JUDGMENT P.N. Deshmukh, J. 1. This appeal takes exception to the judgment and order dated 22-1-1999 passed by the learned Additional Sessions Judge, Akola in Sessions Trial No. 125/95, by which the appellants are held guilty for the offence punishable under Section 304 Part-II read with Section 34 of the Indian Penal Code and are sentenced to suffer rigorous imprisonment for five years each and to pay a fine of Rs. 2,000/- each, in default to suffer rigorous imprisonment for two years. The prosecution case can be briefly stated as under- Accused No. 1 Gajanan @ Babarao and deceased Ramesh Durge were cousins having their agricultural lands situated at village Mhatodi, adjoining to each other. P.W. 1 Ganesh Wadal was working as a servant of father of the deceased since one year prior to the incident. On 19-10-1994 P.W. 1 Ganesh Wadal went to the filed of Shriram Durge, father of the deceased known as 'Dawhawale' and returned back at 7.00 p.m. when Shriram Durge told him that some quarrel had taken place between his deceased son Ramesh and accused No. 1 Gajanan in their field as 'Ghomaniwale Shet'. Father of the deceased also informed P.W. 1 Ganesh that as per the information received by him from some lady workers, who had been in their field for carrying out agricultural operations that in the field of accused quarrel had taken place between deceased Ramesh and accused No. 1 Gajanan and since then deceased Ramesh had not returned home. Shriram Durge, father of the deceased thus told P.W. 1 Ganesh, his servant to go to the field and search for Ramesh. Accordingly, he went to the field known as Ghomaniwale-Shet at around 7-00 p.m. along with one Gajanan Jamnerkar, Prakash More and Bandu Dhanwade and while searching for Ramesh found his dead body lying in the field in cotton crop and had noticed bleeding injuries on the person of deceased on his head and back. 2. P.W. 1 Ganesh thereafter returned back and informed said fact to Shriram Durge, who in turn informed P.W. 1 Ganesh to visit police station and lodged a report as there was no other male member in their family while Shriram Durge was unable to move due to old age. P.W. 1 Ganesh accordingly visited Akot File Police Station, at Akola and lodged his report vide Exhibit 63. P.W. 1 Ganesh accordingly visited Akot File Police Station, at Akola and lodged his report vide Exhibit 63. It was recorded by P.W. 15 Mahadeo Dongre, ASI and on the basis of same registered offence vide Crime No. 119/94 punishable under Section 302 of the Indian Penal Code. Said crime was further investigated by PSI Thakur, who died during the pendency of trial. 3. According to the case of prosecution, during the course of investigation, PSI Thakur along with his writer Police Constable P.W. 17 Bhagwat Kamble visited the spot of incident and had drew spot panchanama at Exhibit 66, inquest panchanama at Exhibit 67, seized articles from the spot vide seizure panchanama at Exhibit 68 and obtained photographs at Exhibit 96 to 103. The dead body was forwarded for Post-Mortem to Civil Hospital, Akola under requisition memo at Exhibit 41, upon which P.W. 13 Dr. Ranjit Patil on 20-10-1994 carried out Post-Mortem at Civil Hospital, Akola and issued Post-Mortem Report Exhibit 91. 4. PSI Thakur thereafter in the presence of P.W. 17 Bhagwat Kamble, Police Constable recorded statements of witnesses and effected arrest of the accused on 20-10-1994 and on 21-10-1994 on interrogation seized one stick, knife and clothes at the instance of accused No. 1 vide his memorandum panchanama at Exhibit 107 and seizure panchanama at Exhibit 108 from his house. Similarly, one weapon called 'kopali' and clothes of appellant No. 2 Anil are seized in pursuance of his memorandum statement at Exhibit 109 and seizure panchanama at Exhibit 110 while at the instance of appellant No. 3 Rajesh one bicycle chain and his clothes came to be seized vide his memorandum statement at Exhibit 111 and seizure panchanama at Exhibit 112. Blood samples of the accused and deceased were collected and same along with all other articles were forwarded to Chemical Analyser, Nagpur for its analysis of which Chemical Analyser reports are at Exhibits 114 to 120. On completion of investigation, charge-sheet came to be filed against the accused before the learned Judicial Magistrate First Class, Akola. 5. In due course of time case came to be committed for trial before the learned Sessions Court, Akola. Charge is framed against all the accused for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code, to which they pleaded not guilty and claimed to be tried. 5. In due course of time case came to be committed for trial before the learned Sessions Court, Akola. Charge is framed against all the accused for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code, to which they pleaded not guilty and claimed to be tried. The defence of the accused is of total denial. It is the case of accused No. 1 Gajanan that deceased Ramesh was criminal element and was involved in number of criminal cases lodged against him by police and as such was on inimical terms with various others and due to said inimical relations, he came to be killed by somebody else. However, as said accused since was having dispute with father of the deceased pertaining to their landed property, he is falsely implicated in this crime. 6. Heard learned Counsel Shri Mahesh Singh for the appellants/accused and learned Additional Public Prosecutor Shri M.J. Khan for the respondent/State. To effectively evaluate the submissions advanced by learned Counsel for both the sides, I have scrutinized the evidence on record with their assistance. 7. P.W. 1 Ganesh Wadal has stated that he knows all the accused being of same village. On the day of incident, he was working with Shriram Durge, father of deceased and had returned from the agricultural work at 7.00 to 7.30 p.m. to the house of his master Shriram, who informed him that as per information received, quarrel had taken place between deceased Ramesh and accused No. 1 Gajanan and so he went to the field along with one Bandu Dhanwade, Gajanan Jamnerkar and Prakash More and found dead body of deceased Ramesh lying in the field of accused No. 1 Gajanan. He thus returned back and gave said information to Shriram Durge, who directed him to inform police and accordingly visited the police station and lodged his report at Exhibit 63. 8. P.W. 1 Ganesh has denied to have not seen any injury on the head of deceased Ramesh and has admitted that when he visited the spot, he did not notice bicycle chain, pair of chappal lying there and has admitted that deceased was addicted to liquor and has expressed his inability to say about cases pending against deceased Ramesh lodged by Akot File Police Station and Ramdaspeth Police Station. He is unable to say if the relations between deceased Ramesh were strained with the villagers and with persons from neighboring villages. 9. Evidence of P.W. 1 Ganesh about his lodging report is found corroborated by P.W. 15 Mahadeo Dongre, ASI as according to him, on 20-10-1994 P.W. 1 Ganesh by visiting police station had narrated the facts, which were recorded by him and on the basis of which he had registered Crime No. 119/94 as stated above. Attempt was made on behalf of accused to bring on record that after P.W. 1 Ganesh reached the spot, he did not notice any head injury upon the deceased. In fact, according to the contents of his report at Exhibit 63, there is no mention of head injury but there is mention of bleeding injury sustained by deceased on his back. Though it is attempted to suggest this witness that after noticing Ramesh lying why no steps were taken by him to contact the doctor, said suggestion do not find any substance, in view of the evidence of P.W. 1 Ganesh that on his visiting the field, he found Ramesh to be dead. From the First Information Report dated 20-10-1994 it appears that same was lodged on that day at about 7.50 hours while the incident had occurred on 19-10-1994 in the evening. Spot of occurrence was at 14 km. from Akot File Police Station. Name of accused No. 1 Gajanan is mentioned in the First Information Report. In the cross-examination of P.W. 1 Ganesh further attempt is made to dislodge his evidence and to create doubt of his filing false First Information Report. However, it has come in the evidence that after 7.15 p.m. as there was no transport facility available from the village and since he did not know riding bicycle, he had visited the police station on next day morning. Prosecution in that case can said to have reasonably explained the delay whatsoever caused in lodging First Information Report. 10. To consider the strenuous relations between deceased Ramesh and accused, and thus their involvement in the commission of present crime, evidence of P.W. 11 Shriram Durge, father of deceased is material which reveals that accused No. 1 Gajanan is his brother's son while deceased Ramesh was his son and he possessed 12 Acres of agricultural land, which was looked after by his son Ramesh. According to his evidence, his brother Tulshiram holds land adjoining to his land. He has also stated that his house and house of accused are adjoining to each others and about six months prior to the incident accused No. 1 Gajanan had assaulted him and his wife wherein his wife had sustained fracture injury when they were replacing tiles from the roof of their house. He thereafter deposed corroborating evidence of P.W. 1 Ganesh about his learning of quarrel which had taken place between deceased Ramesh and accused No. 1 Gajanan and thus about his informing Ganesh to go to the field and search for Ramesh. 11. Evidence of P.W. 12 Rekha Durge, wife of deceased also is on the same lines as that of P.W. 11 Shriram Durge about the alleged incident of assault by accused No. 1 Gajanan on P.W. 11 and his wife, due to which Rekha sustained injury. Thus, from above evidence prosecution has brought on record fact of strained relations between the family members of deceased and that of accused No. 1 Gajanan as prior to the incident he had committed assault on parents of deceased. In that view of the matter and the limited evidence on this count on record, it is, thus, necessary to consider whether in the background of above evidence accused can said to be involved in the incident of assault on deceased Ramesh causing his death. 12. To substantiate its case prosecution has examined P.W. 3-Baby Kirde, who has stated that she was knowing deceased Ramesh, accused No. 1 Gajanan as well as his family members and also knows accused Nos. 2 and 3. According to her, on the day of incident she was present in the field of Tulshiram, father of accused No. 1 for carrying agricultural operations along with ten to fifteen other female workers. At about 1.30 in the noon when they were having lunch, deceased Ramesh arrived near them, who also had a field adjoining to the field of Tulshiram and in the meantime, accused arrived on the spot when accused No. 2 was armed with kopali, accused No. 3 was armed with bicycle chain while accused No. 1 was armed with stick in their hands and assaulted Ramesh, due to which he sustained injury on his head. After the said incident, she along with other females left for their houses. 13. After the said incident, she along with other females left for their houses. 13. In the cross-examination, P.W. 3-Baby Kirde denied that after arrival of deceased Ramesh near her, he spoke to P.W. 5 Trigunabai and he took out dagger from his waist. She has denied to have stated as such in her statement recorded by police as per portion 'A' and 'B'. Prosecution in the evidence of P.W. 17 Bhagwat has not got said portions proved, but it is in no way fatal to prosecution as there are no material contradictions. She admits that transport facility is available in their village upto 7-00 p.m. Though she admits to know one Kailash Dhenge, has denied that prior to six months of the incident deceased Ramesh had assaulted him. She has also denied that one Daberao, Janardhan Kutemate from their village had assaulted deceased Ramesh prior to the incident and has denied that accused had not committed assault on deceased Ramesh in her presence. From the evidence and suggestion as given to this witness, presence of accused is in fact brought on record thereby corroborating the earlier version of P.W. 3 Baby Kirde, though she has not fully supported the case of prosecution. 14. P.W. 4 Savita Shirsat has stated that on the day of incident she was working as agricultural labour in the land of father of accused No. 1 Babarao along with P.W. 5 Trigunabai More, P.W. 8 Suryakantabai Shirsat and other ten to twelve female members and at about 1.30 p.m. while they were having lunch, deceased Ramesh arrived and spoke to P.W. 5 Trigunabai and Sattyawatibai. At that time, all the accused arrived near Ramesh and some altercations took place amongst them, due to which all the ladies ran away from the spot as they were afraid. 15. In the cross-examination, P.W. 4 Savita has admitted that all the accused arrived on the spot having been armed with stick, kopali and bicycle chain respectively. As such evidence of this witness establish presence of accused on the spot at the time of incident having armed with weapons as stated above though she is silent about assault by them as she has denied that the accused assaulted Ramesh. Prosecution has accordingly got portion marked 'A' of her stated proved from the evidence of P.W. 17 Bhagwat Kamble, writer Police Constable at Exhibit 122. 16. Prosecution has accordingly got portion marked 'A' of her stated proved from the evidence of P.W. 17 Bhagwat Kamble, writer Police Constable at Exhibit 122. 16. In the cross-examination for accused, P.W. 4 Savita has admitted that deceased Ramesh was possessing dagger with him along with stick and was under the influence of liquor uttering that he will commit murder and therefore, she along with other female workers got afraid and ran away from the spot. 17. Another witness P.W. 5 Trigunabai More is also relied by the prosecution as an eyewitness, who was present in the field and has deposed that at about 1.30 p.m. she along with other female workers were present in the field and had gathered together for having their lunch, at that time deceased Ramesh arrived and was talking to her. In the meantime, deceased Ramesh took out a knife and uttered that he will commit murder. According to her, when all the ladies saw knife in the hand of deceased, they got frightened and ran away from the spot. She has further stated that while Ramesh was uttering words as stated above, accused Babarao, Anil and Ramesh arrived on the spot and some altercations took place between them and deceased Ramesh. According to her, she is not aware what had happened thereafter. 18. In the cross-examination of this witness by learned Additional Public Prosecutor, P.W. 5 Trigunabai has denied that accused Babarao and Anil caught hold of Ramesh and snatched knife from his hand. She further denies to have witnessed accused Anil and Babarao beating deceased by stick and kopali on his head. She also denied that accused, Raju had beat Ramesh with stick. She denied to have stated above stated facts in her statement before the police. Prosecution by examining P.W. 17 Bhagwat Kamble has got portion marked 'A' in her statement proved at Exh. 123. P.W. 5 Trigunabai in the cross-examination for accused has denied that accused did not arrive on the spot nor any quarrel took place between them and the deceased. 19. Prosecution by examining P.W. 17 Bhagwat Kamble has got portion marked 'A' in her statement proved at Exh. 123. P.W. 5 Trigunabai in the cross-examination for accused has denied that accused did not arrive on the spot nor any quarrel took place between them and the deceased. 19. Evidence of P.W. 7 Sitabai Warke reveals that she was also present in the field along with above witnesses and other female workers where accused No. 2 Anil was already present and worked till around 1.00 p.m. While there was interval for having lunch deceased Ramesh arrived and when Ramesh was talking to P.W. 5 Trigunabai, he took out a knife and on seeing it all the female workers got afraid and they ran away from the spot. Though P.W. 7 Sitabai states about arrival of accused, she is silent as to what had happened thereafter. As such evidence of P.W. 7 Sitabai do not establish assault at the hands of accused upon the deceased. 20. In the cross-examination by learned A.P.P., P.W. 7 Sitabai has denied the suggestion that in her presence accused having armed with weapons in their hands and assaulted the deceased. Prosecution has got proved portion 'A' of her statement from the evidence of P.W. 17 Bhagwat at Exhibit 124. 21. Evidence of P.W. 8 Suryakantabai Shirsat is that when she was present in the field along with other female workers in the lunch break, deceased Ramesh arrived and in the meantime, accused Babarao and Raju arrived on the spot and had indulged into quarrel with deceased Ramesh. Except for above she is also silent about the actual assault. Her evidence is also silent about arrival of accused Anil who even otherwise was already present in the field. As such evidence of P.W. 8 Suryakantabai is also to the effect that accused having armed with weapons had indulged into quarrel with deceased Ramesh as said witness in the cross-examination by the learned APP denied to have witnessed assault upon deceased Ramesh by any of accused persons. She has denied to have witnessed that accused No. 1 Babarao and accused No. 2 Anil had caught hold of Ramesh by their hands and accused No. 1 Babarao giving stick blow on head of deceased Ramesh. Portion marked 'A' of her statement is got proved by prosecution from the evidence of P.W. 17 Bhagwat at Exhibit 121. 22. She has denied to have witnessed that accused No. 1 Babarao and accused No. 2 Anil had caught hold of Ramesh by their hands and accused No. 1 Babarao giving stick blow on head of deceased Ramesh. Portion marked 'A' of her statement is got proved by prosecution from the evidence of P.W. 17 Bhagwat at Exhibit 121. 22. Last witness in respect of incident relied upon by the prosecution is P.W. 10 Lata More, who has stated that she knows deceased as well as accused and that on the day of incident while she along with other female workers were present at the agricultural land of father of accused No. 1, deceased Ramesh arrived when they were having their lunch at about 1.30 p.m. In the meantime, all the accused arrived on the spot and some quarrel took place between them. During the course of which transaction deceased pointed out knife towards the accused and thus P.W. 10 Lata and other ladies ran away from the spot. 23. In the cross-examination by learned A.P.P., P.W. 10 Lata denied that accused No. 1 arrived with stick in his hand while accused No. 2 Anil and accused No. 3 Rajesh were armed with kopali and bicycle chain. She has further denied that all the accused assaulted Ramesh with the weapons possessed by them in her presence due to which deceased Ramesh sustained head injury and fell down. She also denied that even after deceased falling on the ground, accused continued to assault. Prosecution from the evidence of P.W. 17 Bhagwat has proved said portion 'A on record at Exhibit 125. 24. In the cross-examination for accused, P.W. 10 Lata denies that there was any scuffle between the accused and deceased Ramesh. In that view of the matter, evidence of this witness is establishing presence of accused on the spot, however she is not supporting case of prosecution about accused assaulting the deceased. In fact, it has also come in her evidence that deceased Ramesh was armed with knife at the time of incident. According to the case of prosecution, said knife was seized during the course of investigation. In fact, it has also come in her evidence that deceased Ramesh was armed with knife at the time of incident. According to the case of prosecution, said knife was seized during the course of investigation. Thus, evidence of above stated witnesses, who have partially supported the case of prosecution establish that the accused along with deceased were present together on the spot and that they entered into quarrel and since they were armed with weapons, this witness ran away from the spot and as such is silent on the point of assault. 25. In the background of evidence of witnesses establishing facts as above when evidence of P.W. 13 Dr. Ranjit Patil is perused, it reveals that on 20-10-1994 he was working as Medical Officer in Civil Hospital, Akola and was on post-mortem duty and had performed autopsy on the dead body of Ramesh. He had noted following external injuries on the person of dead body. 1) Lacerated wound on left parietal region, 6 c.m. X 2 c.m. bone deep. 2) Lacerated wound occipital region, 4 c.m. X 1 c.m. 3) Abrasion on both shoulders. 4) Contusion and abrasion on chest anteriorly . 5) Fracture humorous on right side. According to the doctor, the injuries were ante mortem and has stated that deceased had sustained fracture on left parietal bone and had subdural hematoma on left side. Deceased is further stated to have sustained fracture on rib Nos. 8, 9 and 10. According to the Medical Officer, the cause of death of deceased was due to hemorrhagic shock with head injury leading to cardio respiratory arrest. On being confronted weapons kopali (Article-1), stick (Article-2) and bicycle chain (Article-3), it is stated that the injuries found on the person of deceased were possible by said weapons including head injury, which is possible by Article-1 kopali. 26. In the cross-examination, P.W. 13 Dr. Ranjit Patil denied that head injury sustained by deceased can be caused only by Article-1 kopali and not by Article-2 Stick or by Article-3 chain. He has specifically stated that head injury sustained by the deceased can be caused by these weapons. P.W. 13 Dr. Ranjit Patil denied that the injuries found on the person of the deceased are not possible by the aforestated weapons. He has specifically stated that head injury sustained by the deceased can be caused by these weapons. P.W. 13 Dr. Ranjit Patil denied that the injuries found on the person of the deceased are not possible by the aforestated weapons. He has further denied that when the blow is given by bicycle chain, then in all cases marks of chain would occur on the surface of injury and has also stated that on sustaining head injury and the injuries sustained by the deceased, the deceased may die immediately or within a span of 8 to 10 hours. 27. Evidence of P.W. 13 Dr. Ranjit Patil substantiates the case of prosecution when it is read along with evidence of above stated witnesses from whom prosecution has established fact of accused being present on the spot having armed with weapons like stick, kopali and bicycle chain and has further established that accused before assaulting the deceased had indulged into quarrel with him. As such when their evidence is read with the evidence of P.W. 13 Dr. Ranjit Patil, who even has stated that deceased had sustained injuries as referred above, may die immediately. There is nothing to disbelieve the version of prosecution to hold accused as assailants of deceased Ramesh, more particularly in view of the evidence of Medical Officer, who has stated that the death of deceased occurred on the very day of incident. 28. Another circumstance, which needs consideration is recovery of weapons at the instance of accused. To establish memorandum statements as well as seizure panchanamas though prosecution has examined P.W. 6 Dilip Shinde and P.W. 9 Ramesh Kate, the independent panch witnesses, they have not supported the prosecution case. Similarly, the Investigating Officer, who had interrogated accused and had recorded memorandum statements and had effected seizure of weapons at their instance could not be examined, due to his death pending trial. Similarly, the Investigating Officer, who had interrogated accused and had recorded memorandum statements and had effected seizure of weapons at their instance could not be examined, due to his death pending trial. It is the case of prosecution that one day following to the arrest accused No. 1 Babarao, accused No. 2 Anil and accused No. 3 Rajesh during the course of interrogation on 21-10-1994, accused No. 1 stated to discover stick and his clothes while accused No. 2 stated to discover his clothes and weapon kopali and accused No. 3 stated to discover his clothes and bicycle chain, whose memorandum statements were accordingly recorded and the weapons came to be seized along with clothes of all the accused at their instance from their houses. Due to death of Investigating Officer, prosecution had got all these documents proved by examining P.W. 17 Bhagwat Kamble. It is material to note that at the instance of accused No. 1 Babarao one dagger is also seized in pursuance of his memorandum statement Exhibit 107, under seizure panchanama Exhibit 108. 29. According to evidence of P.W. 17 Bhagwat Kamble, Police Constable, at the time of incident he was deputed as writer of the Investigating Officer and had accompanied him during the investigation of present crime. P.W. 17 Bhagwat Kamble stated that in his presence on interrogation accused made statements and accordingly memorandum of their statements were prepared and in pursuance to the memorandum statements of accused, their blood stained clothes, weapons kopali, stick and bicycle chain came to be seized. The memorandum statements are accordingly got proved at Exhibit 107 and 108 in respect of accused No. 1, Exhibit 109 and 110 in respect of accused No. 2 and Exhibit 111 and 112 in respect of accused No. 3. Admittedly, no objection was raised by accused to not to exhibit these documents. Though in the cross-examination an attempt is made to dislodge evidence of P.W. 17 Bhagwat Kamble by referring to certain timings on these memorandum statements and panchanamas, much importance need not be given to said aspect. Recovery of weapons and clothes as stated above thus is one more material circumstance establishing involvement of accused. 30. Though in the cross-examination an attempt is made to dislodge evidence of P.W. 17 Bhagwat Kamble by referring to certain timings on these memorandum statements and panchanamas, much importance need not be given to said aspect. Recovery of weapons and clothes as stated above thus is one more material circumstance establishing involvement of accused. 30. According to further evidence of P.W. 17 Bhagwat, during the course of investigation Police Inspector Thakur recorded statements of witnesses in his presence and has thus got proved portion 'A' from statement of P.W. 4 Savita at Exhibit 122, portion 'A' from statement of P.W. 5 Trigunabai at Exhibit 123, portion 'A' from statement of P.W. 7 Sitabai at Exhibit 124 and portion 'A' from statement of P.W. 10 Lata at Exhibit 125. 31. It is already stated that prosecution, could not examine Police Inspector Thakur, the Investigating Officer due to his death pending trial. It is true that as a part of fair trial the Investigating Officer should be examined in the trial cases especially when a serious sessions trial was being held against the accused. If any of the prosecution witnesses give any evidence contrary to their previous statement recorded under Section 161Cr.P.C. or if there is any omission of certain material particulars, the previous statement of these witnesses could be proved only by examining the investigating Officer who must have recorded the statement of these witnesses under Section 161, Cr.P.C. 32. In the present case, Investigating Officer, who has recorded statements of above witnesses, could not be examined. However, material portions from their statements are got proved by prosecution by examining P.W. 17 Bhagwat as stated above, which establish a very strong and convincing evidence to prove that the accused had attacked deceased and merely for non-examination of Investigating Officer for above reason, which would not be justified to disbelieve the case of prosecution for want of examination of Investigating Officer as the accused cannot said to be prejudiced by non-examination of Investigating Officer as prosecution has examined P.W. 17 Bhagwat, who in turn has stated that since the investigation in this crime was put into motion, he was accompanying Police Inspector Thakur, the Investigating Officer. 33. 33. In background of the above fact, I find it useful to refer to the decision of the Apex Court in the case of Behari Prasad and others vs. State of Bihar reported in (1996) 2 SCC 317 , wherein the concluding para of the judgment it is observed thus:- "23. -------------. Hence, for non-examination of Investigating Officer, the prosecution case should not fail. We may also indicate here that it will not be correct to contend that if an Investigating Officer is not examined in a case, such case should fail on the ground that the accused were deprived of the opportunity to effectively cross-examine the witnesses for the prosecution and to bring out contradictions in their statements before the police. A case of prejudice likely to be suffered by an accused must depend on the facts of the case and no universal strait-jacket formula should be laid down that non-examination of Investigating Officer per se vitiates a criminal trial." 34. With regard to evidence of P.W. 3, P.W. 4, P.W. 5, P.W. 7, P.W. 8 and P.W. 10, the female agricultural workers, who were present on the spot of incident and who since have not fully supported the case of prosecution it is to be noted that it is settled law that the evidence of hostile witness is not to be rejected in toto. In that view of the matter, I find it useful to refer to the decision of the Apex Court in the case of Rameshbhai Mohanbhai Koli and others vs. State of Gujarat reported in (2011) 11 SCC 111 : (2010 ALL MR (Cri.) 3968 (S.C.)), which authority is referred by the Apex Court in the case of Lahu Kamlakar Patil and Ann vs. State of Maharashtra reported in AIR 2013 SC (Criminal) 441 : (2013 ALL SCR 620) and reiterating the principle has stated thus:- "It is settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof." 35. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof." 35. Similarly, in the case of Bhajju alias Karan Singh vs. State of Madhya Pradesh reported in (2012) 4 SCC 327 : (2012 ALL SCR 1063), in the context of consideration of the version of a hostile witness, it is observed thus:- "Normally, when a witness deposes contrary to the stand of the prosecution and his own statement recorded under Section 161 Cr.P.C., the prosecutor, with the permission of the court, can pray to the court for declaring that witness hostile and for granting leave to cross-examine the said witness. If such a permission is granted by the court then the witness is subjected to cross-examination by the prosecutor as well as an opportunity is proved to the defence to cross-examine such witnesses, if he so desires. In other words, there is a limited examination-in-chief, cross-examination by the prosecutor and cross-examination by the counsel for the accused. It is admissible to use the examination-in-chief as well as the cross-examination of the said witness insofar as it supports the case of the prosecution." 36. In the light of above legal propositions, when the evidence of above stated witnesses, who did not fully support the case of prosecution is considered, their evidence certainly establish presence of all the accused on the spot having armed with weapons who indulged into quarrel with deceased who was subsequently found dead on the spot while according to evidence of P.W. 3-Baby, accused having armed with weapons like stick, kopali, bicycle chain had committed assault on deceased. In the light of above evidence, prosecution can said to have established involvement of accused as assailants of deceased beyond reasonable doubt. 37. Another circumstance needs consideration is that clothes of all accused were found having stained with human blood. As per Chemical Analyser Report at Exhibit 120, clothes of accused as well as that of the deceased were stained with human blood of Group 'B'. No explanation is tendered on behalf of accused on this aspect as to how blood stains were found on their clothes, which came to be seized at their instance on the following day of incident from their houses. No explanation is tendered on behalf of accused on this aspect as to how blood stains were found on their clothes, which came to be seized at their instance on the following day of incident from their houses. Said aspect thus further establish involvement of accused to be responsible for causing assault on deceased Ramesh resulting into his death on the day of incident. 38. Having considering above discussed evidence and on coming back to the evidence of P.W. 1 Ganesh that on the next day of incident he lodged his report at Exhibit 63 and then accompanied police to the spot is found corroborated by the evidence of P.W. 2 Yeshwant Warke, P.W. 14 Harshkumar Tiwari and P.W. 17 Bhagwan Kamble, Police Constable that on the next day of incident they accompanied PSI Thakur to the spot. P.W. 2 Yeshwant has stated that he found dead body on the spot lying under Neem tree, which was situated in the field of father of accused No. 1 Gajanan having field of deceased adjoining to it. According to the evidence of spot panch, there were injuries found on the back of deceased and blood was lying on the spot of which spot panchanama was drawn in his presence vide Exhibit 66. P.W. 2 Yeshwant has further stated about police drawing inquest panchanama at Exhibit 67. According to this witness, while drawing spot panchanama police had seized articles from the spot including bicycle chain. As such, prosecution by examining P.W. 2 Yeshwant had proved spot panchanama as well as inquest panchanama and nothing is brought on record to doubt evidence of this witness. On the contrary, the panchanamas are also found corroborated by P.W. 14 Harshkumar, who was present on the spot on the request of police as a Photographer and as such an independent witness. Photographs are on record at Exhibits 96 to 102 along with negatives. This witness has also stated about finding dead body in the field. Similarly, evidence of P.W. 17 Bhagwan Kamble, Police Constable also reveals about his accompanying PSI Thakur and joining him during the course of investigation in this crime who in his presence drew spot panchanama and inquest panchanama. This witness has also stated about finding dead body in the field. Similarly, evidence of P.W. 17 Bhagwan Kamble, Police Constable also reveals about his accompanying PSI Thakur and joining him during the course of investigation in this crime who in his presence drew spot panchanama and inquest panchanama. Above evidence thus, establish fact of dead body having been found in the field of accused No. 1 having injuries on his head and back, which was thereafter forwarded for its post-mortem to Civil Hospital, Akola where the autopsy came to be performed by P.W. 13 Dr. Ranjit Patil and issued Post-Mortem Report vide Exhibit 91 as already stated earlier. 39. When the evidence is considered into its entirety, it is found that at the time of incident accused No. 2 was already present at the spot and while the female witnesses examined as stated above, were having their lunch in the field under the Neem tree, at that time deceased Ramesh arrived there having dagger with him and was uttering words that he is going to commit murder. Another circumstance which can said to be established is that accused thereafter arrived on the spot having armed with stick, bicycle chain and Kopali while according to P.W. 3 Baby, all the accused assaulted deceased Ramesh wherein he sustained injuries on his head. While other witnesses also establish presence of accused on the spot and having entering into altercations with the deceased, however they are silent on the incident of assault as according to them after arrival of deceased and the accused, they left the spot since got afraid. 40. It is material to note that portion marked as 'A' from the statement of P.W. 5 Trigunabai is proved at Exhibit 123 by P.W. 17 Bhagwat that the dagger, which was possessed by deceased, was snatched by accused Nos. 1 and 2. Accused No. 1 along with accused No. 3 arrived at the spot at the time of incident while accused No. 2 Anil was already present in the field. As such, it cannot be said that accused made preparation to commit murder though were armed with weapons as stated above as, had the accused had any intention to commit murder of deceased, they could have had very well commit the same with the aid of dagger, which was with the deceased and subsequently snatched by accused Nos. 1 and 2. 1 and 2. Even otherwise deceased was found to be an criminal element as accused has placed on record certified copies of documents according to which he is found charge-sheeted for the offence punishable under Section 324 of the Indian Penal Code. Moreover had the accused had any intention to commit murder, then on reaching to the spot, they might not have entered into altercations but could have very well committed assault upon the deceased. In the circumstance, it thus reveals that the present incident of assault on deceased Ramesh is an outcome of quarrel between the accused and deceased wherein accused can said to have used excessive force knowing that by use of such force by Kopali and causing assault on head of deceased, he may die. As such, the act of deceased certainly amounts to culpable homicide but not amounting to murder, falling under Section 304 Part II of the Indian Penal Code. In that view of the matter, prosecution thus is found to have established involvement of accused for the offence as stated above, beyond reasonable doubt. In the circumstances, I find no substance in the appeal. The appeal stands dismissed. The judgment and order, passed by learned Additional Sessions Judge, Akola, convicting appellants for the offence punishable under Section 304 Part-II read with Section 34 of the Indian Penal Code, and sentencing them to suffer R.I. for five years, and to pay a fine of Rs. 2,000/- each, in default to suffer R.I. for two years each, stands confirmed. The appellants to surrender before the trial Court by 31-10-2014. Appeal dismissed.