbow vertical in direction, measuring about 3/4" x 1/2" there was fracture of under line bone; 6. Lacerated injury on anteromedial surface of arm 1/2 x 1/2", 7. There was fracture upper l/3rd of tibia left; 7a. Contusion on right gluteal region, oblique in direction 2 x 1/2 inch. ; 5. Lacerated injury on posterior surface of it elbow vertical in direction, measuring about 3/4" x 1/2" there was fracture of under line bone; 6. Lacerated injury on anteromedial surface of arm 1/2 x 1/2", 7. There was fracture upper l/3rd of tibia left; 7a. Lacerated injury on anterior side of left leg, three in number measuring about 1/2 x 1/2 x 1-1/2 x 2-2/1" x l/4th" x 1 inch, deep 3-1/4 x 1/4 x 1" deep, there was fracture of under line bone; 8. Fracture of left tibia febula; 9. Lacerated injury on anterior surface of right leg 1/2 x 1/2 x 3/4" deep; 10. Lacerated injury below left two in number 1/2 x 1/2 x 1" deep and 3/4 x 1/2 x 1" deep; 11. Lacerated injury on left knee 1" x 3/4" x 1/2" deep. On internal examination he noted sub-dural hemorrhage and fracture of the temporal bone. There was bleeding in the intracranial region of the brain. He also noticed depressed fracture of temporal bone on account of external injury no. 1. He, therefore, opined that the cause of death was haemorrhagic shock from intra cranial bleeding from the head injury. The post mortem report in respect of Sanjay is at Exh. 39. He also opined that the injuries sustained by deceased Sanjay were sufficient in the ordinary course of nature to cause death. He further opined that these injuries were possible due to hard and blunt weapon like stick, rod, blunt side of axe, etc. P. W. 3 Dr. Zanwar then conducted the post mortem on the dead body of deceased Gyanu, He noticed the following external injuries on the dead body of deceased Gyanu:-1. Right leg below knee was fractured at three places one fracture was at upper 1/3 tibia febula and two at middle 1/3; 2. Lacerated injury below right knee three in number : 1. 1/2 x 1/2" x 3/4" deep, 2,1/2 x 1/2" x 1" deep; 3. 3/4" x 1/4" x 1/2" deep; 3. Fracture of right radio ulna bone about its middle 1/3; 4. Lacerated injury over posterial surface of right forearm two in number : 1. 3/4" x 1/2" x 1/2" deep; 2. 1/2 x 1/2 x 1/2" deep; 5. Lacerated injury on occipital area measuring about 1-1/2" x 1/2" x 3/4" deep. 3/4" x 1/4" x 1/2" deep; 3. Fracture of right radio ulna bone about its middle 1/3; 4. Lacerated injury over posterial surface of right forearm two in number : 1. 3/4" x 1/2" x 1/2" deep; 2. 1/2 x 1/2 x 1/2" deep; 5. Lacerated injury on occipital area measuring about 1-1/2" x 1/2" x 3/4" deep. On internal examination he noticed sub-dural haemorrhage and depressed fracture of occipital bone. There was bleeding in the intra cranial region of the brain. He, therefore, opined that cause of death was haemorrhagic shock from intra cranial bleeding from the head injury. The post mortem report in respect of deceased Gyanu is at Exh. 40. According to him, injury no. 5 was sufficient to cause death in the ordinary course of nature and the injuries were possible due to hard and blunt object like stick, iron pipe, rod, etc. ( 3 ) ON the same day, the statements of witnesses came to be recorded. The accused came to be arrested on the same day. Original accused nos. 1 and 3 ca me to be arrested by P. W. 9 P. I. Rathod, while original accused nos. 2 and 4 came to be arrested by Dy. S. P. Deshmane. At the time of arrest, blood stained clothes and banian came to be seized from accused no. 1 pralhad vide Exh. 53 in the presence of witnesses. Dy. S. P. Deshmane arrested accused Shivaji in the presence of P. W. 9 P. I. Rathod and also seized blood stained pant and shirt vide seizure memo at Exh. 54. Blood stained clothes of accused no. 4 Uttam also came to be seized in the presence of p. W. 9 P. I. Rathod vide seizure memo at Exh. 55. Blood stained clothes i. e. pant and shirt came to be seized from the person of accused no. 3 Kerba vide seizure memo Exh. 56. Accused no. 5 Limbaji came to be arrested on 11. 7. 2002 and in the presence of panchas, blood stained Dhoti and shirt came to be seized from accused no. 5 vide seizure memo at Exh. 57. During the course of investigation, the appallant/accused came to be interrogated in the premises of Zilla Parishad school. During interrogation, accused no. 5 Shivaji made a disclosure statement that he will point out the stick hidden by him in his house. 5 vide seizure memo at Exh. 57. During the course of investigation, the appallant/accused came to be interrogated in the premises of Zilla Parishad school. During interrogation, accused no. 5 Shivaji made a disclosure statement that he will point out the stick hidden by him in his house. The said disclosure statement came to be recorded in the presence of witnesses and the same is at Exh. 58. Accused no. 5 Shivaji thereafter took the panchas and the police to his house and after entering the house produced one stick which had been hidden beneath zinc sheets. The said stick was found stained with blood and came to be seized in the presence of panchas vide panchnama at Exh. 59. After seizure of the stick, P. W. 9 P. I. Rathod returned back to the school along with the panchas and accused no. 2 Shivaji. Thereafter accused no. 4 Uttam was interrogated and accused no. 4 Uttam expressed his willingness to produce a stick. Accordingly, in the presence of panchas a memorandum was drawn at Exh. 60. Accused Uttam took the police and the panch to his house and after going inside produced one stick which was found to be stained with blood. The said stick came to be seized in the presence of panchas vide seizure memo at Exh. 61. After seizure of the stick, P. I. Rathod returned back to the school and interrogated accused no. 3 Kerba. During interrogation, accused no. 3 Kerba expressed his willingness to produce a stick and accordingly a memorandum was drawn in the presence of panchas at Exh. 62. Accused no. 3 Kerba took the panch and the police to his house and produced one stick which had been hidden beneath the zinc sheets. The said stick was found stained with blood and was accordingly seized in the presence of panchas vide seizure memo at Exh. 63. After seizure of the said stick, P. W. 9 P. I. returned back to the scene and interrogated accused no. 1 Pralhad. During interrogation, accused no. 1 pralhad expressed his willingness to produce one stick which had been hidden by him in the shrubs of Beshram tree near his house. Accordingly, a memorandum in the presence of panchas was drawn at Exh. 64. Accused no. 1 Pralhad. During interrogation, accused no. 1 pralhad expressed his willingness to produce one stick which had been hidden by him in the shrubs of Beshram tree near his house. Accordingly, a memorandum in the presence of panchas was drawn at Exh. 64. Accused no. 1 Pralhad took the police and the panch to his house and from near his house from the shrubs of Beshram tree, the accused produced one stick which was hidden. The said stick was found stained with blood and was accordingly seized in the presence of panchas vide seizure memo at Exh. 65. After seizure of the stick, P. W. 9 P. I. Rathod returned back to the school and interrogated accused no. 5. Accused no. 5 Limbaji expressed his willingness to produce a stick and accordingly a memorandum at Exh. 66 came to be drawn in the presence of panchas. Accused no. 5 Limbaji took the police and the panch towards his hut and from the hut produced one stick which had been kept towards the western side of the hut. The said stick was found stained with blood and was accordingly seized in the presence of panchas vide seizure memo at Exh. 67. After seizure of the said stick, P. W. 9 P. I. Rathod returned back to the school. ( 4 ) ON 10. 7. 2002 P. W. 9 P. I. Rathod had issued a letter to the Medical officer for obtaining the sample of blood for analysis of deceased Gyanu and Sanjay. The copy of the said letter is at Exh. 69. Similarly, on 13. 7. 2002 blood sample of accused nos. 1 to 5 was requested to be taken for the purposes of analysis vide requisition at Exh. 70. Vide requisition at Exh. 71, blood sample of injured P. W. 6 Latabai was also requested to be drawn. On 17. 7. 2002, all the seized articles were sent to the Chemical Analyser for analysis vide requisition at Exh. 72. The said articles were sent along with police Constable, Buckle No. 930. In respect of the absconding accused, efforts were made to trace and arrest the accused, but the efforts proved to be futile. P. W. 5 Siddartha and P. W. 6 Latabai, who had been injured during the incident, had been referred for medical examination and were examined by P. W. I Dr. Tidke. P. W. 1 Dr. In respect of the absconding accused, efforts were made to trace and arrest the accused, but the efforts proved to be futile. P. W. 5 Siddartha and P. W. 6 Latabai, who had been injured during the incident, had been referred for medical examination and were examined by P. W. I Dr. Tidke. P. W. 1 Dr. Tidke noticed the following external injuries on the person of P. W. 6 Latabai:-1. Contusion and fracture right redious middle l/3rd. The size of the contusion was 5 cm x 4 cm, diffused and rod in colour. The site of the contusion is over right hand middle part. Age of injury is within 24 hours. Caused by hard and blunt object. It is grievous in nature;2. Contusion and fracture tibia middle l/3rd, the size of the injury is 4 cm x 3 cm diffused and red in colour. The site of the injury is at right leg middle portion. The age of the injury is within 24 hours. It is caused by hard and blunt object. It is grievous in nature. An injury certificate at Exh. 25 accordingly came to be issued. P. W. I dr. Tidke had also examined P. W. 5 Siddartha and had noticed the following external injuries :-1. Incised wound right maxilary region. Size was 3 cm x 2 cm x 1 cm. It is sharp and elliptical direction is midiary downwards red in colour. Age of the injury is within 24 hours. Type of weapon used by sharp cutting object. Injury was simple in nature. Can heal within seven days;2. Incised wound right hand dorsal side. Size is 2 cm x 1 cm x 1/2 cm, margin is sharp and red in colour. Caused by sharp cutting object;3. Contusion dorsal of the right leg. Size is 2 cm x 1 cm. Diffused red in colour. Age of injury No. 2 and 3 is within 24 hours and nature of injury was simple. 3rd injury caused by hard and blunt object. A medical certificate at Exh. 26 in respect of Siddartha also came to be issued. Both the injured were referred to Civil Hospital, Parbhani for treatment and confirmation of fracture. The x-rayplates in respect of the injured are at Exhs. 28 and 29. P. W. 1 Dr. Tidke, on examining the x-rays, had opined that P. W. 5 Siddartha had not sustained fracture. X-ray plates are at Exhs. Both the injured were referred to Civil Hospital, Parbhani for treatment and confirmation of fracture. The x-rayplates in respect of the injured are at Exhs. 28 and 29. P. W. 1 Dr. Tidke, on examining the x-rays, had opined that P. W. 5 Siddartha had not sustained fracture. X-ray plates are at Exhs. 28, 29, 30 and 31. Further to the completion of investigation, a charge-sheet against the present appellants came to be filed. ( 5 ) ON commital of case to Court of Sessions, Trial Judge vide Exh. 9 framed a charge against the present appellants-original accused nos. 1 to 5 for offence punishable under section 302 read with sec. 149 of I. P. C, 307 read with sec. 149 of I. P. C, 143 of I. P. C, 147 of I. P. C, 148 of I. P. C. and 323 read with sec. 149 of I. P. C. , 324 read with sec. 149 of I. P. C. and 120-B read with sec. 149 of I. P. C. All the accused denied their guilt and had claimed to be tried. Prosecution in support of its case had examined nine witnesses. The Trial Court on appreciating the evidence, convicted and sentenced the appellants as aforestated. ( 6 ) BEFORE we advert to the submissions advanced before us by shri M. M. Ambhore, learned Counsel appearing in Criminal Appeal No. 693 of 2005 and Shri H. M, Salve, learned Counsel appearing in Criminal Appeal no. 17 of 2004, it would be useful to make reference to the evidence of the witnesses. ( 7 ) P. W. 2 Uttam, who is the complainant who had lodged the report at exh. 42, states that he along with deceased Gyanoba, deceased Sanjay, p. W. 5 Siddartha and P. W. 6 Latabai and Meerabai were residing at Dhangar takali since about a year prior to the incident. He further states that the agricultural land of accused no. 1 Pralhad and the absconding accused nanna and Gajandra are adjacent to his land. The accused were frequently causing damage to their crop. P. W. 4 Uttam and others were repeatedly requesting the accused not to damage the crop. A complaint in this behalf, according to P. W. 4 Uttam had been filed against accused no. 1 Pralhad, gajendra and others. The accused were frequently causing damage to their crop. P. W. 4 Uttam and others were repeatedly requesting the accused not to damage the crop. A complaint in this behalf, according to P. W. 4 Uttam had been filed against accused no. 1 Pralhad, gajendra and others. He states that he was having 11 Acres of land and out of which 1-1/2 acres of land stands in his name, while 4 Acres of land was standing in,the name of one Bhima, 1-1/2 acres of land was standing in the name of Ganesh and 4 Acres of land in the name of Gyanoba. On account of frequent quarrels, P. W. 4 Uttam and others had left the village and their lands remained fallow. Prior to the incident, accused nos. 2 to 5 had threatened them by saying that they would see as to how P. w. 4 Uttam and others reside in village Dhangar Takali. He further states that he and deceased Gyanoba were residing separate, but their houses were adjacent to each other. Siddartha and deceased Sanjay were residing with deceased gyanoba. Latabai is daughter of deceased Gyanoba and she was also residing adjacent to the house of Gyanoba along with her husband. On a day earlier to the incident, after taking their dinner, they had slept in front of their houses. Goats had been tethered informant of the house of. In the midnight they were awakened due to the cry of the Goats. Upon awakening, he had seen Nanna, accused Pralhad, Gajendra, Raju, Ramesh, kerba and Limbaji. All the accused were holding iron pipe and sticks. Accused Raju was brandishing a knife in his hand while accused Nanna, gajendra, Ramesh and Raju were holding iron pipes in their hands. All the accused started assaulting them. Gajendra had given a blow by means of pipe on his head while accused Nanna, Gajendra, Raju and Ramesh had given pipe blow to Sanjay and accused Limbaji, Shivajl, Karba, Uttam and Pralhad had given stick blow to Sanjay. Initially Sanjay attempted to run, however, all the accused obstructed him in front of the house of limbaji and had beaten him. After beating Sanjay, all the accused again came in front of the house of deceased Gyanu and started beating him. On account of severe beating, deceased Gyanoba sustained bleeding injuries to his hands and legs. Initially Sanjay attempted to run, however, all the accused obstructed him in front of the house of limbaji and had beaten him. After beating Sanjay, all the accused again came in front of the house of deceased Gyanu and started beating him. On account of severe beating, deceased Gyanoba sustained bleeding injuries to his hands and legs. Accused Pralhad had given a blow by means of stick to P. W. 5 Siddartha and accused Raju had caused injury by knife on cheek or Siddartha. When P. M. 6 Latabai tried to rescue her father, accused limbaji had dealt a stick blow to Latabai, while accused Gajendra had given blow by means of pipe to Latabai. Latabai sustained bleeding injury on her leg and hand. Bangles of Latabai were broken. Accused Nanna, uttam and Shivajl had also beat one Baban. After beating them, the accused left the place. While going, accused Nanna had thrown a big stone on gyanoba. After the accused had left the scene of the offence, P. W. 4 Uttam went near Gyanoba and Sanjay and saw that they were dead. Dead body of deceased Sanjay was lying in front of house of accused Limbaji while dead body of Gyanoba was lying in front of his own house. The incident, according to P. W. 4 Uttam, occurred at about 2. 00 a. m. P. W. 4 Uttam then went to the house of one Laxman Dhage and informed the incident to him. P. W. 4 Uttam then returned back to the scene of the offence and on account of non availability of vehicle stayed at the scene of the offence till about 6. 00 a. m. Thereafter he went to the police station at Purna and lodged his own complaint at Exh. 42. After his complaint was reduced into writing, he was asked to sign on the said complaint. According to him, he reached the police station at about 7. 00 to 7. 30 a. m. and the police commenced scribing of his complaint at about 9. 30 a. m. In cross- examination on behalf of the accused no. 1, P. W. 4 Uttam has admitted that on the day of the incident it was a moonless night. He has also admitted that they reside in a cluster of huts which is situated at a distance of about 1000 ft. from village Dhangar Takali. 30 a. m. In cross- examination on behalf of the accused no. 1, P. W. 4 Uttam has admitted that on the day of the incident it was a moonless night. He has also admitted that they reside in a cluster of huts which is situated at a distance of about 1000 ft. from village Dhangar Takali. According to him, there are about 10 huts and out of the 10 huts, one hut is of Pandit, Bashir and ganesh Dhage and one Shankar Dhage. He has further admitted as true that prior to the incident, a quarrel had taken place between him and accused Pralhad. Because of the said quarrel, a case was pending against him and others. He has also admitted as true that since last ten years, cases had been registered against each other. He has admitted that his agricultural land is situated at village Ridhora and the distance between village Dhangar Takali and Ridhora is about 15 Kms. He has admitted that facility or electricity has not been provided to their huts. He has, however, stated that they have illegally obtained electric connection by throwing a wire hook on the electric line. He has also admitted that there are no electric poles near their huts. He has denied the suggestion that in the night of the incident there was darkness and a mob had gathered at the scene of the offence and P. W. 4 Uttam had not seen any person. He has further denied the suggestion that when there was a hue and cry he became frightened and he along with Baban fled away from the scene of the offence. He has admitted that he had gone to police station in an auto-rickshaw. He has admitted that distance between Dhangar Takali and Purna is about 5 to 6 Kms. Hehas admitted that a police Patil has been appointed for village Dhangar Takali. He has admitted that at the time of the occurrence there was darkness and, therefore, he had approached the nearest house of Laxman Dhage. He has further stated that though he had narrated the incident to Laxman Dhage, he had not requested Laxman Dhage to accompany him for reporting the matter to police Patil. He has admitted that without approaching the Police Patil he had gone to the police station. He has further stated that though he had narrated the incident to Laxman Dhage, he had not requested Laxman Dhage to accompany him for reporting the matter to police Patil. He has admitted that without approaching the Police Patil he had gone to the police station. He has denied the suggestion that on account of enmity he has falsely involved accused no. 5 Pralhad in the case. ( 8 ) IN cross-examination on behalf of the other accused, it was attempted to be established that there are huts which are situated close to each other. Certain other structures close to the huts of P. W. 4 Uttam and others has also been brought on record. P. W. 4 Uttam has admitted that hut of Latabai is situated at a distance of about 30 ft. from his hut. He has also admitted that house of accused no. 2 Shivaji is adjacent to the hut of latabai. He has further admitted that the distance between the hut of deceased Gyanoba and accused no. 5 Limbaji is about 40 ft. He has also admitted the existence of a veterinary hospital adjacent to the hut of limbaji-accused no. 5. He has denied the suggestion that there are about 25 to 30 huts. He has admitted that hotel of one Khajabai is at a distance of about 1000 ft. from their huts. He has further admitted that the houses of Pandit, Bashir, Bhole is situated at a distance of about 100 ft. from his hut. He has admitted that abort 150 persons are residing in their cluster of huts. He has stated that it did not occur that on account of stick blows he was awakened. He was confronted with portion marked "a" from his complaint which he has stated as incorrect. He has admitted that on account of his injuries, police had referred him for medical treatment. He has admitted that he had not sustained any injury on his hand. He was confronted with portion marked "b" from his complaint, which he has stated was not correct. According to him, the injury on his head was medically treated and he had been given stitches for the injury. He has stated that one Baban and Meerabai, who had also sustained injury had been referred for medical examination. He has stated that one Shantabai had also sustained injuries in the incident. According to him, the injury on his head was medically treated and he had been given stitches for the injury. He has stated that one Baban and Meerabai, who had also sustained injury had been referred for medical examination. He has stated that one Shantabai had also sustained injuries in the incident. He has admitted that the following portion does not appear in his complaint:-" (i) that on account of cry of the goats he was awakened; (ii) that the goats were tethered in front of the house of deceased gyanoba; (hi) that he had identified the accused in the illumination of the electric light; (iv) that accused no. 2 Shivaji, accused no. 3 Kerba and accused no. 4 uttam had given stick blow to Sanjay; (v) that accused Limbaji had dealt a stick blow to Sanjay; (vi) that Sanjay was trying to run, however, all the accused had obstructed him and had beaten him in front of house of Limbaji and thereafter the accused came back and had beaten Gyanoba; (vii) that Latabai tried to rescue her father and accused Limbaji had given a stick blow to Latabai. "omissions have been brought out in respect of assault to one Baban. However, since Baban has not been examined, we do not make any reference in respect of the mission of assault to Baban. Omission has been duly proved about P. W. 4 Uttam going to the house of Laxman Dhage and narrating the incident. Similarly, omission has been duly proved about the non availability of vehicle for going to the police station. ( 9 ) HE has further admitted that when he reached the police station there were two or three police constables in the police station and he had narrated the incident to the constables. The Police Constables, however, had, asked him to wait till arrival of the P. S. I. The P. S. I, came after about 2-1/2 hours. He has admitted that a civil dispute is pending at Ridhora against accused no. 1 Pralhad. He has admitted that the incident lasted for about one hour. He has also admitted that there was a hue and cry, but despite the hue and cry, no one had come to their aid at the scene of the offence. He has admitted that a civil dispute is pending at Ridhora against accused no. 1 Pralhad. He has admitted that the incident lasted for about one hour. He has also admitted that there was a hue and cry, but despite the hue and cry, no one had come to their aid at the scene of the offence. He has denied the suggestion that he had not witnessed the incident and out of enmity was referring to the names of the other accused. ( 10 ) P. W. 5 Siddartha, an injured eye-witness, states, that because of the dispute with the accused he and his family and other members had left village Ridhora about a year prior to the incident and began to reside in the huts. He further states, at about 2. 00 a. m. on hearing cry of the goats he and other members of his family were awakened. In the illumination he had seen accused Pralhad, accused Shivaji, accused Kerba, accused Uttam, accused Limbaji, accused Nanna, accused Gajendra, accuses raju and accused Ramesh. Accused no. 5 was armed with a stick while accused nos. 2 to 5 were also armed with stick. Accused Gajendra was armed with an iron rod and accused Nanna, Raju and Ramesh were armed with iron pipes. Sanjay began to run but all the accused caught him and started to beat him. Than P. W. 5 Siddartha requested the accused not to assault deceased Sanjay, accused no. 1 Pralhad gave a stick blow on his hand and leg. Accused Raju inflicted an injury by means of a knife on his right cheek. Accused Gajendra gave a blow of rod on P. W. 4 Uttam. Accused gajendra and Limbaji had also assaulted P. w. 6 Latabai by pipe and stick. Accused Nanna assaulted Baban by means of pipe, while accused no. 4 uttam and accused no. 2 Shivaji had given stick blows to Baban. He further states that accused Pralhad, accused Nanna, accused Raju, accused Uttam, limbaji and Kerba began to assault Gyanoba. Accused Nanna dealt a blow of pipe while accused Raju also dealt blows of pipe. Accused Pralhad, limbaji and Kerba dealt blows by stick to Gyanoba on his hands, legs and head. On account of beating deceased Gyanoba sustained bleeding injuries. Accused Nanna had also thrown a big stone on the leg and hands of Gyanoba. Accused Nanna dealt a blow of pipe while accused Raju also dealt blows of pipe. Accused Pralhad, limbaji and Kerba dealt blows by stick to Gyanoba on his hands, legs and head. On account of beating deceased Gyanoba sustained bleeding injuries. Accused Nanna had also thrown a big stone on the leg and hands of Gyanoba. Deceased Sanjay was lying in front of the house of accused no. 5 Limbaji. After beating them, all the accused fled away. In cross-examination on behalf of accused no. 4, P. W. 5 Siddartha has admitted that he had gone to sleep at about 10. 00 p. m. and when he had awakened he had seen accused persons beating deceased Sanjay and at the same time, he had seen Sanjay running. He has denied the suggestion that there are number of shrubs in front of the house of Gyunoba and accused limbaji. He has further stated that when Sanjay was running, all the accused were chasing and beating him. P. W. 5 Siddartha states that he was behind the accused. He has admitted that no one had beaten him at that time. He has further stated that Gyanoba was blind. In cross- examination on behalf of the accused no. l, P. W. 5 Siddartha has admitted that they had obtained electric supply from agricultural land of one Pandit. He has denied the suggestion that at the time of the occurrence there was darkness and there was no light. He has admitted that he was not in a position to state about the exact number of blows given by each accused. He has stated about the injuries sustained by him. He has stated that it did not happen that when sanjay was being beaten, he hid behind the shrubs and had seen the beating. He was confronted with portion marked "a" from his statement, which he stated was incorrect. In cross- examination on behalf of the other accused, P. W. 5 Siddartha has admitted that on account of dispute between Kishan Dhage and Bhujang Dhage, they had left village Ridhora. He has admitted as true that daughter of bhujang was married to accused no. 3 Kerba. He has also admitted that kishan Dhage has four sons by name Pralhad, Nanna, Bhujang and gajendra. Accused Rajendra and accused Ramesh are sons of accused nanna. He has admitted as true that daughter of bhujang was married to accused no. 3 Kerba. He has also admitted that kishan Dhage has four sons by name Pralhad, Nanna, Bhujang and gajendra. Accused Rajendra and accused Ramesh are sons of accused nanna. He has admitted that they had a dispute with the above referred persons. He has stated that there are only ten huts in that area. He has stated that he is not acquainted with all the persons residing in the said huts. He has further admitted that atthe time of the incident, deceased gyanoba was aged about 45 years and deceased Gyanoba was dealing in the business of she-goats. He has stated that on the day of the incident he had not gone for labour work. He was confronted with portion Marked "a" from his statement, which he had stated was not correct. ( 11 ) HE has admitted that the following statements do not appear in his statement recorded during investigation:- (i) about P. W. 5 Siddartha sleeping in the house of deceased Gyanoba; (ii) that deceased Sanjay was residing with deceased Gyanoba; (iii) that he, along with deceased Sanjay and deceased Gyanoba were sleeping informant of the hut of deceased Gyanoba; (iv) about P. W. 4 Uttam and members of his family outside the hut of p. W. 4 Uttam. In further cross-examination he has admitted as true that the persons who had arrived at the spot had stared (sic started) beating deceased Sanjay and deceased Gyanoba. He has further admitted that initially all the nine persons were beating Sanjay. The said beating was going on for about 15 minutes. Thereafter the said persons came near Gyanoba and started assaulting him. Assault on deceased Gyanoba continued for about 10 to 15 minutes. Omission has been attempted to be proved that he had not stated that accused nos. 2 to 5 were armed with sticky. Similarly, he could not assign any reason as to why it was not stated in his statement that sanjay started running, however, accused persons obstructed him and continued beating. He also could not assign any reason as to why the fact that he had requested the accused not to beat him did not find place in his statement. Similarly, he could not assign any reason as to why it was not stated in his statement that sanjay started running, however, accused persons obstructed him and continued beating. He also could not assign any reason as to why the fact that he had requested the accused not to beat him did not find place in his statement. Similarly, he could not assign any reason as to why in his statement recorded during investigation the fact that accused Limbaji and accused Gajendra had beaten Latabai by sticks and pipe did not find place. Omission was attempted to be proved in respect of assault to Baban by accused Nanna, accused Uttam and accused Shivaji. However, since baban has not been examined, we do not advert to the said omissions. He has admitted that they did not try to inform the incident to the other persons residing in the huts. He has admitted that there is sufficient illumination in their huts. He has further admitted that all the hut owners had obtained electrical connection by putting a hook on the electric lines. He could not state if those persons had committed theft of electricity. He has denied the suggestion that there was no electrical connection to the huts. ( 12 ) P. W. 6 Latabai, another injured witness, states that deceased gyanoba was her father. She further states that the distance between the hut of Gyanoba and her hut is about 20 to 25 ft. She further states that on the night of the incident, she along with her patents, deceased Sanjay, baban and P. W. 5 Siddartha were sleeping informant of the hut of deceased gyanoba. P. W. 4 Uttam and others were sleeping informant of their hut. Since her husband Ambadas had gone out of station, she was sleeping informant of the hut of deceased Gyanoba. She states that initially they were awakened on account of the disturbance of the goats. She has seen accused nos. 1 to 5 and Nanna, Gajenura, Raju and Ramesh, Accused nos. 1 to 5 were armed with sticks and similarly the other accused (wno are absconding) were armed with iron rod. She states that initially the accused started assaulting Sanjay. Sanjay began running and the accused stopped him and started assaulting him. She along with Baban and siddartha, P. W. 4 Uttam and others went near Sanjay and tried to rescue him. She states that initially the accused started assaulting Sanjay. Sanjay began running and the accused stopped him and started assaulting him. She along with Baban and siddartha, P. W. 4 Uttam and others went near Sanjay and tried to rescue him. However, according to her, the accused threatened them not to intervene, otherwise the accused would beat them. On account of beating, sanjay sustained bleeding injuries on hand, head and leg and on account of the injuries Sanjay died. The accused then came near her father Gyanoba and started assaulting him. She fell on Gyanoba in order to protect him from further assault. Accused Nanna, however, pulled her away ane thereafter accused Gajendra dealt a blow of iron rod, while accused Limbaji and Kerba gave her stick blows. On account of the assault, she sustained injuries on her right hand and right leg. On account of assault, deceased gyanoba sustained several bleeding injuries and ultimately died. In cross- examination on behalf of accused no. 1 she has admitted that when she was awakened she had seen Sanjay running and accused chasing him and beating him. She has admitted as true that Sanjay was running towards the hut of Limbaji. She has further admitted that when she was requesting the accused not to beat Sanjay, the accused had not beaten her. She has further admitted that distance between Sanjay and the accused was about 2 to 3 paces. All the accused were running behind one another and the accused caught Sanjay informant of hut of Limbaji. She has also stated that she was also running behind the accused. She has denied the suggestion that one of the accused had thrown chilly powder on them. Following statements were elicited as omissions from her statement :- (i) that Sanjay was running and the accused including accused no. 1 pralhad were chasing Sanjay and he assaulted Sanjay with stick. She was confronted with portion marked "a" from her statement that accused Rajendra had thrown chilly powder on them. Similarly, she was confronted with portion marked "b" that the injured had raised a hue and cry and on account of the hue and cry the assailants had fled away. She has admitted that she could not assign any reason as to why her statement that accused no. l Pralhad had dealt a stick blow to Siddartha did not find place in her statement. She has admitted that she could not assign any reason as to why her statement that accused no. l Pralhad had dealt a stick blow to Siddartha did not find place in her statement. ( 13 ) IN further cross-examination on behalf of the other accused, she has denied the suggestion that her mother in law also resides with her in the same hut. She has admitted that her husband had gone to Nanded about 5 to 6 days prior to the incident. Omission has been proved in respect of P. w. 6 Latabai sleeping infront of the hut of her father deceased gyanoba and P. W. 4 Uttam and the other family members sleeping outside the hut of Uttam. She has admitted that she has not given the specific description of the weapons with which each of the accused was armed. She has admitted that at the time of the incident no one was sleeping inside the hut. Omission has been duly proved about accused no. 3 Kerba giving a stick blow to her. Omission has been duly proved that she had not stated in her statement that she fell on her father in order to protect him from further assault and accused Nanna had hold her away and thereafter accused Gajendra had given her a blow by means of an iron pipe and Kerba had given her a stick blow. Similarly, omission has been duly proved about accused Nanna throwing two stones on the hand and leg of deceased Gyanoba. ( 14 ) CURIOUSLY, in further cross-examination on behalf of the accused, this admission is obtained from the witness "at the place of occurrence there was light at three places. Light was infront of the huts of Gyanu, my own hut and house of Limbaji. " She has, of course, denied the suggestion that at the time of the incident there was darkness and in an effort to flee from the spot, she had sustained injuries. She has denied the suggestion that she had not witnessed the incident. ( 15 ) LEARNED Counsel appearing on bhalf of the appellants in both the appeals have urged before us that evidence of motive is unreliable. According to us, a strong case of existence of motive has been made out by the prosecution witnesses. She has denied the suggestion that she had not witnessed the incident. ( 15 ) LEARNED Counsel appearing on bhalf of the appellants in both the appeals have urged before us that evidence of motive is unreliable. According to us, a strong case of existence of motive has been made out by the prosecution witnesses. Prosecution witnesses have admitted to the existence of various disputes as well as the pendency of a civil dispute. In fact, some of the suggestions have been given to the prosecution witnesses that they had inimical relations with the accused. Therefore, according to us, prosecution has been able to establish that there was animosity between the complainant party and the accused. It was next urged before us by the learned Counsel for the appellants that the prosecution had chosen to examine only the relatives and had not examined any other independent witness, particularly those residing in the nearby huts. Prosecution has examined P. W. 5 Siddartha and P. W. 6 Latabai who had sustained injuries in the incident. Their medical certificates are at Exhs. 25 and 26. Merely because the prosecution witnesses are relatives of deceased, is no ground to jettison their evidence. Since the prosecution witnesses are relatives or deceased, that would put the Court on guard and require the Court to scrutinize their evidence carefully. However, since P. W. 5 siddartha and P. W. 6 Latabai had sustained injuries, it is highly unlikely that they would allow the real offenders to go scot free and name the accused because of long standing enmity. One of the deceased, namely deceased Gyanoba was father of P. W. 6 Latabai. It is inconceivable that p. W. 6 Latabai would falsely state the names of the accused and allow the real offenders to go scot free. Similarly, deceased Sanjay was also her relative. We, therefore; find that failure of the prosecution to examine independent witnesses is no ground for discarding the otherwise reliable and trustworthy evidence of P. W. Nos. 4,5 and 6, though the said witnesses are relatives of deceased. These witnesses are natural witnesses and their presence at the scene of the offence is natural. Their presence also cannot be doubted the adequacy of illumination has been systematically brought on record in the cross-examination on behalf of the appellants/accused. P. W. 4 has admitted that the hut owners had illegally obtained electrical connection. These witnesses are natural witnesses and their presence at the scene of the offence is natural. Their presence also cannot be doubted the adequacy of illumination has been systematically brought on record in the cross-examination on behalf of the appellants/accused. P. W. 4 has admitted that the hut owners had illegally obtained electrical connection. P. W. 5 Siddartha, also in cross-examination, has further elaborated on it by stating that they had obtained electrical connection from the wire in the field of one Pandit. From P. W. 6 Latabai, in the cross- examination it was elicited that three lights were burning at the time of the incident. Thus, the illumination at the scene of the offence, though it was a moonless night, has been firmly established. If the illumination was inadequate, (Sic adequate) We see no reason whatsoever to doubt the claim of these Witnesses that they had witnessed the incident. Therefore, according to us, the evidence of P. W. Nos. 4,5 and 6 though is that of relatives, cannot be stamped as unreliable and merely for the failure of the prosecution to examine independent Witnesses, the evidence of these witnesses, whose testimonies has a ring of truth, cannot be discarded. ( 16 ) LEARNED Counsel appearing on behalf of the appellants has also urged before us that Exh, 42 cannot be treated as the first information report as the investigation had already commenced. Evidence of P. W. 4 does indicate that when he had gone to the police station, the constables had kept him waiting and had declined to record the first information report. According to P. W. 4, the constables had not scribed his report on the plea that it was the P. S. I, who would be scribing his report. Evidence of P. W. 9 P. S. I Rathod indicates that P. W. 4 Uttam was not in a condition to speak properly the inquest panchnamas has already been recorded, the inquest panchnamas had already been recorded. Thus, investigation had already been recorded. Thus, the investiation had already commenced. The police officers from police station, Purna had proceeded to the scene of the offence and had recorded the inquest panchnamas. The first information report at Exh. 42 came to be recorded subsequent to the commencement of the investigation and, therefore, according to us, it has been rightly stated by the learned Counsel for the appellants that Exh. The police officers from police station, Purna had proceeded to the scene of the offence and had recorded the inquest panchnamas. The first information report at Exh. 42 came to be recorded subsequent to the commencement of the investigation and, therefore, according to us, it has been rightly stated by the learned Counsel for the appellants that Exh. 42 cannot be treated as the first information report. Exh. 42 would be a statement made by P. W. 4 during the course of investigation. Therefore, the report at Exh. 42 can be used only for the purposes of contradicting p. W. 4 and not for the purposes of corroborating P. W. 4. ( 17 ) LEARNED Counsel appearing on behalf of the appellants have urged before us that the conduct of the prosecution witnesses in not informing the incident to any one casts a serious doubt regarding their claim at having witnessed the incident. Different people react differently on witnessing a ghastly incident. Some are dumb-founded while others react with alacrity and take immediate steps. In this case the witnesses were assaulted in the wee hours of the morning. Two relatives, who were assaulted along with the deceased, would be stupefied and it is harsh to expect them to react in a particular manner. We do not find anything unusual in the witnesses not having gone to the neighboring houses to inform about the incident. There were two dead bodies lying infront of their houses. The persons who had been killed were their near and dear ones. In such circumstances, particularly since two of the eye-witnesses had sustained injuries, according to us, non-disclosure of the incident in the nearby residents would not in any way cast a reflection on the veracity of these witnesses. The learned Counsel for the appellants has also urged before us that there are inter se variance in the testimonies of P. W. Nos. 4, 5 and 6, particularly in relation to the assault on others. It has to be remembered that the incident of assault was a preplanned assault which occurred at about 2. 00 in the morning. All the witnesses were woken up from their sleep. 4, 5 and 6, particularly in relation to the assault on others. It has to be remembered that the incident of assault was a preplanned assault which occurred at about 2. 00 in the morning. All the witnesses were woken up from their sleep. In their befuddled state of mind, particularly when the assailants were about nine in number, it would be extremely harsh to expect the witnesses to give a graphic account with the minutest details regarding the assault not only on themselves but on others. Minor variation in respect of the; description of the weapon in the hands of the assailants also would not whittle down the importance of their testimonies. Two of the eye-witnesses were injured in the assault and we find it extremely difficult to accept the submission on behalf of the appellants that the minor discrepancies in the evidence of these witnesses would entail the rejection of then testimonies. Minor omissions also, according to us, would not in any manner affect the credibility of these witnesses. Details of the assault, particularly about running and the accused chasing and then inflicting the injuries infront of a particular house would not entail rejection of their testimonies. Such graphic details are not expected from the witnesses. Statements of the injured witnesses came to be recorded immediately by the police on arrival at the scene of the offence after the completion of the formalities of the panchnamas. In any event, we find it inconceivable that these witnesses would not name the real offenders and would allow them to go scot free and would falsely implicate the accused, particularly when we do not doubt their claim that they had witnessed the incident in the illumination of the electric lights which were available at, the scene of the offence. Existence of electric light has, been brought out in the cross-examination on behalf of the accused and there is no further cross-examination which would in any manner indicate that the claim of the witnesses, made no doubt in the cross-examination about the existence of the light, is falsified. Existence of electric light has, been brought out in the cross-examination on behalf of the accused and there is no further cross-examination which would in any manner indicate that the claim of the witnesses, made no doubt in the cross-examination about the existence of the light, is falsified. ( 18 ) LEARNED Counsel appearing on behalf of the appellants has placed reliance on the judgment of the Supreme Court in Balaka Singh and others v. The State of Punjab particularly paragraph 4 of the report, to urge before us,that the names of the appellants have not been mentioned in the inquest panchnama though the names were known to the police. It is a fact that the first information report of P. w. 4 Uttam was not recorded by the police "as Uttam was not in a position to give his statement and the police had immediately proceeded to the scene of the offence. It is not expected that the names of the assailants would be mentioned in the inquest report. Non mentioning of the names in the inquest report, therefore, according to us, would not indicate that the report at Exh. 42 came to be filed after due deliberation. Meanwhile, the statement of Siddartha had already been recorded and Siddartha had implicated all the accused. We do not find any omnibus statement about the participation of all the accused in the assault. All the accused had come together and were members of an unlawful assembly and the common object of the unlawful assembly, as is evident from the evidence, was to commit murder of deceased Sanjay and gyanoba. This is apparent as the accused came to the scene of the offence variously armed and began to assault deceased Sanjay and thereafter turned their wrath towards deceased Gyanoba. It was only thereafter that the accused started inflicting injuries to the witnesses who had intervened in the quarrel. Thus, the common object of the assembly of inflicting injuries to the witnesses or causing hurt to them developed at the scene and which was shared by all the members of the unlawful assembly. Presence or the appellants as members of the unlawful assembly who had participated in the assault has been clearly and firmly established by the testimonies of the three witnesses. Presence or the appellants as members of the unlawful assembly who had participated in the assault has been clearly and firmly established by the testimonies of the three witnesses. We do not find the testimonies of these witnesses to be infirm in any manner so as to give benefit of: doubt to the appellants. ( 19 ) AFTER giving our thoughtful consideration to the submissions advanced before us by the learned Counsel for the appellants and the submissions advanced before us by the learned A. P. P. for the State, according to us, prosecution has been able to establish beyond reasonable doubt the offence with which the appellants have been convicted. The appellants, in a merciless manner, have committed the murders of deceased sanjay and Gyanoba. The injuries sustained by them and deposed to by p, W. 3 Dr. Zanwar speak volumes about the brutality or the assault. Learned Counsel appearing on behalf or the appellants has placed reliance on the judgment of Supreme Court in Mohan and others v. State of u. P. . In the said case the Supreme Court had come to the conclusion that the common object or the unlawful assembly was not to commit murder of deceased but to cause grievous hurt as only one shot was fired and there was only one punctured wound. In the facts of the case, therefore, the Supreme Court came to the conclusion that the common object of the assembly was only to cause grievous hurt. In the present case, all the accused have participated in the assault variously armed and the number of injuries which had been inflicted on the deceased clearly indicates that the object of the assailants was to commit murder of both deceased gyanoba and deceased Sanjay. At about 2. 00 a. m. in the morning, the assailants had gathered and had commenced the assault and the assault was pinpointed towards deceased Sanjay and Gyanoba. No other intent ion but to commit murder of deceased Sanjay and deceased Gyanoba can be inferred from the acts of the accused. At about 2. 00 a. m. in the morning, the assailants had gathered and had commenced the assault and the assault was pinpointed towards deceased Sanjay and Gyanoba. No other intent ion but to commit murder of deceased Sanjay and deceased Gyanoba can be inferred from the acts of the accused. ( 20 ) LEARNED Counsel appearing on behalf of the appellants has also placed reliance on the judgment of the Supreme Court in Phani Bhushan das and another v. State of West Bengal, to urge before as, that the appellants if at all are liable for any punishment, they would be liable under section 304 part II read with sec. 34 of I. P. C. In this judgment the Supreme Court had found that there were vital contradictions in the evidence of the eye witnesses and the case of two of the accused was singled out as they had used an iron rod and shovel, while rest of the accused had used sticks. Out of the 17 accused, accused were acquitted and since the occurrence had taken place about 21 years before, therefore, conviction was set aside for an offence punishable under section 304 part II read with sec. 34 of i. P. C. The Supreme Court confirmed the conviction under sections 148 and 323 read with sec. 149 of I. P. C. and reduced the sentence to the period of imprisonment already undergone by the accused. The facts of the aforesaid case, therefore, do not apply to the facts of the present case. ( 21 ) LEARNED Counsel for the appellants further placed reliance on the judgment of the Supreme Court in Kedar Prasad and others vs. State of Madhyapradesh. In the facts of that case, the Supreme Court had altered the conviction of the accused from section 304 part I to 324 of I. P. C. and the conviction or the third accused was altered to one punishable under section 323 of I. P. C. as the evidence therein clearly indicated that out of the three accused, one of the accused had given the fatal blow on the head of deceased, while the other accused had inflicted simple injuries. The facts of the aforesaid judgment, therefore, are inapplicable to the facts of the present case. The facts of the aforesaid judgment, therefore, are inapplicable to the facts of the present case. ( 22 ) THE appellants also placed reliance on the judgment of the Supreme court in Ram Jattan and others v. State of U. P. This case was a case of multiple injuries being inflicted by 12 accused on non-vital parts. The supreme Court came to the conclusion that common intention to cause death was absent. The Supreme Court also found that the medical report did not certify that the injuries were sufficient to cause death in the ordinary course of nature, the Supreme Court, therefore, found that clause first and third of section 300 of I. P. C. were not attracted and, therefore, the conviction was altered from sec. 302 read with sec. 149 to one under section 304 part II read with sec. 149 of I. P. C. According to us, the facts of the aforesaid judgment are inapplicable to the facts of the present case. ( 23 ) IN the present case, all the accused had participated in the assault and injuries had been inflicted on vital parts of the body of deceased Sanjay and deceased Gyanoba, which resulted in their death. The number of injuries which had been sustained by each of the deceased clearly indicates the common object of the unlawful assembly of which the accused were the members. The presence of the accused at the scene of the offence, particularly at 2. 00 a. m. in the morning cannot be considered to be innocuous or the presence of an ordinary passerby or a person whose attention is attracted by the incident. All the accused, as has been established by the evidence of the eye-witnesses, had come to the hut of the deceased variously armed and had assaulted both the deceased and the two eye-witnesses. In such circumstances, it is idle to contend before us that the common object of the assailants was not to commit the murder but to cause only grievous injuries, though the deceased were assaulted all over their body, in such circumstances there are bound to be injuries on non vital parts of the body. According to us, therefore, prosecution has been able to establish the offence against the appellants beyond reasonable doubt. According to us, therefore, prosecution has been able to establish the offence against the appellants beyond reasonable doubt. ( 24 ) FOR the reasons stated above, we do not see any merit in the appeals and appeals are dismissed confirming the conviction and sentence passed by the Trial Court. Appeal dismissed