Judgment P.V. Hardas, J. 1 Appellants the original accused nos.1, 3 and 7 who stand convicted for an offence punishable under Section 302 read with Section 34 of Indian Penal Code (IPC) and sentenced to imprisonment for life and to each to pay fine of Rs.10,000/-, in default of which to undergo further RI for one year, by the Additional Judge,, Alibaug, Dist. Raigad by judgment dated 9 July 2008, in Sessions Case No.184 of 2007, by this appeal challenge their conviction and sentence. 2 The facts in brief, as are necessary for the decision of this appeal, may briefly be stated thus: (i) PW-9 PI Suhas Garud who was attached to Alibaug police station and was on duty on 23.2.2007 received a telephone call from the police station Alibaug at about 9pm about a quarrel which had taken place at Mandvi Mohalla. It was also informed that due to the quarrel a crowd had gathered in the civil hospital at Alibaug. PW-9 PI Garud immediately proceeded to Mandvi Mohalla area of Alibaug and had seen a crowd there near the Masjid. In order to avoid any untoward incident, he deputed police staff and proceeded to the civil hospital at Alibaug. In order to control the crowd, he made bandobast arrangement at hospital. PW-9 PI Garud then returned back to the police station and on arriving at the police station, he noticed police-in-charge of the Alibaug police station scribing the complaint of PW-1 Iqbal Usman Sayyed. On the basis of the report of PW-1 Iqbal at Exhibit 39, an offence vide crime no.45 of 2007 came to be registered on 11 pm in the police station. (ii) The offence was registered under Section 147, 148, 149, 302, 324 and 323 of IPC. The report was in respect of death of deceased Naveed by the accused on 23.2.2007. The investigation of the said crime was taken over by PW-9 PI Garud. (iii) PSI Mane who was also attached to the Alibaug police station was asked to draw inquest panchanama dead body of the deceased Naveed. Accordingly, inquest panchanama was drawn at Exhibit 49. PSI Konde who was attached to the Alibaug police station was instructed to draw the scene of the incident panchanama and accordingly the scene of panchanama was drawn in the presence of panchas at Exhibit 47. Accordingly, inquest panchanama was drawn at Exhibit 49. PSI Konde who was attached to the Alibaug police station was instructed to draw the scene of the incident panchanama and accordingly the scene of panchanama was drawn in the presence of panchas at Exhibit 47. On 24.2.2007, the clothes of deceased Naveed were seized in the presence of panchas under the seizure memo at Exhibit 50. (iv) On 24.2.2007, the statements of the witnesses were recorded and accused nos.2 and 5 who had been admitted in the civil hospital on account of injuries were arrested. On 25.2.2007, accused nos.1,3,4,6 to 8 were arrested at 7.45 pm. On the same day, the statements of witnesses were recorded. (v) On 28.2.2007, the clothes of PW-1 Iqbal were seized under seizure memo at Exhibit 52. On the same day at about 10.10am, original accused nos.9 to 12 were arrested. During custodial interrogation, accused no.1-Anwar Musa Sayyed expressed his willingness to point out the place where a weapon had been concealed by him. Accordingly, memorandum, of accused no.1 was recorded in the presence of panchas at Exhibit 63. On the same day, accused no.3-Salim also expressed his willingness to point the place where a sword-stick had been concealed. The memorandum of accused no.3 Salim Musa Sayyed was recorded in the presence of panchas at Exhibit 64. Accused no.7- Afsar Niyaz Sayyed had also expressed his willingness to point the place where a sword-stick had been concealed. Memorandum of accused no.7 was recorded in the presence of panchas at Exhibit 65. The accused nos.1,3 and 7 then led the police and the panchas to Mandvi Mohalla. Accused after crossing the cemetery, pointed out an open space which was used for storing garbage. Accused no.1 went to the heap of garbage and produced a chopper, article 13.Accused no.3-Salim also went near the garbage heap and produced a sword-stick, article 14. Accused no.7 also went near the said garbage heap and produced a swordstick, article 15. All the weapons were seized in the presence of panchas under the panchanama Exhibit 66. Statements of witnesses were recorded, and on 3.3.2007 the clothes of accused no.1 Anwar and accused no.3 Salim, which were on their person, were seized under the seizure memo at Exhibit 67. (vi) On 4.3.2007, certain disclosure statement of accused nos.4 to 6 and 8 were recorded. Statements of witnesses were recorded, and on 3.3.2007 the clothes of accused no.1 Anwar and accused no.3 Salim, which were on their person, were seized under the seizure memo at Exhibit 67. (vi) On 4.3.2007, certain disclosure statement of accused nos.4 to 6 and 8 were recorded. Since these accused have been acquitted and the State has chosen not to file any appeal challenging their acquittal, we refrain from making any reference to that part of the investigation. (vii) On 4.3.2007, the statements of certain witnesses were recorded and on 15.3.2007 the seized property was referred to the chemical analyzer under requisition at Exhibit 85. The reports of the chemical analyzer are at Exhibits 86 to 89. Further to the completion of the investigation, a chare-sheet against the accused was submitted. (viii) Postmortem on the dead body of deceased Naveed was performed by PW-Dr. Gosavi. PW-7 Dr. Gosavi noticed the following external injuries on the dead body of deceased Naveed: “1. Penetrating stab injury at the epigastric regions having size 2 cm x 1 cm. It was 3 to 4 cm deep. 2. Stab wound at the 5th inter-costal space 3cm to the left to the lateral border of sternum about 2cmx 5cm. There was no abrasions/bruising at the wound margin. The tract of the wound is 5-6 cm deep perporating the thoracic cavity reaching up to the left ventricular wall through the pericordial space. 3. Stab wound over 5th inter-costal space in the midaxillary line about 2 x 0.5cm. No abrasions/bruises at the wound margin. The track is 4 cm deep perporating to the thoracic cavity reaching upto to the lungs through pleural space.” He opined that all the injuries are ante mortem. On internal examination, he noticed a tear on the upper part of the lower lobes above 1.5cm x 0.2cm. Pericardium was filled with the blood cloth. There was also one 1cm tear to the heart over the left ventricle, at the anterior lower aspect. (ix) PW-7 Dr. Gosavi therefore opined that cause of death was due to cardial tamponade haemopericardium along with haemothrorax due to stab (penetrating) injuries to the chest wall involving tear to the vital organs (heart and lung). The postmortem report is at Exhibit 76. He has opined that injuries 1 to 3 were possible by sharp weapons like sword-stick, knife or chopper. Gosavi therefore opined that cause of death was due to cardial tamponade haemopericardium along with haemothrorax due to stab (penetrating) injuries to the chest wall involving tear to the vital organs (heart and lung). The postmortem report is at Exhibit 76. He has opined that injuries 1 to 3 were possible by sharp weapons like sword-stick, knife or chopper. (x) On committal of the case, the Court of Sessions, Trial Court vide Exhibit 22 framed charge against 12 accused for offence punishable under Sections 147,148,302 read with Section 149, 341, 323 of IPC. (xi) All the accused denied their guilt and came to be tried. The prosecution, in support of its case, examined 9 witnesses. The defence of the accused was of denial. The Trial Court upon appreciation of the evidence of the prosecution convicted and sentenced the appellants as afore-stated, while acquitting them of the offence punishable under Section 147, 148 and the other offences with which they were charged. The other accused were acquitted of the offences with which they were charged. 3 In order to effectively deal with the submissions advanced before us by Shri Mohite, learned Counsel for the appellants and the learned APP, it would be useful to refer to the evidence of the prosecution witnesses. 4 The prosecution has unfolded its case by examining three eye- witnesses namely, PW-1 Iqbal, father of deceased Naveed and first informant, PW-2 Mansoor, cousin of deceased Naveed and PW-4 Mujaffar an eye-witness to the incident. PW-1 Iqbal deposes that he was residing at Mandvi Mohalla along his wife and sons, Sameer and deceased Naveed and the family members of his two sons. According to him on 23.2.2007, he had gone to the house of trustee of Masjid i.e. Musa Sahajan Sayyed at about 8.30 to 9pm. PW-1 Iqbal states that he had gone to the house of the trustee Musa in order to request him to accompany him to the house of Imam in order to solicit an explanation from Imam as to why he had not done salam at the time of the namaj. The said trustee Musa accordingly accompanied PW-1 Iabal to the house of Imam. PW-1 Iqbal questioned the Imam as to why he had not done the traditional salam at the time of namaj. Imam had answered PW-1 Iqbal, but PW-1 was not satisfied with the answer. The said trustee Musa accordingly accompanied PW-1 Iabal to the house of Imam. PW-1 Iqbal questioned the Imam as to why he had not done the traditional salam at the time of namaj. Imam had answered PW-1 Iqbal, but PW-1 was not satisfied with the answer. Meanwhile, the trustee Musa asked PW-1 Iqbal that they should return home. In fact Musa dragged PW-1 Iqbal from the house of the Imam and on to the road. Suddenly the sons of Musa and sons of brother of Musa came running from house of Musa. PW- Iqbal has identified them as original accused nos.1 to 8. Accused nos.1 to 8 then started manhandling PW-1 Iqbal and then dragged him up to the house of his brother Suleman. Deceased Naveed, son of PW-1 Iqbal was sitting in front of house had noticed the incident. Deceased Naveed accordingly rushed to the scene of the incident and demanded from accused nos.1 to 8 as to why they were manhandling PW-1 Iqbal. The accused nos.1 to 8 then started manhandling and pushing deceased Naveed and PW-1 Iqbal towards the house of one Jainuddin. At that time PW-2 Mansoor and PW-4 Mujaffar attempted to rescue both PW-1 Iqbal and deceased Naveed from the clutches of accused. Suddenly accused no.2 Shaukat took out a a chopper from his pant pocket and handed it over to accused no.1 Anwar. PW-1 Iqbal cried out and implored the accused not to kill Naveed over a minor incident. Accused No.1 Anwar then stabbed the chopper on the abdomen of deceased Naveed. While injured Naveed was falling on the ground, PW-1 Iqbal caught him and at that time accused no.7 Afsar stabbed sword stick on the chest of Naveed while accused no.3 Salim dealt a blow of sword stick on the left side of ribs of Naveed. PW-1 then lain-prostrate on injured Naveed in order to protect him from further assault. The other accused then started assaulting deceased Naveed, but PW-1 Iqbal received injuries which were meant to be caused to deceased Naveed. In that process PW-1 Iqbal sustained injuries on the right-side neck, below left-side eye and on right thigh. According PW-1 Iqbal those injuries were caused by iron rods. 5 On seeing that Naveed had sustained bleeding injuries, accused nos.1 to 8 fled from the scene of incident. PW-1 Iqbal placed deceased Naveed in a rickshaw. In that process PW-1 Iqbal sustained injuries on the right-side neck, below left-side eye and on right thigh. According PW-1 Iqbal those injuries were caused by iron rods. 5 On seeing that Naveed had sustained bleeding injuries, accused nos.1 to 8 fled from the scene of incident. PW-1 Iqbal placed deceased Naveed in a rickshaw. PW-1 Iqbal was accompanied by PW-2 Mansoor and PW-4 Mujaffar. Deceased Naveed was accordingly then taken towards the civil hospital. The other accused in the meanwhile began petting stones at the rickshaw and accordingly the rickshaw took a detour and ultimately Naveed was taken to hospital. PW- Iqbal then proceeded to the police station where he lodged his report at Exhibit 39. While the report was being scribed, PW-1 Iqbal received a message about the demise of injured Naveed. 6 In cross-examination PW-1 Iqbal has admitted that he had cordial relationship with Musa and his family members till incident. Certain other questions have also been put to him in respect of attempt of mediation for settlement of marriage of his maternal niece with accused no.6 Afzal. He has admitted as correct that from 21.2.2007 to 25.2.2007 from 6 to 10pm there was load-shedding. He has also admitted that to the Chirag Masjid there is a compound wall having height of 6-7 ft. He has also admitted his house is at a distance of 100 ft from the Masjid chowk while his bother Suleman resides at distance of 15 to 20 ft. from Masjid chowk. He has also admitted that there is a STD booth in front of his brother Suleman. In further cross-examination, he has admitted that when the incident of manhandling was going on, accused had not assaulted him by the weapons with which they were armed. He has also admitted that apart from the accused, about 10 other persons had gathered at the spot at the time of the incident. He was confronted with question-mark ‘A’ from his report at Exhibit 39 which he has stated was not correctly recorded. He has then admitted as correct that in his report at Exhibit 39 there was no reference to accused nos.3 and 7 having assaulted deceased by means of sword-sticks. He has also admitted that while his report was being scribed, he had received a message that his son had succumbed to the injuries and he was in a shock. He has then admitted as correct that in his report at Exhibit 39 there was no reference to accused nos.3 and 7 having assaulted deceased by means of sword-sticks. He has also admitted that while his report was being scribed, he had received a message that his son had succumbed to the injuries and he was in a shock. He has further admitted in cross-examination that when he was manhandled and was assaulted at that time Musa and others were also present at the scene of the incident. He has stated that accused nos.4 to 6 were armed with iron rods while accused no.8 was armed with a stick. He has further admitted that while his report was being scribed he was aware that accused nos.9 to 12 had pelted stones at the rickshaw. He has admitted that on account of confusion, he had not stated about it in his report. He has then admitted as correct that there was no electricity at the time of incident. He has also admitted that an inverter was switched on and generator had been switched on and there was light in Masjid and Madarsa and there was also moon-light. An omission has been elicited that he has not stated in his report that deceased Naveed was sitting in front of house. Similarly, omission has been elicited that accused no.2 Shaukat took out a chopper from pant-pocket and handed over it to accused no.1 Anwar. An omission has also been elicited that he has not stated in his report that after assault of chopper, he caught his son. An omission has also been elicited that he has not stated in his report that accuse no.7 assaulted his son by sword stick. Similarly, omission has also been elicited that he has not stated in his report that accused no.3 Salim has assaulted his son by sword stick on the left side of rib. 7 Prosecution has examined PW-2 Mansoor, who is cousin of deceased Naveed and an eye-witness to the incident. The statement of this witness was recorded on 26.2.2007 i.e. after 3 days of the incident. Importantly, it appears that this witness was a witness to the scene of incident panchanama which had been drawn in the early morning of 24.2.2007. PW-2 Mansoor deposes that at the time of incident he was residing in Mandvi Mohalla. The statement of this witness was recorded on 26.2.2007 i.e. after 3 days of the incident. Importantly, it appears that this witness was a witness to the scene of incident panchanama which had been drawn in the early morning of 24.2.2007. PW-2 Mansoor deposes that at the time of incident he was residing in Mandvi Mohalla. On the day of incident at about 9pm he had heard cries and therefore had come out of his house and had noticed that accused nos.1 to 8 were manhandling his uncle PW-1 Iqbal. He has also admitted that there was no electricity in the village at the time of incident, however, there was light from generator in Masjid and there was light in the STD booth and there was also light in Masjid as invertor was switched on. He has also stated that there was a moon-light. He states that deceased Naveed came to the scene of incident and thereafter accused nos.1 to 8 started manhandling deceased Naveed, and deceased Naveed and PW-1 Iqbal were taken to the house of Jainuddin. Near the house of Jainuddin, accused no.2 took out a chopper from pocket of his pant and handed over to accused no.1. Accused no.1 thereafter stabbed on the abdomen of deceased Naveed. Due to blow of chopper, Naveed lost his control and while he was falling, accused no.7 and accused no.3 dealt blows of sword sticks on chest of deceased Naveed. PW-1 Iqbal lain-prostrate on Naveed in order to protect him from further assault. The other accused who were armed with iron rods assaulted deceased Naveed. However, since PW- 1Iqbal had lain-prostrate on Naveed, PW-1 Iqbal sustained injuries. PW-2 Mansoor further deposes that when he attempted to rescue Iqbal and Naveed, accused no.4 struck him on shoulder which caused injuries while accued no.6 Afzal who was armed with iron rod, had also assaulted him on his right shoulder. The assailant on seeing Naveed had been injured, fled from the scene of the incident. One tempo was stopped and Naveed was taken in the tempo to the hospital at Alibaug. While Naveed was being taken, accused nos.9 to 12 pelted stones at the tempo. The tempo took detour and ultimately Naveed was taken to the hospital. At about 10pm doctor declared that Naveed had succumbed to injuries. One tempo was stopped and Naveed was taken in the tempo to the hospital at Alibaug. While Naveed was being taken, accused nos.9 to 12 pelted stones at the tempo. The tempo took detour and ultimately Naveed was taken to the hospital. At about 10pm doctor declared that Naveed had succumbed to injuries. At 12 o’clock midnight, police came to the house and PW-2 Mansoor had shown the spot of incident to the police. On the next day after postmortem was conducted, funeral of Naveed was performed. He had also admitted that his statement was recorded by police on 25.2.2007. 8 In cross-examination he has admitted that the building of Madarsa is at a distance of 10 ft. and height of the compound wall is approximately 6 ft. He also admitted that there were 10 to 12 tube-lights and the said tube-lights were connected to the generator and used to be switched on, if necessary. He also admitted that he had not stated anything to the police about which accused assaulted the deceased Naveed by which weapon. An omission has been elicited that he had not stated in his previous statement that at the time of incident there was moon-light. He also admitted not to have stated in his statement that after Naveed came to the spot, he was taken by accused nos.1 to 8 to the house of Jainuddin. An omission has also been elicited about Naveed being assaulted by a particular weapon i.e. Chopper near house of Jainuddin. An omission has also been elicited that he has not sated that in his 164 statement about Naveed being taken near the house of Jainuddin. An omission is elicited with regard to the house of “Jainuuddin”. Similarly, an omission has also been elicited in his 164 statement that he had sustained injuries to his right shoulder. An omission has also been elicited that he has not stated in his 164 statement that tube-lights had been switched on near the STD booth. 9 Prosecution has examined PW-4 Musaffar an eye-witness to the incident. PW-4 Mujaffar who was also a resident of Mandvi Mohalla claims that on hearing hue and cry, he had rushed to the scene of incident and had noticed accused no.1 giving blow of chopper on abdomen of Naveed. PW-1 Iqbal caught Naveed and requested accused not to assault. 9 Prosecution has examined PW-4 Musaffar an eye-witness to the incident. PW-4 Mujaffar who was also a resident of Mandvi Mohalla claims that on hearing hue and cry, he had rushed to the scene of incident and had noticed accused no.1 giving blow of chopper on abdomen of Naveed. PW-1 Iqbal caught Naveed and requested accused not to assault. Thereafter, accused no.7 Afsar and accused no.3 had given blows of sword stick to deceased Naveed. PW-1 Iqbal had covered body of Naveed by lying on Naveed in order to protect Naveed from further assault. The other accused began assaulting Naveed, but the injuries were sustained by PW-1 Iqbal. Accused thereafter fled from the scene of the incident. Naveed was then taken to the hospital in a rickshaw and while on the way, stones pelted by accused nos.9 to 12. In cross examination, he has also admitted that he was also called as 'Modi'. He has also admitted that he does not recollect whether on 28.2.2007 the police had recorded his statement. He has also admitted that he was called by police after two days of the incident for recording his statement. He has also admitted that he had seen accused manhandling Naveed near house of Jainuddin. An omission has been elicited that he has not stated in his previous statement that accused no.1 Anwar gave blow of chopper on the abdomen of Naved. An omission has also been elicited that he had not stated in his previous statement about accused no.7 stabbing Naveed with sword stick. An omission has also been elicited that he had not stated in his previous statement that accused no.3 had stabbed Naveed by a sword stick. Similarly omission is also elicited that he had not stated in his previous statement that PW-1 caught deceased Naveed and covered the body of Naveed by lying on his person. An omission has also been elicited that he had not stated in his previous statement about other accused assaulting Naveed. 10 Prosecution has examined PW-5 Dinanth Patil in respect of memorandum of accused at Exhibits 63, 64, 65 and subsequent recovery of panchanama at Exhibit 66. The statement of the each accused was recorded and thereafter all these three accused led police and panchas to the heap of garbage and had removed the weapons. 10 Prosecution has examined PW-5 Dinanth Patil in respect of memorandum of accused at Exhibits 63, 64, 65 and subsequent recovery of panchanama at Exhibit 66. The statement of the each accused was recorded and thereafter all these three accused led police and panchas to the heap of garbage and had removed the weapons. Apart from that there is no evidence that the weapons on their seizure had been sealed and remained in that sealed condition till they were examined by chemical analyzer. The clothes on the person of the accused were seized after more than 5 days after their arrest. There is also no evidence regarding sealing of the clothes of the accused on their seizure. For the aforesaid reasons therefore the report of the chemical analyzer in respect of finding of blood stains on the weapons as well as clothes of the accused will have to be left out of consideration. 11 The Trial Court has disbelieved the certificates at Exhibits 52 and 53 issued by PW-8 Dr. Deshmukh in respect of the injuries sustained by PW-1 Iqbal and PW-2 Mansoor. It appears that the date of examination of these witnesses was a different date than the day of incident and consequently the findings of the Medical Officer did not tally with the prosecution case that these witnesses had received injuries at the time of the incident. We have perused the evidence of PW-8 Dr. Deshmukh and we see no reason to take a view different from the view taken by the Trial Court. 12 The evidence against the appellants therefore now comprises of the eye-witnesses PW-1 Iqbal, PW-2 Mansoor and PW-4 Mujaffar. Shri Mohite, the learned Counsel for the appellants has urged before us that the prosecution has examined only three interested witnesses while omitting to examine the other independent witnesses who were available. It is also urged before us that PW-2 Mansoor had associated himself with the scene of offence panchanama and had not disclosed the incident, but had disclosed the incident after two days and therefore, no reliance ought to have been placed by the Trial Court on his evidence. It is also urged before us that PW-2 Mansoor had associated himself with the scene of offence panchanama and had not disclosed the incident, but had disclosed the incident after two days and therefore, no reliance ought to have been placed by the Trial Court on his evidence. 13 In respect of PW-4 Mujaffar, Shri Mohite, the learned Counsel for the appellants has urged before us that the incident in question has been elicited virtually as an omission in the testimony of PW-4 Mansoor and therefore the testimony of PW-4 Mansoor ought to have been left out of consideration. 14 In respect of PW-1 Iqbal, Shri Mohite, the learned Counsel for the appellants has urged before us that the genesis of the incident, as deposed by PW-1 Iqbal, has been suppressed and consequently a different incident is deposed to by overplaying the role of the accused and suppressing the role of the prosecution witnesses. It is urged before us that the certificates at Exhibits 80 and 81 issued by PW-7 Dr. Gosavi clearly indicate that the accused nos.2 and 5 had sustained grievous injuries. It is therefore urged before us that the aforesaid injuries indicate that the accused may have acted in exercise of the right of private defence, and at any rate the prosecution having failed to explain the injuries sustained by the accused, the accused are entitled to benefit of doubt. The learned APP has supported the findings arrived at by the Trial Court. 15 PW-1 Iqbal claims that the entire incident was sparked on account of the grievance expressed by PW-1 Iqbal regarding the Imam not doing salam at the time of Namaj. According to the appellants, over such a trivial issue accused would not have resorted to such serious incident of killing of deceased Naveed. It appears that PW-1 Iqbal had gone to the house of the Imam and had remonstrated about the duties or function performed by Imam. It is difficult for any person to predict as to what may anger any person and the extent of anger. In such situation therefore it would be idle to speculate if the grievance of PW-1 Iqbal was sufficient to have ignited the temper to such an extent to cause death of deceased Naveed. 16 Be that as it may, PW-1 Iqbal had deposed about accused surrounding him and manhandling him and thereafter assaulting deceased Naveed. In such situation therefore it would be idle to speculate if the grievance of PW-1 Iqbal was sufficient to have ignited the temper to such an extent to cause death of deceased Naveed. 16 Be that as it may, PW-1 Iqbal had deposed about accused surrounding him and manhandling him and thereafter assaulting deceased Naveed. PW-1 Iqbal has stated about accused no.1 Anwar stabbing deceased by chopper. There is a total omission in respect of accused no.3 Salim and accused no.7 Afsar being armed with sword-sticks and having stabbed deceased Naveed with a sword stick. The recitals in the first information report indicate that after deceased Naveed was stabbed by accused no.1, the other accused had assaulted deceased Naveed with the weapons with which they were armed i.e. iron rod and sticks. The FIR is silent in respect of accused no.3 and accused no.7 being armed with sword sticks and assaulting deceased Naveed with sword sticks. The evidence of PW-4 Mujaffar is also on similar line as omission has been elicited in respect of the entire incident. The evidence of PW-4 Mujaffar cannot be used to corroborate the evidence of PW- Iqbal, as the omissions on the vital aspects have been elicited in the evidence of PW-4 Mujaffar. 17 In respect of PW-2 Mansoor, learned Counsel for appellants urged before us that since he was associated as a panch-witness and there is belated disclosure of the incident his evidence is required to be left out of consideration. Normally the police ought not to associate an eye-witness as a panch to the scene of incident panchnama. In the present case, the scene of the incident panchnama was drawn and PW-2 Mansoor was associated as a panch witness and it is thereafter that his statement was recorded as an eye-witness. The fact that PW-2 Mansoor is an eye-witness is to be found in the recitals of the FIR. Similarly in the evidence of PW-1 Iqbal, it has been categorically stated that PW-2 Mansoor is an eye- witness to the incident. Generally delay by itself is no ground for discarding the otherwise reliable evidence of a witness. However, if it appears that the Investigating Officer has deliberately delayed the recording of statement of the witness in order to mark time and to give a different shape to the prosecution case, the Court may be entitled to jettison the evidence of that eye-witness. However, if it appears that the Investigating Officer has deliberately delayed the recording of statement of the witness in order to mark time and to give a different shape to the prosecution case, the Court may be entitled to jettison the evidence of that eye-witness. In the present case, we find that since PW-2 Mansoor had been referred to as an eye-witness in the FIR at Exhibit 39, which was lodged promptly, the delay in recording the statement of Mansoor would not by itself be a ground for discarding his testimony. However, the delay in recording the statement of PW-2 Mansoor had offered an opportunity to PW-2 Mansoor to embroider his evidence so as to include an assault by sword sticks by accused no.3 Salim and accused no.7 Afsar. This would amount to an embroidery as in the earliest version of PW-1 Iqbal there is no reference to accused no.3-Salim and accused no.7 Afsar being armed with sword sticks and inflicting injuries by sword sticks. We therefore find that if this part of the evidence is left out of consideration, the testimony of PW-2 Mansoor, corroborates and strengthens the testimony of PW-1 Iqbal. However, this is not to say that we noticed any infirmity in the evidence of PW-1 Iqbal that it requires any strengthening by the testimony of PW-2 Mansoor. Failure to examine independent witnesses can not be used as lever for rejecting the otherwise reliable evidence of the eye-witnesses. 18 ShriMohite, the learned Counsel for the appellants has urged before us that since the Trial Court acquitted other accused and there are improvements in the evidence of PW-1 Iqbal, the entire prosecution case deserves to be jettisoned. Merely because PW-1 Iqbal and PW-2 Mansoor have involved the other accused in the commission of an offence, according to us, that itself cannot be a ground for jettisoning the evidence of these two witnesses 19 It is the duty of the Court to separate the grain from chaff, the truth from falsehood and if the residue of the evidence of witnesses is found to be trustworthy, the Court can act upon the residue for convicting remaining accused. However, in the light of what has been observed by us, we find that accused no.3 Salim and accused no.7 Afsar would be entitled to be given the benefit of doubt. However, in the light of what has been observed by us, we find that accused no.3 Salim and accused no.7 Afsar would be entitled to be given the benefit of doubt. The evidence of PW-4 Mujjafar does not in any manner support either PW-1 Iqbal or PW-2 Mansoor though he was said to be an eye-witness by virtue of the recitals in FIR at Exhibit 39 and in the testimony of PW-1 Iqbal. 20 ShriMohite, the learned Counsel for the appellants has further urged before us that since the injuries sustained by the original accused nos.2 and 4 and proved by the certificates at Exhibits 80 and 81, have been suppressed, the accused would be entitled to be given the benefit of doubt. 21 ShriMohite, the learned Counsel for the appellants has placed reliance on the judgment of the Supreme Court in Bishna alias Bhiswadeb Mahato & ors. Vs. State of W.B. (2005 (12 SCC 657). The Supreme Court, after referring to the judgment of Lakshmi Singh v. State of Bihar ( AIR 1976 SC 2263 ) and other judgments of the Supreme Court, ultimately held that an offence punishable under Section 302 of IPC was not made out, but an offence punishable under Section 304 Part I read with Section 34 of IPC had been made out. The learned Counsel for appellants also relied upon judgment of the Supreme Court in Rajpal & Anr. Vs. State of Haryana ( 2007 (13) SCC 554 ). In the said case, the Supreme Court by referring to the judgment in Mahato (supra) concluded that accused no.1 had exercised right of private defence and accordingly allowed the appeal and acquitted the accused. 22 In respect of injuries sustained by original accused no.2 and original accused no.5 (who have been acquitted), the prosecution witnesses when confronted in cross-examination have stated that these injuries were sustained by the accused during the incident and at the hands of the other accused. The appellants in their statements under Section 313 have also not specifically taken any defence that the accused were attacked by the complainant party or that the complainant party was aggressor and had inflicted any injuries, and in their exercise of private defence they had caused any injuries. It is equally true that right of private defence need not be specifically pleaded. It is equally true that right of private defence need not be specifically pleaded. However, in order to enable the Court to determine if the accused had exercised their right of private defence, it is necessary that there should be some evidence on record to indicate that complainant party was aggressor and that accused had felt some apprehension of injuries being caused to them and therefore the accused had exercised their right of private defence. 23 In the present case, neither in the cross examination nor in the 313 statement of the accused, any averment is brought on record which would then remotely assist the accused in propounding their plea of right of private defence. We therefore find that no case is made out by the accused for claiming that they had exercised their right of private defence. 24 Though the prosecution witnesses have not explained the injuries sustained by accused nos.2 and 5, according to us it is apparent in the light of the explanation of the witnesses that the accused had sustained injuries while assaulting the complainant party and in the absence of any other evidence to contradict that, according to us failure of the prosecution to explain the aforesaid injuries would not be fatal the prosecution case. The other overwhelming evidence which the prosecution has adduced would not stand affected by failure to explain injuries sustained acquitted accused. 25 Thus having analyzed the evidence of the prosecution witnesses as well as the argument advanced before us, according to us the appeal filed by the appellants deserves to be partly allowed. Original Accused No.3 Salim and Accused No.7 Afsar would be entitled to be given the benefit of doubt. Insofar as accused no.1 is concerned, we find that the prosecution has proved its case against accused no.1 beyond reasonable doubt and appeal filed by him needs no interference. 26 We accordingly pass the following order: (i) Criminal Appeal No.818 of 2008 is partly allowed, and the conviction and sentence of the original accused no.3 Salim Musa Sayyed and original accused no.7 Afsar Niyaz Sayyed is hereby quashed and set aside and they are acquitted of the offence with which they were charged and convicted. Fine, if paid, be refunded to them. Since the original accused nos.3 and 7 are in jail, they be released forthwith, if not required in any other case. Fine, if paid, be refunded to them. Since the original accused nos.3 and 7 are in jail, they be released forthwith, if not required in any other case. (ii) Appeal filed by original accused no.1-Anwar Musa Sayyed is hereby dismissed, confirming his conviction and sentence.