JUDGMENT : K.J. Rohee, J. 1. The State has challenged the acquittal of the respondents (hereinafter referred to as ''the accused'') of the offences punishable under sections 147, 148, 149 r/w 302 of the Indian Penal Code by the Additional Sessions Judge, Akola in Sessions Trial No.124/1989 by judgment dated 20.2.1991. 2. Accused nos.1 to 5 are real brothers. Accused no.6 is the father of accused nos.7 and 8. All of them belong to Wahurwagh family and are residents of village Panaj, P.S. Akot, District- Akola. 3. Namdeo Kolhe (deceased) was having six sons namely Dadarao (PW 2), Babarao (deceased), Wasudeo (PW 3), Jaideo (deceased), Baburao and Panjab. PW 1 Sanjay is the grandson of Namdeo being the son of Babarao (deceased). PW 4 Bhimrao is also the grandson of Namdeo being the son of Dadarao (PW 2) and Shantabai (PW 10). They are residents of the same locality in which the accused persons reside. Wahurwagh family and Kolhe family belong to the same caste. 4. In 1981 the members of Kolhe family namely Namdeo and his sons were prosecuted for attempt to commit murder of Sukhdeo Wahurwagh (the father of accused nos.1 to 5). They were held guilty. They were convicted and were sentenced to suffer imprisonment for five years. The sentence was reduced to three years by the High Court. The members of Kolhe family were released from jail in February 1989. Thus there was previous enmity between Kolhe family and Wahurwagh family. 5. On 11.6.1989 around 4.00 p.m. Babarao Kolhe, Jaideo Kolhe and PW 1 Sanjay s/o Babarao Kolhe had gone to their field known as .MELACHE WAVAR. by bullock-cart for ploughing the land. They ploughed the land till 6.00 p.m. Thereafter they started returning to their home by bullock-cart. Jaideo was driving the cart, Babarao and PW 1 Sanjay were sitting in the cart. They had crossed about half of the way towards their house. When they reached near the well situated in the field of Vishwanath Akotkar, around 6.30 p.m. the accused persons surrounded the cart. Accused no.1 Himmat, Accused no.2 Siddharth and Accused no.4 Anil were holding axes and the rest of the accused persons were holding sticks. All of them assaulted Babarao and Jaideo. PW 1 Sanjay escaped from the scene. The bullocks ran away with the cart. 6. Accused no.1 Himmat, Accused no.2 Siddharth and Accused no.4 Anil were holding axes and the rest of the accused persons were holding sticks. All of them assaulted Babarao and Jaideo. PW 1 Sanjay escaped from the scene. The bullocks ran away with the cart. 6. When the bullocks returned to the house of Kolhes with the cart and plough in it, Namdeo Kolhe exclaimed as to where were the boys. Soon thereafter PW 1 Sanjay reached to the house. He told his grandfather Namdeo Kolhe that the accused persons assaulted his father Babarao and uncle Jaideo on way to home. On hearing the commotion, Dadarao (PW 2), Wasudeo (PW 3) and other family members came out of the house. On learning about the incident of assault, they rushed to the field along with Bhaskar, Dyneshwar and others with torch as it was night. They found Jaideo lying in the field of Vishwanath Akotkar in seriously injured condition. Jaideo told them that the accused persons assaulted them. They also saw Babarao lying at some distance in seriously injured condition. Babarao was, however, unable to speak. Water from the well situated in the said field was served to Babarao and Jaideo. In the meanwhile Sukhdeo Kolhe (the brother of Namdeo Kolhe) brought a cart. Babarao and Jaideo were lifted and were being brought to home by the cart. On way to home one Kisan Maroti Savikar met them and told that the accused persons were searching for them to beat them and that they should not return to home. On learning this, PW 2 Dadarao and PW 3 Wasudeo left the cart and by odd way reached the house at about 10/11 p.m. When they reached home, they saw the dead bodies of Babarao and Jaideo. PW 3 Wasudeo and Kisan Maroti Savikar went to village Karla and gave information about the incident on phone to P.S. Anjangaonsurji. The information was sent to P.S. Akot. PSI Thombre (PW 15) received the message at 1.00 a.m. on 12.6.1989. He made entry in the station diary (Exh.31) and informed PI Patil (PW 14). PI Patil (PW 14) immediately rushed to village Panaj along with the staff in the night itself. 7. The information was sent to P.S. Akot. PSI Thombre (PW 15) received the message at 1.00 a.m. on 12.6.1989. He made entry in the station diary (Exh.31) and informed PI Patil (PW 14). PI Patil (PW 14) immediately rushed to village Panaj along with the staff in the night itself. 7. In the meanwhile Namdeo Kolhe (the father of deceased Babarao and deceased Jaideo) proceeded to the house of Police Patil along with his grandson PW 4 Bhimrao s/o Dadarao Kolhe for lodging report about the incident of assault on his sons. On their way Devkabai w/o Deorao Kolhe (PW 5) met them. When they were passing from near the house of Pandurang Nawle, the accused persons came there and assaulted Namdeo Kolhe with axes and sticks. Namdeo died on the spot. PW 4 Bhimrao informed about the incident to his father and mother. 8. After coming to village Panaj PI Patil (PW 14) obtained the report (Exh.34) of PW 2 Dadarao. During the night itself all the accused were arrested. The report (Exh.34) and the accused were sent to P.S. Akot. PSI Thombre (PW 15) registered Crime No.211/1989 under Section 302 r/w 34 of the Indian Penal Code against the accused persons at 4.30 a.m. and put them in lockup. 9. PI Patil recorded statements of several witnesses. In the morning Sub-Divisional Police Officer Mr. Rathod (PW 16) visited village Panaj. He verified the investigation done by PI Patil and took over further investigation. 10. On 12.6.1989 in the noon, Dr. Jaiswal, Assistant Surgeon, Municipal Hospital, Akot conducted autopsy on the bodies of Babarao Kolhe, Jaideo Kolhe and Namdeo Kolhe. Multiple incised wounds, lacerated wounds and contusions on various parts of the bodies and compound fractures of various parts of the bodies of each of them were noted. The probable cause of death of each of them was shock due to haemorrhage due to fractures (vide Exh. 40, 41 and 42 respectively). 11. During the course of investigation, a blood stained axe was discovered at the instance of accused no.1 Himmat and two blood stained axes were discovered at the instance of accused no.2 Siddharth. During the house search of accused no.4 Anil, five blood stained bamboo sticks were seized. The report of Chemical Analyser disclosed that human blood of Group A was found on the axes discovered at the instance of accused no.2 Siddharth. During the house search of accused no.4 Anil, five blood stained bamboo sticks were seized. The report of Chemical Analyser disclosed that human blood of Group A was found on the axes discovered at the instance of accused no.2 Siddharth. The Chemical Analyser report further disclosed that human blood of A and O Group was found on the bamboo sticks seized from the house of accused no.4 Anil. After completion of investigation the accused were chargesheeted. 12. The defence of all the accused is of denial and false implication. 13. In order to prove the guilt of the accused, 17 witnesses were examined by the prosecution. PW 1 Sanjay Kolhe is the eyewitness in respect of the alleged assault by the accused persons on his father Babarao and uncle Jaideo in the field in the evening. PW 2 Dadarao Kolhe rushed to the field after learning about the assault on his brothers Babarao and Jaideo. He claims that Jaideo disclosed the names of the accused persons as assailants. PW 3 Wasudeo also accompanied PW 2 Dadarao to the field. After returning from the field he went to village Karla and informed the police by phone. PW 4 Bhimrao Kolhe accompanied his grandfather Namdeo Kolhe for going to the house of Police Patil to inform him about the incident of assault on Babarao and Jaideo. PW 5 Devkabai Kolhe met them on their way and accompanied them. PW 4 Bhimrao and PW 5 Devkabai saw the accused persons assaulting Namdeo near the house of Pandurang Navle. PW 6 Anandrao Boche saw the said assault from his house. PW 7 Dr. Jaiswal, Medical Officer, Municipal Hospital, Akot conducted autopsy on the dead bodies of Babarao Kolhe, Jaideo Kolhe and Namdeo Kolhe. PW 10 Shantabai Kolhe and PW 13 Ramdas Boche stated about the accused persons storming the house of Kolhes during the fateful night. PW 9 Muktyar Beg, PW 11 Motiram Khandare, PW 12 Jagdeo Tayade are the panch witnesses on spot panchanamas, inquest panchanamas, seizure panchanamas and seizure/discovery panchanamas. PW 8 Tayade is the Talathi who drew maps of the places of incident namely the field of Vishwanath Akotkar, the house of Pandurang Navle and the house of Jaideo Kolhe (deceased). PW 15 PSI Thombre, PW 14 PI Patil, PW 16 S.D.P.O. Rathod and PW 17 PC Dhande are the investigating officers. The accused persons did not adduce defence evidence. 14. PW 15 PSI Thombre, PW 14 PI Patil, PW 16 S.D.P.O. Rathod and PW 17 PC Dhande are the investigating officers. The accused persons did not adduce defence evidence. 14. The trial court held that most of the prosecution witnesses are either related to the deceased persons or belong to the same caste or are aggrieved. There are no independent witnesses. The trial court found that there are various infirmities in the evidence of the prosecution witnesses. The trial court did not find it safe to place explicit reliance on their testimony. The trial court found that even after the earlier incident of 1981 the accused were not on inimical terms with the deceased persons. Thus there was no motive for the accused to wipe out three persons from Kolhe family. The trial court held that the aspect regarding giving information to police is not very clear. The evidence is at variance about the exact time when Namdeo Kolhe went to lodge report after learning about assault on his sons Babarao and Jaideo. The report of Chemical Analyser is not adequate to infer that the accused persons were involved in the assault. The witnesses tried to implicate each of the accused in the alleged assault. The trial court observed that sending of the copy of FIR to the Magistrate is clouded with suspicion. There is possibility of false implication of the accused persons. The trial court did not find the evidence of the prosecution reliable. The trial court, therefore, acquitted the accused persons. The said acquittal is under challenge. 15. We have heard Mr. J.B. Jaiswal, APP for the appellant/state and Mr. M.L. Somalwar, Advocate for the respondents/accused. We have also gone through the record and proceedings of the trial court with the assistance of the learned counsel for the parties. 16. The learned APP submitted that the trial court erred in disbelieving the evidence of the child witnesses namely PW 1 Sanjay Kolhe and PW 4 Bhimrao Kolhe. He submitted that their testimony is corroborated by other evidence on record. However, the trial court has overlooked this aspect and held that the prosecution witnesses are either related to the deceased or interested in the deceased or aggrieved. The learned APP submitted that the appreciation of evidence by the trial court is wholly unreasonable and that the trial court took perverse/infirm/erroneous view. However, the trial court has overlooked this aspect and held that the prosecution witnesses are either related to the deceased or interested in the deceased or aggrieved. The learned APP submitted that the appreciation of evidence by the trial court is wholly unreasonable and that the trial court took perverse/infirm/erroneous view. The learned APP submitted that the impugned judgment is perverse and calls for interference by this Court. 17. The learned counsel for the accused, on the other hand, urged that there is a general presumption in favour of the innocence of the accused persons in criminal cases and that the said presumption is only strengthened by the acquittal by the trial court. The learned counsel for the accused submitted that in appeals against acquittals the appellate court has to proceed more cautiously and only if there is absolute assurance of the guilt of the accused, upon the evidence on record, that the order of acquittal is liable to be interfered with or disturbed. The learned counsel for the accused submitted that it is well settled that the appellate court would not be justified in interfering with the order of acquittal unless the same is found to be perverse. According to him the impugned judgment does not suffer from the vice of perversity. 18. The learned counsel for the accused submitted that the material witnesses like Dnyaneshwar, Bhaskar and Kisan Savikar are not examined by the prosecution. He submitted that the accused persons were arrested soon after the alleged assault, however, their clothes were not seized and no weapons were seized from them at the time of their arrest. There are discrepancies on material points in the evidence of the prosecution witnesses. In fact the case of the prosecution itself is improbable. There is no glaring illegality in the impugned judgment and that it does not call for any interference. He submitted that the appeal is liable to be dismissed. 19. We have carefully considered the rival submissions. In Chandrappa and others .vrs. In fact the case of the prosecution itself is improbable. There is no glaring illegality in the impugned judgment and that it does not call for any interference. He submitted that the appeal is liable to be dismissed. 19. We have carefully considered the rival submissions. In Chandrappa and others .vrs. State of Karnataka, decided on 15.2.2007 and reported in JT 2007 (3) SC 316, the Apex Court considered the case law regarding powers of appellate Court while dealing with an appeal against an order of acquittal and observed that the following general principles emerge :- (1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded; (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law; (3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court. 20. In Swami Prasad .vrs. State of Madhya Pradesh decided on 8.3.2007 and reported in JT 2007(4) SC 337, after referring to Chandrappa and others .vrs. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court. 20. In Swami Prasad .vrs. State of Madhya Pradesh decided on 8.3.2007 and reported in JT 2007(4) SC 337, after referring to Chandrappa and others .vrs. State of Karnataka (supra), the Apex Court held as under : .There cannot be any doubt whatsoever, that a judgment of acquittal should not be interfered with, if two views are possible. However, it is equally true that the High Court while entertaining an appeal against a judgment of acquittal would be entitled to consider the entire materials on records for the purpose of analyzing the evidence. There is a presumption that an accused is innocent, unless proved otherwise. When he is acquitted, the said presumption, becomes stronger. But it may not be correct to contend that despite overwhelming evidence available on records, the appellate court would not interfere with a judgment of acquittal.. 21. We have gone through the oral as well as documentary evidence adduced by the prosecution. We have considered each of the reasons given by the trial court to acquit the accused persons. We would examine whether the view taken by the trial court is plausible and reasonable. 22. The most important circumstance to be noticed is the long standing enmity between Wahurwagh family and Kohle family. It is an admitted fact that Namdeo Kolhe and his sons were prosecuted for attempt to commit murder of Sukhdeo Wahurwagh (the father of accused nos.1 to 5) in 1981. Namdeo Kolhe and others were convicted by the trial court and sentenced to suffer imprisonment for five years. In an appeal the conviction was confirmed but the sentence was reduced to three years by the High Court. Accordingly Namdeo Kolhe and his sons were released from jail in February 1989 and within a couple of months i.e. in June 1989 the incident in question took place. The trial court observed that there was no motive for the accused persons to kill Namdeo Kolhe, Babarao Kolhe and Jaideo Kolhe because PW 2 Dadarao Kolhe admitted during cross examination that the accused were behaving well with Kolhes and used to come to work in the field of Kolhes. The accused persons even attended work in the marriage of the daughter of PW 2 Dadarao. The accused persons even attended work in the marriage of the daughter of PW 2 Dadarao. It may be noted that the incident of attempt to commit murder of Sukhdeo Wahurwagh had taken place in 1981 and the appeal against conviction was decided in 1989. During such a long period the accused persons might have no grievance against Kolhes because Kolhes were convicted. However, as soon as the punishment of Kolhes was reduced and they were released from jail in February 1989 the accused persons might have felt offended and the hatred which was latent for all, these years might have prompted them to take serious step against Kolhes. As such it cannot be said that the accused persons had no motive to eliminate the members of Kolhes family. The finding of the trial court in this regard is patently unreasonable. 23. On the backdrop of the above situation, we have to appreciate the evidence of the prosecution witnesses. It may be noted that Kolhes and Wahurwaghs belong to the same caste. They reside in the same locality of the village. The ghastly incident of triple murder took place on 11.6.1989 i.e. within a couple of months after Kolhes were released from jail. Babarao Kolhe and Jaideo Kolhe were assaulted and killed in the field in the evening whereas their father Namdeo Kolhe was killed on the same day in the night in the village. 24. PW 1 Sanjay Kolhe is the solitary eyewitness to the incident of assault on Babarao Kolhe and Jaideo Kolhe. The evidence of PW 1 Sanjay shows that on 11.6.1989 around 4.00 p.m. he had gone to the field known as .MELACHE WAVAR. with his father Babarao and uncle Jaideo by a bullock-cart for ploughing the land. The work of ploughing continued till 6.00 p.m. Thereafter all the three started returning to the home by bullock-cart. Jaideo was driving the bullock-cart while Babarao and Sanjay (PW 1) were sitting in the bullock-cart. When they crossed half of the distance they were surrounded by accused nos.1 to 8 near the well in the field of Vishwanath Akotkar. Accused No.1 Himmat, Accused No.2 Siddharth and Accused no.4 Anil were holding axes and rest of the accused were holding sticks. They surrounded the cart and started assaulting Babarao and Jaideo with axes and sticks. When they crossed half of the distance they were surrounded by accused nos.1 to 8 near the well in the field of Vishwanath Akotkar. Accused No.1 Himmat, Accused No.2 Siddharth and Accused no.4 Anil were holding axes and rest of the accused were holding sticks. They surrounded the cart and started assaulting Babarao and Jaideo with axes and sticks. In that commotion PW 1 Sanjay escaped from the cart and rushed towards his house. The bullocks also fled away with the cart and plough therein and reached to the house before PW 1 Sanjay. 25. PW 1 Sanjay is 11 years old. The incident in question took place on 11.6.1989 and the evidence of PW 1 Sanjay was recorded on 29.1.1991. At the time of recording evidence he was 11 years old. Thus under proviso to subsection 1 of Section 4 of the Oaths Act, 1969 the trial court should have ascertained by questioning PW 1 Sanjay as to whether he understands the sanctity of oath. However, the trial court straightway administered oath to him. The learned defence counsel submitted that this infirmity in recording the evidence of PW 1 Sanjay would affect the credibility of his testimony. We are unable to accept this submission. In Ratansingh Dalsukhbhai Nayak .vrs. State of Gujarat, (2004) 1 SCC 64 , it was held that : .The Indian Evidence Act, 1872 does not prescribe any particular age as a determinative factor to treat a witness to be a competent one. On the contrary, section 118 of the Evidence Act envisages that all persons shall be competent to testify, unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to these questions, because of tender years, extreme old age, disease . whether of mind, or any other cause of the same kind. A child of tender age can be allowed to testify if he has intellectual capacity to understand questions and give rational answers thereto. The evidence of a child witness is not required to be rejected per se, but the court as a rule of prudence considers such evidence with close scrutiny and only on being convinced about the quality thereof and reliability.. 26. Though in the present case the trial court failed to comply with the provisions of proviso to sub-section 1 of Section 4 of the Oaths Act, 1969. 26. Though in the present case the trial court failed to comply with the provisions of proviso to sub-section 1 of Section 4 of the Oaths Act, 1969. On merits we have found the testimony of PW 1 Sanjay unimpeachable. Hence the said infirmity would not come in the way of relying on his evidence. 27. It seems that at the time of the incident PW 1 Sanjay was studying in primary school. His presence with Babarao and Jaideo in the field is quite natural. His presence with Babarao and Jaideo cannot be doubted because those were the days of school vacation and it is but natural that PW 1 Sanjay might have accompanied his father and uncle to the field they being agriculturists. It was urged by the learned counsel for the accused that it is improbable that PW 1 Sanjay would note the presence of accused nos.1 to 8 and would also note the weapons held by each of them. It was also urged that it is improbable that PW 1 Sanjay would be able to escape from the scene of offence. We see no improbability as urged by the learned counsel for the accused. PW 1 Sanjay was a primary student. He was from agriculturist family. He was acquainted with the accused persons they being the neighbours. The assailants must have concentrated on assaulting Babarao and Jaideo and in that melee the assailants might not have paid attention towards Sanjay. PW 1 Sanjay might have taken advantage of this situation and must have escaped. It may be noted that the assailants did not cause any harm to the bullocks. The bullocks left the place with cart and plough therein and straightway went to the house of Kolhes. It may be noted that in para no.9 of the judgment the trial court itself observed that prima facie there is nothing in the deposition of PW 1 Sanjay to disbelieve the facts stated by him. At the end of the same para the trial court observed that considering the age of PW 1 Sanjay, the fact that about eight persons surrounded them and started beating, the learned trial Judge find it somewhat difficult though not improbable that he would have been able to observe the facts so minutely about the weapons held by each of the accused and where they hit the deceased. There might be some exaggeration in the version of PW 1 Sanjay about the parts of the body of Babarao and Jaideo on which blows were given by the accused persons. However, that itself would not render his testimony untrustworthy. We see nothing unnatural in the testimony of PW 1 Sanjay. 28. The subsequent conduct of PW 1 Sanjay is also important. After escaping from the scene of offence, he straightway ran towards his house. Before him the bullock-cart had already reached at the house. The grandfather of PW 1 Sanjay was surprised to see as to how the bullock-cart came without boys. It was PW 1 Sanjay who told his grandfather about the assault by the accused persons on his father Babarao and uncle Jaideo in the field. It seems that PW 1 Sanjay was so much frightened that he hid himself in the house of Abgad. 29. While appreciating the evidence of PW 1 Sanjay as the only eyewitness to the incident of assault on his father and uncle, the law laid down by the Supreme Court in this respect in Namdeo .vrs. State of Maharashtra, 2007 AIR SCW 1835 (A) is very material and appropriate. The Supreme Court observed as under : .Neither the Legislature nor the judiciary mandates that there must be particular number of witnesses to record an order of conviction against the accused. Our legal system has always laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent Court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence. The bald contention that no conviction can be recorded in case of a solitary eye-witness, therefore, has no force and must be negatived.. 30. The testimony of PW 1 Sanjay is corroborated by PW 2 Dadarao and PW 3 Wasudeo. When Namdeo told them about the incident of assault on Babarao and Jaideo, they rushed towards the field. They found Babarao and Jaideo lying in the field in seriously injured condition. Babarao was not in a position to talk but Jaideo told PW 2 Dadarao that accused nos.1 to 8 beat them. When Namdeo told them about the incident of assault on Babarao and Jaideo, they rushed towards the field. They found Babarao and Jaideo lying in the field in seriously injured condition. Babarao was not in a position to talk but Jaideo told PW 2 Dadarao that accused nos.1 to 8 beat them. Water was immediately brought from the well situated in the said field and it was served to Babarao and Jaideo. Thereafter Babarao and Jaideo were brought to home by another bullock-cart brought by Sukhdeo (the brother of Namdeo Kolhe). While they were proceeding towards the village Kisan Maroti Savikar cautioned them that the accused persons were searching Dadarao (PW 2) and Wasudeo (PW 3) and that they should not return to the house. Thereupon PW 2 Dadarao and PW 3 Wasudeo left the cart and by odd way came to the house in the night at about 10/11 p.m. When they returned to home they found the dead bodies of Babarao and Jaideo. 31. It was urged by the learned counsel for the accused that Kisan Maroti Savikar was not examined by the prosecution and in the absence of his evidence no reliance can be placed on the testimony of PW 2 Dadarao and PW 3 Wasudeo, who are the brothers of the deceased. We are unable to appreciate this submission. We find that even in the absence of Kisan Maroti Savikar being examined as prosecution witness the testimony of PW 2 Dadarao and PW 3 Wasudeo inspires confidence. It may not be forgotten that accused nos.1 to 8 assaulted and killed Babarao and Jaideo and they were determined to kill their brothers and that is why they were searching for them and PW 2 Dadarao and PW 3 Wasudeo had to approach their house by odd way late in the night. There is nothing unbelievable in their testimony. 32. While appreciating the evidence of PW 1 in para no.9 of the judgment the trial court referred to certain omissions. However, all of them are immaterial and they do not affect the credibility of the testimony of PW 1 Sanjay. The trial court pointed out certain discrepancies in the evidence of the child witness. However, they are of very minor and trifle nature and they in no way affect the credibility of the prosecution version. 33. However, all of them are immaterial and they do not affect the credibility of the testimony of PW 1 Sanjay. The trial court pointed out certain discrepancies in the evidence of the child witness. However, they are of very minor and trifle nature and they in no way affect the credibility of the prosecution version. 33. The trial court observed that before rushing to the field PW 2 Dadarao and PW 3 Wasudeo had learned that Babarao and Jaideo were assaulted by the accused persons. However, in their statements before the police they suppressed this fact and made a show that Jaideo, who was seriously injured, told them about the assault on himself and Babarao by the accused persons. In this respect the trial court also pointed out certain contradictions in the evidence of PW 1 Sanjay, PW 2 Dadarao and PW 3 Wasudeo. However, in our opinion, those contradictions would not render the testimony of PW 2 Dadarao and PW 3 Wasudeo untrustworthy. It is immaterial whether before they went and found Jaideo in an injured condition, they were already aware that Babarao and Jaideo were assaulted by the accused persons and as such the alleged contradiction would not affect the credibility of their testimony. 34. The testimony of PW 1 Sanjay, PW 2 Dadarao and PW 3 Wasudeo is corroborated by the evidence of PW 7 Dr. Jaiswal, Medical Officer, Municipal Hospital, Akot who conducted autopsy on the bodies of Babarao and Jaideo. Dr. Jaiswal noted following injuries in Column No.17 of the Post- Mortem report (Exh.40) in respect of Babarao s/o Namdeo Kolhe :- (1) Incised wound 4 x ½-2 x 6 c.m. on right lower leg centrally oblique front aspect. (2) Lacerated wound 3 x 1 x ½ c.m. on left lower leg lower 1/3rd oblique front aspect with contusion. (3) Lacerated wound 3 x 1 x ½ c.m. on left lower leg front aspect 7 c.m. Above No.2 injury with contusion. (4) Lacerated wound 1-1/2 x ½ x 3 c.m. on left thigh lower 1/3rd front aspect oblique. (5) Incised wound 1 x 1 x 1 c.m. on right palm external aspect middle finger root. (6) Incised wound 1 x ½ c.m. on right lower hand lower 1/3 rd oblique externally. (7) Contusion with multi-abrasions all over the left palm. (4) Lacerated wound 1-1/2 x ½ x 3 c.m. on left thigh lower 1/3rd front aspect oblique. (5) Incised wound 1 x 1 x 1 c.m. on right palm external aspect middle finger root. (6) Incised wound 1 x ½ c.m. on right lower hand lower 1/3 rd oblique externally. (7) Contusion with multi-abrasions all over the left palm. (8) Incised wound 2 x 1 x 1 c.m. on left upper hand front aspect centrally oblique. (9) Lacerated wound 8 x 1-1/2 x 3 c.m. on left cheek near mouth with contusion. (10) Lacerated wound 1 ½ x ½ x 1 c.m. on right parietal region centrally with contusion. Following injuries were noted in Column No.18 of the said report :- (1) Compound fracture of right leg, tibia and fibula under the injury no.1. (2) Compound fracture of left leg tibia and fibula under the injury no.2. (3) Compound fracture of right lower hand lower 1/3 under the injury no.6 (Redius & ulna bone). (4) Compound fracture of left upper hand as numerous under the injury no.8. All those injuries were ante-mortem and the cause of death was shock due to haemorrhage due to fracture. 35. Dr. Jaiswal noted following injuries in Column No.17 of the Post-Mortem report (Exh.41) in respect of Jaideo s/o Namdeo Kolhe :- (1) Incised wound 2 ½ x ¼ -1 x 2 ½ c.m. on right lower 1/3 leg inner side verticle. (2) Incised wound 2 x ¼ -1 x 2 c.m. on right lower leg front aspect centrally oblique. (3) Lacerated wound 5 x 1 x 2 ½ c.m. on right lower leg end front aspect oblique with contusion. (4) Incised wound 2 ½ x ½ x 1 x ¼ c.m. on right knee joint front aspect centrally transver. (5) Incised wound 4 x 1 ½ x ½ c.m. on right palm externally upper aspect near thumb root. (6) Lacerated wound 2 x ½ -1 x ¼ c.m. on right palm between thumb and index finger with contusion. (7) Abrasion 12 x 3 c.m. Verticle on right side of chest centrally. (8) Abrasion 24 x 2 ½ c.m. on left side of chest front lateral aspect. (9) Lacerated wound 5 x ½ -1 x 1 c.m. on occipital region of head transversely with contusion. (10) Lacerated wound 5 x ½ -1 x 1 c.m. on occipital region of head oblique left side with contusion. (8) Abrasion 24 x 2 ½ c.m. on left side of chest front lateral aspect. (9) Lacerated wound 5 x ½ -1 x 1 c.m. on occipital region of head transversely with contusion. (10) Lacerated wound 5 x ½ -1 x 1 c.m. on occipital region of head oblique left side with contusion. (11) Incised wounds three each 1 ½ x ½ x ½ c.m. 4 c.m. Distance each other on left upper hand externally central aspect. 28 (12) Multi abrasions all over the left hand with contusion. (13) Incised wound 7 x 4 ½ x 4 c.m. on left lower leg centrally oblique front aspect. (14) Multi-abrasions all over the back with contusion. Following injuries were noted in Column No.18 of the said report :- (1) Compound fracture of left leg tibia and fibula under the injury no.13. (2) Compound fracture of right leg tibia and fibula under the injury no.3. (3) Compound fracture of left upper hand humerus under the injury nos.11, 12. All those injuries were ante-mortem and the cause of death was shock due to haemorrhage due to fracture. 36. Thus the medical evidence regarding injuries sustained by the deceased persons fully corroborates the ocular evidence. 37. We would discuss at a later stage about the corroborative piece of evidence in the nature of seizure/discovery of weapons at the hands of the accused persons and finding of human blood thereon which corroborates the evidence of PW Nos.1 to 3. Thus, we find that the prosecution has proved beyond doubt that accused nos.1 to 8 assaulted Babarao Kolhe and Jaideo Kolhe with deadly weapons and are responsible for their homicidal death. They are thus guilty of the offences punishable under Sections 147, 148 and 302 r/w 149 of the Indian Penal Code. 38. As regards the assault on Namdeo Kolhe, the evidence of PW 4 Bhimrao, PW 5 Devkabai and PW 6 Anandrao Boche is important. It has come in the evidence that when Namdeo Kolhe saw that the bullock-cart returned empty and the boys were not there in the bullock-cart, PW 1 Sanjay told him about the assault on Babarao and Jaideo. Thereupon Namdeo wanted to inform the police about it. However, he was prevented by others including the females as they thought that there was danger to his life also. Thereupon Namdeo wanted to inform the police about it. However, he was prevented by others including the females as they thought that there was danger to his life also. It seems that Namdeo waited for sometime, but thereafter he proceeded to go to the house of Police Patil. At that time his another grandson Bhimrao (PW 4) accompanied him. On their way, PW 5 Devkabai met them. She also accompanied them. When they reached near the house of Pandurang Nawle, accused nos.1 to 8 came there and started beating Namdeo. Three of them were having axes and others were having sticks. PW 4 Bhimrao ran away to his home and told his mother about the incident. His mother hid him in the house. 39. It may be noted that the report of Dadarao (Exh.34) shows that his son Bhimrao told him that five persons namely Anil Wahurwagh (Accused No.4), Siddharth Wahurwagh (Accused No.2), Himmat Wahurwagh (Accused No.1), Prakash Wahurwagh (Accused No.7) and Gautam Wahurwagh (Accused No.3) assaulted Namdeo Kolhe with sticks and axes and killed him, whereas PW 4 Bhimrao deposed that accused nos.1 to 8 assaulted his grandfather Namdeo Kolhe. About this PW 4 Bhimrao explained that he stated the names of only five assailants as he was frightened. Considering the fact that at the time of the incident PW 4 Bhimrao was about 11 years old, such lapse is quite probable and it could not affect the veracity of his testimony, on the contrary it adds to it. 40. PW 5 Devkabai corroborated the testimony of PW 4 Bhimrao. She was frank enough to admit during cross examination that due to darkness she could not see which accused was having which weapon while beating Namdeo. She also admitted during cross examination that her husband was one of the accused in a criminal case filed by Wahurwaghs for beating their father. However, she added that her husband was acquitted. 41. PW 6 Anandrao Boche also corroborated the testimony of PW 4 Bhimrao and PW 5 Devkabai. However, according to him, he saw the assault from his house and he did not go near Namdeo Kolhe who was injured and was lying near Nali. However, she added that her husband was acquitted. 41. PW 6 Anandrao Boche also corroborated the testimony of PW 4 Bhimrao and PW 5 Devkabai. However, according to him, he saw the assault from his house and he did not go near Namdeo Kolhe who was injured and was lying near Nali. However, it is difficult to rely on his testimony because he did not disclose to anybody that he saw the incident of assault till his statement was recorded by the police about four days after the incident. 42. The testimony of PW 4 Bhimrao and PW 5 Devkabai is corroborated by the evidence of PW 7 Dr. Jaiswal, Medical Officer, Municipal Hospital, Akot who conducted autopsy on the dead body of Namdeo Kolhe. Column No.17 of the postmortem report (Exh.42) shows that Dr. Jaiswal noted the following injuries on the body of Namdeo Kolhe :- (1) Lacerated wound 5 x ½ x 1 c.m. 7 c.m. long from right ear on occipital region with contusion. (2) Lacerated wound 1 ½ x ½ x ¼ c.m. on left upper hand centrally front aspect with contusion. (3) Incised wound 12 x ½-7 x 2½ c.m. on right lower leg verticle centrally. (4) Incised wound 7½ x ½-4 x 2½ c.m. on left lower leg centrally verticle. Column No.18 shows the following injuries :- (1) Compound fracture of left upper hand numerous under the injury no.2. (2) Compound fracture of right leg tibia and fibula under the injury no.3. (3) Compound fracture of left leg tibia and fibula under the injury no.4. All those injuries were ante-mortem and the cause of death was shock due to haemorrhage due to fracture. 43. PW 1 Sanjay and PW 4 Bhimrao are the close relatives of the deceased persons but merely because of the close relationship whether they can be characterized as interested witnesses. In this respect the Supreme Court gave certain guidelines which are very material. In Namdeo .vrs. State of Maharashtra, 2007 AIR SCW 1835 (B), it is held as under : .A witness who is a relative of the deceased or victim of a crime cannot be characterised as 'interested'. The term 'interested' postulates that the witness has some direct or indirect 'interest' in having the accused somehow or other convicted due to animus or for some other oblique motive. Evidence of relative witness however, must be scrutinized carefully. The term 'interested' postulates that the witness has some direct or indirect 'interest' in having the accused somehow or other convicted due to animus or for some other oblique motive. Evidence of relative witness however, must be scrutinized carefully. If on such scrutiny, his evidence is found to be intrinsically reliable, inherently probable and wholly trustworthy, conviction can be based on the 'sole' testimony of such witness. Close relationship of witness with the deceased or victim is no ground to reject his evidence. On the contrary, close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implicate an innocent one.. 44. Besides this there is evidence of discovery of two axes at the instance of accused no.2 Siddharth on 14.6.1989 on which human blood of Group A was found. Five bamboo sticks were seized from the house of accused no.4 Anil on 12.6.1989. Out of them on three sticks human blood of Group A was found and on one stick human blood of Group O was found. It seems that the blood group of Namdeo was O and that of Babarao and Jaideo was A. The accused persons could not explain as to how human blood was found on their axes and sticks. 45. There is prompt reporting of the incident to the police. The police immediately swung into action. There is no delay whatsoever in obtaining the report, in arresting the accused persons and in registering the offence. In fact, there is no time gap for falsely implicating the accused persons in those crimes. The trial court has ignored all those aspects and recorded findings which are perverse. The trial court misled itself by omissions and contradictions which are not at all material. In our opinion, the appreciation of evidence by the trial court is wholly unreasonable. The reasons given by the trial court for acquitting the accused persons are not plausible and are perverse. 46. It has been established by the evidence on record that the accused persons attacked the house of PW 2 Dadarao and even damaged it. This clearly shows that the accused persons were searching for PW 2 Dadarao, PW 3 Wasudeo and others. Thus the accused persons were desperate and perhaps intended to wipe out all the sons of Namdeo Kolhe. Thus there is nothing to disbelieve this piece of evidence. 47. This clearly shows that the accused persons were searching for PW 2 Dadarao, PW 3 Wasudeo and others. Thus the accused persons were desperate and perhaps intended to wipe out all the sons of Namdeo Kolhe. Thus there is nothing to disbelieve this piece of evidence. 47. Much stress was given by the trial court on the fact that according to the prosecution the accused persons were openly roaming in the village with the weapons in their hands and giving threats. No independent witness has been examined by the prosecution. Most of the prosecution witnesses are either related to the deceased persons or are aggrieved. While observing this the trial court forgot that the accused persons might have created terror in the village and in such circumstances it is futile to expect any independent witness who would come forward to depose against the accused persons. 48. The trial court observed that the blood group of each of the deceased was not ascertained and finding of the human blood of particular group on the axes and sticks is of no avail to connect the accused persons with the alleged assault. It may be seen that this piece of evidence is merely a corroborative piece of evidence which supports to some extent the testimony of the eyewitness. As observed above the testimony of the eyewitness is perfectly reliable and as such merely because of the nonascertainment of the blood group of the deceased persons, it cannot be said that the guilt of the accused persons is not established. 49. It was observed by the trial court that some other persons had also grievance against Kolhes and the possibility of those persons having been involved in the alleged assault cannot be denied. It may be noted that PW 2 Dadarao denied the suggestions in this respect made by the defence though some suggestions are evasively denied. However, the so called grievance of other persons against Kolhes is not so serious as to prompt them to kill as many as three members of Kolhe family. On this count the evidence of the prosecution witnesses cannot be discarded. 50. The trial court commented on non-examination of the telephone operator. It may be noted that it has been established by the evidence on record that PW 3 Wasudeo went to a nearby village from where he telephoned Anjangaon and, thereafter, Akot Police Station was informed. On this count the evidence of the prosecution witnesses cannot be discarded. 50. The trial court commented on non-examination of the telephone operator. It may be noted that it has been established by the evidence on record that PW 3 Wasudeo went to a nearby village from where he telephoned Anjangaon and, thereafter, Akot Police Station was informed. This is borne out by the station diary entry (Exh.31) at P.S. Akot. The said entry is made on 12.6.1989 at 1.00 a.m. It shows that Babarao and Jaideo (the sons of Namdeo Kolhe) were killed in the field of Namdeo Kolhe. It is thus obvious that by that time it was not known to the informant that Namdeo Kolhe also was killed in the village. The mere mention in the station diary entry (Exh.31) that the alleged assault took place in the house of Namdeo Kolhe would not render the prosecution version that Babarao and Jaideo were assaulted in the field of Vishwanath Akotkar untrustworthy. It may be noticed that immediately on receiving information about double murder the police swung into action. PI Patil (PW 14) immediately proceeded to village Panaj. When he reached at the house of PW 2 Dadarao it was learnt that Namdeo Kolhe was also killed. It seems that the trial court has not given thought to the fact that it was a case of triple murder which arose out of dispute in two families. The trial court drew conclusions which are apparently perverse. 51. The trial court gave unnecessary importance to forwarding of the copy of F.I.R. to the concerned Magistrate. In fact it is presumed that all the official acts must have been performed properly. At this stage it may not be forgotten that there was no time gap to falsely involve the accused persons in the assault which led to mercilessly killing of three persons from the same family. 52. In the whole we find that the trial court did not properly appreciate the evidence. It failed to give plausible reasons to arrive at the conclusion of the accused persons being not guilty. The impugned judgment suffers from the vice of perversity. In our considered view the impugned judgment deserves to be set aside. We hold all the accused guilty of the offences punishable under sections 147, 148, 302 r/w 149 of the Indian Penal Code. 53. We have heard Mr. The impugned judgment suffers from the vice of perversity. In our considered view the impugned judgment deserves to be set aside. We hold all the accused guilty of the offences punishable under sections 147, 148, 302 r/w 149 of the Indian Penal Code. 53. We have heard Mr. M.L. Somalwar, Advocate for the respondents/accused and Mr. J.B. Jaiswal, APP for the appellant/state on the question of sentence. The learned counsel for the respondents submitted that the alleged offence took place in 1989; the trial Court acquitted the respondents in 1991 and that the appeal is being decided in 2007. In view of the enormous delay, minimum punishment may be imposed on the respondents. The learned APP, on the other hand, submitted that the offence in question which took place in 1989 is very serious; the respondents committed triple murders; three persons from the same family were brutally done to death by the appellants on the same day and as such maximum punishment should be imposed on the respondents. 54. We have carefully considered the above submissions. It is true that the matter involves killing of three closely related male members of the same family on the same day. It is also true that they were done to death in a brutal manner. However, it must not be ignored that a long period of 17 years has passed from the date of offence. Accused no.6, who was 60 years old at that time, must have grown up petty old, whereas the remaining accused persons, who were young, must have become aged now. Accused nos.1 to 5 are real brothers and accused nos.7 and 8 are their cousins. Thus, several persons from the same family are required to undergo imprisonment. On this background we are not inclined to impose maximum punishment under section 302 of the Indian Penal Code. In our opinion, imposition of imprisonment for life would meet the ends of justice. Hence the order : ORDER (i) The appeal is allowed. The acquittal of accused nos.1 to 8 is set aside. Accused nos.1 to 8 are convicted for the 40 offences punishable under sections 147, 148 and 302 r/w 149 of the Indian Penal Code. In our opinion, imposition of imprisonment for life would meet the ends of justice. Hence the order : ORDER (i) The appeal is allowed. The acquittal of accused nos.1 to 8 is set aside. Accused nos.1 to 8 are convicted for the 40 offences punishable under sections 147, 148 and 302 r/w 149 of the Indian Penal Code. Each of them is sentenced to suffer two years rigorous imprisonment for the offence punishable under section 147 of the Indian Penal Code, three years rigorous imprisonment for the offence punishable under section 148 of the Indian Penal Code and imprisonment for life and fine of Rs.5,000/- each in-default to suffer rigorous imprisonment for one year for the offence punishable under section 302 r/w 149 of the Indian Penal Code. (ii) The bail bonds of the accused are cancelled and they are directed to surrender within four weeks to serve out the sentence. (iii) The period during which the respondents were in custody be set off against the above term of imprisonment.