JUDGMENT (Per S. B. Deshmukh) 1. The appellants along with co-accused were tried for the offence punishable under Section 302 r/w 149, 147, 148, 307 R/W 149 of the Indian Penal Code in Sessions Trial No. 186 of 1995 by the learned Sessions Judge, Akola. The appellants, on trial, have been convicted of the offence punishable under Section 148, 307 r/w 149 and 302 r/w 149 of the Indian Penal Code, and were sentenced to suffer R.I. for 1 year and 6 months and to pay fine of Rs.1000/- each, in default of payment of fine, the accused were directed to undergo further R.I. for two months for the offence punishable under Section 148 of the Indian Penal Code. They are also sentenced to suffer R.I. for 7 years each and to pay fine of Rs.3000/- each, in default of payment of fine, they were directed to undergo further R.I. for six months; for the offence punishable under Section 307 r/w 149 of the Indian Penal Code. They are sentenced to suffer imprisonment for life each and to pay fine of Rs.5000/- each, in default of payment fine, they were directed to undergo further R.I. for one year; for the offence punishable under Section 302 r/w 149 of the Indian Penal Code. All sentences have been directed to run concurrently. Set off under Section 428 of Criminal Procedure Code has been granted. The co-accused who were tried with the appellants have been acquitted of the offence with which they were charged and their bail bonds have been cancelled. This judgment of conviction and acquittal in Sessions Trial No.186 of 1995, was delivered by the learned Sessions Judge, Akola, on July 31st 2004. The appellants are referred to their status as the accused at its serial number in Session Trial No.186 of 1995 for the sake of convenience. 2. At the outset, we have noticed that in all 11 accused persons namely Satish Ramsing Mungona (Accused No.1), Sumersing Ramsing Mungona (Accused No.2), Jaggu Ramsing Mungona (Accused No.3), Rajusing Ramsing Mungona (Accused No.4), Surendrasing Ramsing Mungona (Accused No.5), Vikramsing Ramsing Mungona (Accused No.6), Ranjitsing Ramsing Mungona (Accused No.7), Rajasing Laxmansing Mungona (Accused No.8.), Mahendrasing Rajasing Mungona (Accused No.9), Ramsing Mansing Mungona (Accused No.10) and Madhusing Pandusing Mungona (Accused No.11) were charged regarding the incident dated 13-5-1995 at about 8 p.m. at village Lakhpuri, Taluka Murtizapur, District Akola. Perusal of charge Exh.97 shows that these original accused nos.1 to 11 were charged for the offence punishable under Section 147, 148, 307 read with Section 149 and 302 r/w Section 149 of the Indian Penal Code. The common object of the unlawful assembly of accused nos.1 to 11 alleged in Charge Exh.97 was the murder of Prakashsing Lalsingh Rajput and criminal assault on Kalyansing Lalsing Rajput and Shivpalsing and Jaipalsing Rajpur with deadly weapons and thereby caused hurt to Kalyansing and Shivpalsing. They were charged regarding murder of Prakashsing Lalsing Rajput, in the incident dated 13-5-1995 at village Lakhapuri. The Charge under Section 307 read with Section 149 of the Indian Penal Code was also levelled against the accused Nos.1 to 11, in relation to causing hurt within the meaning of Section 307 read with Section 149 of the Indian Penal Code, in relation to Kalyansing Lalsing Rajput and Shivpalsing Lalsing Rajput. This charge (Exh.97) was framed against the accused nos.1 to 11 on 13-12-1995. The charge was explained to them which they denied and claimed to be tried. 3. The Counsel appearing for the parties have no dispute that during the trial, order was passed by the learned Session Judge under Section 319 of the Criminal Procedure Code and that is how name of Rameshsing Ramsing Rajput was directed to be added and shown as accused no.12 in the said Session Trial No.186 of 1995. In view of the order passed by the learned Session Judge, charge was framed against the added accused no.12 at Exh.158 on 29-08-2003 by the learned Session Judge, Akola. This charge was regarding the same incident dated 13-5-1995 at village Lakhapuri. This charge is explained to the accused no.12 Rameshsing Ramsing Rajput. He denied the said charge and claimed to be tried. That is how in Session Trial No.186 of 1995, the accused nos.1 to 12 were tried and the Judgment was delivered by the learned Session Judge to which we have made reference in foregoing paragraphs. This charge is explained to the accused no.12 Rameshsing Ramsing Rajput. He denied the said charge and claimed to be tried. That is how in Session Trial No.186 of 1995, the accused nos.1 to 12 were tried and the Judgment was delivered by the learned Session Judge to which we have made reference in foregoing paragraphs. Needless to mention that in this appeal, the appellant no.1 Satish is the original accused no.1, the appellant no.2 Sumersing Ramsing Mugona is the original accused no.2, appellant no.3 Jaggu Ramsing Mugona is the original accused no.3, appellant no.4 Rajusing Ramsing Mugona is the original accused no.4 and appellant no.5 Surendrasing Ramsing Mugona is the original accused no.5, the appellant no.6 Vikramsing Ramsing Mugona is the original accused no.6, the appellant no.7 Ranjitsing Ramsing Mugona is the original accused no.7, appellant no.8 Rajasing Laxmansing Mugona is the original accused no.8 and accused no.12 Rameshsing Ramsing Rajput is the added accused in Session Case No.186 of 1995). We have been informed by the learned Counsel Mr. Gupta, who appears for the appellants, that during the pendency of this appeal, the appellant no.2 Sumersing Ramsing Mugona expired on 31- 10-2010. Mr. Gupta the learned Advocate has also filed Pursis on 23-09-2011 along with Photo copy of death extract of accused no.2 Sumersing, which is marked by letter 'A' collectively and taken on record. This fact is confirmed by the learned APP on instructions. This appeal, therefore, stands abated in relation to appellant no.2 Sumersing Ramsing Mugona. 4. The facts relevant and revealed from the evidence of prosecution witnesses compendiously, are narrated as follows: 5. PW-2 Jayshree w/o Dharmendrasingh Rajput, an orphan, was brought up by her grandfather Umraosingh Rajput at Varkhed. Her marriage was settled with one Satishsing Rajput at village Lakhapuri. The marriage was to be performed on March 21st 1995 at village Varkhed. At the time of celebration of marriage and more specifically when Mangalashtak (sacred/religious chanting of Mantras) was being recited and Jayashree, the bride, was about to garland the accused no.1 Satishsing, an amount of Rs.10,000/- towards dowry was demanded by Rameshing (Accused No.12 added in the Trial Court). Admittedly, Rameshsing (Accused No.12) is elder brother of the accused no.1 Satishsing. At the time of celebration of marriage and more specifically when Mangalashtak (sacred/religious chanting of Mantras) was being recited and Jayashree, the bride, was about to garland the accused no.1 Satishsing, an amount of Rs.10,000/- towards dowry was demanded by Rameshing (Accused No.12 added in the Trial Court). Admittedly, Rameshsing (Accused No.12) is elder brother of the accused no.1 Satishsing. The accused no.12 Rameshsing, after the demand of Rs.10,000/- towards the dowry, threw his footwear at the bride (PW-2 Jayashree) and slapped one Chandansing Kashiramsing Rajput who is the husband of elder sister of PW-2 Jayashree. The quarrel spread amongst the relatives gathered at the venue of marriage. Ultimately, the marriage was broken. The accused No.1 Satishsing and his relatives returned to Lakhpuri. On the next day, Satishsing was married to daughter of Dhirajsing Mansaramsing of village Nimbhari. On 23rd March 1995, Jayshree was married to Dharmendra singh who was brother -in-law of complainant Kalyansing. On May 8th, 1995, PW-2 Jayshree had been to Varkhed to participate in marriage ceremony of her relative where she happened to meet PW-1 Lalsing, resident of Lakhpuri. He is the father of complainant Kalyansing. Lalsing was returning to Lakhpuri on 13-5-1995. PW-2 Jayshree wanted to meet his daughter-in-law PW-3 Nanda i.e. wife of the complainant Kalyansing. PW-2 Jayshree sought permission of her husband Dharmendrasing for proceeding to Lakhpuri with Lalsing on 13-5-1995. She was allowed by Dharmendrasing to proceed to Lakhpuri with Lalsing. Both reached at Lakhpuri at about 6.00 p.m. Both had been to the house of deceased Prakashsing. After having a cup of tea at his place, Jayshree and Lalsing took rest till 8 p.m. and then they proceeded towards the house of Kalyansing with Varsha, they were attacked by the accused. In this attack, Prakashsing, Kalyansing and Shivpalsing sustained injuries. Prakashsing succumbed to injuries on 14-05-1995 at Main Hospital, Akola. PW-1 Lalsing, PW-2 Jayashree and Varsha were neither attacked nor injured in the occurrence. Kalyansing lodged a report with the police at about 1 a.m. on 14-5-1995. On the basis of his report, Crime No.128/95 for commission of offences punishable under Sections 147, 148, 307 r/w 149 of Indian Penal Code was registered by the police. After rendering preliminary treatment in Rural Hospital at Murtizapur, both injured viz. Prakashsing and Shivpalsing were referred to Main Hospital, Akola. After demise of Prakashsing, murg 0/95 (AD) was registered by City Kotwali Police Station. After rendering preliminary treatment in Rural Hospital at Murtizapur, both injured viz. Prakashsing and Shivpalsing were referred to Main Hospital, Akola. After demise of Prakashsing, murg 0/95 (AD) was registered by City Kotwali Police Station. Thereafter offence punishable under Section 302 of the Indian Penal Code was added by the Police Officer concerned in Crime No.128 of 1995. In the course of the investigation that followed, usual steps for holding inquest, preparing spot panchanama, seizures of blood stained clothes, sending dead body of Prakashing for autopsy, recovery of we4apons etc. were taken. After completion of the investigation, chargesheet was filed in the Court of the Judicial Magistrate First Class, Mutizapur, who in turn committed the case to the Court of Session as the offence punishable under Section 302 and 307 read with Section 149 of the Indian Penal Code were exclusively triable by the Session Court. 6. The prosecution in support of its case, placed reliance on the oral evidence consisting of PW-1 Lalsing 133, Umedsing at Exh PW-2 Jayshree at Exh.135, PW-3 Nanda W/o Kalyansing Rajput at Exh.137, PW-4 Shriram Dhanaji Shrinath at Exh.138, PW-5 Sudhabai Belurkar at Exh.139, PW-6 Uddhav Jamnik at Exh.140, PW-7 Umraosing Kannusing Rajput at Exh.176, PW-8 Ramesh Krishnarao Deshmukh at Exh.177, PW-9 Dr. Shrichand Nirmal Santani as Exh.178, PW-10 Dr. Vivek Ramchandra Phadke at Exh.191 and PW-11 Khanderao Bihade, A.P.I. at Exh.198. Apart from this oral evidence of witnesses, voluminous documentary evidence is also placed on record by the prosecution. The First Information Report is at Exh.196, printed F.I.R. is at Exh.197, scene of offence panchanama at Exh.141, inquest panchanama of the dead body of deceased Prakashsing is at Exh.198; memorandum of accused Surendrasing at Exh.199 and consequent seizure of the articles vide Exh.200. The clothes on the person of Shivpalsing and Prakashsing were received by the police from the custody of Lalsing under seizure memos Exhs.134 (1) and 134(2) respectively drawn by police respectively. The clothes were seized and taken into custody by the police vide seizure memo Exh.142. Marriage invitation card in respect of marriage of Jayshree with Satishsing was seized by the police vide Exh.143. The accused were referred to the hospital for examination. Doctors had obtained their blood samples. They were sealed in bulbs and they were handed over to the police vide panchanama Exh.144. They were taken into custody by the police. Marriage invitation card in respect of marriage of Jayshree with Satishsing was seized by the police vide Exh.143. The accused were referred to the hospital for examination. Doctors had obtained their blood samples. They were sealed in bulbs and they were handed over to the police vide panchanama Exh.144. They were taken into custody by the police. Blood sample of Rajusing (Accused No.4) was seized by the police vide Exh.145. Blood sample of Kalyansing and injured Shivpalsing were obtained by the police vide panchanama Exh.146. Blood sample of deceased Prakashsing in two bottles was seized by the police vide Exh.147. The Postmortem report Exh.179 was procured. Requisition was sent to revenue officer for preparing map of the spot of incident. The map so procured is at Exh.180, requisition addressed to the Medical Officer, Murtizapur, after collecting blood samples of the accused is at Exh.182. The requisition addressed by the police to Medical Officer, Murtizapur, for collecting blood sample of injured Kalyansing and Shivpalsing are at .183 & Exh 184. Exh.185 and Exh.186 are the admission cards of Prakashsing and Shivpalsing in the hospital. Exh.187 is the information given to the police by the Medical Officer, Murtizapur about the death of Prakashsing. Exh.188 is the duty pass of Police Constable who carried the samples to Chemical Analyzer Nagpur, along with the office copies of requisition sent to the Chemical Analyzer vide Exhs.189 and 190. The injury certificates of Prakashsing, Shivpalsing and Kalyansing are at Exhs.192 to 194. The C. A. Reports are on record at Exh.201 to 203. 7. The prosecution case, principally, rests on the eye witness account of PW-1 Lalsing, PW-2 Jayashree and PW-3 Nanda. The evidence of PW-1 Lalsing says that he has two sons on the date of the incident namely Prakashsing and Kalyansing. Kalyansing was residing separately. Lalsing is a resident of village Lakhpuri. All the accused are born and brought up at Lakhpuri. Lalsing knows all of them by their names and faces. PW-1 Lalsing was residing with family of his son Prakashsing. Kalyansing is another son who was residing separately. However, at some distance from the house of Lalsing. Prakashsing and Shivpalsing were injured in the occurrence. Shivpalsing is the grandson of Lalsing. Before 2 to 2 ½ months of the incident, there was an engagement of Satishsing (PW-1) with PW-2 Jayashree. It was scheduled at village Varkhed. Kalyansing is another son who was residing separately. However, at some distance from the house of Lalsing. Prakashsing and Shivpalsing were injured in the occurrence. Shivpalsing is the grandson of Lalsing. Before 2 to 2 ½ months of the incident, there was an engagement of Satishsing (PW-1) with PW-2 Jayashree. It was scheduled at village Varkhed. Lalsing had been to village Varkhed to participate in the marriage ceremony of Satishsing (Accused No.1) with PW-2 Jayshree. The relatives of the accused and many villagers were present at the place of marriage at Varkhed i.e. the marriage of accused no.1 Satishsing which was to be performed with PW-2 Jayshree. The marriage could not be performed because an amount of Rs.10,000/- towards dowry was demanded by the brother of Satishsing (Accused No.1). This demand was made to Umraosing husband of maternal aunt of PW-2 Jayshree. Bride groom and his relatives returned to their places without performing the marriage. On the next date, marriage of Satishing (Accused no.1) was performed at village Nimbari with daughter of Dhirajsing. On the third day, marriage of PW-2 Jayashree was performed with brother-in-law of Kalyansing i.e. son of PW-1 Lalsing. His name is Dharmendra i.e. the husband of PW-2 Jayashree. The evidence of Lalsing further says that two months after the marriage of PW-2 Jayashree with Dharmendra, he had been to Varkhed since he was invited by Umraosing. There they happened to meet PW-2 Jayashree. She expressed her desire to visit Lakhpuri since her sister-in-law was residing at village Lakhpuri. She said that she would come with Lalsing to village Lakhpuri. PW-1 Lalsingh asked her to seek permission from her husband Dharmendra. PW-2 was permitted. Thus, PW-1 Lalsing and PW-2 Jayashree both reached at village Nimbari on 13-5-1995. On the same day, both of them reached at Lakhpuri at about 6.30 p.m. They had a cup of tea, took rest for some time and thereafter, PW-2 Jayashree requested PW-1 Lalsing to reach her at the place of her sister-in-law. Both of them started proceeding towards the house of sister-in-law. It is stated by him that Varsha daughter of Kalyansing was also with them. All of them i.e. PW-1 Lalsing, PW-2 Jayashree and Varsha reached in front of the house of Hari in the square. Both of them started proceeding towards the house of sister-in-law. It is stated by him that Varsha daughter of Kalyansing was also with them. All of them i.e. PW-1 Lalsing, PW-2 Jayashree and Varsha reached in front of the house of Hari in the square. He had noticed Rameshsing (accused no.12), Sumersing (Accused no.2), Ranjeetsing (Accused No.7), Satishsing (Accused No.1), Vikramsing (accused no.6), Surendrasing (Accused No.5), Jaggu (Accused No.8), Rajusing (Accused No.4) and some other persons. According to PW-1 Lalsing, noticing PW-2 Jayashree, Rameshsing (Accused no.12) said that Jayashree should not be allowed to go free. He instigated others to hold her, and accordingly, PW-2 Jayashree was held by Jaggu (Accused No.3), Vikramsing (Accused No.6) and Satishing (accused no.1). He was pushed aside. There was a hue and cry. His son Prakashsing came at the spot of incident. Rameshsing (accused No.12) said that he should be killed and not be allowed to go home alive. According to PW-1 Lalsing, the accused Jaggu (Accused No.3) was possessing axe (Farshi Kurhad), accused Surendrasing (Accused No.5) and Satish (Accused no.1) were possessing axes. The Rameshsing (Accused no.12) was possessing iron pipes and others were possessing sticks. Prakashsing, since deceased, was assaulted by Rajusing, Vikramsing, Satish Ramsing, Surendrasing, Jaggu. Shivpal was assaulted by Ranjitsing, Sumersing, Surendrasingh and Jaggu. Kalyansing arrived at the spot after hue and cry. He was assaulted by Sumersing (accused no.2) with axe on his forearm. That the incident of assault was going on. Jayashree and Varsha went to the house of PW-1 Lalsing. His wife came to the spot raising hue and cry. Prakashsing and Shivpalsing both were lying on the spot of the incident in unconscious state. The accused fled from the spot under the impression that both of them had died. Thereafter, bullock cart was brought by one Namdeo, injured were taken by bullock cart to the bus stop and thereafter by vehicle owned by one Najir to the hospital at Murtizapur. After some preliminary medical aid, injured were advised to reach to main Hospital, Akola and accordingly, they rushed. Next day morning i.e. on 14-5-1995, Prakashsing S/o Lalsing died in the hospital. It reveals from his evidence that spot of the incident and his house are in close vicinity. The houses of the accused persons are in the neighbourhood of the house of PW-1 Lalsing. Next day morning i.e. on 14-5-1995, Prakashsing S/o Lalsing died in the hospital. It reveals from his evidence that spot of the incident and his house are in close vicinity. The houses of the accused persons are in the neighbourhood of the house of PW-1 Lalsing. He categorically states in his evidence that he knows the assailants of deceased Prakashsing. He identified the clothes of injured Shivpalsing. Those clothes were produced by him in Gram Panchayat Office to the police vide two seizure panchanamas Exh.134(1) & 134(2). He also identified muddemal articles 11 to 17 seized by the police vide Exh.134(1) and (2). Mr. Gupta, the learned Counsel for the appellants - accused took us to the cross examination. He admits that the spot of the incident remains crowded with traffic. Regarding various shops in the square where the incident took place, he denied the suggestion, however, states that only one shop is there which was closed at the time of the incident. He denied the suggestion that Prakashsing was having inimical terms with villagers because of his involvement in a criminal case punishable under Section 302 of the I.P.C. He, however, concedes that deceased Prakash was facing trial for the offence punishable under Section 302 of the I.P.C. He states that victim in that case was a stranger to the village. The incident in the case on hand, according to him, lasted for about 10 to 15 minutes. He admitted that he did not attempt to intervene in the assault by the accused. The clothes of Prakash and Shivpal were stained with blood. He was with them when they were reached to the hospital, but he states that he did not come in contact with them, neither attempt to lift Prakashsing and Shivpalsing. It seems from his cross examination that Prakashsing and Shivpalsing were admitted in the hospital at about 10 p.m. He denied the suggestion that Shivpalsing had returned on 14-5-1995 from the hospital. Omission is brought out that Rameshing (Accused no.12) had said that Prakashsing should not be allowed to go home alive and he should be killed. Omission that Jaggu (accused No.3) was possessing axe is also brought out. Mr. Gupta, learned Counsel points out contradiction marked by 'A' from previous statement of this witness that he had lifted Prakashsing. Omission is brought out that Rameshing (Accused no.12) had said that Prakashsing should not be allowed to go home alive and he should be killed. Omission that Jaggu (accused No.3) was possessing axe is also brought out. Mr. Gupta, learned Counsel points out contradiction marked by 'A' from previous statement of this witness that he had lifted Prakashsing. In cross examination, he stated that he knew Rameshsing (accused no.12) since his childhood who was Government Officer at the time of recording of evidence of this witness. He denied the suggestion that the accused Rameshing (Accused No.12) visited village Lakhpuri once or twice in a month. He admits in the cross examination that he was accused in 65 cases in between 1975 to 1995. We have noticed that PW-1 Lalsing was 80 years old on the date of recording of his evidence, in the trial Court. He is resident of village Lakhpuri. He knows all the accused by their names. Even it is not suggested in the cross examination that he does not recognize or know the accused persons. Regarding Rameshsing (accused no.12), he replied in the cross examination that he knew him since his childhood. His wife and children are residing at Akola. 8. PW-2 Jayashree W/o Dharmendra Exh.135 is also an eye witness. The settlement of her marriage with Satish (accused no.1) was ended in break at the threshold, thereafter her marriage with Dharmendrasing was performed on 23.3.1995. Her evidence supports the evidence of PW-1 Lalsing. She could identify Satish (accused no.1) on the date of recording of her evidence, she says that Ramesh (Accused no.12) was not present before the Court. The story of PW-1 Lalsing that he had been to Varkhed and met Jayashree in the marriage, PW-2 Jayashree requested Lalsing to permit her to accompany him to village Lakhpuri is confirmed by this witness. She corroborates the contention of PW-1 Lalsing that both of them reached at Lakhpuri on 13-5-1995 at about 6 p.m. Regarding the core part of the incident, she states that four persons namely Satish (accused no1.), Vikramsing (accused no.6), Surendrasing (accused no.5) and Ramesh (accused no.12) and some other persons with them were noticed by her. All of them were taunting. Ramesh (accused no.12) said that 'take her from this place, and he will take the responsibility”. All of them were taunting. Ramesh (accused no.12) said that 'take her from this place, and he will take the responsibility”. It is stated by her that she was knowing accused Vikramsing (accused No.6), Surendrasing (accused no.5) since both of them had arrived at their place after her engagement with the accused Satish (accused no.1). She heard abuses hurled to them. She says that they were encircled i.e. herself, PW-1 Lalsing and Varsha. She raised hue and cry. Prakashsing came at the spot of incident. Ramesh (accused no.12) and some other persons with them were noticed by her on the spot. Prakashsing was followed by Shivpalsing. She also states that the accused Satish was possessing axe (Farshi), Vikramsing (PW-6) was possessing axe, others were possessing iron pipes and sticks. All of them assaulted Prakash. Prakashsing sustained bleeding injury and fell on the ground. She was frightened, ran towards the house of her sister-in-law. Husband of her sister-in-law came to the spot of the incident with stick in his hand. House of her sister-in-law, according to her, was very close from the spot of the incident. Satish (accused no.1) inflicted a blow of axe on the forearm of husband of her sister-in-law. Shivpal was assaulted by the people. He sustained bleeding injuries. Witnessing this assault, she was frightened, lost her understanding, rational as to what she should do. She was reached to the hospital along with injured Prakashsing and Shivpal. She claims that she identified Surendra who was present in the Court. She also identified Vikramsing (accused no.6) present in the Court. She could identify other assailants by face. Learned Trial Judge has recorded that PW-2 Jayshree had identified 3 more persons namely accused Jaggu, Ranjit and Sumer as assailants. She admits that the complaint was lodge with police by Umraosing on account of breaking of her marriage with Satish (Accused no.1). It is stated by her that she does not know whether one Sardarsing was middleman in the settlement of marriage with Satish (accused no.1). She admits that before her marriage, she had no occasion to visit Lakhpuri and came at village for the first time on 13- 5-95. Omission in her previous statement that accused no.12 Ramesh threw footwear towards her at the time of celebration of her marriage with Satish (accused no.1) is noticed by us. She admits that she did not sustain injury in the scuffle. Omission in her previous statement that accused no.12 Ramesh threw footwear towards her at the time of celebration of her marriage with Satish (accused no.1) is noticed by us. She admits that she did not sustain injury in the scuffle. She was not able to tell exact duration of scuffle in minutes. She denied the suggestion that she left the spot and thereafter, Prakash had fallen on the ground. She also denied the suggestion that on arrival of Prakash and Shivpal at the place of occurrence, she went to the place of her sister-in-law. Contradiction in her previous statement that she ran towards the house of her sister- in-law immediately after arrival of Prakash and Shivpal at the spot of the incident is brought out. She admits that when she returned at the spot of the incident along with her sister-in-law, Prakash was lying on the ground and Shivpalsing had sustained injuries. She volunteers that both of them had sustained injuries in her presence. She denied the suggestion that she was carried by the accused. She was not able to tell whether villagers had gathered at the spot of incident. She admits that she did not give any information to the police on 14-5-1995, however, volunteers that she had become unconscious in the hospital. She denied the suggestion that she was on inimical terms with the accused because of breaking of her marriage with accused Satish and, therefore, had given false evidence at the instigation of PW-1 Lalsing. Omission in her previous statement that she was frightened and was not able to understand or lost rational as what she should do is brought on record. But then she volunteers that she had lost her mother in the recent past approximately 7 years before the incident and was not mentally prepared to sustain any more shock. 9. Mr. Gupta, the learned Counsel for the appellants, took us to the evidence of PW-3 Nanda. The evidence of this witness shows that her daughter Varsha hurriedly came to the house and told her that Dada was being beaten. She along with her husband Kalyansing went to the spot. This witness names Accused no.1 - Satish, accused no.5 – Surendrasing and Accused no.12 – Rameshsing. She also says in her evidence that accused no.1- Satish and Accused no.5 – Surendrasing were armed with axe. The accused No.12 – Ramesh was possessing iron pipes. She along with her husband Kalyansing went to the spot. This witness names Accused no.1 - Satish, accused no.5 – Surendrasing and Accused no.12 – Rameshsing. She also says in her evidence that accused no.1- Satish and Accused no.5 – Surendrasing were armed with axe. The accused No.12 – Ramesh was possessing iron pipes. Brothers of Surendra (Accused No.5) and Satish (Accused No.1) were present around them and were possessing iron pipes. They were also assaulting Prakashsing and Shivpalsing. Blow of axe was inflicted on the person of her husband by Surendrasing (Accused No.5). It was hit on the arm of her husband Shivpalsing. Shivpal fell on the ground and according to this witness, assailants fled away from the spot. Her husband died about 2 years before her evidence. (Her evidence was recorded on 1-7-2003). It is admitted by both the learned Counsel that her husband Shivpalsing was injured in the occurrence. It is stated by her that she can identify the accused persons. She accordingly, identified the accused Satish and Surendrasing before the trial Court. She categorically stated in her evidence that she knows all accused by their names and faces. In cross examination she admits that Madhusing is related to accused Rameshsing, r/o village Hingani. Regarding other witnesses, she tells the Court in cross examination that none was present at the spot of the incident from among the villagers. The shops were closed and people had left the spot when quarrel ensued. The incident lasted for about ½ hour. She admits that she did not intervene. She admits that one can hear the shouts raised at the spot of incident from her house. She was ignorant about the arrival of PW-2 Jayashree along with her father in law PW- 1 Lalsing on that day. She concedes that they were not on talking terms with accused since when the marriage of PW-2 Jayashree was broken. Omission in her previous statement that brothers of Surendrasing and Rameshsing were present at the spot of incident is brought out in her evidence. She denied the suggestion that she was giving false evidence. She states in cross examination that she did not disclose anything to the police on 14-5-1995. Her statement was recorded by the police on 16-5-1995. 10. Omission in her previous statement that brothers of Surendrasing and Rameshsing were present at the spot of incident is brought out in her evidence. She denied the suggestion that she was giving false evidence. She states in cross examination that she did not disclose anything to the police on 14-5-1995. Her statement was recorded by the police on 16-5-1995. 10. The learned Counsel for the parties have a consensus on a fact that PW-4 Shriram, examined as an eye witness, did not support the prosecution in trial, was declared hostile and cross examined. PW-5 Sudhabai also did not support the prosecution, declared hostile and was cross examined on behalf of the prosecution. PW-8 Ramesh Deshmukh panch witness, PW-6 Udhav Jamnik, panch witness are also of no avail to the prosecution, since they did not support the prosecution, declared hostile and permitted to be cross examined on behalf of the prosecution. There is no impact on the prosecution case even though PW-8 Ramesh Deshmukh and PW-6 Udhav Jamnik did not support the prosecution. The spot panchanama Exh.141, seizure memo Exh.142 have been duly exhibited in the evidence of PW-11 Mr. Bihade and seizure memo of marriage invitation card of PW-2 Jayashree is established in the evidence of panch witness Tukaram and PW-11 A.P.I. Mr. Bihade. Formal proof of panchanamas Exh.144, 145, 146 & 147 have not been disputed before us. 11. We shall now turn to the evidence of PW-9 Dr. Shrichand Santani. He has performed autopsy on the dead body of Prakashsing Rajput. His evidence shows that deceased Prakashsing was 22 years of young man. We found following injuries and opinion of this witness in his evidence. “i) Stitched wound 5” in length oblique in direction over right parietal region. There were 10 stitches. ii) Another stitched wound 2” in length, there were 3 stitches over right mastroid region. iii) 3” long stitched wound oblique over chin right side with 4 stitches. All external injuries were ante-mortem. On internal examination, I had noticed: i) There was defused clotted blood over scalp and right parietal region beneath stitched wound. There was fracture of skull right parietal bone about 5” long oblique in direction; corresponding to external injury no.1 in column no.17. ii) There was laceration of brain and meanings right hemisphere cut with profused clotted blood over brain substance just underneath the fractured bone skull. There was fracture of skull right parietal bone about 5” long oblique in direction; corresponding to external injury no.1 in column no.17. ii) There was laceration of brain and meanings right hemisphere cut with profused clotted blood over brain substance just underneath the fractured bone skull. In his opinion, the deceased had died due to coma due to laceration of brain as a result of fractured skull right parietal bone due to head injury. He has prepared P.M. note. It is marked Exh.179. He states that injury no.1 in col. no.17 which is corresponding to injuries no.1 to 3 in col. no.19 was sufficient to cause the death, in the ordinary course of the nature. The injuries mentioned in Postmortem Report can be caused by sharp cutting weapon. He was shown Muddemal Art. Nos.1 and 2 before the Court. He states that injuries noticed by him on the person of the deceased were possible by these weapons”. The cross examination of this witness is declined on behalf of the accused. 12. We have noticed and referred to the date and time of the incident. The evidence of PW-9 Dr. Santani, postmortem report, seizure memo of blood sample of deceased Prakashsing, injured Kalyansing and the accused persons. We have also noticed from the documentary evidence Exh.184 that the incriminating articles were forwarded to Forensic Science Laboratory Nagpur, on 15-6-1995. Intimation letter to PSO from the Medical Officer Laxmibai Deshmukh Hospital Exh.185 shows that on 13-5-1995, time 1.9 hours, Prakashsing Lalsing aged about 40 years, r/o Lakhpuri Police Station was admitted in the General Hospital Murtijapur due to grievous head injury. This communication shows the date, time of admission of the injured Prakashsing and importantly grievous head injury noticed by the Medical Officer of the said Hospital. Such is other communication Exh.186 addressed to same Police Station by same Hospital regarding injured Shivpalsing on 13-5-1995 at 9.15 hours. Here also head injury is mentioned specifically. Exh.187 is OPD Police Inform Book. Relevant extract is R. No.8885 information/intimation of demise of Prakashsing Lalsing Rajput, aged about 22 years old, r/o Murtizapur was admitted by the Police Constable B. No.233 of P.S. Murtizapur, died on 14/5/1995 at 10.40 a.m. 13. PW-10 is Dr. Vivek Ramchandra Phadke examined for bringing on record injuries sustained by Prakashsing. He states in his examination the following injuries sustained by Prakashsing. PW-10 is Dr. Vivek Ramchandra Phadke examined for bringing on record injuries sustained by Prakashsing. He states in his examination the following injuries sustained by Prakashsing. 1) Incise wound on right parietal region 3 x ½ inch bone deep. There was suspected compound depressed fracture on right parietal bone. I had advised X-ray for ascertaining the nature of fracture and injuries. 2) Incise wound over left parietal region 2 x ½, ½ by depth. 3) Incise wound over right post oricular region admeasuring 1 x ½ x ¼ in inch. 4) Incise wound over chin admeasuring 2 ½ x ½ x ¼ inch. From the evidence of Dr. Vivek, we have seen age of injuries and his opinion that they were sufficient to cause death in normal course of nature. The injured was referred by the Police along with P. C. B. No.104 and was examined by this witness on 13-5-1995. He advised for shifting patient Prakashsing for further treatment. He proved certificate Exh.192 issued by him which is on record. He also testified examination of Shivpalsing and noticed fracture of occipital bone. He advised X-ray of skull for confirmation of diagnosis and injuries. He opined that the injuries on the person of Shivpalsing were caused within 4 hours of the examination. He accordingly issued a certificate Exh.193. He opined that the injury no.1, 3 and 4 are possible by Muddemal article Nos.1 & 2. According to him, injury no.2 can be caused with stick. In his opinion, injury nos.1 to 4 are sufficient to cause death in ordinary course of nature. On the same day, he had also examined Kalyansing and had noticed incise wound over left lower third of the arm 2 ½' x ½ inch. The description of the injuries noticed by him is considered by us. Mr. Gupta, the learned Counsel, points out that the injuries on the person of Prakashsing were of simple nature, according to this witness. He has established injury certificate Exh.194. Regarding injuries mentioned in Exh.192, this witness admits that the injury nos.1, 4 & 5 were simple in nature. He had no occasion to see X-ray of Prakashsing. In re- examination, he clarified that he has described injury no.1 in certificate Exh.192 as simple injury inadvertently. He reaffirms that the said injury is grievous injury. We have noticed that after this re-examination of Dr. He had no occasion to see X-ray of Prakashsing. In re- examination, he clarified that he has described injury no.1 in certificate Exh.192 as simple injury inadvertently. He reaffirms that the said injury is grievous injury. We have noticed that after this re-examination of Dr. Vivek, there is no cross examination on behalf of the accused. 14. Mr. Gupta, learned Counsel for the appellant, after pointing out the evidence of eye witnesses, submitted that the evidence of these witnesses has been illegally accepted by the trial Court. According to the learned Counsel for the appellant, all these three witnesses are attributing different roles to accused persons. The evidence of these witnesses in the first place needs to be discarded on the ground of their interestedness and relations with deceased Prakashsing and injured witnesses. He also submitted that the independent witness was not examined on behalf of the prosecution to prove the guilt of the accused. He, therefore, submitted that the conviction rendered by the learned Trial Court is wrong and illegal. Learned A.P.P. supported the Judgment of conviction rendered by the Trial Court. According to him, the presence of 3 eye witnesses i.e. PW-1 Lalsing, PW-2 Jayashree and PW-3 Nanda is natural. All of them have witnessed the incident and accordingly, testified before the Trial Court. In support of his submission, he submitted that minor omission and contradiction in the evidence of eye witnesses needs to be ignored. According to him, the nature of the incident and assault on his two sons, has been witnessed by PW-1 Lalsing which is corroborated by PW-2 Jayashree and PW-3 Nanda. In support of his submissions, he relied on the judgment of the Hon'ble Supreme Court in the matter of Bharwada Bhoginbhai Hirjibhai V. State of Gujarat , reported in AIR 1983 Supreme Court 753. We have noticed the facts from the judgment of the Hon'ble Supreme Court (supra) and the ratio laid down therein. Learned APP also relied upon the judgment of the learned Division Bench of Delhi High Court in the matter of Joginder Vs. State, reported in 2010 CRI.L.J. 1770. We have considered the facts and ratio laid down of the cited Judgments. 15. There is no dispute amongst the Counsel appearing for the parties that the complaint was lodged on 14-5-1995 at about 1 a.m. by Kalyansing at Exh.196. Printed F.I.R. was prepared by PW-11 A.P.I. Mr. Bihade at exh.197. State, reported in 2010 CRI.L.J. 1770. We have considered the facts and ratio laid down of the cited Judgments. 15. There is no dispute amongst the Counsel appearing for the parties that the complaint was lodged on 14-5-1995 at about 1 a.m. by Kalyansing at Exh.196. Printed F.I.R. was prepared by PW-11 A.P.I. Mr. Bihade at exh.197. In cross examination, PW-11 Mr. Bihade explains that Kalyansing, Lalsing (PW-1), Jayashree (PW-2 and Nanda (PW-3) were not in the village and, therefore, could not be interrogated immediately by him. He denied the suggestion that these witnesses were in the village on 14-5-1995. The evidence on record shows the date, time of occurrence, the manner in which the three injured i.e. Prakashsingh, Kaluyansingh and Shivpalsingh were initially transported by bullock cart to Bus Stand and thereafter in four wheeler vehicle to the Primary Health Center Murtizapur and thereafter, Main Hospital, Akola. In this view of the matter, in our opinion, two days delay in recording statement of eye witnesses has been satisfactorily explained. Another submission of the learned Counsel Mr. Gupta that the First Information Report is delayed is also meritless. The delay in lodging the First Information Report in the case on hand cannot be said to be fatal to the case of the prosecution. There is no delay, in fact, since the First Information Report was lodged within six hours of the occurrence. 16. We have given due consideration to the submissions of the learned Counsel for the parties. The relationship amongst the eye witnesses i.e. PW-1 Lalsing and PW-3 Nanda with deceased Prakashsing and injured in the occurrence is not disputed on behalf of the prosecution. In view of the relationship of PW-1 Lalsing, and PW-3 Nanda with deceased Prakashsing and an injured, we have considered their evidence with great care and caution. The blood relationship and enmity alleged in the present case has been anxiously considered by us. In our opinion, the evidence of PW-1 Lalsing is credible and has given minute details of occurrence. This evidence has been corroborated in material particulars by PW-2 Jayashree an eye witness. The presence of PW-1 Lalsing and PW-2 Jayashree at the time of occurrence is natural and acceptable. Slight variations regarding assault with particular weapon by particular accused in the occurrence, in the evidence of these two witnesses, in our opinion is inconsequential. This evidence has been corroborated in material particulars by PW-2 Jayashree an eye witness. The presence of PW-1 Lalsing and PW-2 Jayashree at the time of occurrence is natural and acceptable. Slight variations regarding assault with particular weapon by particular accused in the occurrence, in the evidence of these two witnesses, in our opinion is inconsequential. The assault, if witnessed by these two witnesses, it may be related or restated by them in their own words. A distinction has to be made principally in a visual account or audible account made available with the aid of mechanical or electronic device or gadget and oral evidence of witness; who relates it on the basis of memory, after lapse of time gap. In other words, visual account and audible account of human memory cannot be compared with electronic gadgets. Some consideration needs to be given to the human capability, memory, age of the witness, his mental position while witnessing the incident, his standing in ordinary walks of life etc. No hard and fast rule can be laid down. In our opinion, in the case on hand, the evidence of PW-1 Lalsing regarding occurrence has been re-enforced by the evidence of PW- 2 Jayashree. The evidence of PW-3 Nanda, even if left out of consideration, the conviction rendered by the learned Trial Judge safely could be affirmed. We are, therefore, not inclined to interfere with well reasoned order of conviction rendered by the learned Trial Judge. It seems from the evidence of eye witnesses that occurrence took place at the spur of moment, noticing PW-1 Lalsing and PW-2 Jayashree. The accused no.1 to accused no.8 and accused no.12 were the members of this unlawful assembly. This unlawful assembly was actuated with common object and in pursuance of the common object, this unlawful assembly has committed the crime in question punishable under Section 302 and 307 read with Section 149 of the Indian Penal Code. The accused no.1 to accused no.8 and accused no.12 were the members of this unlawful assembly. This unlawful assembly was actuated with common object and in pursuance of the common object, this unlawful assembly has committed the crime in question punishable under Section 302 and 307 read with Section 149 of the Indian Penal Code. Where a group of assailants who were the members of the unlawful assembly proceeds to commit the crime in pursuance of the common object of that assembly, it is often not possible for the witnesses to describe the actual part played by each one of them and when several persons armed with weapons assault the victim, all of them may not take part in the actual assault, but are responsible and liable in view of Section 149 of the Indian Penal Code. On facts in the case on hand, in our view, the learned Trial Judge has justifiably convicted the accused persons under Section 302 and 307 read with Section 149 of the Indian Penal Code. Learned Counsel Mr. Gupta commented upon the discovery of weapons at the hands of the accused no.5 Sumersing. It is true that the discovery of weapons, at the instance of the accused no.5 – Sumersing, resorting to Section 27 of the Indian Evidence Act, is suspicious. However, this circumstance does not ensure to the benefit of the accused as reliable and trustworthy eye witness account of PW-1 Lalsing and PW-2 Jayashree is brought on record. Further it has been corroborated by medical evidence and circumstantial evidence. The guilt of the accused is proved beyond reasonable doubt. We have considered the recovery of the blood stained clothes Exh.142, seizure of blood sample of accused Rajusing Exh.145 and blood sample of Shivpalsing and purple coloured full shirt has been recovered at the instance of the accused Surendrasing Exh.132. It is proved that all these articles were referred to the Chemical Analyzer in sealed condition with Police Constable Vinayak. The C. A. requisition letter Exh.190 shows that shirt recovered from the accused Surendrasing was marked as Art. B and C. A. Report Exh.201 shows that it was stained with human blood. There is no explanation by the defence. The articles belonging to deceased Prakashsing, Shivpalsing and Kalyansing were found stained with human blood. The C. A. requisition letter Exh.190 shows that shirt recovered from the accused Surendrasing was marked as Art. B and C. A. Report Exh.201 shows that it was stained with human blood. There is no explanation by the defence. The articles belonging to deceased Prakashsing, Shivpalsing and Kalyansing were found stained with human blood. There is no explanation on behalf of the accused regarding its finding by C. A. The defence of alibi raised by the accused no.12, in our opinion, has been properly considered and negated by the learned Trial Court in para 30 of the Judgment. 17. The appeal, therefore, stands dismissed confirming conviction and sentence inflicted upon the appellants by the learned Trial Court. 18. At this stage, the learned Counsel for the appellant requested for grant of time to the appellant to surrender. 19. Time is granted. Accordingly, appellant Vikramsing who is on bail, to surrender within eight weeks. Appeal dismissed.