Judgment (A.H. Joshi, J.) Heard both sides. 2. Perused the record. 3. This is a State appeal against acquittal. 4. In all 12 accused persons were tried in Sessions Trial No.36 of 2003. They were charged by the learned Sessions Judge, Wardha, for committing offence of rioting, forming unlawful assembly, attempting to commit murder of Ramesh Khekre, Yadav Mate and Sanjay Mate and causing murder of Ganesh Yadavrao Mate and thereby committed offences punishable under Section 147, 148, 307 r/w section 149 and 302 r/w 149 of the Indian Penal Code. 5. The prosecution has examined the following witnesses. WITNESSES OF INCIDENT: (1) PW-1 Ramesh Ramrao Khekare who is the injured. (2) PW-2 Vanita Ramesh Khekare is the witness to the incident. (3) PW-3 Sudhir Daulatrao Uike is the witness to the incident. (4) PW-4 Yadao Shankarrao Mate is the witness to the incident. (5) PW-5 Sau. Kamalabai Yadaorao Mate is the witness to the incident. (6) PW-6 Sanjay Yadaorao Mate is the witness to the incident. (7) PW-7 Vasant Hiraman Uike is the witness to the incident. WITNESSES OF PANCHANAMAS: (1) PW-8 Sachin Haridasji Pisude is the witness to the seizure panchanama Exh.128. (2) PW-9 Mangesh Ambadasji Kakade is the panch witness. (3) PW-10 Gajanan Anandrao Deshmukh is the panch witness to Exh.149 i.e. spot panchanama & Exh.150 i.e. seizure memo. (4) PW-13 Raju Vasantrao Mahakalkar is the panch witness of the inquest. (5) PW-15 Ankush Govindrao Gunjkar is the panch witness to the seizure panchanama. (6) PW-16 Namdeo Bapuraoji Chaudhary is the panch witness to the spot panchanama. WITNESSES OF MEDICAL EVIDENCE: (1) PW-11 Dr. Gopal Wasudeorao Bhagat is the Crim. Appeal No.309/2005. 4 Medical Officer, General Hospital Wardha who examined injured Sanjay Yadaorao Mate and issued injury certificate. (2) PW-12 Dr.Babulal Jat Kanaram Jat who conducted the postmortem examination over the dead body of Ganesh Yadaorao Mate. (3) PW-14 Rippal Rameshrao Rane is the Private Medical Practitioner. He has examined Ramesh Khekare and issued injury certificate vide Exh.249. WITNESSES PERTAINING TO THE INVESTIGATION: (1) PW-17 Arjun Atramji Gohakar is the Police Sub Inspector then attached to Dy. S. P. Office, Hinganghat. He is the Investigating Officer. He has reduced into writing the report. He has conducted the whole investigation. 6. The oral evidence of injured witness, whose testimony is crucial is PW-1 Ramesh Ramrao Khekare who deposed that all the accused have assaulted him. S. P. Office, Hinganghat. He is the Investigating Officer. He has reduced into writing the report. He has conducted the whole investigation. 6. The oral evidence of injured witness, whose testimony is crucial is PW-1 Ramesh Ramrao Khekare who deposed that all the accused have assaulted him. He, however, specifically names Kawdu Uike and Sanjay Shegokar who had knife and both these accused persons gave blows of knife on his stomach. However, the blow given by Kawadu hit the hand of the witness resulting into injury to middle finger of left hand. He claims that Sham Kudmate and Bandu Uike gave blows of axe on his legs and remaining accused beat with lathies. The relevant portion of his testimony is seen at page 395 of Record and Proceedings which reads as follows: "1.......Then all the accused suddenly came towards me. Kawadu Uike and Sanjay Shegokar-accused suddenly came towards me with knives. They both gave blows of knife on my stomach but I could resist the blow of Kawadu on my hand. Therefore there was injury to my middle finger of left hand. Immediately after them Sham Kudmate and Bandu Uike gave the blows of axes on my legs. Then, the remaining accused fell me down and started beating me with Lathies, and sticks. Then I made hue and cry by giving call....................." [Quoted from page 395 of R & P of Criminal Appeal] 7. The second injured witness is PW-6 Sanjay Yadaorao Mate. He names in all 8 accused persons and attributes axe blow to Sanjay Shegokar -accused no.1. Though he names 8 accused, he says that the accused persons assaulted him. The relevant portion of his testimony reads as follows: "1..........I noticed that the accused (1) Sanjay Crim. Appeal No.309/2005. 6 Shegokar, (2) Madhu Shegokar, (3) Gajanan Shegokar, (4) Ulhas Kubade, (5) Yogeshwar Kudmate, (6) Bandu Uike, (7) Chandu Uike, (8) Ashok Uike were present near my house. Sanjay Shegokar gave me a blow of an axe. Other accused assaulted me with sticks." [Quoted from page 441 of R & P of Criminal Appeal] He further stated about the assault by other accused by name Ashok Uike, Chandu Uike, Ishwar Uike, Kawadu Uike, assaulted Ganesh with sticks. 8. The second incident pertains to assault on Ganesh and witness of the said incident is PW-7 Vasant Uike. Other accused assaulted me with sticks." [Quoted from page 441 of R & P of Criminal Appeal] He further stated about the assault by other accused by name Ashok Uike, Chandu Uike, Ishwar Uike, Kawadu Uike, assaulted Ganesh with sticks. 8. The second incident pertains to assault on Ganesh and witness of the said incident is PW-7 Vasant Uike. His version relating to assault reads as follows: "1 I know all the accused. I was also knowing the deceased Ganesh Mate. I also know injured Sanjay Mate. The house of Yadaorao Mate is situated opposite to my house. The incident took place on 7-12-2002. I was present then in my courtyard. Alongwith me Kawadu Khekare and my wife was also present, her name is Kamala. Then, Sanjy Mate came back to his house from his field. Sanjy Shegokar gave a blow of axe to him. He gave its blow on his head. Some time later Ganesh Mate came there. Sanjy Shegokar also gave him a blow of the axe. He gave its blow on its head. The blows were given near the gate (iron) of house of Mate. Crim. Appeal No.309/2005. 7 The other accused gave the blows by sticks. They were abusing and saying that 'Thoka Salyale'." "2. At the time of incident in respect of Sanjay Mate other accused gave by sticks. I can identify the sticks and axes if shown to me. The sticks and axes now shown to me are the same. I witnessed the incident from my courtyard." [Quoted from page 449 of R & P of Criminal Appeal] 9. PW-5 Sau. Kamalabai Yadaorao Mate claims to be the witness of assault to both Sanjay as well as Ganesh. She names Ashok, Bandu Uike who have assaulted Ganesh by stick and that Sanjay Shegokar gave axe blow on his head. She claims that about 15 to 16 persons had come. 10. PW-4 Yadav Mate also relied upon as eye witness and he names Sanjay Shegokar, Bandu Uike, Madhu Shegokar, Gajanan Shegokar, Ulhas Kubde, Ashok Uike, Kawadu Uike, Chandu Uike, Ishwar Uike and Anil Uike, Shal Kudmate, Yogesh Kulmate who have assaulted the victims. 11. She claims that about 15 to 16 persons had come. 10. PW-4 Yadav Mate also relied upon as eye witness and he names Sanjay Shegokar, Bandu Uike, Madhu Shegokar, Gajanan Shegokar, Ulhas Kubde, Ashok Uike, Kawadu Uike, Chandu Uike, Ishwar Uike and Anil Uike, Shal Kudmate, Yogesh Kulmate who have assaulted the victims. 11. The medical evidence shows that injuries to Ramesh and Sanjay are recorded in the injury certificate Exh.249 as incise wound -2 x 6 cm on the skull, incise wound over the right leg and punctured wound on the abdomen and injury to Vilas is shown to be contingent over the back of 2 x 4 cms. Dr. Gopal Bhagat had examined Sanjay and he has described his injury on the skull of 2 x 6 cms and incise wound on the right elbow with swelling. 12. The cause of death of Ganesh given in the postmortem examination Exh.154 is haemorrhage and shock as result of head injury. 13. Head injury as seen in column no.19 reads as follows: Column No.19: "19. Head Evidence of diffuse blood seen under the (i) Injuries under the scalp, their nature scalp involving both parietal, temporaland occipital region. (ii) Skull-Vault and base described Evidence of linear crack fracture seen of both fractures, their sites, dimensions, parietal & both temporal bone extending from directions etc. ear toear. (iii) Brain – The appearances of its coverings, size, weight and general Evidence of extra-dural haemorrhage seen on condition of the organ itself and any Lt. Parie to-temporal lobe and Rt side Paroetal abnormally found in its examination to lobe. Evidence of subdural haemorrhage be carefully noted (Weight M. 3 gram About 60 ml seen over the Rt. Parietal lobe.” F.2.75 grams). Wt – 1250 Gram [Quoted from page 494 of R & P of criminal appeal] 14. PW-12 Dr. Babulal Jat has stated in the cross examination that he has not examined the patient earlier. According to him, the injuries mentioned in column no.17 and 19 are sufficient to cause death. History of case is not proved to have any bleeding. 15. The evidence brought by the prosecution does not disclose overact of the accused person which would enable the prosecution to demonstrate the common object of unlawful assembly. 16. The charge consists of different acts of assaulting different persons at differ time and place. History of case is not proved to have any bleeding. 15. The evidence brought by the prosecution does not disclose overact of the accused person which would enable the prosecution to demonstrate the common object of unlawful assembly. 16. The charge consists of different acts of assaulting different persons at differ time and place. The prosecution was under the obligation to bring cogent evidence of formation of unlawful assembly with the object either pre-determined developed at the spot. 17. The manner, in which the unlawful is shown to have moved, would go to suggest conspiracy. However, no evidence whatsoever is brought forward. 18. The PW-1 suggests that unlawful assembly of all accused came forward quickly, no shouting, slogan or any murmur or talk is proved and corroborated. In absence of proof of common object, and participation by each accused, it would be a difficult task to hold one and every person was the member of unlawful assembly and was guilty for the act of any one member of said unlawful assembly. 19. It is seen from the evidence of the prosecution witnesses that:- (a) There is total lack of unanimity as to the involvement of the accused persons and the role played by each at least as a member of unlawful assembly. (b) The names of unlawful assembly do vary which amongst the assaults has proved to be fatal and which injury mentioned in column no.17 is fatal is not proved by the prosecution. (c) The injury has played a role being fatal to the life of the patient is not proved. (d) It is seen that, admittedly, there were two groups. There was a quarrel and previous enmity between them. 20. Evidence as to the proof of unlawful assembly and common object is lacking. Therefore, it becomes necessary for the prosecution to prove individual act. If the number of injuries are seen, and the crowd of assailants was consisting of 8 to 16 persons, involvement of all in assaulting is seen to be highly improbable. In absence of proof of individual act, it would not be permissible to convict the accused. 21. The only conclusion which is propelled is that the prosecution has withheld the truth and genesis of the offence from the Court. Once it is seen that the genesis is suppressed, a suspicion would arise and its benefit would go to the accused. 22. 21. The only conclusion which is propelled is that the prosecution has withheld the truth and genesis of the offence from the Court. Once it is seen that the genesis is suppressed, a suspicion would arise and its benefit would go to the accused. 22. In the result, appeal fails. We hold that the learned Sessions Judge is right in his conclusion as regards failure of the prosecution to prove the charge. 23. The Judgment and order of acquittal is, therefore, does not warrant any interference. 24. Appeal is dismissed. Bail bonds stand cancelled.