Judgment : [A.H. Joshi, J.] 1. These three Criminal Appeals are preferred by different accused persons, who were tried in Sessions Trial No. 64 of 2003 for commission of offence punishable under Section/s:- [a] 147 and 148 of Indian Penal Code for forming an unlawful assembly with a common object of rioting, using deadly weapons to cause death of Satya alias Satyawan on 13th November, 2002 at about 10.15 p.m.; [b] 149 of Indian Penal Code for causing hurt to Baban Khobragade, Satya, Sunita and son-in-law of complainant Baban Khobragade by sword, sticks and Gupti in prosecution of the common object; [c] 324 of Indian Penal Code, for voluntarily causing hurt to Satya, complainant-Baban Khobragade, Kalpana and son-in-law of complainant-Baban by sword, Gupti and sticks; [d] 302 of Indian Penal Code for intentionally and knowingly causing death of Satya by sword, Gupti and sticks; [e] 4 of the Arms Act punishable under Section 25 of the said Act, for possessing weapons; and, [f] 135 of the Bombay Police Act for contravening proclamation under Section 37 of the Bombay Police Act. 2. The learned Sessions Judge convicted all accused persons and sentenced them to suffer:- [a] Life Imprisonment and to pay a fine of Rs.1000/- each, in default, to suffer Simple Imprisonment for two months each, for offence punishable under Section 302 read with Section 149 of Indian Penal Code; [b] Rigorous Imprisonment for one year each for offence punishable under Sections 147 and 148 of Indian Penal Code; [c] Simple Imprisonment for six months each and to pay a fine of Rs.500/- each, in default, to suffer Simple Imprisonment for one month each for offence punishable under Section 324 read with Section 149 of Indian Penal Code. 3. All accused have been acquitted of the charge of offence punishable under Section 4 read with Section 25 of the Arms Act and Section 135 of the Bombay Police Act. 4. In the trial, the prosecution has examined following witnesses:- 1. PW 1 – Baban Khobragade. : Elder brother of deceased Satyawan who lodged FIR and eye-witness injured in the incident. 2. PW 2 – Suresh Belpande : Eye-witnesses of the incident 3. PW 3 - Sau. Sunita Dahikar : who have received injuries during the assault. 4. PW 4 - Venubai Khobragade : Eye witnesses of the incident. 5. PW 5 - Priyanka Khobragade : 6. 2. PW 2 – Suresh Belpande : Eye-witnesses of the incident 3. PW 3 - Sau. Sunita Dahikar : who have received injuries during the assault. 4. PW 4 - Venubai Khobragade : Eye witnesses of the incident. 5. PW 5 - Priyanka Khobragade : 6. PW 13 - Annu Patel : Panch of the arrest and seizure of clothes of accused persons. 7. PW 15 - Rajesh Samarth : Panch of the Seizure of stones and coins from the spot. 8. PW 12 - Dr.Prashant Barve: Medical witness who examined and treated injured. 9. PW 14 - Dr. Rajesh Bardale : Medical witness who conducted autopsy of dead body of Satyawan. 10. PW 9 – Devendra Patil : Police Sub-Inspector, who conducted investigation. 11. PW 17 - Iqbal Sayyad : Police Inspector, under whose supervision and guidance investigations were conducted. 5. Following witnesses have turned hostile:- 1. PW 7 - Indu Dharmik : Eye-witness. 2. PW 6 - Nandlal Waghdhare : Panch of seizure of clothes of deceased. 3. PW 10 - Vijay Atkar : Panch of the Spot Panchanama. 4. PW 11 - Vinod Moundekar : Panchas of the Inquest Panchanama. 5. PW 18 - Rajesh Gour : 6. PW 16 – Jitendra Shetey : Panch of the Disclosure Memorandum & recovery of weapons from accused no.1. 6. Accused Nos. 1 to 3 raised the plea partly of denial and partly that of self-defence, in the background that the wife of Accused No.1 had lodged a counter-case against the complainant and his family members, in respect of which the FIR was registered, crime was investigated and upon filing of charge-sheet against PW 1 - Shri Baban Khobragade in present case and Satyawan Khobragade, they were tried in Regular Criminal Case No. 3 of 2003. Said counter-case was tried separately before the same Judge and has been decided on the same date when the Judgment of conviction in present case was rendered. Accused Nos. 4 and 5 raised the plea of alibi. 7. The learned Sessions Judge recorded a finding in favour of accused persons in so far as offence punishable under Section 3 read with Section 25 of the Arms Act and Section 135 of the Bombay Police Act is concerned. 8. Accused Nos. 4 and 5 raised the plea of alibi. 7. The learned Sessions Judge recorded a finding in favour of accused persons in so far as offence punishable under Section 3 read with Section 25 of the Arms Act and Section 135 of the Bombay Police Act is concerned. 8. Learned Sessions Judge held in favour of prosecution on the point of death being homicidal, in the background that there were thirty-three bleeding and non-bleeding injuries on the person of the victim – Satyawan, and medical opinion that the number and type of injuries victim had suffered, death was a sure result. 9. In so far as involvement of accused persons is concerned, learned Sessions Judge recorded a finding on Point No.1 framed by him in the body of judgment that by virtue of collective effect of testimonies of PW 1 – Baban, PW 2 – Suresh, PW 3 – Sau. Sunita, PW 4 – Venubai and PW 5-Priyanka, presence of the accused forming an unlawful assembly with a common object of assault by them resulting into injuries to victims by the accused persons was proved. 10. Considering the injuries on the witnesses, offence under Section 324, read with Section 149 of Indian Penal Code was also held proved, and ultimately conviction and sentence as described herein above was ordered. 11. Heard respective Advocates. 12. Learned Advs. Mr. V.M. Deshpande and Mr. R.M. Daga who appear for accused nos. 4 and 5 respectively do constitute a class claiming alibi. They have taken the said defence, urging and relying upon the cross-examination of certain witnesses and on oral and documentary evidence brought by them to prove that on the date and time of incident, accused nos. 4 and 5 were present at their respective places of work. 13. Rest of the accused, i.e., accused nos. 1 to 3, who form one class and whose defence is of denial and that of self-defence, though represented through different Advocates, have a common plea, which can be summarized as follows:- [a] The eye-witnesses relied upon by the prosecution are highly interested witnesses. They are members of one family and closely related to the deceased. [b] In the background that there is a cross-case, it was the duty of the prosecution to prove the genesis of the case. Since it has not been proved, the incident becomes doubtful. They are members of one family and closely related to the deceased. [b] In the background that there is a cross-case, it was the duty of the prosecution to prove the genesis of the case. Since it has not been proved, the incident becomes doubtful. [c] Proof of death is not equal to proof of guilt of murder, and though Satyawan died, it is not necessarily due to assault by the accused persons. [d] Prosecution evidence suggests presence of independent witnesses at the nearby location or in the vicinity. No explanation is coming forward from the prosecution as to why independent witnesses are not examined. [e] As is seen from the Panchanama of the scene of offence, that it demonstrates possibility of use of other weapons, such as stones, bricks, hockey stick etc., while no explanation is coming forward as to in what circumstances these articles, which appear to be the weapons of assault, were found on the spot, and who had used those weapons. [f] The manner in which the witnesses of discovery have turned hostile goes to prove that the effort of the prosecution is farcical. There is no genuine case against the accused and they are liable to be acquitted. [g] Though the cross-case filed by the wife of Accused No.1 has led to acquittal, that by itself does not falsify the defence of the accused persons. [h] All injuries on the person of Satyawan are described to be simple injuries and, therefore, in no case, the fact of death of Satyawan can be attributed to the assault, and the weapons which witnesses describe as used in the assault. [i] PW 1 – Baban does not name accused no.4. [j] PW 5 – Priyanka does not name accused No.4 – Vijay as well Accused No.5 – Sunil. [k] Omissions and contradictions in the versions of witnesses go to suggest that the story couched by the prosecution is based on artifice. 14. To substantiate their respective arguments, learned Advocates for the appellants placed reliance on following reported judgments:- Judgments relied upon by Adv. Mr. V.M. Deshpande : [a] Bharosi & others Vs. State of M.P. [2003 ALL MR (Cri) 390 (SC)]. Proposition : Proof of knowledge as to intention of the assailants, to all other accused persons allegedly forming an unlawful assembly is necessary. Mr. V.M. Deshpande : [a] Bharosi & others Vs. State of M.P. [2003 ALL MR (Cri) 390 (SC)]. Proposition : Proof of knowledge as to intention of the assailants, to all other accused persons allegedly forming an unlawful assembly is necessary. In absence of knowledge of intention, all other accused persons would not be responsible for the act of the main assailants. [b] Musakhan & others Vs. State of Maharashtra [1976 Cri. L.J. 1987]. Proposition : Every person present at the place of offence or nearby at the time of commission of offence by a riotous mob cannot be presumed to be a member of unlawful assembly. Therefore, it must be proved that the accused was not only a member of unlawful assembly at material time, but has shared the common object of the unlawful assembly at the relevant stage of commission of offence. [b] Ishwar Singh Vs. State of Uttar Pradesh [ AIR 1976 SC 2423 ]. Proposition : If the weapon of assault is not proved to be one used in assault not only by ocular evidence, but by medical evidence as to co-relating the weapon with the injury may some times cause aberration in the process of justice. [d] Lalji & others Vs. The State of U.P. [1973 CRI. L.J. 1769 (V 79 C 535]. Proposition : In case of a sudden quarrel and reciprocating attacks, the accused, who were present, cannot be presumed to be members of unlawful assembly. Each one would be liable in individual capacity. [e] Gajanand & others Vs. State of U.P. [ AIR 1954 SC 695 ]. Proposition : The decision as to liability under Section 149 of Indian Penal Code depends upon the fact whether other members of assembly knew beforehand the offence, which was actually committed, was likely to be committed in prosecution of a common object. Unless it is so proved, no conviction can be ordered under Section 149 of Indian Penal Code for a vicarious liability. [f] Kuldip Yadav & others Vs. State of Bihar [Criminal Appeal Nos.531, 532 and 534 all of 2005, decided by Hon'ble Supreme Court (Coram : P. Sathasivam, J.) (unreported)]. Unless it is so proved, no conviction can be ordered under Section 149 of Indian Penal Code for a vicarious liability. [f] Kuldip Yadav & others Vs. State of Bihar [Criminal Appeal Nos.531, 532 and 534 all of 2005, decided by Hon'ble Supreme Court (Coram : P. Sathasivam, J.) (unreported)]. Proposition : Bare fact that the accused were charged for being members of unlawful assembly, who possessed weapons, as a fact in itself would not render them liable for acts committed by anyone forming part of unlawful assembly, unless it is proved that such accused persons [in whose hands weapons were seen] are proved to be members of unlawful assembly with knowledge of likelihood of commission of offence in prosecution of a common object. Judgments relied upon by Adv. Mr. Anil Mardikar : [a] Mahesh Chander Vs. State of Delhi [ AIR 1991 SC 1108 ]. Proposition : If defence could establish that the prosecution witnesses are not trustworthy, the presence of accused persons as offenders would come in doubt and conviction may not be sustained. [b] State of Haryana Vs. Gurdia Singh & another [ AIR 1974 SC 1871 ]. Proposition : Conviction of an accused cannot be sustainable when the version of witnesses are contradictory to the statements recorded by police. [c] Ram Yash & others Vs. State of U.P. [1993 (2) Crimes, 199]. Proposition : When injuries suffered by the accused who had also filed a cross-case, were not explained by the prosecution, the defence evidence may be very well true and the prosecution story would be doubtful. [d] Ramesh Kumar Vs. State (Delhi Admn.) [1990 Cri. L.J. 255]. Proposition : The accused would be entitled to benefit if the versions of witnesses contradict the medical evidence, and the manner in which the FIR is registered creates a doubt as to its time etc., and the ambiguity in FIR relating to the names of accused etc., would be in favour of accused. [e] Kondagiri Laitara & another Vs. State [ 1985 (1) Crimes 538 ]. Proposition : If the prosecution evidence consists of contradictions and inconsistencies, the story would be rendered doubtful, and it would be unsafe to base the conviction on such evidence. Judgments relied upon by Adv. Mr. R.M. Daga : [a] Deo Narain Vs. State of Uttar Pradesh [(2011) 1 SCC (Cri) 756 = (2010) 12 SCC 298 ]. Proposition : If the prosecution evidence consists of contradictions and inconsistencies, the story would be rendered doubtful, and it would be unsafe to base the conviction on such evidence. Judgments relied upon by Adv. Mr. R.M. Daga : [a] Deo Narain Vs. State of Uttar Pradesh [(2011) 1 SCC (Cri) 756 = (2010) 12 SCC 298 ]. Proposition : In the process of appreciation of evidence when the injuries would not match with the weapon, and if such injuries were caused by the accused who were members of unlawful assembly later in time, it would be heard to connect them with the main accused for a common intention and by granting benefit of doubt, the accused would be entitled for acquittal. [b] Mummidi Hemadri & others Vs. State of Andhra Pradesh [2007 (2) Crimes 389 (SC)]. Proposition : Mere presence of accused persons at the place where offence was committed, in absence of positive evidence as to participation of the accused persons, they cannot be regarded as members of unlawful assembly who has committed the main offence, and be vicariously liable for the offence committed by other accused persons. 15. Learned APP Mrs. Maldhure argued in support of the judgment under appeals and urged to uphold the judgment and maintain the conviction and sentence. 16. To support her argument, learned APP Mrs. Maldhure cited at bar the following judgments:- [a] Murli & another Vs. State of Rajasthan [ (2009)9 SCC 417 ]. Proposition : Criminal antecedents of witnesses and their being closely related to the victim by itself will not render the testimonies of such witnesses untrustworthy. If such witnesses prove the incident, the testimonies can be adequate for ordering conviction. [b] Dani Singh and others Vs. State of Bihar [ AIR 2004 SC 4570 ]. Proposition : The prosecution has to pass through a very difficult path of dishonestly lodged FIRs, misdirected investigations and witnesses committing perjuries, and Courts have to exercise their jurisdiction by use of their experience and knowledge and overcome various handicaps. Therefore, when the delay caused in lodgment of FIR was duly explained, and testimonies of witnesses inspire confidence, the witnesses could be believed, in order that real culprits are not left out. 17. Perused oral evidence and other evidence, and considered rival submissions. 18. Therefore, when the delay caused in lodgment of FIR was duly explained, and testimonies of witnesses inspire confidence, the witnesses could be believed, in order that real culprits are not left out. 17. Perused oral evidence and other evidence, and considered rival submissions. 18. At the outset, it would be useful to refer to the aspect of the matter as to whether death of Satyawan is homicidal. For this purpose, injuries suffered by Satyawan and cause of death need to be referred. 19. In Column No. 17 of Post-mortem Examination Report [Exh.149], thirty-three injuries on the body of Satyawan are mentioned. It would suffice to refer to incised wounds and stab wounds which read as follows:- “17. Surface wounds and injuries, their, position, dimensions measured and directions to be accurately stated, their probable age, causes to be noted. “4) Incised wound Right parotid area and Right neck, upto middle 1/3rd oblique 15 cm x 2 mm x subcutaneous deep, fresh. 10) Incised wound, at the root of ring finger, Right, horizontal 1 cm. X 0.5 cm x subcutaneous tissue, palmar aspect fresh. 11) Incised wound, Right Ring finger, Palmer aspect proximal & middle 1/3rd , oblique, 2.5 cm x 1 cm x Bone deep, fresh. 12) Stab wound, Left 9th intercostals space, in the midaxillary line, oblique, 2 cm x 1 cm x Cavity deep, directed, posteriorly upwards. The both angles are sharp and both margins are clean, fresh. 13) …....................................... 14) …....................................... 15) …....................................... 16) Stab wound, right upper back 5 cm superior to superior border of scapula,horizontal, 2 cm x 1 cm x muscle deep, directed anteriorly and medially. Both angles are sharp and both margins are clear, fresh. 17) …....................................... 18) Stab wound, right back infra scapular region 7th intercostals space in the posterior line oblique, 2 cm x 1 cm x cavity deep, directed anteriorly and downward, both angles are sharp, margins clean, fresh. 19) Puncture Wound, Right back at the level of T12, 3 cm from midline 1 cm x 0.5 cms x muscle deep, fresh. 20) Puncture wound below injury No. 20 by 1.5 cm 0.5 cm x 0.5 cm x muscle deep, fresh. 21) Incised wound, Left upper back, at the level of T2, 1.55 cm from midline, oblique 1 cm x 0.5 cm x subcutaneous deep, fresh. 20) Puncture wound below injury No. 20 by 1.5 cm 0.5 cm x 0.5 cm x muscle deep, fresh. 21) Incised wound, Left upper back, at the level of T2, 1.55 cm from midline, oblique 1 cm x 0.5 cm x subcutaneous deep, fresh. 22) Incised wound, Left upper back, at level of T1, 5 cm from midline, oblique 1 cm to 0.5 cms x muscle deep, fresh. 23) Stab wound, Right forearm, extensor aspect at the junction of middle 1/3rd Lower 1/3rd through and through, passing between the two bones, of size 1.5 cm x 1 cm. Oblique, directed straight, both angles sharp, margins clean, fresh. 24) …........................................ 25) …........................................ 26) …........................................ 27) Stab wound, Left arm, middle 1/3rd anteromedial, oblique, directed posteriorly, straight, 1.5 cm x 1 cm., muscle deep, both angles are sharp, both margins clean, fresh. 28) Incised wound, Left elbow, posteriorly, Oblique, 3 cm x 1 cm x Bone deep, underlying bone cut, fresh. 29) Puncture wound, Left forearm, upper 1/3rd, medial aspect, 0.5 cm x 0.5 cms x muscle deep, fresh. 30) Stab wound, Left forearm, Lower 1/3rd extensor aspect, 1 cm x 0.5 cm x muscle deep, oblique, directed anteriorly medially and downward, fresh. Both angles are sharp and both margins clean. 31) Puncture wound, Left thigh, upper 1/3rd, anteriorly, 1 cm x 0.5 cm x muscle deep, directed posteriorly and straight, fresh.” [Quoted from page nos.222, 223, 228 229 and 230 of the appeals paper-book]. 20. Apart from these wounds, a wound was seen on forehead which is Injury No.1. Injury to thorax region reads as follows:- “20. Thorax - (a) ….. (b) ….. (c) Larynx, Trachea and Bronche :- Intact, Congested, contains Secreahomi. (d) Right Lung :- Collapsed Congested shows stab wound in the lower and middle lobe cutting the parenchyma through and through corresponding the injury No.18 described in column 17 and injury No. (1) described in column 20 (a).” PLUS “II) Continued from column No. 20 (e) :- Left Lung : Collapsed, congested, shows a stab wound, in the lower lobe, directed posteriorly upwards, corresponding to the injury No. (12) described in Column No.17 and injury No.2 described in column No. 20 (a).” [Quoted from page nos. 224 and 231 of the appeals paper-book]. 21. The cause of death narrated in the Post-mortem Examination Report is “Injuries to Lungs.” 22. The Post-mortem examination was conducted by PW 14 -Dr. 224 and 231 of the appeals paper-book]. 21. The cause of death narrated in the Post-mortem Examination Report is “Injuries to Lungs.” 22. The Post-mortem examination was conducted by PW 14 -Dr. Rajesh Bardale. He has proved injuries, external as well as internal, and certified the cause of death reported by him in the Post-mortem examination. 23. PW 14 – Dr. Bardale has narrated as regards weapons, as follows:- “6. The weapons were referred. I received a requisition for my query report. After verifying and screening the weapons I prepared my report. Weapon No.1 : Sword, sharp heavy cutting, 6 cm length breadth 0.5 cms., maximum and thickness 2 mm maximum, broken sword, edge; one edge sharp and one edge blunt with blunt end. Reddish brown and black stains present over blade. Joint is fixed with the wooden handle. Handle is having length of 12 cms. Weapon No.2 : Gupti, sharp pointed cutting weapon, blade is of metal, length 30 cms, breadth 1.75 cms, maximum, thickness 2 mm maximum, both edges blunt but distal 8 cms, edges are sharp (both), pointed object, redish brown and black stains present over blade, with handle. Weapon No.3 : Gupti, sharp pointed, cutting, blade is of metal, length 30 cms, breadth 2 cms maximum, thickness 2 mm maximum, both edges blunt and distal 8 cms both edges are sharp, pointed, redish brown and black stains present over blade, with handle. 7. Injuries in col. no.17 were possible by weapon no.1 injury no.1,2,3,4,5,6,7,8,9,10, 11, 12, 14, 15, 17, 20, 22, 23, 25, 26, 27, 29 and 33 can be possible. 8. Injury nos. 1,2,3,4,5,6,7,8,9,10,10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32 and 33 in col. no.17 of p.m. Were possible by weapon no.2. 9. Injury Nos. 1 to 33 can be possible by weapon no.3. 10. I prepared query report. It is marked at Exh.150. It bears my signature. Weapons were sealed and were handed over to PC. I can identify those weapons. Arts.25, 26 and 27 are said weapons.” [Quoted from page nos. 216 and 217 of the appeals paper-book]. 24. The injuries and the weapons seen together speak for themselves. So is the case of cause of death. It is, thus, clear that cause of death is assault and multiple injuries. I can identify those weapons. Arts.25, 26 and 27 are said weapons.” [Quoted from page nos. 216 and 217 of the appeals paper-book]. 24. The injuries and the weapons seen together speak for themselves. So is the case of cause of death. It is, thus, clear that cause of death is assault and multiple injuries. Seen from any angle, death is homicidal, and it does not need any further and detailed discussion. 25. In so far as the involvement of particular accused persons as assailants is concerned, the case rests upon oral evidence of Pws 1 to 5. PW 7 – Indu Dharmik cited as eye-witness has turned hostile. This Court has discreetly perused the testimonies of Pws 1 to 5. 26. Portion of the testimony wherein PW 1 Babanrao has narrated the incident reads as follows:- “2. ..............................................These accused persons encircled my brother Satyawan. House of accused Suresh Taklikar is adjacent to my house. Accused persons encircled my brother in their courtyard. My daughter Sunita came out of my house. She had given a call to me, that uncle Satyawan is beaten. I therefore came out of the house and rushed. I went in the courtyard of accused Suresh. Accused Vilas, Sunil had sticks, Nephew of Suresh Taklikar who resides at Bombay had stick. Accused Suresh Taklikar had sword. Son of Suresh Taklikar had Gupti. All these accused persons were beating my brother Satyawan by these weapons and injuring him. Satyawan fell down. He had bleeding injuries. I attempted to intervene the quarrel. Accused Suresh Taklikar had administered blow of the sword. I received injury on my forehead. Myself, my wife, my daughter and Niece had brought Satyawan to our house. Satyawan was taken to Mayo Hospital. Doctor declared him dead after five minutes. …..” [Quoted from page nos. 101 and 102 of the appeals paper-book]. This witness has lodged FIR which he proved. 27. PW 2 – Suresh Belpande is another eye-witness. Relevant portion of his testimony pertaining to the incident contained in para 2 of his deposition reads as follows:- “2. It was 13-11-2002. Time is 10.15 to 10.30 p.m. I was in the house. I suddenly heard noise Maro Saleko. I came out of house and had seen five persons were beating Satya. They were accused Suresh Taklikar, Vilas Taklikar, Sunil Burde, Sheru and Vijay Ramtekkar. I went to save Satya. Accused persons assaulted me. It was 13-11-2002. Time is 10.15 to 10.30 p.m. I was in the house. I suddenly heard noise Maro Saleko. I came out of house and had seen five persons were beating Satya. They were accused Suresh Taklikar, Vilas Taklikar, Sunil Burde, Sheru and Vijay Ramtekkar. I went to save Satya. Accused persons assaulted me. I received injuries to my both hands. Thereafter I went to police Station, Tahsil. Accused Suresh had sword, accused Sheru had gupti, other accused persons had sticks. I was referred by police to hospital for medical examination. My sister-in-law Sunita was also injured. Rina Khobragde was also injured.” [Quoted from page no. 116 of the appeals paper-book]. 28. PW 3 – Sau. Sunita Shriram Dahikar is the third eye-witness. She narrates the incident in para 1 of her testimony, relevant portion whereof reads as follows:- “1. My name before marriage was Sunita Babanrao Khobragade. I know accused persons. I was at the house of my parents. Incident is of dt. 13.11.2002. It was 10-15 to 10-30 p.m. I came out of house with my nephew and heard the noise of my uncle Satyawan. Accused Suresh Taklikar had given two slaps to my uncle Satya. I came back to home and informed to my parents. I came to intervene the quarrel and received a blow of stick on my scalp. I went to save my uncle Satya as accused persons were beating to Satya. My father, and brother-in-law Suresh also went to intervene the quarrel and they also received injuries. I had seen accused persons while beating my uncle Satya. Accused persons had swords, gupties and sticks. My uncle Satyawan fell down. …..” [Quoted from page no. 120 of the appeals paper-book]. 29. PW 4 – Sau. Venubai Babanrao Khobragade is the fourth eye-witness, who narrates the incident in para 2 of her testimony, relevant portion whereof reads as follows:- “2. The incident is of dt. 13.11.2002 it was 10.15 to 10.30 p.m. I was in my house. I heard the noise of quarrel. My daughter came from out and told me that Satyawan is beaten. Therefore, I came out of the house and ran towards spot. I know accused persons. They are my neighbour. Accused persons were beating my brothers-in-law Satyawan. Accused persons were beating to Satyawan in front of the house. Accused Suresh had sword. His son had gupti. My daughter came from out and told me that Satyawan is beaten. Therefore, I came out of the house and ran towards spot. I know accused persons. They are my neighbour. Accused persons were beating my brothers-in-law Satyawan. Accused persons were beating to Satyawan in front of the house. Accused Suresh had sword. His son had gupti. Accused Vilas and Sunil had sticks. My daughter Sunita intervened the quarrel and she received blows of stick on her head. She had bleeding injury. Accused Suresh administered blow of sword and injured my husband on forehead. My son-in-law Suresh Belpande also intervened the quarrel and he received injuries to his both palm of sword. Satyawan was lying on the spot. He had injuries of gupti.” [Quoted from page no. 123 and 124 of the appeals paper-book]. 30. PW 5 – Priyanka Satyawan Khobragade is the fifth eye-witness, who narrates the incident in para 1 of her testimony, relevant portion whereof reads as follows:- “1. ..............................................My father was coming from market. Accused persons detained him on the way. My father was slapped. We heard the noise of my father and therefore myself and my cousin sister Sunita came out. We all rushed to the spot. We were assaulted by accused persons. My sister Sunita received injury of stick on her forehead of accused Vilas. Sunita received injury. My brother-in-law Suresh was injured by accused Suresh by sword. My brother-in-law Suresh caught the sword of accused Suresh and therefore he was injured. Accused Suresh and Sheru injured my father Satyawan by weapons. Accused Sheru had two gupties. My father was injured by Sheru by gupti. My cousin brother Sanjay came to spot. He went to help my father and accused persons chased him. My brother Sanjay had brought rickshaw and shifted my father to the hospital. My aunt Venubai, my brother Sanjay and sister Rina were in rickshaw to the hospital.” [Quoted from page no. 128 and 129 of the appeals paper-book]. 31. This Court has to see from the version of these witnesses as to whether collective effect of testimonies of these witnesses proves the involvement of accused persons in the act of forming an unlawful assembly and causing murder of Satyawan and causing various injuries by use of deadly weapons to different witnesses. 32. The medical evidence as to examination of different witnesses is on record. 33. PW 12 – Dr. 32. The medical evidence as to examination of different witnesses is on record. 33. PW 12 – Dr. Prashant Barve had examined all the victims. 34. In his testimony at Exh.134, Dr. Barve states that all the prosecution witnesses had wounds which are broadly laceration, abrasions or incised. The injuries of laceration and abrasion were caused by blunt weapons, while injury of incision suffered by PW 2 -Suresh Belpande must have been caused by a weapon having sharp edge, such as knife, blade of scissors etc. 35. The fact of injuries on the person of witnesses is not a matter of this appeal. Presence of witnesses on the scene of offence gets corroborated by the fact of injuries on their person. 36. What is seen from testimonies of different witnesses and what is common is that the house of accused Suresh is adjacent to the house of PW 1 – Babanrao. The witnesses heard the sound of fighting etc., and came out to see what was happening. On coming out of house, they saw that the accused persons were assaulting. The witnesses have seen that the accused persons were using sticks, sword, Gupties, and were assaulting Satyawan. When witnesses intervened, they were also assaulted. 37. While all these witnesses have been cross-examined, an effort is made by the defence to suggest that Satyawan was drunk on the date of incident and someone must have killed Satyawan. 38. At the same time, taking benefit of Regular Criminal Case No. 3 of 2002 arising from the FIR lodged by wife of one of the accused persons that Satya was the aggressor and the accused had acted in defence, the accused set up the plea of self-defence. This aspect is evident from the suggestions put to PW 2 – Suresh Belpande in his cross-examination. 39. The defence made an effort to suggest various witnesses about certain omissions. 40. In so far as Accused Nos. 4 and 5 are concerned, an effort was made to plead alibi. 41. It would be convenient to note the disparity in the versions of different witnesses, which is summarized as follows:- PW 1 – Babanrao names one amongst the accused persons as “nephew of Suresh Taklikar”. With due reference to the context, this person necessarily means Vijay – Accused No.4. 41. It would be convenient to note the disparity in the versions of different witnesses, which is summarized as follows:- PW 1 – Babanrao names one amongst the accused persons as “nephew of Suresh Taklikar”. With due reference to the context, this person necessarily means Vijay – Accused No.4. However, it is a matter of fact that name of Vijay is not uttered by this witness in unambiguous terms. Effort of this witness is to identify Accused No.4 by saying that all accused were beating his brother – Satyawan. PW 4 – Venubai has not given the name of Vijay either by name or by any other description. 42. What is seen common in the testimonies of five witnesses is as follows:- [a] Witnesses saw that Accused Nos. 1 and 3 - Suresh and Sheru were having sword and Gupti respectively, and they were assaulting Satyawan by these weapons. [b] Accused Nos. 2,4 and 5 were having sticks, and were beating Satyawan. [c] Accused persons also assaulted witnesses when they tried to intervene. [d] Though PW 1 – Babanrao and PW 4 – Venubai have not named Vijay, they had seen him assaulting Satyawan. 43. In the cross-examinations of these witnesses, the defence made an effort to:- [a] Attribute criminality and criminal antecedents to Satyawan, as Satyawan and his brother Guru had allegedly assaulted Suresh, for which offence punishable under Sections 324 and 504 of Indian Penal Code was already registered. [b] Demonstrate some variations in the statements of witnesses. [c] Show that Satyawan was drunk and he had enemies, and was assaulted by some unknown persons. [d] Show failure of the prosecution to explain about stones, bricks and other material lying on the scene of offence. [e] Establish that the quarrel was going on for an hour also and many persons had seen it. [f] Show withholding of other witnesses from coming before Court, though their statements were recorded. [g] Plead alibi, as Accused Nos. 4 and 5 were not at all present. 44. It is seen that accused Nos. 4 and 5 have examined 27 four defence witnesses. 45. By proving the Attendance Register [Exh.186], DW 1 – Sanjay Barai has tried to prove that the Accused No.5 had attended the office. On perusal of testimony of this witness, it is seen that it does not contain a statement that Accused No.5 was present in the office. 4 and 5 have examined 27 four defence witnesses. 45. By proving the Attendance Register [Exh.186], DW 1 – Sanjay Barai has tried to prove that the Accused No.5 had attended the office. On perusal of testimony of this witness, it is seen that it does not contain a statement that Accused No.5 was present in the office. All that this witness proves is that Accused No.5 had signed Attendance Register. 46. Defence Witness No.2 – Wamanrao Dumre is brought to prove Exh.192, which is the Injury Certificate. However, this does not pertain to the accused No.5 and it is not clear as to why this witness is examined. DW 2 Wamanrao does not prove anything in favour of accused nos. 4 and 5. 47. DW 3 – Manohar L. Wasnik is examined to prove that Vijay Ramtekkar, Accused No.4, had taken treatment from DW 3 – Manohar at about 12-00 noon on 13th November, 2002. In the cross-examination, this witness states that he has not brought any register to prove that he had examined Vijay Ramtekkar, nor is he able to state the ailment. 48. DW 4 – Prakash Baile also does not throw any light on the defence of the accused no.4 – Vijay Ramtekkar. 49. In so far as the plea of alibi taken by accused nos. 4 and 5 is concerned, this Court has to bear in mind that a party, who pleads alibi, shoulders the burden of opening mouth. An accused is never under obligation to set up and define the defence. The task of the accused person is to exert to demolish the worthiness of the prosecution witnesses or create suspicion about their truthfulness and correctness, to enable him to persuade the Court that the prosecution has failed to prove its case fully and beyond the shadow of reasonable doubt. The party pleading alibi undertakes on its own shoulders to prove the sure probability that the accused was not present at the scene of offence being present elsewhere. 50. In the present case, the accused have chosen to take the said plea of alibi, however, this Court has to record that even if every word of the defence witnesses is considered to be a gospel truth, even then accused nos. 4 and 5 have failed to prove that they were present at some other place than the scene of offence. 4 and 5 have failed to prove that they were present at some other place than the scene of offence. Thus, these accused can navigate outside the scene of offence only if the prosecution fails to prove their presence and specific acts, and not because of the defence taken by them. 51. This Court has now to judge the worthiness of testimonies of PWs 1 to 5 and conclude as to whether they prove the involvement of accused persons. 52. This Court has already recorded the points of distinction in the testimonies of different witnesses. At the cost of repetition, it has to be mentioned that PW 1 – Babanrao does not utter any specific words naming Accused No.4-Vijay, though he “describes” him in the words which lead to the adequate identification of Accused No.4, namely “nephew of Suresh.” The same situation exists as regards Sachin – Accused No.3, who is described as son of Suresh. 53. In so far as the infirmity in the version of PW 4-Venubai is concerned, she does not by name or description, points at Accused No.4. However, she has in specific terms expressed that the accused persons were beating Satyawan. 54. This Court is aware that cross-examination is a highly skilled as well as risky task. In order to fortify the fact of elimination of Accused No.4, cross-examiner could have landed in difficulty. Yet, it was not impossible for him at least to have suggested that Vijay was not present at the scene of offence, and as we see, even such suggestion is not given in the cross-examination. The defence has chosen to take the risk of ambiguity as to presence of accused no.4 being rendered blissfully vague within the version of PW 4 – Venubai. However, this ambiguity will not let the accused no.4 totally banished from the scene of offence. 55. Collective effect of testimonies of PWs 1 to 5 is that all the witnesses have in coherence described the presence of all accused persons. Out of those, Accused Nos. 1 and 3 were equipped with sword and Gupti respectively, and those weapons were used by them to assault Satyawan. Other accused were also involved in assaulting Satyawan by sticks and the accused persons had assaulted eye-witnesses, who had also suffered injuries. 56. Out of those, Accused Nos. 1 and 3 were equipped with sword and Gupti respectively, and those weapons were used by them to assault Satyawan. Other accused were also involved in assaulting Satyawan by sticks and the accused persons had assaulted eye-witnesses, who had also suffered injuries. 56. In so far as the reliance placed by various Advocates on the reported judgments is concerned, the judgments cited at bar by learned Adv. Mr. Mardikar are on the point of appreciation of evidence. The infirmities are not duly demonstrated. These judgments do not, in any manner, result in guiding this Court on facts of present case, to hold that the accused persons have not committed the offence. In so far as citations relied upon by learned Adv. Mr. Daga are concerned, the effort of learned Adv., is to distinguish the role allegedly played by his client, i.e., Accused No.5 – Sunil. In so far as Accused No.5 – Sunil is concerned, he has used stick and he was a member of unlawful assembly who was assaulting. The situation was of duly armed riotous mob assaulting initially sole victim and lateron the eyewitnesses. Considering the volume of injuries, which are more than thirty-three, it would be impossible to expect memorization and reproduction of the scene of offence with a photographic compatibility. It would, therefore, be too high to expect from the witnesses that role of each individual accused who has caused such large number of injuries could be retrieved and reproduced with finest precision. Therefore, distinction of role of accused and to segregate him either from the unlawful assembly, or even without segregating him to bring down the gravity of offence committed by him does not seem to be probable. The role of accused no.5 is compounded with the role of other accused persons as much that he is inseparable as to his individual role of lesser criminal liability. Emphasis of reliance on various judgments by learned Adv. Mr. V.M. Deshpande is to urge that the object of unlawful assembly is not proved and as regards the weapons used. The role of accused no.5 is compounded with the role of other accused persons as much that he is inseparable as to his individual role of lesser criminal liability. Emphasis of reliance on various judgments by learned Adv. Mr. V.M. Deshpande is to urge that the object of unlawful assembly is not proved and as regards the weapons used. The circumstances, which have come on record as proved by eye-witnesses emerging from medical and relevant evidence, are such that even if recovery of weapons may not have been proved and weapons could not have been identified, even then barely on version of eye-witnesses whose trustworthiness is demonstrated beyond suspicion, all other factors are rendered insignificant. In the background of fact of homicidal death on account of assault by a violent mob of group of five persons who was unanimous in act of assault, evidence of prior meeting of minds is not required, if the conduct of accused persons is such that it in itself proves a common object and no separate evidence is required. Conclusion as to common object is always to be derived from the circumstances as obtaining and as brought on record. 57. This Court is satisfied that the prosecution has with no ambiguity proved the common object of the unlawful assembly who had committed the offence with deadly weapons. 58. In the result, this Court is satisfied that the prosecution has proved beyond a shadow of doubt that the accused persons were guilty for the offence charged. 59. In the circumstances, appeals have no merit, and are dismissed.