JUDGMENT :- Shrihari P. Davare, J. 1. Perused. 2. In Criminal Appeal No. 814 of 2006, the challenge is to the conviction of the appellant/accused no.1 for the offence punishable under Section 302 of the Indian Penal Code, and sentence awarded to him to suffer imprisonment for life and to pay fine of Rs. 1,000/-, in default of payment of fine to suffer R.I. for three months, by the judgment and order rendered by the learned Ist Ad-hoc Additional Sessions Judge, Nanded in Sessions Case No. 87 of 2005 on 16.8.2006. By another Criminal Appeal No. 683 of 2008, the appellant/State has challenged the afore said judgment and order dated 16.8.2006 of acquittal of accused nos. 2 to 6 and prayed that they be convicted for the offences for which they were charged and tried for. During trial, accused nos. 1 to 6 were tried for the offences punishable under Sections 147, 148, 302 r/w 149 of the Indian Penal Code, on the allegations that the accused persons were members of an unlawful assembly and in prosecution of the common object of such assembly, they committed riot by deadly weapons, like Katti and committed murder by intentionally and knowingly causing death of deceased Dhammanand on 13.3.2005 at 00.15 hours at Dhanegaon. Accordingly, accused no.1 was convicted and sentenced for the offence punishable under Section 302 of the Indian Penal Code; whereas accused nos. 2 to 6 were acquitted from the afore said charges by way of judgment and order dated 16.8.2006 which has been impugned in aforesaid both the appeals. 3. Prosecution story is summarised as follows:- At the out set, it is to be noted that all the accused persons 1 to 6 are residents of Dhanegaon, Taluka and District Nanded and accused no. 2 Keshav and accused no.5 Shobhabai are the parents of accused no.1 Kamalakar. The complainant PW1 Baburao is resident of Balirampur, Taluka Nanded and the uncle of victim Dhammanand. Kailash, PW8 Rashtrapal and deceased Dhammanand are three sons of Sheshrao, who was resident of Dhanegaon at the time of incident and Sheshrao is the real brother of the complainant, namely PW1 Baburao. .4. It is alleged that on 12.3.2005 at about 9.00 p.m. there was a meeting of Mahila Alpa Bhachat Gat near Bouddha Mandir, but all of a sudden electric supply went off. .4. It is alleged that on 12.3.2005 at about 9.00 p.m. there was a meeting of Mahila Alpa Bhachat Gat near Bouddha Mandir, but all of a sudden electric supply went off. Hence, accused no.1 Kamalakar made inquiry with Kailash, who allegedly was the cause of disconnection of electric supply and thereupon there was exchange of abuses between Kailash and accused no.1 Kamalakar and accused no.1 Kamalakar pushed Kailash who sustained injuries on his person. Thereafter at about 10.00 p.m. on the said date, Sheshrao and his son Kailash went to complainant PW1 Baburao at Balirampur and they lodged report about the afore said incident at Nanded (Rural) police station. Thereafter, Sheshrao took Kailash to Civil Hospital, Nanded for treatment and the complainant PW1 Baburao returned to Dhanegaon at the house of his brother Sheshrao. On the way, deceased Dhammanand met him and PW1 Baburao disclosed the afore said episode of lodging report against accused no.1 Kamalakar. Thereafter complainant PW1 Baburao, deceased Dhammanand and PW8 Rashtrapal sat in front of house of Sheshrao on a cot and were chitchatting. 5. After lapse of some time, accused persons, namely, accused no.1 Kamalakar, accused no.2 Keshav, accused no.3 Dilip, accused no.4 Digambar, accused no.5 Shobhabai and accused no.6 Lalitabai came there at about 11.30 p.m. and made inquiry with Dhammanand why his brother Kailash raised quarrel and why he lodged report to police station and further asked Dhammanand to accompany with them to settle the dispute amicably. Accordingly, deceased Dhammanand accompanied them to the house of accused no.3 Dilip for the purpose of settlement in the matter. It is alleged that, after lapse of about ten minutes, complainant PW1 Baburao and PW8 Rashtrapal went to the house of accused no.3 Dilip on 13.3.2005 at about 00.15 a.m. However, they found that accused nos. 5 and 6 were standing in the door of the house of Dilip and prevented them from entering into the house and pushed them. They noticed that accused no.2 Keshav, accused no.3 Dilip and accused no.4 Digambar caught hold of Dhammanand in the house of Dilip and accused no. 1 Kamalakar was armed with Katti, who inflicted blow of Katti on the neck of Dhammanand and thereby Dhammanand died on the spot instantaneously. They noticed that accused no.2 Keshav, accused no.3 Dilip and accused no.4 Digambar caught hold of Dhammanand in the house of Dilip and accused no. 1 Kamalakar was armed with Katti, who inflicted blow of Katti on the neck of Dhammanand and thereby Dhammanand died on the spot instantaneously. Thereafter, it is also alleged that the afore said accused persons rushed towards complainant PW1 Baburao as well as PW8 Rashtrapal to assault them, but they fled away from the scene of offence and rushed towards Nanded (Rural) police Station. 6. Thereafter, it is the case of prosecution that PW1 Baburao lodged report at Nanded (Rural) police station in respect of afore said incident and accordingly, offence under C.R. No. 55 of 2005 came to be registered and criminal law was set into motion. PW12 PSI Manolikar started with the investigation and visited the scene of offence and spot panchanama was prepared. The blood stained carpet, iron rod and blood stains on the spot of incident were seized in presence of panchas under panchanama. He also recorded statements of witnesses. Accordingly, accused persons came to be arrested and their blood stained clothes were seized in presence of panchas. 7. Besides, inquest panchanama of the dead body of deceased Dhammanand was prepared and said dead body was sent to the Civil Hospital, Nanded for postmortem examination. PW11 Dr.Naresh Zanjal performed the autopsy on the dead body of deceased Dhammanand and prepared postmortem notes dated 13.3.2005 at Exh.76. He gave the cause of death of deceased Dhammanand as, “haemorrhagic shock due to chop wound over neck”. The blood stained clothes of deceased Dhammanand were also seized in presence of panchas under panchanama. 8. Thereafter it is alleged that blood stained Katti (article no.3) was recovered at the instance of accused no.1 Kamalakar from his house in presence of panchas under the memorandum panchanama Exhs. 39 and 40 in presence of PW3 Subhash Waghmare. It is further alleged that all muddemal properties were sent to the Regional Forensic Laboratory, Aurangabad through carrier PW10 Head Constable Gonarkar for examination purpose. So also, it is further alleged that PW9 Sanjay Jadhav took the photographs of dead body and also of the spot and said photographs are produced at Exhs. 60 to 67, the negatives at Exh.68 collectively and the receipt thereof at Exh.69. 9. So also, it is further alleged that PW9 Sanjay Jadhav took the photographs of dead body and also of the spot and said photographs are produced at Exhs. 60 to 67, the negatives at Exh.68 collectively and the receipt thereof at Exh.69. 9. Accordingly, after receipt of reports of postmortem and chemical analysis and after completion of investigation, chargesheet came to be filed against accused nos. 1 to 6 before the Judicial Magistrate, First Class, Nanded and since the offence punishable under Section 302 of the Indian Penal Code is exclusively triable by the court of Sessions, the said Sessions Case No. 87 of 2005 was committed to the court of Sessions, Nanded for trial. Thereafter charge came to be framed against accused nos. 1 to 6 at Exh. 17 under Sections 147, 148, 302 r/w 149 of the Indian Penal Code, but they did not plead guilty and claimed to be tried. The defence of the accused persons was of total denial and false involvement in the said case and they claimed to be innocent. 10. Accordingly, prosecution conducted the trial by examining in all 12 witnesses to substantiate the charges levelled against the accused persons as mentioned below:- TABLE 11. At the out set, it is to be assessed that the death of Dhammanand was homicidal or accidental. In the said context, the evidence of PW11 Dr. Naresh Zanjal, Postmortem notes Exh.76, Inquest panchanama Exh.36 and Spot panchanama Exh.37 are required to be scrutinized. Coming to the evidence of PW11 Dr. Naresh Zanjal, he stated that he .was serving as a Lecturer in the Department of Forensic Medicines, Government Medical College, Nanded on 13.3.2005 and he received the dead body of Dhammanand through police station (Rural) Nanded for postmortem purpose. Accordingly, he conducted postmortem on the said dead body between 8.40 a.m. to 10.00 a.m. on the same day and found the external injuries thereon as described in column no. 17 of the postmortem report. He further stated that the said external injuries were ante mortem in nature. He also stated that on internal examination, he found, brain matter was pale and edematous. Both lungs, edematous liver, pancreas, spleen kidneys were pale. He gave cause of death as haemorrhagic shock due to chop wound over neck. 12. He further stated that blood sample of the said dead body was taken for blood grouping. He also stated that on internal examination, he found, brain matter was pale and edematous. Both lungs, edematous liver, pancreas, spleen kidneys were pale. He gave cause of death as haemorrhagic shock due to chop wound over neck. 12. He further stated that blood sample of the said dead body was taken for blood grouping. Accordingly, he prepared the postmortem notes, which are produced at Exh.76. He was also shown the weapon Katti Article ‘C’ and he stated that injury mentioned in column no. 17 of the postmortem report can be possible by said Article ‘C’. He also gave the probable time of death i.e. 8 to 12 hours before conducting postmortem. 13. PW11 Dr. Naresh Zanjal was confronted with article ‘C’ Katti and he stated that he is able to distinguish between Katti and Axe and that if the pointed part of weapon is touched to the body then penetrating wound can be possible; whereas incised injury can be possible by any sharp cutting weapon and chop wound can be possible by sharp weapon like axe. He further stated that the weapon article ‘C’ is not just like axe. Axe is a heavy, sharp edged weapon. He also denied the suggestion that chop wound is not possible by Katti article ‘C’. However, he categorically stated that there was only one injury on the neck of the deceased. 14. Considering the testimony of PW11 Dr. Naresh Zanjal, it is amply clear that he withstood with the cross-examination and he assertively stated the cause of death of the deceased as haemorrhagic shock due to chop wound over neck. He established the nexus between the external and internal injuries as stated in postmortem notes Exh.76. No doubt, he admitted that if a person is sleeping on right shoulder, the above injury can be possible by article ‘C’ Katti and that chop wound can be possible by sharp weapon like axe. However, during cross-examination of the complainant and alleged eye witness PW8 Rashtrapal, there is no suggestion on behalf of defence that when deceased was sleeping on the right shoulder, any sharp cutting weapon fell or came into contact with deceased Dhammanand and, therefore, the said admission obtained by defence is of no consequence, and accordingly, evidence of PW11 Dr.Naresh Zanjal established that the deceased Dhammanand succumbed to homicidal death. 15. That takes us to the inquest panchanama Exh. 15. That takes us to the inquest panchanama Exh. 36 which was produced through PW2 Panch witness Anandrao. He stated that the police personnel prepared the inquest panchanama of the dead body in presence of panchas on 13.3.2005 and he personally saw the dead body and there was injury on the left side of throat having dimensions of 4½ inches and he signed on the said panchanama having its contents true and correct and marked as Exh.36. He further stated that spot panchanama was prepared in presence of panchas by police personnel and he saw the spot of the incident and blood was found on the ground. There was wooden cot and carpet thereon was stained with blood. There were blood stains on the wall. He proved the said panchanama at Exh.37. He further stated that police collected the blood sample from the ground and wall with cotton swab. He further stated that there was one iron rod on the carpet and police personnel seized the said iron rod also under the spot panchanama. He identified the iron rod article ‘A’ and carpet article ‘’B” in the court. 16. As regards the inquest panchanama and spot panchanama Exhs. 36 and 37, the testimony of PW2 Panch Anandrao can be safely accepted, since it has not been shaken in the cross-examination. Moreover, the contents of the inquest panchanama Exh.36 corroborate with the medical evidence on record leading to the position that the death of deceased Dhammanand was homicidal. Thus, it is amply clear that by no stretch of imagination, it can be inferred that the death of deceased Dhammanand occurred accidentally. Hence, the learned trial Judge has rightly arrived at the conclusion that deceased Dhammanand met with the homicidal death and no interference therein is warranted. 17. That takes us to further vital question whether accused nos. 1 to 6, at the relevant time, were members of an unlawful assembly and in prosecution of their common object they committed rioting and they were armed with deadly weapons like Katti and they committed murder by intentionally and knowingly causing death of deceased Dhammanand and in the said context, the prosecution relied upon three eye witnesses to the occurrence of incident of murder of deceased Dhammanand, namely PW1 Baburao i.e. complainant, PW7 Raosaheb and PW8 Rashtrapal i.e. younger brother of victim. 18. 18. Coming to the evidence of PW1 Baburao i.e. complainant, he is the resident of Balirampur and is the uncle of victim Dhammanand. He stated that the incident took place on 12.12.2005 at 12 O’ clock in the night. Therebefore, at about 10.00 p.m. he was in his house and his brother Sheshrao and his son Kailash came to him and requested him to accompany with them to police station. Thereupon he inquired about the reason therefor and his nephew Kailash replied that there was a meeting of women in respect of women saving group in village Balirampur near temple of Annabhau Sathe at about 9.00 p.m. However, in the mean while, electricity went off. Hence, accused no.1 Kamalakar started abusing and wandering on the road. Thereupon Kailash inquired with accused no.1 Kamalakar why he was abusing, but accused no.1 Kamalakar assaulted him and pushed him on the road and, therefore, he sustained injury on the face. 19. The testimony of PW1 Baburao further reflects that he accompanied with his brother Sheshrao and nephew Kailash and they filed report in Nanded (Rural) police station. The police referred Kailash to the Government Hospital, Nanded. Hence, his brother Sheshrao and Kailash proceeded towards Civil Hospital, Nanded and PW1 Baburao went to the house of Sheshrao. He further stated that on the way he met Dhammanand, to whom he narrated regarding lodging of the report and they proceeded to house of Sheshrao. Thereafter PW1 Baburao and his nephew Dhammanand sat on the cot in front of house of Sheshrao and were chitchatting. 20. The deposition of PW1 Baburao further reflects that at that time six persons namely, Kamalakar (accused no.1), Digamber (accused no.4), Dilip (accused no.3), Keshav (accused no.2), Shobhabai (accused no.5) and Lalitabai (accused no. 6) came there at the house of Sheshrao and called Dhammanand and disclosed him that his father has gone to police station for filing report and his father and brother Kailash returned to house and asked Dhammanand to accompany with them to settle the matter and took him to the house of accused no.3 Dilip. PW1 Baburao further stated that after lapse of about ten minutes, he and PW8 Rashtrapal went to the house of Dilip. PW1 Baburao further stated that after lapse of about ten minutes, he and PW8 Rashtrapal went to the house of Dilip. It was at about 11.30 p.m. and from a distance of about 10 feet he saw in the house of accused no.3 Dilip that victim Dhammanand was lying on the cot and accused no.2 Keshav, accused no.4 Digamber and accused no.3 Dilip had caught hold of victim Dhammanand and accused no.1 Kamalakar was assaulting victim Dhammanand and gave a blow of Katti on the neck of Dhammanand. 21. He further deposed that when he tried to enter into the said house of accused no.3 Dilip, accused no.5 Shobhabai and accused no.6 Lalitabai resisted and prevented him to enter into the house and pushed him. PW1 Baburao also stated in the cross-examination that wooden cot shown in the map in the spot panchanama is not visible unless one enters into the house of accused no.3 Dilip. He also stated that victim Dhammanand was killed on the spot by accused no.1 Kamalakar by inflicting blow of Katti. Thereafter all the afore said accused chased after PW1 Baburao, but he and PW8 Rashtrapal ran away and went to police station (Rural), Nanded and PW1 Baburao filed the report which is proved at Exh.33. PW1 Baburao also identified accused persons in the court. 22. During cross-examination, PW1 Baburao admitted that all cited witnesses i.e. PW8 Rashtrapal, Kailash, Sheshrao, Ranjanabai, Ashatai, Sambhaji, Chandrakalabai, Tatyarao, Sainath, Bharabai, Gangabai and Kondabai are his close relatives. Hence, it was urged by the appellant that the said cited witnesses and eye witnesses are the close relatives of deceased Dhammanand and, therefore, they are interested witnesses and hence their evidence cannot be accepted. However, it is settled principle of law that such witnesses cannot be branded as interested witnesses on account of their relations, but their testimony is required to be scrutinized closely and with great care and caution and, therefore, on the said count the testimonies of eye witnesses cannot be discarded. 23. There are few omissions in the complaint filed by PW1 Baburao, which amounted to improvement in his testimony, such as that he stated in his deposition that when accused persons had been to the house of Sheshrao, they disclosed to Dhammanand that his father and brother had been to the house, which is not stated in the report Exh.33. 23. There are few omissions in the complaint filed by PW1 Baburao, which amounted to improvement in his testimony, such as that he stated in his deposition that when accused persons had been to the house of Sheshrao, they disclosed to Dhammanand that his father and brother had been to the house, which is not stated in the report Exh.33. However, the said omission does not appear to be vital and does not go to the root of the matter and considering totality of testimony of PW1 Baburao, it has not been shaken in the cross-examination. 24. Keeping in mind the said aspects and coming to the deposition of another eye witness PW8 Rashtrapal, who is the real brother of victim Dhammanand, who is also a child witness, PW8 Rashtrapal stated that it was Saturday on the day of incident and since accused no.1 Kamalakar assaulted his brother Kailash, his father and Kailash went to police station for filing report against accused no.1 Kamalakar and he and his elder brother Dhammanand were present in the house and were waiting for arrival of their father and brother from police station. Thereafter Dhammanand told PW8 Rashtrapal that he would come to police station to see his father and brother and accordingly his uncle PW1 Baburao and Dhammnand returned to house after some time and they were sitting on the cot in front of house and were chitchatting. 25. His testimony also reflects that meanwhile Kamalakar, Digamber, Keshav, Dilip, Shobhabai and Lalitabai came there and accused no.1 told victim Dhammanand that quarrel had taken place between him and his brother and he would settle the dispute and asked Dhammanand to accompany with them and said accused persons took Dhammanand to the house of accused no.3 Dilip. He further stated that after lapse of ten minutes, he and his uncle Baburao went to the house of accused no.3 Dilip and saw that accused no.5 Shobhabai and accused no.6 Lalitabai were standing near the door of house of accused no.3 Dilip and they did not allow them to enter into the house of Dilip. He further stated that by standing in front of the house of accused no.3 Dilip, he saw accused no.4 Digamber, accused no.2 Keshav and accused no.3 Dilip had caught hold of his brother Dhammanand and accused no.1 Kamalakar assaulted victim Dhammanand by blow of Katti on the neck of Dhammanand. He further stated that by standing in front of the house of accused no.3 Dilip, he saw accused no.4 Digamber, accused no.2 Keshav and accused no.3 Dilip had caught hold of his brother Dhammanand and accused no.1 Kamalakar assaulted victim Dhammanand by blow of Katti on the neck of Dhammanand. He also stated that he and PW1 Baburao tried to enter into the house of accused no.3 Dilip, but accused no.5 Shobhabai and accused no.6 Lalitabai did not allow them to enter into the said house and pushed them. He further stated that all the accused rushed towards PW8 Rashtrapal and PW1 Baburao, but they fled away from the spot. On the way, they met Sheshrao and Kailash and all of them went to police station CIDCO, Nanded and PW1 Baburao filed report Exh.33. 26. As regards the location of the incident, he stated in the cross-examination that the house of accused no.3 Dilip is situated at a distance of 40 feet from road and there was a courtyard between the said house and the road. He also stated that they went to the house of accused no. 3 Dilip by road by crossing Ota of Buddha Vihar. The width of door of the house is 2½ x 3 feet. Accused no.5 Shobhabai and accused no.6 Lalitabai were standing near Ota which is in front of the door of the house of accused no.3 Dilip. He further stated that both accused no. 5 Shobhabai and accused no.6 Lalitabai were not standing at the thresh of the door. He also stated that they were trying to enter into the house of accused no.3 Dilip to separate victim Dhammanand from the accused, but accused nos. 5 Shobhabai and accused no. 6 Lalitabai pushed them. However, he categorically stated that he has seen the incident of catching the accused persons to victim Dhammanand for assaulting him from a distance of 5 to 10 feet from the door of house of accused no.3 Dilip. 27. 5 Shobhabai and accused no. 6 Lalitabai pushed them. However, he categorically stated that he has seen the incident of catching the accused persons to victim Dhammanand for assaulting him from a distance of 5 to 10 feet from the door of house of accused no.3 Dilip. 27. Besides that, there are few contradictions i.e. portion marked ‘A’ and portion marked ‘B’ in respect of his statement that accused no.1 Kamalakar was standing in the door and assaulted the deceased Dhammanand by blow of Katti on his neck and committed his murder (portion marked ‘A’) and his statement that he himself, his uncle Baburao, Shobhabai and Baban have seen the incident by standing in the door (portion marked ‘B’). 28. On the face of the said evidence, it was urged on behalf of the appellant that there was no electric supply and it was night time and there was darkness and due to poor visibility PW1 Kamalakar and PW8 Rashtrapal could not see the alleged occurrence of incident. It was further urged that considering the situation of house of accused no.3 Dilip, it was impossible for eye witnesses to see the wooden cot in the house of accused no.3 Dilip and even the map of spot panchanama clarifies that the cot shown in the map is not visible unless one enters in the house of accused no.3 Dilip. 29. It was further urged that, in fact, accused no. 1 Kamalakar came forward to settle the dispute and deceased Dhammanand was taken for said settlement and the intention was to compromise the matter and, therefore, there was no intention to murder the victim by giving blow of Katti on his neck. It was also submitted that the prosecution has failed to prove the enmity and rivalry between accused no.1 Kamalakar and victim Dhammanand. It is further stated that there was no overt act by accused nos. 2 to 6 and there was no assault by them and they were not armed with weapon at the time of alleged incident. It is further submitted by learned counsel for the appellants that knowledge cannot be attributed to accused nos. 2 to 6 that accused no.1 Kamalakar would pick up Katti and assault victim, since even accused no.1 Kamalakar did not carry Katti with him. 30. It is further submitted by learned counsel for the appellants that knowledge cannot be attributed to accused nos. 2 to 6 that accused no.1 Kamalakar would pick up Katti and assault victim, since even accused no.1 Kamalakar did not carry Katti with him. 30. Having a comprehensive view of the evidence of afore said two eye witnesses and also the contents of spot panchanama and inquest panchanama, as well as the submissions made by the learned counsel for the appellants, it has come in the evidence of PW2 Panch Anandrao that there was electric bulb in the room of accused no.3 Dilip, although there was no electricity in front of his house, and therefore, it is amply clear that there was requisite visibility in the said house and there is no impediment for PW1 complainant Baburao and PW8 Rashtrapal to witness the occurrence of the incident and the argument canvassed by learned counsel for the appellants in respect of poor visibility in the house of accused no.3 Dilip bears no substance. 31. Besides, although PW1 Baburao admitted that wooden cot shown in the map of spot panchanama is not visible unless one enters into the house of accused no.3 Dilip, as well as although PW12 Investigating Officer P.S.I. Manolikar has admitted that if person standing outside the northern door at a distance of 5 feet cannot see the eastern wall of the said house, it is apparently not digestible that PW1 Baburao and PW8 Rashtrapal were prevented by two ladies i.e. accused no.5 Shobhabai and accused no.6 Lalitabai near the entrance door of the house of accused no.3 Dilip, since the two male persons i.e. PW1 Baburao and PW8 Rashtrapal could have certainly over powered the said two ladies i.e. accused no.5 Shobhabai and accused no. 6 Lalitabai. 32. 6 Lalitabai. 32. Even assuming for the sake of assumption without admitting that the two ladies i.e. accused no.5 Shobhabai and accused no.6 Lalitabai allegedly prevented PW1 Baburao and PW8 Rashtrapal at the entrance door of the house of accused no.3 Dilip, PW1 Baburao and PW8 Rashtrapal who were standing in the door of the house of accused no.3 Dilip certainly could have witnessed the occurrence of the incident in the house of accused no.3 Dilip by peeping through the door of the said house and, therefore, there is no substance in the argument canvassed by the learned counsel for the appellants in that respect. 33. Besides that, sight cannot be lost of the very aspect that Exh.66 photograph produced on record discloses that apart from the entrance door of the house of accused no.3 Dilip, there was one grill window in the same wall of the door and if, as contended by the appellant, PW1 Baburao and PW8 Rashtrapal were prevented at the door of the said house by accused no. 5 Shobhabai and accused no.6 Lalitabai, they had every opportunity to peep through the said grill window into the house of accused no.3 Dilip and, therefore also, it can be very well construed that PW1 Baburao and PW8 Rashtrapal could have witnessed the occurrence of incident of assault upon victim Dhammanand in the said house, since it is the natural tendency that if one is prevented for the entry through the door, he would certainly either peep through the said door or certainly peep through the grill window in the same wall and accordingly, the testimonies of PW1 Baburao and PW8 Rashtrapal certainly reflected that they have witnessed the occurrence of incident of assault upon deceased Dhammanand in the house of accused no.3 Dilip. 34. Coming to the next part i.e. actual occurrence of the incident, in the said context PW1 Baburao has clearly stated in his cross-examination that he has seen only blow of Katti given by accused no.1 Kamalakar to deceased Dhammanand. His evidence is vague regarding alleged overt act of accused nos. 34. Coming to the next part i.e. actual occurrence of the incident, in the said context PW1 Baburao has clearly stated in his cross-examination that he has seen only blow of Katti given by accused no.1 Kamalakar to deceased Dhammanand. His evidence is vague regarding alleged overt act of accused nos. 2 to 6, since he vaguely stated that accused no.2 Keshav, accused no.4 Digamber and accused no.3 Dilip caught hold of deceased Dhammanand and accused no.5 Shobhabai and accused no.6 Lalitabai were standing in the door of house of accused no.3 Dilip and accordingly he has not stated the specific overt act of accused nos. 2 to 6 besides their afore said alleged roles. Moreover, as per the evidence, deceased Dhammanand was about 19 years old at the time of incident and it is not the prosecution case that he was strong and stout and, therefore, apparently it was not necessary to catch hold of deceased Dhammanand while assaulting on him by accused no.1 Kamalakar. 35. Besides, even the testimonies of PW1 Baburao and PW8 Rashtrapal did not specify as to which part of the body of deceased Dhammanand was held by which of the accused i.e. Keshav, Digamber and Dilip and both the eye witnesses PW1 Baburao and PW8 Rashtrapal have not furnished the said details in their respective testimonies and vague statement is made that accused Keshav, Digamber and Dilip caught hold of deceased Dhammanand and such vague statement made by them cannot be accepted. Hence, the account given by both the eye witnesses i.e. PW1 Baburao and PW8 Rashtrapal in respect of involvement of accused nos. 2 to 6 in the afore said assault upon deceased Dhammanand does not involve accused nos. 2 to 6 therein. However, the evidence of both the said eye witnesses i.e. PW1 Baburao and PW8 Rashtrapal is certainly credit worthy and reliable in respect of blow of Katti inflicted by accused no.1 Kamalakar on the neck of victim Dhammanand and thereby murdered him and hence, same is required to be accepted and consequently same is required to be believed. 36. As regards the testimony of PW8 Rashtrapal, there is another angle that he is a child witness and, therefore, after close scrutiny of his deposition, it appears that he has not suppressed material facts in his version. It also appears that he was not tutored. 36. As regards the testimony of PW8 Rashtrapal, there is another angle that he is a child witness and, therefore, after close scrutiny of his deposition, it appears that he has not suppressed material facts in his version. It also appears that he was not tutored. As mentioned herein above, except portion marked ‘A’ and portion marked ‘B’, which amount to contradiction, his testimony is supporting the case of the prosecution, and as discussed herein above, the contents of portion marked ‘B’ are not vital and do not go to the root of the matter and the contents of portion marked ‘A’ do not diminish the credibility of his testimony. Accordingly, after scanning the versions of PW1 Baburao and PW8 Rashtrapal, we have no hesitation to hold that their evidence is consistent and believable regarding the overt act of accused no.1 Kamalakar that he inflicted blow of Katti on the neck of deceased Dhammanand and caused his death and the medical evidence also corroborates with the said ocular evidence of two eye witnesses, and hence, the said evidence cumulatively connects accused no.1 Kamalakar with the crime. 37. That takes us to the testimony of third eye witness PW7 Raosaheb Gajbhare, who stated that at about 12 O’ clock in the night of 12.3.2005, after chitchatting he was going to his house and at that time he saw that accused no.1 Kamalakar, accused no.2 Keshav, accused no.3 Dilip, accused no.5 Shobhabai, accused no.6 Lalitabai and accused no.4 Digamber were dragging victim Dhammanand in the house of accused no.3 Dilip. After seeing the said incident, he went to his house. Thereafter, after lapse of about 10 to 15 minutes, he heard shouts of weeping from the house of accused no.3 Dilip. Hence, he immediately went there and saw that Dhammanand was lying on the ground and he had received injury on his neck, which was bleeding and he also identified the accused persons in the court. However, he admitted in the cross-examination that the accused did not take deceased Dhammanand to the house of accused no.3 Dilip by giving understanding for compounding dispute in his presence and he denied the contents of portion marked ‘A’ amounting to contradiction in respect of the said statement. Pertinently, he stated in his cross-examination that while accused were dragging deceased Dhammanand, he did not raise shouts, which is unnatural. Pertinently, he stated in his cross-examination that while accused were dragging deceased Dhammanand, he did not raise shouts, which is unnatural. Moreover, he also stated that police came on the spot of the incident in the said night, but he did not state before police that he witnessed while dragging Dhammanand to the house of accused no.3 Dilip, which is also unnatural. 38. In the natural course of events, had the accused persons dragged Dhammanand in front of the house of accused no.3 Dilip, he should have raised shouts, but so did not happen, as well as in the natural course of events, when police personnel came to the spot of incident on the same night, he would have disclosed the said fact of dragging deceased Dhammanand by the accused persons to police, but so did not happen, which certainly raises suspicion about the said version of PW7 Raosaheb Gajbhare. Moreover, it is also curious to note that he stated that police recorded his statement after 1 or 2 days from the date of incident, which leads to the position that PW7 Raosaheb Gajbhare kept silence till recording of his statement by police on 14.3.2005 and, therefore, his veracity certainly comes under the cloud of suspicion. Besides that, it is nobody’s case that deceased Dhammanand was dragged by the accused persons to the house of accused no.3 Dilip and the theory in that respect advanced by PW7 Raosaheb Gajbhare has no support and corroboration from the other witnesses and, therefore, also the said solitary and isolated testimony of PW7 Raosaheb Gajbhare in respect of the said theory cannot be accepted. 39. Apart from that, as regards the lodging of the first information report, it is apparent that the alleged incident of assault took place at about 12.15 a.m. in the night between 12.3.2005 and 13.3.2005 and PW1 Baburao immediately rushed towards Nanded (Rural) police station and lodged the report and thereupon the crime was registered at about 1.35 a.m. It has come on record that the distance between village Dhanegaon and Nanded (Rural) police station is about 2 to 2½ kms. and considering the said distance and night time, we are of the considered view that the first information report was lodged promptly and there is no delay therein. 40. and considering the said distance and night time, we are of the considered view that the first information report was lodged promptly and there is no delay therein. 40. Coming to the vital aspect of discovery of the weapon i.e. Katti at the instance of accused no.1 Kamalakar, the testimony of PW3 Subhash Waghmare reflects that after making the voluntary statement by accused no.1 Kamalakar on 17.3.2005 before police and after recording memorandum Exh.39 in that respect, accused no.1 Kamalakar led the police personnel and panchas to his house and entered into it and produced one Katti, which was concealed below an empty gunny bag and same was seized under seizure panchanama Exh.40 after sealing thereof. PW3 Subhash Waghmare identified the said Katti in the court i.e. article ‘C’ which bore blood stains. He also identified accused no.1 Kamalakar in the court. He stated in his cross-examination that accused no.1 Kamalakar was taken without hand cuff. He has categorically stated that he was not aware about death of Dhammanand prior to his calling at Nanded (Rural) police station for the said memorandum panchanama. The testimony of said panch witness PW3 Subhash Waghmare has not been shaken in the cross-examination, and therefore, it certainly connects accused no.1 Kamalakar with the discovery/recovery of Katti at his instance. 41. As regards seizure of the clothes, the prosecution examined PW4 Govind Adapwar, who has deposed that blood stained clothes of accused no.4 Digamber were seized under panchanama Exh.42 on 15.3.2005. The clothes of accused no.1 Kamalakar, accused no.2 Keshav, accused no.3 Dilip, accused no.5 Shobhabai and accused no.6 Lalitabai were seized in presence of panch witness PW5 Chandrakant Jogdand on 13.3.2005 under panchanamas Exhs. 44, 45, 46, 47 and 48, respectively. However, the examination-in-chief of PW4 Govind Adapwar does not disclose the name of the accused (accused no.4 Digamber) whose clothes were seized in his presence under panchanama Exh.42 and he stated the name of accused no.4 Digamber in his cross-examination. Moreover, PW5 Chandrakant Jogdand admitted in cross-examination that it is not mentioned in the above panchanamas i.e. Exhs. 44 to 48, that the clothes were seized from the person of the accused persons. He also admitted that neither women panchas nor lady constable were present at the time of seizure of clothes from the lady accused i.e. accused no.5 Shobhabai and accused no.6 Lalitabai. 44 to 48, that the clothes were seized from the person of the accused persons. He also admitted that neither women panchas nor lady constable were present at the time of seizure of clothes from the lady accused i.e. accused no.5 Shobhabai and accused no.6 Lalitabai. He further stated that except clothes of main accused i.e. accused no.1 Kamalakar, he did not remember the colour of the clothes of another accused. He also stated that he saw only accused no.1 Kamalakar in police station on 13.3.2005 and did not see other accused persons. 42. Accordingly, the way and manner in which PW4 Govind Adapwar and PW5 .Chandrakant Jogdand have deposed does not inspire confidence in respect of their testimonies as regards the seizure of the clothes from accused nos. 2 to 6. 43. As regards seizure of clothes of the victim Dhammanand, PW6 Kishan Zunjare stated that on 13.3.2005 the police personnel seized blood stained pant, shirt and underwear of deceased Dhammanand in his presence, which are marked as article nos. 4 to 6 respectively. However, he admitted in cross-examination that the police personnel did neither read over contents of panchanama nor did he asked police personnel to read the contents thereof. He further admitted that he signed on the seizure panchanama at the instance of police personnel and clothes were not seized in his presence. Hence, seizure panchanama Exh.51 in respect of seizure of clothes of victim comes under the suspicion. 44. Then we turn to the chemical analyser’s report at Exh.88 and since the discovery of Katti at the instance of accused no.1 Kamalakar under memorandum panchanama is the believable piece of evidence and it’s chemical analysis report indicates that article I1 i.e. Katti was stained with ‘O’ blood group, which is of the victim Dhammanand as per chemical analysis report Exh.90. It establishes nexus between the crime and accused no.1 herein. However, as regards accused nos. 2 to 6, as discussed hereinabove, seizure of their clothes in presence of panch witnesses PW4 Govind and PW5 Chandrakant respectively are under the cloud of suspicion. The chemical analysis report thereof are of no consequence to connect them with the alleged guilt. 45. That takes us to the next aspect of unlawful assembly. There are two essential ingredients of Section 149 of the Indian Penal Code. The chemical analysis report thereof are of no consequence to connect them with the alleged guilt. 45. That takes us to the next aspect of unlawful assembly. There are two essential ingredients of Section 149 of the Indian Penal Code. (i) Commission of an offence by any member of an unlawful assembly, and (ii) Such offence must have been committed in prosecution of the common object of that assembly or must be such as the members of that assembly knew to be likely to be committed. Hence, it is necessary to prove that the person charged with the offence under Section 149 of the Indian Penal Code was a member of the unlawful assembly at the time of the offence was committed. Unless these elements are satisfied by the prosecution, the accused cannot be convicted under Section 149 of the Indian Penal Code. Moreover, simultaneously it is also not necessary to establish by the prosecution that the accused has actually committed a criminal act or not being member of an unlawful assembly. The common object need not require prior concert or common meeting of minds before the attack and unlawful object can develop after the assembly gathered before the commission of crime at a spot itself. It would be enough that the members of assembly which constitutes five or more persons have a common object and that they acted as an assembly to achieve that object. 46. In the said connection, Shri Shinde holding for Smt. S.S.Jadhav, learned counsel for the respondents/accused nos. 2 to 6 relied upon the following observations made by the Honourable Apex Court reported at 2006 ALL MR (Cri) 1521 (S.C.), Munna Chanda vs State of Assam [S.B.Sinha & Dalveer Bhandari, JJ.]:- “11. Section 149, IPC creates a specific and distinct offence. There are two essential ingredients thereof. (i) Commission of an offence by any member of an unlawful assembly, and (ii) Such offence must have been committed in prosecution of the common object of that assembly or must be such as the members of that assembly knew to be likely to be committed. 12. It is, thus, essential to prove that the person sought to be charged with an offence with the aid of Section 149 was a member of the unlawful assembly at the time the offence was committed. 13. The appellants herein were not armed with weapons. 12. It is, thus, essential to prove that the person sought to be charged with an offence with the aid of Section 149 was a member of the unlawful assembly at the time the offence was committed. 13. The appellants herein were not armed with weapons. They except Bhuttu were not parties to all the three stages of the dispute. At the third stage of the quarrel, they wanted to teach the deceased and others a lesson. For picking up quarrel with Bhuttu, they might have become agitated and asked for apologies from Moti. Admittedly, it was so done at the instance of Nirmal, Moti was assaulted by Bhuttu at the instance of Rattan. However, it cannot be said that they had common object of intentional killing of the deceased. Moti, however, while being assaulted could free himself from the grip of the appellants and fled from the scene. The deceased, was being chased not only by the appellants herein but by many others. He was found dead next morning. There is, however, nothing to show as to what role the appellants either conjointly or separately played. It is also not known as to whether if one or all of the appellants were present, when the last blow was given. Who are those, who had assaulted the deceased is also not known. At whose hands he received injuries is again a mystery. Neither Section 34 nor Section 149 of the Indian Penal Code is, therefore, attracted. (See Dharam Pal and others Vs. State of Haryana, (1978) 4 SCC 440 and Shambhu Kuer Vs. State of Bihar, AIR 1982 SC 1228 ). 15. Furthermore, it is evident that no evidence has been brought on records to establish that the appellants Munna and Ujjal had committed any offence. As noticed hereinbefore, they were not named in the FIR. They were not identified in the dock. No witness has taken their names as the persons who committed any overt act. No recovery has been made from them. There is also no evidence that they had chased the deceased. As it had not been established that the appellants were members of an unlawful assembly, in our opinion, they could not have been convicted for commission of an offence under Section 302/149 I.P.C.” 47. No recovery has been made from them. There is also no evidence that they had chased the deceased. As it had not been established that the appellants were members of an unlawful assembly, in our opinion, they could not have been convicted for commission of an offence under Section 302/149 I.P.C.” 47. On the other hand, learned A.P.P. Shri B.J.Sonwane for the prosecution relied upon following observations made by the Honourable Supreme Court in the case reported at 2009 ALL MR (Cri) 1612, Rajesh A.Behere & Ors. Vs State of Maharashtra [Swatanter Kumar, C.J. & Dr. D.Y.Chandrachud, J.]:- “Common object of an unlawful assembly has to be established. This can be established by direct evidence or by circumstantial evidence duly corroborated by evidence of other prosecution witnesses. Section 149 of the Code makes the member of an assembly vicariously liable where it is proved that offence is committed in pursuance to common object of the unlawful assembly which members of unlawful assembly knew to be likely to be committed in prosecution of the object of unlawful assembly. Once it is established that unlawful assembly had common object, it is not necessary that all the persons forming the unlawful assembly must be shown to have committed some overt act for the purposes of acquiring the vicarious liability. A crucial question to be determined is whether assembly is consisting of five or more persons and whether the said persons are aware of facts which render the assembly unlawful for having common object as specified in Section 141 of the I.P.C. It cannot be laid down as a general proposition of law that unless an overt act is proved against the person who is alleged to be member of an unlawful assembly, he can not be held to be liable. The only thing required is that he should have understood that assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The object should be common.” 48. Applying the test of the afore said ingredients of Section 149 of the Indian Penal Code and also applying the parameters of the observations made by the Honourable Apex Court in the afore said Rulings, it is evident that accused nos. 1 to 6 had gone to the house of Sheshrao and called victim Dhammanand and took him to house of accused no. 1 to 6 had gone to the house of Sheshrao and called victim Dhammanand and took him to house of accused no. 3 Dilip to settle the dispute and it was an invitation for compromise and no ill will can be attributed in respect of said common object and by no stretch of imagination, it can be construed and inferred that accused nos. 1 to 6 were members of unlawful assembly in prosecution of common object to assault deceased Dhammanand and accused nos. 2 to 6 were knowing that accused no.1 Kamalakar would assault deceased Dhammanand and would commit his murder. Mere presence of accused nos. 2 to 6 in the unlawful assembly cannot render them liable, unless there is proof of common object to murder the victim which was shared by them and no such proof has been established by the prosecution against the said accused persons. 49. Hence, it is amply clear that the prosecution has failed to prove and establish that accused nos. 1 to 6 were members of an unlawful assembly in prosecution of common object to assault victim Dhammanand and they were armed with deadly weapons, and no interference is called for in the conclusion drawn by the learned Trial Court in that respect. Besides that, the evidence against accused nos. 2 to 6 is not cogent and reliable and, therefore also, they cannot be convicted for the charges leveled against them. 50. However, as regards accused no.1 Kamalakar, after giving anxious consideration, we are of the view that there is cogent and reliable evidence against accused no.1 Kamalakar, which establishes the guilt against him beyond reasonable doubt, since accused no.1 Kamalakar committed murderous attack upon the neck of the victim Dhammanand by Katti, which itself establishes his intention to kill victim, considering the blow inflicted by him on the vital part of the body of victim Dhammanand, which resulted in to instantaneous death of said victim on the spot itself and hence, the Trial Court has rightly held accused no. 1 Kamalakar guilty for the offence punishable under Section 302 of the Indian Penal Code and no interference therein is called for in the present appeal. 51. In the circumstances, having comprehensive view of the matter, the view adopted by the Trial Court is the possible view in the facts and circumstances of the present matter. 1 Kamalakar guilty for the offence punishable under Section 302 of the Indian Penal Code and no interference therein is called for in the present appeal. 51. In the circumstances, having comprehensive view of the matter, the view adopted by the Trial Court is the possible view in the facts and circumstances of the present matter. Hence, no interference is warranted in the finding and conclusion rendered by the learned Ist Adhoc Additional Sessions Judge, Nanded in the impugned judgment and order passed by him in Sessions Case No. 87 of 2005 on 16.8.2006 and hence, both Criminal Appeal No. 814 of 2006 and Criminal Appeal No. 683 of 2008 stand dismissed.