ORAL JUDGMENT (PER P. V. HARDAS, J.) 1. The appellants, who stand convicted for an offence punishable under sections 147, 148, 307 and 302 read with sec.149 of the Indian Penal Code and sentenced to R.I. for six months and to pay fine of Rs.100/- each with a default condition of undergoing further R.I. for one month in the event of non payment of fine; R.I. for six months and to pay fine of Rs.100/- each with a default condition of undergoing further R.I. for one month in the event of non payment of fine; R.I. for seven years and to each pay fine of Rs.100/- with a default condition of undergoing further R.I. for one month in the event of non payment of fine and imprisonment for life and to each pay fine of Rs.200/- with a default condition of undergoing further R.I. for six months in the event of non payment of fine, with a direction that all substantive sentences shall run concurrently, by the Ad hoc Additional Sessions Judge, Parbhani by judgment dated 8.1.2007, in Sessions Trial No.47 of 2006, by this appeal question the correctness of their conviction and sentence. 2. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus :- P.W.15 Bhimrao Punjanwad, P.S.I. who was attached to Jintur police station as P.S.I. on 26.11.2005 was informed by the P.S.O. on duty that a telephone message had been received from Pangri in respect of the death of a person in a quarrel, with a request to send the police personnel to Pangri. Accordingly P.W. 15 P.S.I. Punjanwad along with the staff proceeded by private jeep to village Pangri. On reaching Pangri he proceeded towards the scene of the offence. He preserved the blood stains by covering the same with an empty container. A handkerchief was also found lying at the scene of the offence. He, therefore, deputed two Police Constables to guard the scene of the offence. P.W.1 Digambar, cousin of deceased Gangadhar accompanied the police to the police station and lodged his first information report at Exh.25. On the basis of the said first information report at Exh.25, an offence vide Crime No.212 of 2005 came to be registered at 00.45 hours on 27.11.2005. Upon registration of the offence, further investigation in the said crime came to be handed over to P.W.18 P.S.I. Nimmanwad. On the basis of the said first information report at Exh.25, an offence vide Crime No.212 of 2005 came to be registered at 00.45 hours on 27.11.2005. Upon registration of the offence, further investigation in the said crime came to be handed over to P.W.18 P.S.I. Nimmanwad. P.W.18 P.S.I. Nimmanwad who was attached to Jintur police station as a P.S.I. had also reached village Pangri on being informed of the incident. On 27.11.2005 P.S.I. Nimmanwad (P.W.18) proceeded to the rural hospital, Jintur and drew the inquest panchnama of the dead body of deceased Gangadhar at Exh.48 in the presence of panch witnesses. He requested the Medical Officer on duty to conduct the post mortem on the dead body of deceased Gangadhar and accordingly a request letter in that behalf came to be issued to the Medical Officer at the rural hospital, Jintur. 3. Thereafter P.W.18 P.S.I. Nimmanwad proceeded to the scene and drew the scene of the offence panchnama at Exh.47 in the presence of panch witnesses. From the scene of the offence one handkerchief, sample of blood stained mud and control mud came to be seized under the said panchnama. 4. On the same day the P.S.I. Nimmanwad (P.W.15) had arrested accused Pandurang and Vishnu and, therefore, an arrest panchnama came to be drawn at Exhs.97 to 99 in respect of accused Parasram, accused Vishnu and accused Pandurang. Head Constable Chavan had produced the clothes of deceased after post mortem and the said clothes came to be seized vide seizure memo at Exh.100 in the presence of the panch witnesses. P.W.18 P.S.I. Nimmanwad then proceeded to village Pangri and recorded the statements of the witnesses and searched for the remaining accused. On 28.11.2005 accused Pandhari was noticed at Jintur and, therefore, he was brought to the Jintur police station and came to be arrested under the arrest panchnama at Exh.101 in the presence of panch witnesses. His blood stained clothes i.e. pant and shirt came to be seized under a panchnama vide Exh.63. On 28.11.2005 during custodial interrogation accused Pandhari had expressed his willingness to point out the place where Gupti was hidden by him. Accordingly his memorandum came to be recorded in the presence of P.W.7 Sheshrao at Exh.50. His blood stained clothes i.e. pant and shirt came to be seized under a panchnama vide Exh.63. On 28.11.2005 during custodial interrogation accused Pandhari had expressed his willingness to point out the place where Gupti was hidden by him. Accordingly his memorandum came to be recorded in the presence of P.W.7 Sheshrao at Exh.50. Accused no.1 Pandhari then took the police and the panch to Dnyanopasak college situated at Yeldari road and thereafter to "Chandragiricha Dongar", situated nearby and produced a Gupti which came to be seized vide seizure memo at Exh.51. The said Gupti which was produced by accused no.1 came to be sealed. Thereafter on 29.11.2005 accused no.4 Parasram expressed his willingness to point out the place where a stick had been hidden by him. Accordingly his memorandum came to be recorded at Exh.57 in the presence of P.W.8 Narayan. Accused no.4 then led the police and the panch to his house and produced a stick which was hidden under the roof sheets. The said stick came to be seized under panchnama at Exh.58 in the presence of witnesses. On the same day i.e. on 29.11.2005 accused no.3 Vishnu expressed his willingness to point out the place where the knife was hidden. Accordingly the memorandum at Exh.52 came to be drawn in the presence of P.W.7 Sheshrao. Accused no.3 Vishnu led the police and the panch and produced a knife which came to be seized vide seizure memo at Exh.54. Thereafter accused no.5 Pandurang expressed his willingness to point out a stick hidden by him. Accordingly the memorandum at Exh.53 came to be drawn and the accused produced a stick which came to be seized vide seizure memo at Exh.55. On 23.12.2005 accused no.6 Datta came to be arrested vide arrest panchnama at Exh.102. Accused Datta accordingly expressed his willingness to point out the place where a stick had been hidden by him. Accordingly memorandum of accused Datta came to be recorded in the presence of panch witnesses at Exh.60. Accused no.6 then led the police and the panch and produced a stick which came to be seized vide seizure memo at Exh.61. P.W.18 P.S.I. Nimmanwad then obtained information in respect of the title of the house from where the various weapons came to be seized at the behest of the accused. Accused no.6 then led the police and the panch and produced a stick which came to be seized vide seizure memo at Exh.61. P.W.18 P.S.I. Nimmanwad then obtained information in respect of the title of the house from where the various weapons came to be seized at the behest of the accused. Accused no.2 Gangadhar who was undergoing treatment in the hospital of Dr.Jethalia, came to be arrested by P.W.19 P.I. Prabhakar Giri. During custodial interrogation accused no.2 Gangadhar expressed his willingness to point out the place where the knife was hidden by him. Accordingly memorandum at Exh.43 came to be recorded in the presence of P.W.6 Bhagwan. Accused no.2 led the police and the panch and produced a knife which came to be seized vide seizure panchnama at Exh.44. The arrest panchnama of accused no.2 Gangadhar is at Exh.121. The seized property came to be forwarded to the Chemical Analyser along with the requisitions at Exhs.86 & 87. Further to the completion of investigation a charge-sheet against the accused came to be submitted. 5. On committal of the case to Court of Sessions, Trial Court vide Exh.8 framed charge against the six accused for an offence punishable under sections 147, 148, 307 read with sec.149 and 302 read with sec.149 of the Indian Penal Code. All the accused denied their guilt and claimed to be tried. Prosecution in support of its case examined nineteen witnesses. The Trial Court upon consideration of the evidence of the eye-witnesses and the other circumstantial evidence convicted and sentenced the appellants as aforestated. The appellants being thus aggrieved by their conviction and sentence have filed the present appeal. 6. In order to deal effectively with the contentions advanced before us by the learned Counsel for respective parties, it would be useful to make a reference to the evidence of the prosecution witnesses. Prosecution has examined P.W.1 Digambar, the first informant and a cousin of deceased Gangadhar. He states that in the evening of 25.11.2005 he was informed by P.W.5 Raju and by his wife that when accused no.2 Gangadhar was listening to the running commentary of cricket match between South Africa and India, P.W.5 Raju had enquired from accused no.2 Gangadhar as to which Batsman had lost the wicket. Thereafter it appears that accused no.2 Gangadhar replied that father of P.W.5 Raju had lost his wicket. Thereafter it appears that accused no.2 Gangadhar replied that father of P.W.5 Raju had lost his wicket. P.W.5 Raju not to be outdone by the repartee also replied that may be wicket of mother of accused no.2 Gangadhar may have fallen. Angered by the answer of P.W.5 Raju, accused no.2 Gangadhar slapped P.W.5 Raju. On the next day i.e. on 26.11.2005 at about 7.00 p.m. when P.W.1 Digambar was present at his house at about 7.30 p.m. but had heard a commotion from the house of one Kishan Namdeo Budhwant which was located in between his residential house and the grocery shop constructed in the newly constructed building of deceased Gangadhar. At that time the electric supply was discontinued on account of load-shedding. Upon hearing the commotion, he rushed in that direction carrying a battery operated flash light with him. After he had covered some distance he heard the shouts of Gangadhar that he was dying. He immediately therefore focussed the flash light towards the direction from which he had heard shouts and noticed accused Pandhari (accused no.1) armed with a Gupti, accused no.3 Vishnu and accused no.2 Gangadhar both were armed with knives while the other accused nos.4 & 5 and accused no.6 were armed with sticks. He had seen in the light of the flash light/torch that the hands of deceased Gangadhar were held by accused no.4 Parashram and accused no.6 Datta and accused no.1 Pandhari had stabbed deceased Gangadhar by a Gupti on the chest and stomach. On receiving the said injuries deceased Gangadhar sustained bleeding injury and fell on the ground. Seeing the attack on deceased Gangadhar, P.W.16 Pandurang, brother of deceased Gangadhar, rushed towards them. Seeing P.W.16 Pandurang rushing towards them, accused no.3 Vishnu and accused no.5 Pandurang intercepted him and caught him. Thereafter accused no.1 Pandhari stabbed Gupti on the stomach of P.W.16 Pandurang. Pandurang also sustained bleeding injury and his intestines were seen protruding out. On receiving injuries P.W.16 Pandurang also fell on the ground. Thereafter all the accused ran away. P.w.1 Digambar states that thereafter an auto-rickshaw was called and both the injured were shifted to the rural hospital at Jintur. The Medical Officer, however, declared Gangadhar as dead. The Medical Officer also advised them to shift P.W.16 Pandurang to Civil Hospital at Parbhani. P.W.1 Digambar and other villagers started taking injured P.W.16 Pandurang to the hospital in a hired jeep. The Medical Officer, however, declared Gangadhar as dead. The Medical Officer also advised them to shift P.W.16 Pandurang to Civil Hospital at Parbhani. P.W.1 Digambar and other villagers started taking injured P.W.16 Pandurang to the hospital in a hired jeep. P.W.1 Digambar alighted at the Pangri junction from the jeep in order to arrange for money for the treatment of P.W.16 Pandurang while the other villagers proceeded ahead and admitted Pandurang in the Civil Hospital. On reaching village Pangri police attached to Jintur police station arrived at village Pangri and he narrated them the incident. Thereafter P.W.1 Digambar accompanied the police to the police station and lodged his first information report at Exh.25. He states that thereafter the scene of the offence panchnama came to be drawn. 7. In cross-examination he has admitted that prior to this incident there was no dispute between the accused and the family members of deceased. He has further admitted in the cross-examination that till he had switched on the torch and focussed the light, there was darkness on the road and it was not possible to see what was going on in the darkness. He has further admitted that at about 7.30 p.m. upon hearing the commotion when he rushed out of the house carrying a torch, at that time one Amin Khan had also reached the scene of the offence. He has further stated that Baliram Ghuge had also switched on a torch in his hand. He has further admitted that accused Vishnu and accused Gangadhar were armed with knives but he had not paid any attention as to whether the accused had used those knives for causing any hurt or injury to any one. He has further admitted that during his presence at the scene of the offence accused Vishnu and accused Gangadhar had not dealt any blow by the knives in their hands to deceased Gangadhar. He has also admitted that he had also not witnessed accused Gangadhar and Vishnu giving blows of knife to P.W.16 Pandurang. He has also admitted that he had not witnessed accused nos.4 to 6 giving stick blows to deceased Gangadhar or to P.W.16 Pandurang. He has admitted that the contents in his first information report that accused no.3 Vishnu and accused no.2 Gangadhar had dealt successive blows of knife to deceased Gangadhar on his chest and abdomen were not correct. He has also admitted that he had not witnessed accused nos.4 to 6 giving stick blows to deceased Gangadhar or to P.W.16 Pandurang. He has admitted that the contents in his first information report that accused no.3 Vishnu and accused no.2 Gangadhar had dealt successive blows of knife to deceased Gangadhar on his chest and abdomen were not correct. He has also admitted that the contents in his complaint at Exh.25 that accused nos.4 to 6 had also dealt stick blows to deceased Gangadhar were incorrect. Similarly he has admitted that the contents of his first information report that accused Gangadhar and accused Vishnu had dealt knife blows to P.W.16 Pandurang were incorrect. He has also admitted that the contents of his first information report Exh.25 that accused nos.4 to 6 had dealt stick blows to P.W.16 Pandurang were incorrect. In further cross-examination he has admitted that he had not stated in his report at Exh.25 that upon flashing the torch towards the scene of the incident he had seen accused Parasram and Datta had caught deceased Gangadhar and at that time accused Pandhari had dealt blows of Gupti to Gangadhar. He has also admitted not to have stated in his report at Exh.25 that accused no.3 and accused no.5 had caught P.W.16 Pandurang and at that time accused Pandhari had dealt blows of Gupti to P.W.16 Pandurang. Other omissions have been brought on record which are not material omissions. In further cross-examination he has admitted that he had not lodged any complaint by going to Jintur police station from the Rural hospital, Jintur at that time. He has admitted that he had disclosed the names of the accused to the Medical Officer. He has admitted that he had stated in his supplementary statement recorded during investigation that all the six accused had conjointly dealt blows of Gupti, knife and sticks to P.W.16 Pandurang on his stomach and back. He states that accused Gangadhar and Vishnu had not assaulted P.W.16 Pandurang at all. He has also admitted that accused nos. 4 to 6 had not dealt stick blows to P.W.16 Pandurang. He has admitted that he did not notice as to whether accused no.2 Gangadhar was lying at the scene of the offence because of fracture in his leg. He has denied that accused Gangadhar had sustained any injury at the scene of the offence. 4 to 6 had not dealt stick blows to P.W.16 Pandurang. He has admitted that he did not notice as to whether accused no.2 Gangadhar was lying at the scene of the offence because of fracture in his leg. He has denied that accused Gangadhar had sustained any injury at the scene of the offence. He has, however, admitted that accused Gangadhar had undergone treatment from 26.11.2005 to 7.12.2005 in the hospital of Dr. Jethlia at Parbhani and was operated in the hospital. 8. Prosecution has also examined P.W.4 Amin Khan, who is an eye-witness. P.W.4 Amin Khan states that he had learnt about the altercation between accused Gangadhar and P.W.5 Raju on the earlier day. On the day of the incident he had returned from his field at about 7.00 p.m. At about 7.30 p.m. he had heard commotion and a noise of quarrel. He immediately recognised the voice of accused Parasam and also recognised the voice of deceased Gangadhar. He accordingly rushed out of his house to see what the matter was. He states that P.W.1 Digambar and one Baliram Ghuge had also rushed to the scene of the offence and had switched on the torches which were in their hands. In the torch light he had noticed that accused nos.4 & 6 were armed with sticks while accused Gangadhar and accused Vishnu were armed with knives and accused no.1 Pandhari was armed with a Gupti. At that time accused Gangadhar was shouting that knife be thrust in the rectum of Gangadhar. He states that he had also noticed a scuffle and then heard the shouts as "I am dying". In the torch light he had seen that accused no.1 Pandhari dealt blows of Gupti on the chest of Gangadhar and due to that Gangadhar fell on the ground. Seeing the assault on deceased Gangadhar P.W.16 Pandurang had rushed in that direction to save Gangadhar. Accused Gangadhar and accused Vishnu caught P.W.16 Pandurang and accused Pandhari dealt a blow of Gupti on the stomach of P.W.16 Pandurang. Upon that Pandurang fell on the ground and thereafter all the accused ran away. 9. In cross-examination he has stated that he, Baliram Ghuge and P.W.1 Digambar had reached the scene of the offence at one and the same time. Upon that Pandurang fell on the ground and thereafter all the accused ran away. 9. In cross-examination he has stated that he, Baliram Ghuge and P.W.1 Digambar had reached the scene of the offence at one and the same time. He has admitted that he had not rushed to rescue Gangadhar and P.W.16 Pandurang as it was an internal dispute between them. He states that he had witnessed the entire incident standing in front of the door of his house. He has thereafter admitted that he had not seen who had assaulted whom. (Emphasis supplied). He has admitted that he had not witnessed accused nos.4 to 6 giving stick blows to deceased Gangadhar and P.W.16 Pandurang. He has also admitted that he had not witnessed accused nos.2 & 3 assaulting by knives either to deceased Gangadhar or P.W.16 Pandurang. He has admitted that his statement was recorded on the next day by the police. He has stated that it did not happen that accused nos.1 to 6 had conjointly attacked on Gangadhar by means of weapons with which they were armed. He has stated that accused no.1 alone had assaulted deceased Gangadhar by a Gupti. He has stated that the contents in his statement at portion mark A that all the accused had conjointly assaulted deceased Gangadhar with weapons in their hands is incorrectly recorded. Similarly he has also stated that it did not happen that accused nos.1 to 6 had conjointly attacked P.W.16 Pandurang with the weapons with which they were armed. He has accordingly denied portion mark B in his statement to that effect. In further cross-examination omission has been duly proved that he had not stated in his statement recorded during investigation that Baliram Ghuge had also rushed towards the scene of the incident carrying a torch in his hand. Similarly he had not stated before the police in his statement that whine P.W.16 Pandurang was rushing to save his brother, accused Gangadhar and Vishnu had caught him and at that time accused no.1 had dealt a blow of Gupti on P.W.16 Pandurang. He has admitted to have stated in his complaint that after assaulting Gangadhar and Pandurang all the accused had fled. He has stated that only four persons were watching the incident and P.W.16 Pandurang had arrived at the scene after about three minutes of the commencement of the incident. He has admitted to have stated in his complaint that after assaulting Gangadhar and Pandurang all the accused had fled. He has stated that only four persons were watching the incident and P.W.16 Pandurang had arrived at the scene after about three minutes of the commencement of the incident. The persons who were watching the incident from the beginning were (1) P.W.1 Digambar, (2) Baliram Sahebrao, (3) Vishwanath Rohidas and (4) Ansabai Kisan. In further examination-in-chief on behalf of the Public Prosecutor he has clarified that accused nos.2 to 6 had neither assaulted Gangadhar nor P.W.16 Pandurang. 10. Prosecution has examined P.W.5 Raju, son of deceased Gangadhar. P.W.5 Raju states that on 25.11.2005 at about 5.00 p.m. he was present at his Kirana shop and at that time accused Gangadhar was listening to the running commentary of the cricket match between India and South Africa on his transistor radio. P.W.5 Raju had asked him as to which Batsman had lost his wicket and upon that accused Gangadhar replied that father of Raju had lost his wicket. Raju also retorted back by saying that may be mother of accused Gangadhar had lost her wicket. Thereupon accused Gangadhar got enraged and slapped P.W.5 Raju. After deceased Gangadhar arrived at about 6.00 p.m., P.W.5 Raju informed him about the incident. Thereupon deceased Gangadhar informed P.W.5 Raju that he would enquire from accused Gangadhar as to why accused Gangadhar had beaten him. He further states that on the day of the incident i.e. on 26.11.2005 at about 7.30 p.m. he was present in his shop and at that time due to load shedding supply of electricity was disrupted. He had lighted a candle in his shop and in the candle light he was attending to his shop. His father deceased Gangadhar was sitting on a wooden cot which was kept on the platform in front of the shop. At that time accused Gangadhar was passing on the road in front of the shop. Seeing him deceased Gangadhar enquired from him as to why he had assaulted P.W.5 Raju on the previous day. Upon that accused Gangadhar had stated when Raju was assaulted ? What can Gangadhar do about it ? On that deceased Gangadhar rushed towards accused Gangadhar and caught him. Accused Gangadhar started abusing father of P.W.5 Raju (deceased Gangadhar) and also stated that he would finish deceased Gangadhar. Upon that accused Gangadhar had stated when Raju was assaulted ? What can Gangadhar do about it ? On that deceased Gangadhar rushed towards accused Gangadhar and caught him. Accused Gangadhar started abusing father of P.W.5 Raju (deceased Gangadhar) and also stated that he would finish deceased Gangadhar. On hearing the cries of accused Gangadhar, his family members rushed to the spot. Accused Parasram and the accused when reached there running were shouting "hit, hit". Accused Datta and accused Parasram caught deceased Gangadhar and accused no.1 Pandhari dealt a blow of Gupti on the chest of deceased Gangadhar. He states that he identified the accused on account of the torch light which was in the hands of Baliram and P.W.1 Digambar. Accused Vishnu dealt a blow of knife on the waist of deceased Gangadhar. At the time of the incident accused Pandhari was armed with a Gupti and accused Gangadhar and Vishnu were both armed with knives and accused Datta, Parasram and Pandurang were armed with sticks. On receiving the injuries by Gupti and knife deceased Gangadhar fell on the ground. At that time P.W.16 Pandurang rushed to rescue deceased Gangadhar. Thereupon accused Gangadhar and accused Vishnu caught Parasram while accused Pandhari dealt a blow of Gupti on the stomach of P.W.16 Pandurang. Pandurang also fell on the ground on receiving the injuries and his intestines protruded out. Thereafter all the accused fled from the scene of the offence. 11. In cross-examination he has admitted that his father Gangadhar had not questioned accused Gangadhar as to why he had assaulted P.W.5 Raju on 25.11.2005. He further states that in front of his shop a platform is situated having a height of 3 ft. and adjacent to that a road passes on which accused Gangadhar was passing on the day of the incident. He further states that the dialogue between deceased Gangadhar and accused Gangadhar lasted for about 2 to 4 minutes. He has further admitted that accused Gangadhar and his father deceased Gangadhar had abused each other in some what loud tone. He has denied the suggestion that deceased Gangadhar had dealt a stick blow on the left leg of accused Gangadhar. He has also denied that on account of the said blow of stick, the left leg of accused Gangadhar was fractured. He has denied the suggestion that deceased Gangadhar had dealt a stick blow on the left leg of accused Gangadhar. He has also denied that on account of the said blow of stick, the left leg of accused Gangadhar was fractured. He has further volunteered that accused Gangadhar had sustained fracture while running away after the incident on account of his fall in front of the shop of P.W.5 Raju. He further states that when the scuffle between accused Gangadhar and deceased Gangadhar was going on, P.W.1, Baliram, Kishan and Ansabai had gathered there. He has further stated that those persons tried to convince accused Gangadhar and his father not to abuse each other. He has further stated that he had witnessed the incident in the torch light held by P.W.1 Digambar and Baliram. He further states that upon hearing the shouts, accused Parasram, Datta and accused Pandurang had rushed to the scene of the offence. He further states that accused Datta, Parasram and Pandurang had given fist blows to deceased Gangadhar. He has denied portion mark A from his statement to the effect that when accused Pandhari had dealt blows of Gupti on the chest and stomach of his father, at that time P.W.1 Digambar had rushed there holding a torch. He has also denied portion mark B from his statement wherein it is stated that accused Pandhari had dealt two blows of Gupti on the chest and stomach of deceased Gangadhar. Omissions have been duly proved that he had not stated in his statement that on 25.11.2005 he had informed his father about the slap given to him by accused Gangadhar and that his father said that he would enquire with accused Gangadhar in that respect. Omission has been duly proved that he had not stated that the accused who had rushed there had uttered the words as "beat, beat". Omission has been duly proved that he had not stated in his statement that accused Datta and accused Parasram had caught deceased Gangadhar while accused no.1 Pandhari had given blows of Gupti on the chest of deceased Gangadhar. Omission has been duly proved that he had not stated in his previous statement that accused Vishnu had dealt a knife blow on the waist of deceased Gangadhar. Omission has been duly proved that he had not stated in his previous statement that accused Vishnu had dealt a knife blow on the waist of deceased Gangadhar. Similarly he had not stated in his previous statement that accused Gangadhar and Vishnu had caught P.W.16 Pandurang and at that time accused Pandhari had dealt blow of Gupti on the stomach of P.W.16 Pandurang. 12. Prosecution has also examined P.W.12 Anusayabai as an eye-witness to the incident. P.W.12 Anusayabai sates that at the time of the incident she was present at her house and heard the shouts of accused Parasram, Vishnu and of deceased Gangadhar. She, therefore, rushed out of her house and stood at the threshold of the outer room. She saw accused nos.1 to 6 beating deceased Gangadhar. Accused Vishnu had dealt a knife blow while accused no.1 Pandhari had dealt a blow of Gupti to deceased Gangadhar. She states that she had seen the said incident in the light of the kerosene lamp which was kept inside the door of the house and also in the light of the torch. When P.W.16 Pandurang, brother of deceased Gangadhar tried to intervene and rescue deceased Gangadhar, accused no.1 Pandhari dealt a blow of Gupti to Pandurang. Thereafter all the accused ran away. In cross-examination she has admitted that due to load-shedding there was darkness on the road in front of her house. She has also admitted that the kerosene lamp was kept in middle of both the rooms as her house comprises of two rooms. She has further stated that at the time of the incident no other witness was present. She corrected herself to state that two or four persons had gathered at the scene of the offence. She states that as she was frightened she did not rush to intervene in the quarrel. She has also admitted that none of the persons who had gathered there had tried to intervene. She states that when she had reached near the door of her house at that time deceased Gangadhar was lying on one side of his body in front of her house. She states that at that time P.W.1 Digambar and Baliram had reached there carrying their torches and in the torch light she had identified deceased Gangadhar. She states that when she had reached near the door of her house at that time deceased Gangadhar was lying on one side of his body in front of her house. She states that at that time P.W.1 Digambar and Baliram had reached there carrying their torches and in the torch light she had identified deceased Gangadhar. Omission has been duly proved that she had not stated in her previous statement that accused no.1 gave blows of Gupti to deceased Gangadhar and P.W.16 Pandurang and that accused Vishnu had dealt a blow of knife to deceased Gangadhar. She has denied portion mark A from her statement that all the accused had assaulted P.W.16 Pandurang by Gupti, knife and sticks. She has denied to have stated portion mark B in which she had stated that deceased Gangadhar was requesting for water. She has admitted that on the day of the incident policemen had arrived at village Pangri, however, she had not given any information to the police about the incident. 13. Prosecution has also examined P.W.16 Pandurang, who is an injured eye-witness. P.W.16 Pandurang states that deceased Gangadhar was his real brother. He also states that prior to the incident relations between the accused and deceased Gangadhar were cordial and they were on visiting terms. He also states that about three years prior to the incident the marriage expenses of the daughter of accused Datta had been borne by deceased Gangadhar. He states that on the next day of the incident of assaulting P.W.5 Raju by accused Gangadhar, he had returned back to his house from his agricultural field at about 7.00 p.m. As he was getting ready for going to the shop situated near the Dargah maidan, he heard the voice of his brother deceased Gangadhar as "I am dying". As soon as he heard the cry of his brother deceased Gangadhar, P.W.16 Pandurang rushed out of the house running towards the direction from which he had heard the shouts. He further states that P.W.1 Digambar and one Baliram were also seen coming from their houses carrying battery operated torches with them. He states that in the focus of the torch light he identified accused nos.1 to 6. He further states that P.W.1 Digambar and one Baliram were also seen coming from their houses carrying battery operated torches with them. He states that in the focus of the torch light he identified accused nos.1 to 6. Accused no.1 Pandhari was armed with Gupti while accused no.2 Gangadhar and accused no.3 Vishnu were armed with knives, accused no.4 Parasram, accused no.5 Pandurang and accused no.6 Datta were all armed with sticks. All the accused were assaulting deceased Gangadhar. Accused no.1 Pandhari dealt a blow of Gupti and accused no.3 Vishnu dealt a blow of knife to deceased Gangadhar. Immediately after sustaining the said injuries Gangadhar fell on the ground. Seeing the assault on deceased Gangadhar, P.W.16 Pandurang rushed towards his brother Gangadhar and at that time accused no.2 Gangadhar and accused no.3 Vishnu caught P.W.16 Pandurang while accused no.1 Pandhari dealt a blow of Gupti below the arm pit. On receiving the said injury P.W.16 Pandurang fell on the ground. He states that thereafter the villagers had brought him to Jintur and from there he was brought to Civil Hospital at Parbhani and from there he was shifted to Yashoda hospital at Nanded. 14. In cross-examination he has admitted that his statement at Exh.73 had been recorded on 27.11.2005. He has further admitted that prior to recording of his statement at Exh.73 by the policeman he had not disclosed the incident to any one. He has stated that the contents of the statement at Exh.73 are incorrect. He has denied to have stated portion mark "A" from his statement at Exh.73 wherein he had stated that on questioning accused Vishnu, Pandhari and Gangadhar as to why they had assaulted P.W.5 Raju, those three accused had assaulted him by a knife just below his arm pit. He has denied to have stated portion mark "B" from his statement at Exh.73 that his maternal uncle Nathrao Laxmanrao Palve and one Baliram Sahebrao Ghuge and some other villagers had rescued him from the clutches of the accused. He has admitted not to have stated in his statement at Exh.73 that accused nos.4 to 6 were also present at the scene of the occurrence and they had assaulted his brother deceased Gangadhar by sticks. He has admitted not to have stated in his statement at Exh.73 that accused nos.4 to 6 were also present at the scene of the occurrence and they had assaulted his brother deceased Gangadhar by sticks. He has denied the statement recorded by the Magistrate in the hospital that all the six accused had assaulted P.W.16 Pandurang when he had questioned them as to why his nephew had been assaulted. He has denied to have stated that all the six accused had dealt blows to him by the respective weapons with which they were armed. He has admitted not to have stated in his statement recorded by the Magistrate on 1.12.2005 that accused no.1 Pandhari had dealt a blow of Gupti and accused no.3 Vishnu had dealt a blow of knife on deceased Gangadhar. He has also admitted not to have stated in his statement recorded by the Magistrate on 1.12.2005 that accused no.1 Pandhari had dealt a blow of Gupti to him and accused Gangadhar and Vishnu had caught him. Omission has been duly proved that he had not stated in his statement recorded during investigation that accused Gangadhar and accused Vishnu had caught him while accused no.1 Pandhari had dealt a blow of Gupti to him. He has admitted that on receiving the blow of Gupti he had become unconscious. He has further admitted that he had seen only one blow of Gupti being delivered on the chest of his brother Gangadhar and had not witnessed accused nos.4 to 6 giving blows by sticks to deceased Gangadhar. He has also admitted that no sooner had he reached near his brother, his brother Gangadhar had fallen on the ground. He has also admitted that he had not witnessed accused Gangadhar and Vishnu giving blows of knife to his brother deceased Gangadhar. He has denied the suggestion that accused Gangadhar was assaulted by deceased Gangadhar by a stick on his leg. In re-examination he has clarified that portion mark "A" and "B" in his statement recorded by the Magistrate dated 1.12.2005 came to be stated by him as he was unable to speak properly and could not understand the questions properly due to the pain on account of the injuries and operation. 15. In re-examination he has clarified that portion mark "A" and "B" in his statement recorded by the Magistrate dated 1.12.2005 came to be stated by him as he was unable to speak properly and could not understand the questions properly due to the pain on account of the injuries and operation. 15. It would thus be seen that there is overwhelming evidence of the eye-witnesses in respect of accused no.1 Pandhari inflicting two injuries by Gupti to deceased Gangadhar and causing an injury to P.W.16 Pandurang. In respect of the participation of the other accused, particularly the averments in respect of the accused holding the deceased and the injured in order to facilitate accused no.1 Pandhari to deliver the blows, we find that the evidence in this regard is highly discrepant. P.W.1 Digambar in his cross-examination has admitted not to have stated in his report at Exh.25 that accused nos.3 & 5 i.e. Vishnu and Pandurang had caught P.W.16 Pandurang and at that time accused Pandhari dealt blows of Gupti to P.W.16 Pandurang. Similarly omission has been duly proved that P.W.1 Digambar had not stated in his report at Exh.25 that accused no.4 Parasram and accused no.6 Datta had caught deceased Gangadhar while accused no.1 had dealt blows of Gupti to Gangadhar. In fact, P.W.1 Digambar has candidly admitted in his cross-examination that though the other accused were variously armed with knives and sticks, yet none of the accused had inflicted any injury either to deceased Gangadhar or to injured witness P.W.16 Pandurang. P.W.4 Amin Khan in his cross-examination has initially admitted that he had not seen as to who had assaulted whom. He has also admitted that he had not witnessed accused nos.4 to 6 giving any stick blows to deceased Gangadhar and P.W.16 Pandurang. Similarly, he admits not to have witnessed accused nos.2 & 3 assaulting either deceased Gangadhar or P.W.16 Pandurang by knives. Omission has been duly proved that he had not stated in his previous statement recorded during investigation that P.W.16 Pandurang was caught by accused Gangadhar and Vishnu and accused no.1 Pandhari had dealt a blow of Gupti to P.W.16 Pandurang. He has denied portion mark "A" and "B" of his statement that all the accused had together attacked deceased Gangadhar and P.W.16 Pandurang. Thus, this witness has resiled in material particulars in respect of the original version which he had given before the police. He has denied portion mark "A" and "B" of his statement that all the accused had together attacked deceased Gangadhar and P.W.16 Pandurang. Thus, this witness has resiled in material particulars in respect of the original version which he had given before the police. In any event, while separating the grain from truth, it would be apparent that accused no.1 Pandhari is named universally by all the witnesses as having inflicted injuries to deceased Gangadhar and P.W.16 Pandurang. Similarly in the evidence of P.W.5 Raju omission has been duly proved that he had not stated in his previous statement that accused Datta and accused Parasram had caught deceased Gangadhar while accused no.1 Pandhari dealt blows of Gupti on the chest of deceased Gangadhar. Omission has also been duly proved that he had not stated in his previous statement that accused Vishnu had dealt a knife blow on the waist of deceased Gangadhar. Omission has been duly proved that he had not stated in his previous statement that accused Gangadhar and Vishnu had caught P.W.16 Pandurang while accused no.1 Pandhari had dealt blow of Gupti on the stomach of P.W.16 Pandurang. In respect of P.W.12 Anusayabai, we find it very difficult to believe that this witness could have witnessed the incident. She claims to have witnessed the incident in the light of the kerosene lamp which was kept in between the two rooms of her house. Her case is that she had seen accused nos.1 to 6 assaulting deceased Gangadhar. This is contrary to the evidence of the other eye-witnesses who in categorical terms have stated that other accused excepting accused no.1 Pandhari had neither assaulted deceased Gangadhar nor P.W.16 Pandurang. Omission has been duly proved that she had not stated in her previous statement that accused Vishnu had dealt a knife blow to deceased Gangadhar. Injured eye-witness P.W.16 Pandurang has admitted that he had not stated while recording of his supplementary statement that accused Gangadhar and Vishnu had caught him while accused Pandhari dealt a blow of Gupti to him. Similarly omission has been duly proved in his statement recorded by the Magistrate that accused Vishnu had dealt a blow of knife to deceased Gangadhar. 16. Mr Chatterji, learned Counsel for the appellants has urged before us that undisputedly accused nos.2 to 6 have been falsely involved in this case and, therefore, the entire prosecution case is rendered doubtful. Similarly omission has been duly proved in his statement recorded by the Magistrate that accused Vishnu had dealt a blow of knife to deceased Gangadhar. 16. Mr Chatterji, learned Counsel for the appellants has urged before us that undisputedly accused nos.2 to 6 have been falsely involved in this case and, therefore, the entire prosecution case is rendered doubtful. It is further stated that it was not possible for the witnesses to have seen the incident, particularly as it was pitch dark on account of the disruption of electric supply on account of load-shedding. It is further urged before us that the evidence of the witnesses does not appear to be natural and, therefore, the accused be given benefit of doubt. The learned A.P.P. has supported the judgment and has urged for dismissal of the appeal. 17. Thus, from the close scrutiny of the evidence of the eye-witnesses it is apparent to us that initially when the first information report at Exh.25 came to be lodged, the object of the first informant P.W.1 Digambar was to involve all the accused and accordingly it was stated that all the accused who were variously armed had assaulted deceased Gangadhar and had caused injuries to him. It was also stated that all the accused had also assaulted P.W.16 Pandurang. Later on realizing the futility of this statement in the light of the injuries sustained by deceased Gangadhar and P.W.16 Pandurang, an effort was made in the evidence to implicate some of the accused as having held deceased Gangadhar and Pandurang thereby facilitating accused no.1 Pandhari in inflicting the blows of Gupti. Omissions have been duly proved that these omissions are on material aspects of the prosecution case in respect of the accused holding deceased Gangadhar and P.W.16 Pandurang while injuries were inflicted by accused no.1 Pandhari. Thus, we find that the evidence in respect of these eye-witnesses insofar as it relates to the participation of the other accused is extremely doubtful. It is difficult to believe that the accused, if they had shared the common object and having come to the scene of the offence variously armed and would not use the weapons which they had clutched in their hands. The accused nos.2 to 6, therefore, according to us are entitled to be given the benefit of doubt. 17. It is difficult to believe that the accused, if they had shared the common object and having come to the scene of the offence variously armed and would not use the weapons which they had clutched in their hands. The accused nos.2 to 6, therefore, according to us are entitled to be given the benefit of doubt. 17. Though we find that accused nos.2 to 6 have been falsely implicated, the false implication of accused nos.2 to 6 would not enure to the benefit of accused no.1. Merely because the witnesses have falsely roped in accused nos.2 to 6 would not necessarily lead to an inference that accused no.1 Pandhari has also been falsely implicated. Doctrine of Falsus in uno falsus in omnibus is not applicable and the Court is, therefore, required to separate the grain from the chaff - truth from falsehood. Having done that exercise we find that it is extremely doubtful if accused nos.2 to 6 had participated or were at all present at the time of the incident. Benefit of doubt, therefore, deserves to be given to the accused nos.2 to 6. All the witnesses have categorically stated that it was accused no.1 Pandhari who had inflicted the blows of Gupti to deceased Gangadhar and P.W.16 Pandurang. We do not find any grounds for discarding the evidence of the eye-witnesses insofar as it relates to accused no.1 Pandhari. Accused no.1, therefore, would not be entitled to benefit of doubt. The eye-witnesses were natural witnesses who were residing in the vicinity and who had rushed to the scene of the offence on hearing the cry of deceased Gangadhar. Though it was pitch dark on account of load-shedding, the witnesses were possessing battery operated torches and in torch light the witnesses had witnessed the incident. Apart from that, we see no reason for doubting the evidence of P.W.16 Pandurang insofar as infliction of injury to him by accused no.1. The evidence of the other witnesses categorically establishes the commission of offence of causing death of deceased Gangadhar by accused no.1 Pandhari by inflicting injuries by a Gupti. We, therefore, find that the case of accused no.1 Pandhari can be segregated from the case of the other accused. Accused no.1 Pandhari, therefore, would not be entitled to any benefit of doubt. 18. Post mortem on the dead body of deceased Gangadhar was conducted by the Medical Officer. We, therefore, find that the case of accused no.1 Pandhari can be segregated from the case of the other accused. Accused no.1 Pandhari, therefore, would not be entitled to any benefit of doubt. 18. Post mortem on the dead body of deceased Gangadhar was conducted by the Medical Officer. As per the post mortem report the following external injuries were sustained by deceased Gangadhar :- (1) Stab injury of size 4 x 3 x 4 cms. over left buttock area, near to left iliac crest sharp margin elliptical shape, sharp margin and blood clots were adherent to injured side; (2) Stab injury of the size 4 x 3 cms. deep admitting complete 15 cm. forceps in internal viscera, with elliptical shape, sharp margin, over left side of the chest near to mid-clavicular line in 5th inter costal space. Blood clots were adherent to the injured side. (3) Fracture was also noted of 6th rib under line the second injury as above. P.W.2 Dr. Ganpat Waghmare opined that both the stab injuries were ante mortem. On internal examination P.W.12 Dr. Waghmare noticed that the left side pleura was punctured and there was also injury on left lung due to that stab injury, in lower lobe medial aspect, of the size 3 x 3 x 3 cms. The injury was through and through. P.W.12 Dr. Waghmare also noticed punctured pericardium over left ventricular area. He further noticed injury on the heart with stab punctured wound over left ventricular area, sharp margin and of the size 3 x 3 cms. cavity deep. P.W.12 Dr. Waghmare opined that all internal injuries were corresponding to external injury no.2. P.W.12 Dr. Waghmare, therefore, had opined that death of Gangadhar might have been caused due to stab injury to vital organ heart and haemorrhagic shock due to acute blood loss. The injury certificate of P.W.16 Pandurang discloses the following injuries :- “Stab injury on left side of chest in subcostal area, elliptical shape, sharp margin, profuse bleeding and protruding intestinal loops from injured side, of size 4 cm x 3 cm x deep admitting forceps into peritoneal cavity. The aforesaid injuries, upon separating the truth from the falsehood in the testimony of the eye-witnesses, is clear that these injuries were caused by accused no.1 Pandhari. The accused no.1, therefore, would be liable to be convicted for the offences with which he was charged and convicted. The aforesaid injuries, upon separating the truth from the falsehood in the testimony of the eye-witnesses, is clear that these injuries were caused by accused no.1 Pandhari. The accused no.1, therefore, would be liable to be convicted for the offences with which he was charged and convicted. Accused no.1, therefore, would be liable to be punished for an offence punishable simpliciter under section 302 and 307 of the Indian Penal Code. In the light of the fact that the other accused are acquitted, the conviction of appellant no.1 i.e. original accused no.1 Pandhari for offence punishable under sections 147, 148 and 149 of the Indian Penal Code would be unsustainable and he would be liable to be convicted and sentenced for the offence punishable under section 302 and 307 of the Indian Penal Code. The appeal insofar as it is filed by accused no.1 Pandhari is liable to be dismissed. 19. Accordingly, Criminal Appeal No.79 of 2007 is partly allowed. Appellant no.2 Gangadhar s/o Vishnu Budhwant, appellant no.3 Vishnu Parasram Budhwant, appellant no.5 Pandurang @ Balu s/o Datta Budhwant and appellant no.6 Datta Parasram Budhwant are acquitted of the offence with which they were charged and convicted. The order of conviction and sentence passed against accused nos.2, 3, 5 and 6 by the Trial Court is hereby quashed and set aside. Since accused nos.2, 3, 5 and 6 are in jail, they be released forthwith, if not wanted in any other case. Fine if paid by these appellants be refunded to them. Appeal filed by appellant no.4 Parasram Shankar Budhwant abates as appellant no.4 Parasram expired on 28.9.2007. The conviction of appellant no.1 Pandhari Vishnu Budhwant is modified to simpliciter conviction under sections 302 and 307 of the Indian Penal Code. The sentence imposed for the aforesaid offences is maintained. He is, however, acquitted for offence punishable under sections 147, 148 & 149 of the Indian Penal Code. Fine if paid by him in respect of these offences be refunded to him.