Judgment : [Mrs. Sadhana S. Jadhav, J.] 1. The appellants herein are challenging their conviction and sentence recorded by Ad-hoc Additional District Judge, Yavatmal in Sessions Trial No.23/2006 by a judgment and order dated 30.6.2009. The charge under Sections 147, 148, 302 read with 149 of Indian Penal Code was framed against those persons in Sessions Trial No.23/2006. The original accused nos. 4 to 6 are acquitted for the offence punishable under Sections 302 read with 149 of I.P.C. The original accused nos. 1 to 3 are acquitted for offences punishable under Sections 147 and 148 of I.P.C. The original accused Nos. 1 to 3 (the present appellants) are convicted for the offence punishable under Section 302 read with Section 34 of I.P.C. and are sentenced to undergo imprisonment for life and to pay fine of Rs.500/- each in default further rigorous imprisonment for 6 months. 2. The case of the prosecution is as follows:- (a) Krushnarao Marotrao Likhar (PW2) runs a vegetable shop. He had four sons namely Rajesh, Ravindra, Mukesh and Nitin. Krushnarao Likhar used to open his vegetable shop at about 7 a.m. and return home after 1 p.m. Thereafter his fourth son Nitin used to run the shop. The incident is dated 9.1.2006. Krishnarao Likhar was at home along with Ravindra, Mukesh and his wife. He was taking rest after having lunch. (b) At about 1.40 p.m., PW2 saw some people were running from front of his house. He asked them the reason and was informed that two persons are assaulted and are lying near the board of Anand Nagar. He along with his sons went to the said spot. They saw that his son Rajesh was lying there in an injured condition and Manoj was lying in an injured condition next to him. Manoj was unable to speak. However, Rajesh was conscious. They asked him what happened and he informed his father that they were assaulted by accused nos. 1 to 3 i.e. the present appellants. (c) In the meanwhile, the police jeep came on the spot and Rajesh was taken to the hospital in the police jeep. At about 4 p.m., Krushnarao Likhar lodged a report at Wadgaon Police Station against four persons. He informed the police in the said report that in the year 2004, on the day preceding Diwali, Amar Chindale and Bablu Bhaganagarkar were killed. At about 4 p.m., Krushnarao Likhar lodged a report at Wadgaon Police Station against four persons. He informed the police in the said report that in the year 2004, on the day preceding Diwali, Amar Chindale and Bablu Bhaganagarkar were killed. His son Rajesh was in jail for 9 months and was enlarged on bail 6 months prior to 9.1.2006 and Anand Chindale, Rajkumar Chindale, Pappu Chindale and Nitin Chindale had assaulted his son Rajesh in order to seek vengeance of the murder of Amar Chindale. The oral report lodged by Krishnarao Likhar is at Exh.216 and the first information report in the printed proforma under Section 154 of Cr.P.C. is at Exh.217. (d) On the basis of the said report, Crime No.6/2006 was registered against the persons named in the first information report for offence punishable under Sections 302 and 307 read with 34 of I.P.C. Investigation was set in motion. The accused were arrested on the same day i.e. on 9.1.2006. Rajesh had succumbed to the injuries at about 4.45 p.m. on the same day. (e) On the basis of the statement recorded of some persons, original accused nos. 4 and 5 were arrested on 10.1.2006. The charge sheet was filed on 5.4.2006. The case was committed to the Court of Sessions and was registered as Sessions Trial No.23/2006. The prosecution examined 21 witnesses to bring home the guilt of the accused. 3. The witnesses can be classified accordingly: (a) PW3 Raghunath Nakshane and PW6 Yogesh Rohane are eye witnesses, (b) PW2 Krushnarao Likhar is the father of deceased Rajesh. He is the complainant. PW9 Ravindra Likhar is the son of the complainant and brother of deceased Rajesh. (c) PW10 Janardan Rohane is the father of deceased Manoj Rohane. (d) PW13 Dr. Rajeshwari Deshmukh has examined accused no.3 Rajkumar Chindale on 9.1.2006. She had also examined Anand Chindale and the deceased Rajesh. PW14 Dr.Deshpande was a surgeon in Government Medical College, Yavatmal. He had examined Rajesh Likhar and found multiple stab injuries. PW7 Dr. Hemant Kukdey along with Dr. Kalpe had performed autopsy on the dead bodies of Rajesh Likhar and Manoj Rohane. (e) PW20 Manish and PW21 Jadhav are the investigating officers. PW14 Dr.Deshpande was a surgeon in Government Medical College, Yavatmal. He had examined Rajesh Likhar and found multiple stab injuries. PW7 Dr. Hemant Kukdey along with Dr. Kalpe had performed autopsy on the dead bodies of Rajesh Likhar and Manoj Rohane. (e) PW20 Manish and PW21 Jadhav are the investigating officers. (f) The panch who are witnesses to the memorandum, recovery of weapons & arrest of the accused i.e. PW1 Chohitram, PW4 Naresh, PW5 Santosh, PW8 Anil, PW12 Ashish, PW15 Asgullakhan, PW17 Ravi and PW19 Bandu have been declared as hostile witnesses. 4. The evidence adduced by the prosecution through the eyewitnesses needs to be discussed at the threshold. Discussion as regards testimony of PW3 is as follows:- (a) PW3 Raghunath Nakshane is a friend of deceased Rajesh and Manoj. He is co-accused along with Rajesh and Manoj in the case of the murder of Amar Chindale and Bablu which took place in the year 2004. Rajesh, Yogesh, Manoj & Raghunath were enlarged on bail. (b) PW3 has deposed before the Court after being enlarged on bail, Manoj was residing in a village near Zadgaon along with his brother Yogesh as he apprehended danger to his life. PW3 has deposed before the Court that on 9.1.2006, Manoj had stayed at Yavatmal along with Rajesh. Rajesh & Manoj were in the vegetable shop. PW3 had been to meet them. He informed them that he was going to the petrol pump. He met Yogesh on the way. Yogesh had come to consult his Advocate. (c) Thereafter PW3 and Yogesh went to the shop of Rajesh and then they all four decided that they would go to the house of Rajesh to take meals. Rajesh and Manoj were on one motorcycle whereas PW3 and Yogesh were on the another motorcycle and were following Rajesh and Manoj. When they were in Anand Nagar, they saw a gang of 12 to 13 persons who mounted assault upon Rajesh & Manoj with sword, knife and sattur. Accused no.3 Rajkumar Chindale shouted loudly to catch hold of PW3 and Yogesh and being scared of the situation, PW3 and Yogesh fled from the spot and went to the house of PW3. After some time, they came to the shop of Rajesh. Thereafter PW3, three brothers of Rajesh and their father went to the spot. He has named the persons whom he saw at that time. After some time, they came to the shop of Rajesh. Thereafter PW3, three brothers of Rajesh and their father went to the spot. He has named the persons whom he saw at that time. (d) In the cross-examination, PW3 has admitted his criminal antecedents. He has also admitted that he belongs to the group of Pravin & Chandrakant Raut. He has further admitted in the cross-examination that father of Rajesh had reached the spot before him and by the time he reached the spot, Rajesh was taken to the hospital. According to him, initially Rajesh was being taken on a handcart but in the meanwhile the police jeep reached there and, therefore, he was taken to the hospital in the police jeep. (e) Certain material omissions are elicited in the cross-examination such as: (i) The allegations that Rajkumar asked to catch hold of PW3 and Yogesh. (ii) Rajkumar Chindale had threatened to kill them after they were enlarged on bail. (iii) On 9.1.2006, he had been to the petrol pump and Yogesh met him outside the bus stand and informed that he had come there to discuss his case with his Advocate & thereafter PW3 brought Yogesh to the shop of Rajesh. (iv) When accused no.3 shouted to catch hold of them, he along with Yogesh fled from the spot. (v) He again went to the vegetable shop and that he knows other accused by their faces. (f) PW3 has deposed before the Court that: ‘out of 12 to 13 persons, others were assaulting Rajesh and Manoj & accused came to him’. (g) With this admission it can be inferred that the accused present before the Court were attempting to attack PW3 and out of 12 to 13 persons, besides the accused persons, were assaulting Rajesh and Manoj. This admission would absolve the accused/appellants of the charge of assaulting Rajesh and Manoj at that time. Moreover, PW3 has admitted that he could not identify them. It is material to note that in this case the investigating officer has not conducted test identification parade. (h) PW3 has admitted in the cross-examination that on 9.1.2006 when he went to the shop of Rajesh on the first occasion, the father of Rajesh i.e. PW2 was also present in the shop. According to him, Nitin was also present in the shop. (h) PW3 has admitted in the cross-examination that on 9.1.2006 when he went to the shop of Rajesh on the first occasion, the father of Rajesh i.e. PW2 was also present in the shop. According to him, Nitin was also present in the shop. He has further stated that he was present in the shop from 1 p.m. to 2 p.m. and during that period Manoj had not gone to the house of Rajesh. Rajesh was driving Suzuki Motorcycle and PW3 was driving Splendor Motorcycle. (i) PW3 has further stated that there is turn to the road near Sunita building and from there onwards, it is a straight road. However, he has admitted that the spot of incident is not visible from Sunita building. The witness was confronted with his previous statement and has admitted that the portion mark A in his statement is incorrect. (j) According to PW3, he had informed the father of Rajesh that he is a witness to the incident when they were in the hospital and at that time Ravindra was present, whereas Rajesh was alive and after receiving information from PW3, father of Rajesh went to the Police Station to file the first information report. (k) In view of the above discussion, it does not appear that PW3 who claims to be an eye witness, is a wholly reliable witness. 5. The prosecution has examined Yogesh Rohane as an eyewitness. Discussion as regards testimony of PW6 is as follows:- (a) PW6 has stated before the Court that on 9.1.2006 when he went to the petrol pump, he met Raghunath Nakshane i.e. PW3. He informed PW3 that he had come to pay his Advocate_ s fees. PW3 informed him that Manoj is present in the shop of Raju Likhar. They went to the shop of Rajesh. Manoj questioned him as to why he had come to Yavatmal. PW6 gave the same answer which he had given to PW3. (b) Then Raju Likhar requested them to take meals along with him. Thereafter Rajesh & Manoj went ahead on Suzuki Motorcycle and Raghunath and Yogesh were on Honda Motorcycle. They had chosen the route via Date College Chowk, Sunita building, Anand Nagar and then Vedhdharini temple. (c) When they reached near Anand Nagar, 8 to 10 persons encircled Raju and Manoj. Thereafter Rajesh & Manoj went ahead on Suzuki Motorcycle and Raghunath and Yogesh were on Honda Motorcycle. They had chosen the route via Date College Chowk, Sunita building, Anand Nagar and then Vedhdharini temple. (c) When they reached near Anand Nagar, 8 to 10 persons encircled Raju and Manoj. At that time, PW3 and PW6 were near the gate of Sunita building situated towards east side. Out of anxiety, they proceeded further and saw that 9 to 10 persons were beating Rajesh and Manoj with sword, knife & sattur. PW6 has named nine persons amongst the assailants. Rajkumar Chindale shouted to catch & beat PW3 and PW6. Thereafter they both went to the house of Raghunath (d) In the cross-examination, he has also admitted his criminal antecedents. The omissions elicited in the cross-examination of PW6 are as follows:- (i) that he had met Raghunath Nakshane at petrol pump & told him that he had come to pay Advocate’s fees. The place of meeting at petrol pump is not mentioned in his statement; (ii) that Raghunath did not inform him that his brother Manoj is present in the shop of Raju; (iii) that when they reached near Sunita building, they wondered as to who had obstructed Raju and Manoj and, therefore, went ahead for some distance; (iv) that Rajkumar shouted to catch hold of PW3 and PW6 and (v) that he witnessed the incident from the distance of 15 to 20 feet from eastern side gate of Sunita building. All these are material omissions. (e) PW6 has stated before the Court that he did not go to meet his Advocate on that day. When he went to the shop of Raju, Nitin was present in the shop. PW3 did not meet him at the shop of Raju. In his presence, Manoj had hot gone to the house of Raju to bring the vehicle. The vehicle which was driven by Raju and Manoj at the time of incident was stationed at the shop when PW6 went there. After the incident, he had first gone to the house of PW3 and then to the hospital. They met PW2 and his sons in the hospital and that he narrated the incident to them. They waited in the hospital till evening. He did not see PW3 in the hospital. After the incident, he had first gone to the house of PW3 and then to the hospital. They met PW2 and his sons in the hospital and that he narrated the incident to them. They waited in the hospital till evening. He did not see PW3 in the hospital. On the same day at about 8 p.m., PW6 went to village Sarai along with his parents as they were scared. That they departed from the spot of incident before the departure of assailants. (f) PW6 has categorically admitted that: “some persons were passing by the road, when they reached near Sunita building. The road takes turn towards left side near the Board of Anand Nagar. After taking turn, it is not visible what happens onwards the board of Anand Nagar. Except myself and Raghunath, nobody was present where we had stopped. The incident started when Rajesh & Manoj were on the motorcycle”. (g) In view of the material omissions and contradictions read in consonance with the evidence of PW3, it can be inferred that upon seeing ghastly incident, PW3 and PW6 were scared and to save their skin, they had fled from the scene of offence and had not actually witnessed the assault. Their inability to tell the Court as to who were the assailants, no implicit reliance can be placed on the evidence of PW3 and PW6. 6. Discussion as regards testimony of PW2 is as follows:- (a) PW2 Krushnarao Likhar is the father of deceased Rajesh. He is a witness to the oral dying declaration of Rajesh. According to him, he had gone to the spot of incident only when he saw crowd rushing towards the spot and had learnt from somebody from the crowd that two persons are lying in an injured condition near the board of Anand Nagar. (b) According to PW2, upon inquiry his son Rajesh told him that they were assaulted by accused nos. 1 to 3 and Nitin with sword and knife. In the meanwhile, Police jeep had come to the spot and Rajesh was taken to the hospital in the Police jeep. (c) According to PW3, he had accompanied PW2 to the spot of incident & initially Rajesh was being taken to the hospital on a handcart. PW3 has also stated that father of Rajesh had reached there first but when he went there, Rajesh was already shifted to the hospital. (c) According to PW3, he had accompanied PW2 to the spot of incident & initially Rajesh was being taken to the hospital on a handcart. PW3 has also stated that father of Rajesh had reached there first but when he went there, Rajesh was already shifted to the hospital. (d) The evidence of PW2 was recorded in Case No.43/2006 in the Juvenile Court. In the said deposition, he had stated before the Court that when they went at the spot, Manoj was dead and Rajesh was unconscious. PW2 was confronted with his previous statement and has stated that portion mark A is false. The portion marked A is : ‘On 9.1.2006 at about 1 p.m. I left the shop & reached home at 1.30 p.m’. (e) According to PW2, after he had meals, Manoj had come to their house and demanded the keys of the motorcycle and went away and within ½ to ¾ hour, he learnt that some incident had taken place. (f) PW2 has deposed that he was in the Police Station to lodge the first information report before the death of Rajesh and when he was in the Police Station, he learnt about the death of Rajesh and, therefore, he again went to the Hospital. On perusal of the first information report which is at Exh.217, it appears that the station diary entry was taken at 4 p.m. It is not mentioned as to when information was received at Police Station. Rajesh died at 4.45 p.m. (g) The fact that the offence was registered under Sections 302 and 307 read with 34 of I.P.C., it is clear that the information was given to the Police Station when Rajesh was alive. In any case, the witnesses have consistently stated that the Police jeep had come to the spot of incident. Rajesh was taken to the hospital in the Police jeep, sufficiently shows that the Police had received information about some cognizable offence having taken place at that place and time before filing of the oral report by PW2 and, therefore, it cannot be treated as the first information report on the basis of which the crime was registered. (h) PW21 investigating officer has stated that on 9.1.2006 at about 2.30 to 3 p.m., Police Station received information about the alleged incident. There is no documentary evidence like station diary entry to corroborate the same. (h) PW21 investigating officer has stated that on 9.1.2006 at about 2.30 to 3 p.m., Police Station received information about the alleged incident. There is no documentary evidence like station diary entry to corroborate the same. According to him, the complainant came to the Police Station at about 2.30 p.m. and informed the incident. This information was recorded in the station diary and thereafter crime was registered. The complainant after filing the first information report, went to the spot of incident along with Police. He went to the Police Station at about 4.15 to 4.50 p.m. on that day. The spot of incident was already known to the Police and, therefore, the complainant leading the Police to show the spot of incident would be insignificant. 7. PW9 Ravindra Likhar is the son of PW2 & the brother of deceased Rajesh. Discussion as regards testimony of PW9 is as follows: (a) According to PW9 on 9.1.2006 at about 1 p.m. he left the shop along with his father. At that time, his younger brothers Nitin and Rajesh and their friend Manoj were present in the shop. After they had meals, they heard shouts and saw people rushing from front of their house. The persons who were running told them that two persons are lying near Anand Nagar board in an injured condition. (b) Immediately, PW9 along with his brother Mukesh and his father rushed to the spot. He found that Rajesh and Manoj were lying there. They took Rajesh and placed his head in their lap and at that time Rajesh disclosed the names of accused nos. 1 to 3 and Nitin Chindale i.e. juvenile in conflict in law as having assaulted them with sharp edged weapon. Rajesh further disclosed that they were assaulted with knives, swords and sattur. They rushed Rajesh to the hospital in the Police jeep. They met PW3 Raghunath Nakshane in the hospital. He disclosed the incident to them. He disclosed the names of assailants and further disclosed that there were 3 to 4 other persons who had assaulted both of them. He had also informed that PW3 and PW6 were not armed with weapons and, therefore, they fled from the spot. PW9 was only knowing original accused no.3. (c) The evidence of PW9 was also recorded before the Juvenile Justice Board in Case No.32/2006 which was filed against Nitin and Mama. He had also informed that PW3 and PW6 were not armed with weapons and, therefore, they fled from the spot. PW9 was only knowing original accused no.3. (c) The evidence of PW9 was also recorded before the Juvenile Justice Board in Case No.32/2006 which was filed against Nitin and Mama. He had deposed before the Juvenile Justice Board that on the day of incident, Manoj had come to their house and had taken Suzuki motorcycle. PW6 has categorically admitted that when they went to the shop of Rajesh, the motorcycle was already stationed near the shop. PW3 and PW6 have stated before the Court that Manoj had not left the shop in their presence. (d) PW9 has admitted in the cross-examination that he had deposed before the Juvenile Justice Board that the spot of incident is not visible from Sunita building. He had also deposed before the Board that he and his father had been to the Police Station for the first time at about 6 p.m. and at that time the Police had arrested four persons on suspicion. He had also deposed that he was not knowing the names of those four persons till the date of his deposition before Juvenile Justice Board. (e) PW9 had also deposed that he met Raghu Nakshane at the time of funeral of his brother Rajesh but could not recollect the conversation between them. He had further deposed that he had met Yogesh for the first time in the hospital, however, did not recollect what was the disclosure made by him. (f) PW9 has deposed before the Court that he had gone to the Police Station along with his father and that Raghu Nakshane met him after the death of Rajesh and they went to the Police Station to file the report after the death of Rajesh. (g) PW9 has admitted that his father did not disclose before the Police in his presence that Raghu Nakshane had disclosed to them in the hospital that he and Yogesh were following Rajesh & Manoj and that 8 to 10 persons had encircled Rajesh and Manoj and had assaulted them. He has also admitted that he had also not disclosed the said facts to the Police at that time. PW9 has expressed his inability to state as to whether he met PSI Jadhav in the hospital or in the Police Station. He has also admitted that he had also not disclosed the said facts to the Police at that time. PW9 has expressed his inability to state as to whether he met PSI Jadhav in the hospital or in the Police Station. He also does not remember as to when he met Raghu. To add to this, PW9 has stated: ‘whatever I have deposed before the Juvenile Justice Board is true and correct’. (h) In view of the admission of PW9, we find that the evidence of PW9 is at variance with the evidence of prosecution witness nos. 2,3 and 6 and it further appears that they have either deliberately suppressed the genesis of the incident or they really do not know as to how the incident took place. 8. The post mortem notes of deceased Rajesh are at Exh.235 and the post mortem notes of deceased Manoj are at Exh.236. On perusal of the post mortem notes, there is no doubt that both Rajesh and Manoj were brutally assaulted and have died homicidal death. Deceased Rajesh had sustained about 41 injuries and deceased Manoj had sustained about 44 injuries. There were several stab wounds and incised wounds. 9. From the description of injuries, it appears that the incident must have lasted for some time. PW3 and PW6 had time to raise alarm. They have stated that the moment they apprehended danger upon hearing shouts of Rajkumar Chindale, they had left the spot of incident and, therefore, there is no cogent and convincing evidence as to whether the unlawful assembly had simultaneously mounted assault on the deceased without there being any prelude to the incident. Moreover, PW3 has categorically stated that the accused had rushed towards him and the others were assaulting the deceased. The recovery of weapons is rendered insignificant as all the witnesses to the recovery of weapons have been declared hostile. Moreover, the accused/appellants were arrested by the Police within few hours after the incident. 10. PW13 Dr.Rajeshwari Deshmukh had examined accused no.3 Rajkumar Chindale, accused no.1 Anand Chindale and accused no.2 Ashok Chindale on 9.1.2006 at about 6 p.m. The injuries sustained by Rajkumar Chindale were incised wounds on right palm and left palm. Anand had also sustained an abrasion on left index finger and Ashok had sustained abrasion on his right middle finger. PW13 has deposed that the history of injuries of Rajkumar was accidental trauma. Anand had also sustained an abrasion on left index finger and Ashok had sustained abrasion on his right middle finger. PW13 has deposed that the history of injuries of Rajkumar was accidental trauma. In any case, the alleged incident had occurred at about 1.30 to 2 p.m. The accused were examined by the Doctor at 6 p.m. The injuries sustained by the accused persons cannot be held to be an incriminating circumstance against them especially when there is no positive and cogent evidence to establish that these injuries were sustained by them at the time of incident or that they had actively participated in the said incident in which Rajesh and Manoj had died. The allegations against Rajkumar are about exhortation to catch hold of PW3 and PW6 and the injuries sustained by him on the same day are unexplained by either side. 11. The prosecution had to stand on its own legs, especially when it is a case of direct evidence since the ocular evidence has to be a sterling testimony and would prevail over any circumstantial or corroborative evidence. 12. The evaluation of evidence in such cases like the present one would be whether the prosecution has: (i) proved, (ii) not proved or (iii) disproved. The present case would fall into third category. A fact is said to be disproved when after considering matters before it, the Court either believes that it does not exist or considers it non-existent so probable that a prudent man ought under the circumstances of the particular case, to act upon the suppositions that it does not exist, were disproved is akin to were false. 13. A fact not proved is not necessarily a fact disproved but it would be a fact which is neither proved nor not proved. A doubt lingers about its truth and in these circumstances the accused would be entitled to benefit of doubt. More so that in the absence of any overt acts, accused nos. 4 to 6 have been acquitted. 14. The evidence of PW3 and 6 are omnibus. Implicit reliance cannot be placed upon the oral dying declaration as there is nothing on record to indicate that after having sustained 41 stab wounds, whether Rajesh was really in a position to speak. 4 to 6 have been acquitted. 14. The evidence of PW3 and 6 are omnibus. Implicit reliance cannot be placed upon the oral dying declaration as there is nothing on record to indicate that after having sustained 41 stab wounds, whether Rajesh was really in a position to speak. There is a variance in the evidence of PW2 and PW9 which coupled with the medical evidence does not appeal to us that Rajesh must have given the oral dying declaration. 15. PW2 and PW9 had lifted Rajesh, their clothes also ought to have blood stains but their clothes were not seized by the Police. Reliance can be placed on the judgment reported in 2003 SCC (Cri) 1825 in the case of Khima Vikamshi and and others vs . State of Gujrat to substantiate that it is unbelievable that there would be no blood stains on the clothes of PW2 and PW9 when they had actually lifted Rajesh. 16. Although the ocular evidence shows that Rajesh and Manoj had died at the hands of an unlawful assembly, the trial Court has acquitted the accused of the charge under Section 149 of I.P.C. There is no cogent and convincing evidence to convict the accused for offence punishable under Section 302 with the aid of Section 34 of I.P.C. only on the basis of oral dying declaration and, therefore, the accused are entitled to benefit of doubt. 17. In the above mentioned circumstances, Criminal Appeal No.368/2009 is allowed. The conviction and sentence recorded by Ad-hoc Additional Sessions Judge, Yavatmal in Sessions Trial No.23/2006 against the appellants is quashed and set aside. The appellants are in jail. They be released forthwith, if not, required in any other case. Fine amount, if paid, be refunded to the appellants.