Judgment :- A.M. THIPSAY, J. 1. Boththese appeals can be conveniently disposed of by this common judgment, as the appellants in both these appeals were, all, accused in Sessions Case No. 141 of 1999, decided by the learned Additional Sessions Judge for Greater Bombay. The appellant in criminal appeal No. 1269 of 2004 was the accused No.2 in the said Sessions Case, while the appellants in criminal appeal No. 508 of 2005 were the accused Nos. 1, 3 and 4 respectively in the said case. For the sake of convenience and clarity, the appellants shall be referred to by the position held by them in the trial court. 2. There were two more accused in the said Sessions Case (i.e. original accused Nos. 5 and 6). The allegation against the accused persons was in respect of offences punishable under Sections 302 of I.P.C. r.w. 34of I.P.C. The learned Additional Sessions Judge for Greater Bombay, convicted the appellants of the offences punishable under Sections 304 of I.P.C. r.w. Section 34 of I.P.C. and sentenced them (each of them) to suffer imprisonment for life and to pay a fine of Rs.3,000/- i/d to suffer S.I. for one year. The learned Additional Sessions Judge held that the charge against the other two accused was not proved, and acquitted them. The appellants-the original accused Nos. 1 to 4-being aggrieved by the said order of conviction and sentence, have approached this Court by filing the aforesaid two separate appeals. 3. The prosecution case before the trial court was, in brief, that one Shakil (the deceased) was a known Gunda in the locality of Govandi, where the said Shakil and the accused persons resided. That, on 20.11.1998, there was a dinner party in the house of one Mohammed Gaus. Among the persons present in the party, there was Akram Idris Khan (P.W.1), who knew all the accused. Shakil, who was also present there, went to Raj Auto Garage saying that he would come back within five minutes. About five minutes after Shakil had left, one Santosh came running and told to the persons present at the dinner that ‘Lafda Ho Raha Hai’. Akram (P.W.1), Santosh Gupta (P.W.2) and others rushed to the spot, where the ‘Lafda’ was said to be taking place. They noticed that accused Nos. 1 to 4 were holding weapons like sword, chopper and assaulting the said Shakil. That, original accused Nos. Akram (P.W.1), Santosh Gupta (P.W.2) and others rushed to the spot, where the ‘Lafda’ was said to be taking place. They noticed that accused Nos. 1 to 4 were holding weapons like sword, chopper and assaulting the said Shakil. That, original accused Nos. 5 and 6 were also armed with weapons and were threatening the people around them not to intervene. The accused Nos. 1 to 4 assaulted said Shakil on his head, stomach, legs and then ran towards highway in the dark. Akram (P.W.1), Santosh Gupta (P.W. 2) and others lifted Shakil, who was badly injured. Shakil was whispering that Firoz (the accused No.3) and his associates had assaulted him. Shakil was taken to Shatabdi Hospital but was declared dead on admission. The police came to the said Hospital and recorded the statement of one Mehtab, which was treated as the first information report and a case in respect of the offences punishable under Sections 302, 143, 147, 148, 149 of I.P.C. was registered. In the course of investigation, spot panchnama (Exh.53) and inquest panchnama (Exh.52) were drawn. The clothes of the deceased were also seized under a panchnama (Exh.54). The accused Nos. 1 and 2 were arrested on 21.11.1998. The accused Nos. 3 and 4 were arrested on 23.11.1998. The statements of certain persons were recorded in the course of investigation. Certain incriminating articles were also recovered at the instance of the accused persons in the presence of panchas. Notes of post mortem examination, that was carried out on the dead body, were collected. The articles seized in the course of investigation were sent to Chemical Analyzer for examination. On completion of investigation, charge sheet was filed against all accused persons, which as aforesaid, resulted in the conviction of the accused Nos. 1 to 4 and the acquittal of original accused Nos. 5 and 6. 4. The prosecution examined in all 12 witnesses during the trial. Akram Idris Khan (P.W.1) and Santosh Gupta (P.W.2) are said to be the eye witnesses to the incident. Akbar Ahmed (P.W.3) is a witness with respect to an incriminating circumstance against the accused No. 4 Mohd. Shakil. Dnyandeo Sathe (P.W.4) is a panch in respect of recovery of a knife on 27.11.1998, pursuant to the information disclosed by the original accused No.5 and is not relevant for the present appeals. Akbar Ahmed (P.W.3) is a witness with respect to an incriminating circumstance against the accused No. 4 Mohd. Shakil. Dnyandeo Sathe (P.W.4) is a panch in respect of recovery of a knife on 27.11.1998, pursuant to the information disclosed by the original accused No.5 and is not relevant for the present appeals. Shahajad Harun Khan, (P.W.5) was supposed to be an eye witness to the incident but he turned hostile during the trial. He has, however, deposed to certain facts, which advanced the case of the prosecution on certain aspects, and with respect to certain accused. Sanjay Dabade, (P.W.6) is a panch in respect of the arrest of accused No.3 Firoz and accused No.4 Mohd. Shakil and taking of charge of blood stained clothes of these accused by the police. Raju More, (P.W.7) is also a panch in respect of the disclosure statement made by the accused No.2 Kaiffi Hussain Abbas and the recovery of one Khanjir (Article 8) pursuant thereto. He is also a witness in respect of disclosure statement made by the accused No.1 Mamma and the recovery of one Gupti (Article 9) from a room in Shivaji Nagar under a panchnama pursuant to the said disclosure. Shivaji Niman, (P.W.8), Inspector of Police, to whom the investigation was entrusted on 22.11.1998, speaks in respect of steps taken in the investigation including the arrest of the accused persons and the recovery of weapons. According to him, on 23.11.1998, he arrested the accused Nos. 3 Firoz and accused No.4 Mohd. Shakil from their respective houses and on the next day i.e. on 24.11.1998, a sword (Article 10) and a Khanjir (Article 14) were recovered pursuant to the information disclosed by the accused No.3 Firoz and accused No.4 Mohd. Shakil respectively. Walmik Ratan Sardar, (P.W.9) is also an Inspector of police, who was working as S.H.O. on 21.11.1998 and who, on receipt of a message from Shatabdi Hospital at 12.00 p.m. on 20.11.1998, had gone there and recorded the statement of one Mehtab Abdul Kadar, which, as aforesaid was treated as first information report. This witness registered the crime, prepared inquest panchnama (Exh.52), went to the spot alongwith panchas, seized clothes of deceased under panchnama, (Exh.54). This witness registered the crime, prepared inquest panchnama (Exh.52), went to the spot alongwith panchas, seized clothes of deceased under panchnama, (Exh.54). Shasikant Wakode (P.W. 10) is a panch in respect of the disclosure statement allegedly made by the accused No. 3 on 24.11.1998 pursuant to which, the police party went to Gautamnagar and recovered one sword (article 10). Dr. Vijayalaxmi Vajanani (P.W.11) is a witness in respect of bringing Shakil to Shatabdi Hospital on 20.11.1998 at about 9.40 p.m. According to her, on examination, Shakil was found to be dead and that there were multiple stab injuries all over his body, which was sent for post mortem examination after making an entry to that effect in the casualty register. The 12th and the last witness is Dr. Handore, Medical Officer, who performed post mortem examination on the dead body. He noticed that there were 38 injuries all over the body of Shakil. He opined the cause of death of Shakil as ‘shock and hemorrhage due to multiple stab injuries’. He opined the death to be the instantaneous. 5. With the assistance of learned counsel for the accused, we have gone through the entire evidence. We have been taken through the impugned judgment. 6. The contention of the learned counsel for the accused persons is that the prosecution evidence was unreliable and that the appellants could not have been convicted on the basis of such evidence. According to Mr. Wahab Khan, the learned counsel for the appellants in criminal appeal No. 1269 of 2004 and Mr. Nitin Shejpal, learned counsel for the appellant in criminal appeal No. 508 of 205, the witnesses, projected as eye witnesses, were actually not the eye witnesses at all and that this fact would be clear on consideration and appreciation of their evidence. It was also submitted that, that the person who lodged the first information report i.e. Mehtab Abdul Kadar was not examined, is itself a serious weakness in the prosecution case. It was submitted that the investigation had not been done fairly and honestly and the prosecution case was got supported by false and fabricated evidence. It was also submitted that certain evidence was recorded in the absence of some of the accused and their advocates and that therefore, the entire trial was vitiated. It was submitted that the investigation had not been done fairly and honestly and the prosecution case was got supported by false and fabricated evidence. It was also submitted that certain evidence was recorded in the absence of some of the accused and their advocates and that therefore, the entire trial was vitiated. It was also submitted that in case of one of the witnesses, no opportunity was given to the defence to cross examine the witness after he was recalled and examined further in chief. It is therefore, submitted that both the appeals deserve to be allowed. 7. Mr. Dedhia, the learned A.P.P. on the other hand, contended that there was overwhelming evidence against the accused persons and that the evidence of eye witnesses was sufficient to prove the guilt of the accused persons. According to him, no error has been committed by the trial court in convicting the accused persons and that there is no merit in the present appeals. 8. We have carefully considered the evidence on record and we have also taken into consideration the principles enunciated in the reported judgments of the High Courts and the Apex Court, on which reliance has been placed by the learned counsel in support of their respective contentions. 9. That, Shakil died a homicidal death on 20.11.1998 at about 9.40 p.m. cannot be doubted or disputed. In this regard, a reference may be made to the evidence of Dr. Vijayalaxmi Vajnani (P.W.11) and Dr. Handore (P.W.12). 10. The evidence of Dr. Vijayalaxmi Vajnani (P.W.11) shows that while she was attached to Shatabdi Hospital on 20.11.1998, at about 9.40 p.m., Shakil was brought to the casualty room in an injured condition and that on examination, she found him dead. That, the dead body of Shakil was sent for post mortem examination. 11. Dr. Bhalchandra Handore (P.W.12) is one, who performed the post mortem examination on the dead body of Shakil. According to him, there were 38 injuries on the dead body of Shakil, as follows:- 1. Verscle IW on left size forehead 5 cm x 0.5 cm x 6 cm. deep gapping prone. 2. Oval IW with elevating of skin on left side of left eye brow 2.5 cm x 2 cm bone deep. 3. IW on left partial region oblique 3 cm x 1.5 cm x outer of bone deep. 4. Semi circular IW below left eye 2.5 cm. deep gapping prone. 2. Oval IW with elevating of skin on left side of left eye brow 2.5 cm x 2 cm bone deep. 3. IW on left partial region oblique 3 cm x 1.5 cm x outer of bone deep. 4. Semi circular IW below left eye 2.5 cm. x 0.5 cm. 5. Abrasion below right ear 3 cm x 0.5 cm. 6. Stab injury at left inter coastal space of the 2 cm x 1 cm x 6 cm deep, both edges sharp gapping present old, blood and seen. 7. Two stab injuries at right infra axillary region 4 cm from each other oblique both shape with gaping ends on medical size. 1. 2 x 1 cm x 6 cm deep 2. 2 x 1 cm x 6 cm deep 8. IW of right region 3 cm x 1.5 cm. deep. 9. Stab injury on right sized fuprapubil region 2.5 cm x 1 cm x 10 cm. deep in abdomen and tappering region uware verticle both edges sharp. 10. IW on right thumb bone x 1 cm bone deep. 11. Index midel IW joint 1.5 cm x 0.5 cm. surface. 12. CLW on at finger terminal phague 2.5 x 1.5 cm x muscle deep. 13. IW on right little finger 2 cm x 1 cm bone deep. 14. IW on left side on right shoulder on 4 cm x 1.5 cm x muscle deep. 15. Sharp abrasion on right limn 6 in number 0.5 cm x 1 cm. 1.5 cm x 1 cm. 16. IW on post size right elbow joint x 5 cm. x 0.5 cm. 17. Abrasion on left shoulder joint 5 cm x 0.5 cm. 18. Liner abrasion on left arm and fracture three in number 5 to 7 cm. x 0.4 cm. versicle region. 19. IW on left wrist two in number 1.5 cm x 1.5 cm x 0.5 cm x 1.5 cm x 0.5 cm reddish edges. 20. IW Dorgun on left hand 4 x 1.5 cm x 6 on deep. 21. Oblique IW on base of left thumb 3 x 1.5 muscle deep. 22. IW on middle finger left 3 cm. x bone deep with abrasion below it. 23. Defence IW terminal of left index of middle finger 1.5 x 1 cm x 0.5 cm. 24. Three abrasionon left thigh 8 cm x 0.5 cm. 25. 21. Oblique IW on base of left thumb 3 x 1.5 muscle deep. 22. IW on middle finger left 3 cm. x bone deep with abrasion below it. 23. Defence IW terminal of left index of middle finger 1.5 x 1 cm x 0.5 cm. 24. Three abrasionon left thigh 8 cm x 0.5 cm. 25. IW on middle side left knee 3 cm x 1.5 cm. x 0.5 cm. 26. IW below medial size left knee 6 cm. x 1.5 cm x 1 cm deep. 27. IW on left size upper right thigh 5 cm. x 1.5 cm x 1. 28. Shape abrasion on left size right thigh four in numbers reddish. 29. Two small IW on right upper leg below knee 2.5 cm x 1 cm x 0.5 cm 2 cm x 0.3 cm x 0.5 cm. 30. Deep IW below injury no.29 10 cm x 4 cm. x 3 cm. muscle deep. 31. Verside deep IW below injury no. 30 12 cm x 4 cm x 2 cm muscle deep. 32. Stab injury on medical size right leg 2 cm x 1 cm x 6. 33. Stab injury on right scapule 4 cm x 1 cm x 1 cm bone deep both shape edges. 34. Stab injury on right superficial region 2 cm x 1 cm x 14 cm deep muscle both shape edges. 35. Stab injury on right size inter capuler region 2 cm x 1 cm 14 cm on deep in the chest bleeding. 36. Stab injury right shape region 2 cm x 0.5 cm x 6 cm in muscle. 37. Stab injury in right gluteral region 2.5 cm x 1 cm x bone deep in muscle on medial size both shape edges. 38. Multiple linear abrasion on back total in number 2 to 10 cm x 0.3 cm. The notes of post mortem examination (Exh.63) were tendered in evidence. This witness has opined the cause of death of Shakil as ‘shock and hemorrhage due to multiple stab injuries’. 12. Considering the number and nature of injuries on the dead body of Shakil, it appears that he was subjected to assault by sharp weapons and that, in all probability, the assault was by a number of persons. Thus, that death of Shakil was homicidal - which is, even otherwise, not challenged or disputed -is clearly established. 13. 12. Considering the number and nature of injuries on the dead body of Shakil, it appears that he was subjected to assault by sharp weapons and that, in all probability, the assault was by a number of persons. Thus, that death of Shakil was homicidal - which is, even otherwise, not challenged or disputed -is clearly established. 13. The question which requires determination, is whether the present appellants are proved to be the assailants. 14. Akram (P.W.1), Santosh Gupta, (P.W.2), Shahjad Khan (P.W.5) are supposed to be the eye witnesses to the incident. As such, it would be appropriate to first consider their evidence. 15. According to Akram, (P.W.1), he knew all the accused as also the deceased. That, there was a dinner party at the residence of Mohd. Gaus, which, this witness was attending and that at that time, Shakil (the deceased) was also present, but had gone to Raj Auto Garage saying that he would return back within five minutes. The witness stated that about five minutes after Shakil had left, one Santosh came running saying ‘Lafda Ho Raha Hai’, whereupon, this witness and others left the dinner and rushed to the place of assault. He categorically stated that he saw all the accused had held swords and assaulted Shakil. He categorically stated that all the accused assaulted Shakil on head, back, hand, palm, stomach and legs. According to him, when he and others reached there, the accused persons ran towards the highway alongwith weapons. He also stated that Shakil was then taken to the Hospital and that while he was being taken, Shakil whispered that ‘Firoz Ismail Shaikh (accused No.3) and his associates had assaulted him’. That, Shakil was declared dead before admission. The witness also stated that he and others were frightened and did not go to their respective houses and kept on moving at different places. His evidence also shows that previously deceased Shakil had quarreled with Mamma @ Mamman (Accused No.1, and that at that time Shakil had beaten the said accused. The witness further stated that he returned back home only after five days from the date of incident when Mehtab Abdul Kadar (first informant) took him to the police station. That, all the accused persons were seen by him at the police station on the day next after his statement was recorded. 16. The witness further stated that he returned back home only after five days from the date of incident when Mehtab Abdul Kadar (first informant) took him to the police station. That, all the accused persons were seen by him at the police station on the day next after his statement was recorded. 16. In the cross examination of this witness by the accused No.1, nothing favourable to the accused could be elicited. It was suggested that he could not go near Shakil, as he was obstructed by two persons, which has been denied by him. In the cross examination of this witness, on behalf the accused No.2, the witness was made to admit that the deceased Shakil was a habitual offender and that many cases were registered against him. The witness stated that the accused No.1 Mamma had assaulted Shakil in the stomach but further admitted that he was unable to state which accused assaulted on which part of the body of Shakil. In our opinion, this is quite natural. Inability of the witness to specifically state about this aspect is insignificant when several blows were given by a number of persons. Certainly, this does not render his claim of being an eye witness to the incident doubtful, on that count. 17. The witness stated that the deceased was taken to the hospital in a rickshaw. The omission on his part to state before the police that while Shakil was being taken to hospital, he whispered that Firoz (accused No.3) and his persons had assaulted him, is brought on record in the cross examination. We, therefore, find it safer not to rely upon this evidence – i.e. of the dying declaration, allegedly made by Shakil, to this witness. 18. It was got admitted from this witness that the deceased was his close friend. The witness admitted having had discussion with Mehtab Shaikh (first informant), but denied the suggestion that Mehtab Shaikh had told about the incident and that therefore, he was telling accordingly. He also admitted that the police Officer had told the said Mehtab Shaikh to bring him to the police and that he was indeed with Mehtab Shaikh till then. 19. The witness admitted having had discussion with Mehtab Shaikh (first informant), but denied the suggestion that Mehtab Shaikh had told about the incident and that therefore, he was telling accordingly. He also admitted that the police Officer had told the said Mehtab Shaikh to bring him to the police and that he was indeed with Mehtab Shaikh till then. 19. It was suggested to this witness in the cross examination on behalf of the accused No.5 that this witness himself and the first informant Mehtab Shaikh and others were actually, the assailants, and that accused were being falsely implicated by the witness. Of course, such a suggestion has been denied by this witness. 20. The witness was asked in the cross examination as to whether he had asked the deceased as to who assaulted him, and the witness replied in the affirmative. Interestingly, after this answer, the defence gave up this line of cross examination without asking what Shakil had told this witness at that time. 21. In the cross examination of this witness that took place on 11.8.2003, he gave the following admission;- “It is true to suggest that assailants had already ran away before I reached Shakil.” In view of this admission, the learned Special Public Prosecutor, declared this witness hostile and sought permission to put questions in the nature of cross examination, which was granted. In the further examination of this witness by the learned Special Public Prosecutor, after he was declared hostile, which took place on 18.9.2003, the witness stated that, ‘he had stated the true and correct facts in his examination in chief that had taken place on 7.8.2003’, and that ‘he deposed falsely in the cross examination on the relevant date i.e. on 11.8.2003’. He stated that ‘he was threatened by the accused persons in the intervening period’ and that day i.e. ‘on 18.9.2003 (when his further examination was taken by the learned Special Public Prosecutor after declaring him hostile), he was not under any fear’. The record of notes of evidence, shows that cross examination of this witness by the accused persons pursuant to this answer elicited by the learned Special Public Prosecutor, was not taken, as the advocates for the accused persons were absent. This has been taken as a ground by the learned counsel for the accused persons for claiming that the evidence of this witness should be discarded. This has been taken as a ground by the learned counsel for the accused persons for claiming that the evidence of this witness should be discarded. It was contended that looking to the nature of his evidence, the Court ought not to have losed the cross examination. It was submitted that later on an application was made by the accused persons to recall this witness for further cross examination in view of the evidence brought on record by the learned Special Public Prosecutor, on 18.9.2003, (after the cross examination of this witness was done on behalf of the accused persons); but that, the said application was rejected by the learned Additional Sessions Judge. Indeed, factually this contention seems to be correct from the record. The further examination of P.W.1 was taken by the Special Public Prosecutor on 18.9.2003 and on that date itself, the further cross examination, occasioned by the newly adduced evidence was treated as declined by observing that the advocates for the accused were absent till 11.45 a.m.. The record shows that an application (Exh.17) was made on behalf of the accused No.5 to recall this witness for examining for “correcting Roznama”. This application was rejected by the learned Additional Sessions Judge on 10.10.2003. The prayer for recalling was again canvassed, but that was also rejected by an order dated 1.11.2003, by observing that there was no case for recalling as the accused had failed to avail of the opportunity of cross examining the witness from time to time. The record also shows that even thereafter an application (Exh.21) was made by the accused No.3 for recalling P.W.1 for further cross examination and that, that application was also rejected by the learned Judge on the ground that the same request had been rejected earlier. 22. Though, in our view, the learned Judge ought to have afforded an opportunity to the accused persons to cross examine the P.W.1 further in view of what was elicited from him by the Special Public Prosecutor on 18.9.2003 i.e. after the cross examination by the accused persons was over, we are unable to accept the contention advanced by the learned counsel that the evidence of this witness is liable to be discarded or excluded from consideration on that ground. After carefully considering the matter in the light of well established legal principles, we feel, firstly, that permitting the Special Public Prosecutor to put questions to this witness in the nature of cross examination was itself not proper; and a result of misunderstanding on the part of the Special Public Prosecutor. The admission that, “the assailants had already ran away before I reached Shakil” was construed by the learned Special Public Prosecutor as controverting all that was previously stated by the witness, which was absolutely incorrect, in our opinion. The witness had even earlier stated that on seeing him and others, the assailants ran away and when he said that they had already ran away before he reached Shakil, he was not saying anything contrary to what had been stated by him earlier. This could not have been construed as an admission of the fact that he had not seen the assault, or that he had not seen the assailants on the spot. It was overlooked by the learned Special Public Prosecutor, as also by the learned Additional Sessions Judge, that the witness could very well see the assailants before he actually reached near the body of Shakil, which, in fact, is the claim of the witness. Secondly, denial of an opportunity to cross examine the witness thereafter would be relevant in excluding the newly obtained evidence by Special Public Prosecutor viz. ‘that he was threatened by the accused persons and that therefore, he had thereafter deposed falsely in the cross examination’. His evidence, which was recorded earlier, and in respect of which full and complete opportunity of cross examination was given to the accused persons (and which was actually availed of by them), cannot be discarded on the ground of depriving the accused persons of an opportunity to cross examine this witness with respect to the evidence recorded on 18.9.2003. In the circumstances, however, we exclude the evidence of this witness recorded on 18.9.2003, from consideration. 23. Upon considering the evidence of this witness, it is not possible to accept that he was not an eye witness at all or that he has implicated the accused falsely. Not much importance, in our opinion, can be given to the fact that his statement came to be recorded after about 5 days from the incident. 23. Upon considering the evidence of this witness, it is not possible to accept that he was not an eye witness at all or that he has implicated the accused falsely. Not much importance, in our opinion, can be given to the fact that his statement came to be recorded after about 5 days from the incident. The reason for such delay has been that the witness was avoiding to meet the police and that it was so has been stated by the witness himself. It may be recalled that Shakil had some criminal background. Even this witness, it is revealed in the cross examination, had some cases registered against him and he was in jail for some time. It is obvious that witness did not want himself to get involved in the investigation, as that would bring him in contact with the police and further it would create animosity between him and the accused persons, who were residents of the same locality. The witness, even did not go to his house and even to his friends, and kept on moving at the different places to avoid being traced by the police. In the peculiar circumstances, in which the witness was placed, he might have thought it appropriate to be away from the matter. Under these circumstances, his evidence cannot be held to be unreliable on the ground that his statement was not recorded by investigating agency for about a period of five days from the date of incident. On the contrary, it would show that he was not keen on making an allegation against the accused persons, or involving them. 24. Though, admittedly, this witness was a close friend of the deceased, considering that, he was not eager to involve the accused persons in the matter, we do not think that his friendship with the deceased could be a ground for disbelieving him. 25. Coming to the evidence of the other eye witness Santosh Gupta (P.W.2), we find that his evidence is also consistent with the evidence of Akram (P.W.1). He also knew all the accused and even the deceased. He was also present at the dinner party. According to him, while he was sitting separately from other invitees, (as he did not take non vegetarian food), he noticed the accused persons coming to Shakil. He also knew all the accused and even the deceased. He was also present at the dinner party. According to him, while he was sitting separately from other invitees, (as he did not take non vegetarian food), he noticed the accused persons coming to Shakil. According to him, the accused No.3 Firoz asked Shakil as to why he had assaulted his brother and then the assault took place. According to this witness, Firoz (accused No.3) took out a sword, accused No.1 Mamma took out a chopper, accused No.4 Shakil took out a chopper and accused No.2 Kaiffi took out a Khanjir and all of them started assaulting Shakil. He has also described as to which accused inflicted blow or blows on which part of the body of Shakil. Thus, according to him, accused No.3 Firoz inflicted a blow with sword on the head of Shakil. Shakil fell down and thereafter accused No.1, 2 and 4 indiscriminately assaulted Shakil. His evidence also shows that, initially, the accused No.3 Firoz had asked Shakil to come at some distance from the place of dinner and that, after Shakil was taken a little away, the assault took place. According to him, after the assault, the accused persons fled away, and he also ran away out of fear. According to him, he had thereafter seen the accused in the police station. He identified the weapons shown to him in the court during his evidence; and according to him, Article 10 was the sword that had been held by accused No.3 Firoz, Article 19 was the Khanjir that had been held by accused No.1 Mamma, Article 9 was the Gupti that had been held by accused No.4 Shakil and the Khanjir (Article 13) has been held by accused No.2 Kaiffi. 26. Like Akram (P.W.1), this witness was also extensively cross examined on behalf of the accused persons. He also admitted in the cross examination, that deceased Shakil was a local Gunda and that many residents of the locality were afraid of him. He also admitted that Shakil was involved in illegal selling of diesel and petrol. He had gone to the police station at 4.00 p.m. on 21.11.1998. He categorically stated that no relatives or friends of the deceased had taken him to the police station but that the police had come and taken him there. He also admitted that Shakil was involved in illegal selling of diesel and petrol. He had gone to the police station at 4.00 p.m. on 21.11.1998. He categorically stated that no relatives or friends of the deceased had taken him to the police station but that the police had come and taken him there. An admission, as follows, was elicited from him :- “Initially, I refused to tell anything out of fear at my residence. ------ I narrated the whole incident to the police the moment I reached the police station. I thought it fit to disclose the same before the police beat me.” He also stated that the police had told him, while taking him to the police station, that since his name was referred to by the other witnesses, he would have to go with them. 27. In view of this, an argument was advanced that this shows that whatever the witness stated was a result of the fear of police. We are unable to accept this. Undoubtedly, this does show that he was afraid of the police, and disclosed the information that he had, only when felt compelled to do so; but does not show that he stated falsely. In our view, all that this shows is the initial reluctance of the witness to tell the police about the incident, and not that he did not know anything about it. 28. An attempt was made to discredit this witness by cross examining him with respect to the date of previous incident wherein Shakil had allegedly assaulted accused No.1 Mamma, with a chopper. We are not much impressed by this attempt. The incident, which is the subject matter of this case had taken place at about 9.00 p.m. on 20.11.1998 and the statement of this witness was recorded at about 4.00 a.m. on 21.11.1998. This change of date might have resulted in some confusion on the part of the witness, but this does not affect his testimony in any manner, at least with respect to the incident of actual assault, the date and time of which is under no challenge and is even otherwise, not open to any doubt. This change of date might have resulted in some confusion on the part of the witness, but this does not affect his testimony in any manner, at least with respect to the incident of actual assault, the date and time of which is under no challenge and is even otherwise, not open to any doubt. He was sought to be contradicted by the version in his statement recorded by the police under Section 161 of the Code and it was attempted to highlight that he had omitted to state certain facts before the police, which he had stated before the court during his evidence. We however, find that such contradictions and/or omissions are insignificant and inconsequential. In our opinion, the defence has not been successful in pointing out that there was departure in the evidence of this witness from what had been stated by him to the police, or that he had made any improvements over his initial version, while giving evidence. 29. In his evidence, Shahjad Mohd. Haroon Khan (P.W.5) who is also supposed to be an eye witness, initially stated that he had seen Shakil lying injured on the ground, but he had not seen anybody assaulting Shakil. This witness was declared hostile and pursuant to the permission granted by the court, the learned Special Public prosecutor put questions in the nature of cross examination to this witness. It is thereafter that he made certain statements favourable to the prosecution. The cross examination of this witness was not taken, as the advocates for the accused persons were absent and the accused declined to cross examine the witness personally. 30. It is contended, vehemently, by the learned advocates for the accused, that since an order for recalling the witness for cross examination had been passed and since inspite of such order, the presence of the witness could not be procured for such cross examination, his evidence cannot be taken into consideration. Without going into the question as to what would be the legal position in respect of the evidence of a witness, who though was available was not cross examined by the defence, and who, when later on sought to be cross examined, was not available, we think it fit to exclude the evidence of this witness from consideration against the accused persons. 31. 31. After considering the evidence of Akram (P.W.1) and Santosh Gupta (P.W.2), we are unable to hold that the same suffers from any such infirmities so as to throw any doubt on their claim of having witnessed the incident of assault on Shakil. We do not find anything unreliable or untrustworthy in the testimony of either of them with respect to the involvement of the accused persons in the assault of Shakil. It appears that due to the character of the deceased and the fact that witnesses were the residents of the same locality, knowing the deceased as well as the accused persons, the witnesses were avoiding to get involved in the matter. Though this attitude of the witnesses cannot be appreciated, the fact remains that they cannot be said to be anxious to implicate the accused persons in the alleged offence. The possibility of their involving the accused persons in the case falsely, therefore, does not appear to be reasonable, particularly when their evidence does not suffer from any such infirmities as would make the court to discard their evidence. 32. It would be appropriate to observe herein that we are not happy about the manner, in which the trial got delayed. The Roznama shows that on number of dates, fixed for hearing of the case, the accused persons were not produced before the court from the prison. On several occasions, when they were produced, the advocates for some or the other accused, were absent. The charge came to be framed only on 6.7.2002. Even thereafter, the trial kept on being dragged. The last witness was examined only on 19.7.2004. Thereafter, the examination of the accused persons under Section 313 of the Code took place and the judgment was delivered on 15.9.2004. The record also shows that the examination of even the important witnesses was not taken at a stretch, but on different dates. Under these circumstances, in the large volume of evidence, the evidence of these two witnesses is bound to contain some discrepancies but, in our opinion, such discrepancies are on collateral aspects and not with respect to the account of the incident or involvement of the accused persons in the alleged offence. The trial court has believed these witnesses and on reading of their evidence, we find no reason to brand them as unworthy of credit. The trial court has believed these witnesses and on reading of their evidence, we find no reason to brand them as unworthy of credit. It may be observed that the evidence of these witnesses was attacked as unreliable, primarily, on the ground of the delayed recording of the statement of Akram (P.W.1) of his being in the company of the first informant Mehtab and his reluctance as well as the reluctance of Santosh Gupta (P.W.2) to tell the incident to the police. As discussed earlier, in the facts and circumstances of the case and keeping in mind the rest of the evidence, that was adduced before the Court; and after having subjected the evidence of the eye witnesses to a through scrutiny, we are unable to hold the same as unreliable. 33. We may now examine the other evidence that is against the accused persons. The weapons of assault are said to have been recovered at the instance of the accused persons. Evidence of Raju More (P.W.7) and the evidence of Investigating Officer-Shivaji Niman (P.W.8) is relevant in this context. 34. According to Raju More (P.W.7), on 23.11.1998, at about 4.30 p.m. he was called by the P.I. Niman (P.W.8) and that from Niman he learnt that the name of the person, who was sitting there, was Kaiffi. He stated that the said Kaiffi took the police party to a hut from where he produced a Khanjir. He stated about the drawing of panchnama by the police and identified his signature thereon. He also identified the Khanjir (Article 8), as the same Khanjir that was produced by the said Kaiffi. While identifying Kaiffi, however, this witness identified accused No.1 Mamma. 35. The witness also stated that on the same day, he was again called by the police at 7.30 p.m. and that when he went, the accused No.1 Mamma was there. The accused No.1 Mamma was introduced to this witness and the said accused made a certain statement before him and the police, which statement was reduced into writing by the police. He identified the memorandum (Exh.37), as the same document and also identified his signature thereon. He identified the accused No.1 Mamma in the Court as the same person, who had been seen by him on that day. He identified the memorandum (Exh.37), as the same document and also identified his signature thereon. He identified the accused No.1 Mamma in the Court as the same person, who had been seen by him on that day. He thereafter stated that the accused No.1 Mamma led the police party to a room at Shivaji Nagar and that he produced one Gupti from that room. He identified the Gupti (Article 9) before the court as the same Gupti. 36. Though this witness made a mistake while identifying the accused No.2 Kaiffi, we do not think that this aspect of the matter would be fatal to the claim of the prosecution that the Khanjir (Article 8) and Gupti (Article 9) were recovered pursuant to the disclosure statement made by accused No.2 and accused No.1 respectively. The witness having witnessed the recovery of two different articles at the instance of two different persons on one the same day, might have made a mistake in identifying one of the said two accused i.e. the accused No.2 Kaiffi. Moreover, the evidence in that regard is also of I.O. Niman (P.W.8) and we do not find anything in his evidence, which would create a doubt about the truth of his testimony in that regard. His evidence in that regard has not been shaken at all in the cross examination. 37. In our opinion, the fact of recovery of the Gupti (Article 9) pursuant to the information received from accused No.1 Mamma and the recovery of Khanjir (Article 8) pursuant to the disclosure statement made by the accused No.2, is satisfactorily established. 38. The evidence of I.O. Shivaji Niman (P.W.8) also shows that on 24.11.1998, a sword (article 10) was recovered under a panchnama (Exh.39) pursuant to the information disclosed by the accused No.3 Firoz. That, on the same day, one Khanjir (Article 13) was recovered under a panchnama (Exh.40) pursuant to the information disclosed by the accused No.4 Mohd. Shakil. The evidence with respect to the recovery of sword (Article 10) at the instance of the accused No.3 Firoz, is corroborated by the evidence of Shashikant Wakode (P.W. 10)-one of the panchas. The evidence of Wakode has not been challenged at all by the accused No.3 or the other accused. Shakil. The evidence with respect to the recovery of sword (Article 10) at the instance of the accused No.3 Firoz, is corroborated by the evidence of Shashikant Wakode (P.W. 10)-one of the panchas. The evidence of Wakode has not been challenged at all by the accused No.3 or the other accused. We find the evidence of I.O. Niman (P.W.8), to the effect that the sword (Article 10) was recovered in the course of investigation pursuant to the information disclosed by the accused No.3 Firoz and that the Khanjir (Article 13) was recovered at the instance of accused No.4, quite reliable and acceptable. 39. Sanjay Dabade (P.W.6) is a panch in respect of panchnama of arrest/seizure of clothes of accused No.3 Firoz. According to him, on 23.11.1998 at about 9.30 p.m. he was called at Deonar police station, where he saw two persons in police custody, who gave their names as Firoz and Mohd. Shakil. He has identified as accused No.3 Firoz, as one of the said two persons. He was however, unable to identify the other person. According to him, the police, at that time, showed him clothes on which there were blood stains. 40. The First Informant-Mehtab Shaikh was not examined as a witness. The record shows, that inspite of making efforts, his presence could not be procured. It is not that the first informant was deliberately held back by the prosecution. Therefore, no adverse inference can be drawn against the prosecution for not having examined him. 41. Through P.I. Walmik Sardar (P.W.9), who was working as station house officer on the night duty on 20.11.1998, a proforma of F.I.R. (Exh.55) was brought on record and tendered as evidence. The evidence of this witness shows that at about 10.15 p.m. he received information from Shatabdi Hospital that a person by name Akhtar Shakil Hussain was killed in Riyaz compound and brought in the hospital. He went to Shatabdi Hospital and recorded the statement of Mehtab Kadar, which was treated as the First Information Report. 42. Though the first informant was not examined, the entires made by Walmik Sardar in the printed prescribed proforma of the F.I.R. in the discharge of his official duties are relevant and admissible for showing (i) the fact of having made such entries and (ii) for showing the date and time of making such entries. 42. Though the first informant was not examined, the entires made by Walmik Sardar in the printed prescribed proforma of the F.I.R. in the discharge of his official duties are relevant and admissible for showing (i) the fact of having made such entries and (ii) for showing the date and time of making such entries. The entries themselves are substantive evidence of the facts which they state. Thus, the document at Exh.55 shows that information was received at the police station at about 23.30 hours to the effect that the incident had taken place on the same day at about 21.00 hours, and that an entry with respect to the receipt of the information was made in the station house diary vide No.73 of 1998 at about 23.30 hours. The informant is described as one Mehtab Shaikh and the names of the accused have been mentioned as Firoz, Mamman Shaikh (younger brother of Firoz), Ismail Shaikh, Kaiffi Ali Sayyad and Ahmed Shakil. Ismail is said to be absconding, but the other names are of the present appellants i.e. accused Nos. 1 to 4 in the said Sessions Case. Thus, these entries sufficiently indicate that at a very early point of time, the information about the assault was given to the police, by implicating the present accused. This adds strength to the case of the prosecution. Certainly, mentioning of the names of the accused as the culprits, in the proforma (Exhibit-55) is not evidence of their involvement in the matter; but it indicates and constitutes evidence of the fact that an allegation, had, in fact, been made against them immediately after the incident. This aspect is relevant in the context of the contention of the defence that the statements of the eye witnesses were not recorded promptly. Late recording of the statements of the eye witnesses loses its significance considerably, when it is shown that the involvement of the present accused persons was already disclosed to the investigating agency within an hour or two from the incident. The involvement of the accused persons in the alleged offence therefore, cannot be said to be an afterthought, or a result of deliberations or manipulations. 43. As against the accused No.4, there is another circumstance appearing in the evidence of Akbar Ahmed Iqbal Ahmed (P.W.3). The involvement of the accused persons in the alleged offence therefore, cannot be said to be an afterthought, or a result of deliberations or manipulations. 43. As against the accused No.4, there is another circumstance appearing in the evidence of Akbar Ahmed Iqbal Ahmed (P.W.3). According to this witness, he was employed with one Riyaz and that the accused No.4 Shakil was working with him. On 20.11.1998, the accused No.4 Shakil was at the work place till about 7.00 p.m. and that thereafter he left that place. That, the accused No.4 again came back at about 11.00 p.m. when this witness was still working. That, at that time, accused No.4 was holding a plastic bag in his hands and to the witness, he appeared to be frightened. That, the accused No.4 kept the plastic bag in suitcase, which he had kept at the place of work. That, he thereafter washed his hands and face and left that place. That, on 23.11.1998, the police came there and made inquiries with this witness. That, on 24.11.1998, the police again came back took the said plastic bag in the presence of this witness. He also states that some clothes were found in the plastic bag. 44. In the cross examination of this witness, the omission to state before the police that the said plastic bag was taken charge of by the police in the presence of this witness was brought on record. However, we do not find such omission as significant. The fact that the accused No.4 had kept the plastic bag containing clothes, at his work place, is satisfactorily established from the evidence of this witness. This circumstance, though by itself is not of much significance, it provides corroboration-even if slender-to the other direct and circumstantial evidence against the accused No.4. 45. Upon considering the entire evidence, we find that the evidence of Akram (P.W.1) and Santosh Gupta (P.W.2) is convincing and reliable. The same is corroborated by the evidence of recovery of weapons used in the offence, which also, in our opinion, is satisfactory. The fact that the information about the involvement of the accused persons in the alleged offence was received by the investigating agency within an hour or two from the incident, is also significant. The entire evidence when considered together, therefore, does not leave any possibility of the accused having been falsely implicated in the case. 46. The fact that the information about the involvement of the accused persons in the alleged offence was received by the investigating agency within an hour or two from the incident, is also significant. The entire evidence when considered together, therefore, does not leave any possibility of the accused having been falsely implicated in the case. 46. In our opinion, the conclusion arrived at by the learned Additional Sessions Judge that the case against the accused persons had been proved by satisfactory evidence and beyond reasonable doubt, is proper and legal. Consequently, no interference with the impugned Judgment and Order is called for. 47. The appeals are dismissed.