JUDGMENT Navin Sinha, J. 1. The appellants stand convicted on 15.4.2011 by the 7th Addl. Sessions Judge, Raipur, in Sessions Trial No. 110 of 2010 under Section 148 IPC to three years rigorous imprisonment with fine of Rs. 1,000/- each; to life imprisonment under Section 302/149 IPC with fine of Rs. 5,000/- each; to three years of rigorous imprisonment under Section 323/149 IPC with fine of Rs. 1,000/- each; to three years of rigorous imprisonment under Section 25(1)(a) Arms Act with fine of Rs. 1,000/- each and to three years rigorous imprisonment under Section 27 of the Arms with fine of Rs. 1,000/- each. The sentences have been directed to run concurrently and the fine to be deposited by each in lump sum. For each default in deposit of fine they will have to undergo further rigorous imprisonment of three months each (total fifteen months). From the fine deposited, Rs. 50,000/- has been directed to be paid as compensation to PW 1, father of the deceased Kailash Gangwani. Accused Badri was declared a juvenile and his trial separated to the Juvenile Board. Accused Tariq Khan was absconding and was tried separately. He has been acquitted by judgment dated 30.9.2013. 2. On 6.1.2010 deceased Kailash Gangwani was fatally assaulted and PW 18, Jatin Aakash Singh, injured in a common assault at 9.45 p.m. Both were taken to the Vardan Hospital for treatment. Merg intimation. Exhibit P2, was given at 22.30 hours by PW 2, Rakesh Mandal at the hospital stating that while he was talking to the deceased, Tariq Musalman, Sandeep Channa, Rajan @ Machi, Hasan Musalman, Shailendra Rajput, Badri, Babu, Kapil Sindhi and Dhiraj accompanied by others came and assaulted the deceased due to previous enmity with knife, danda, rod, legs & fists causing injuries on the head, chest, left rib leading to death. The Dehati First Information Report was given by PW 2 the same day at 22.45 hours at the Vardan Hospital. The witness stated that Badri and Shailendra Rajput were mouthing abuses. The deceased slapped Shailendra Rajput twice leading to an altercation. The witness was talking to the deceased, PW 18 and two others when about 9:45 pm, Tariq, Sandeep Channa, Shailendra Rajput, Badri, Kapil Sindhi, Babu @ Sarveshwar, Dhiraj accompanied with their friends came armed with lathi and rod. Tariq, Badri, Hasan and others assaulted the deceased. The deceased slapped Shailendra Rajput twice leading to an altercation. The witness was talking to the deceased, PW 18 and two others when about 9:45 pm, Tariq, Sandeep Channa, Shailendra Rajput, Badri, Kapil Sindhi, Babu @ Sarveshwar, Dhiraj accompanied with their friends came armed with lathi and rod. Tariq, Badri, Hasan and others assaulted the deceased. Hasan assaulted PW 18 on the head with a rod and the latter fell down. Someone amongst them assaulted the deceased with a knife. Tariq dragged the deceased by his collar towards Sunny mobile shop. They all then assaulted the deceased with lathi, danda, legs and fists and seeing he was bleeding all went away. The witness further wrote that he had read the report which was correctly recorded as per his statement and then signed the same. 3. F.I.R. No. 11/2010 was lodged by PW 2 on 7.1.2010, Exhibit P60, reiterating the statements in Exhibit P3. PW 2 was an eye witness and PW 18 was an injured witness. 4. The postmortem of the deceased, Exhibit P33, was conducted on 7.1.2010 by PW 11, Dr. Ullhas Gonade who noticed the following injuries on the person of the deceased:-- (a) Transverse cut injury in middle of the head, 4 cm x 8 cm x bone deep; (b) Scratch on the middle of the right side of the head, 1 cm x 2 cm; (c) Scratch 3/1 cm in the middle line on the right side of the head; (d) On the outer left side of the head scratch measuring .5 cm x 1 cm; (e) Scratch measuring 0.6 cm x 1 cm below the right eyebrow; (f) Transverse scratch on the external area on the right side of the head, 5 cm x 2 cm; (g) Scratch on the nose 1 cm x .3 cm; (i) On the front side of the chest near the middle, there was a piercing injury measuring 3 cm x 1.8 cm zigzag. It had slashed the 3rd vertebrae and entered the right lung pericardium heart, 4 cm in length. One injury to the heart was round and other pointed of through heart; & (j) On the external area of the left side of the chest pointed injury measuring 3.5 cm x 1.5 cm which had cut across the 3rd vertebrae. It had slashed the 3rd vertebrae and entered the right lung pericardium heart, 4 cm in length. One injury to the heart was round and other pointed of through heart; & (j) On the external area of the left side of the chest pointed injury measuring 3.5 cm x 1.5 cm which had cut across the 3rd vertebrae. There was a cut injury on the left side of the chest, 1.5 cm x .5 cm deep in the 3rd vertebrae. In the opinion of the Doctor, death was occasioned due to piercing injury caused by sharp cutting installment. 5. The injury report, Exhibit P52 of PW 18 prepared first at the Vardan Hospital by PW 14, Dr. Sanjay Jindal mentioned lacerated wound on left side of occipital parietal region three to four centimeters in size actively bleeding, grievous in nature caused by sharp or blunt object. The injury report at the government hospital where he was subsequently referred for treatment at 11:30 pm on 6.1.2010, Exhibit P63C prepared by PW 19, Dr. N. Krishnani, mentioned head injury on left parietal region with vomiting, convulsion, vertigo and headache. CT Scan was also done with no significant abnormality. 6. Site report, Exhibit P7, prepared by the Investigating Officer, PW 20, Mukesh Khare, was signed by PW 5, Suraj Naidu, servant of the owner of Sunny mobile shop and Taranjit Saluja, PW 19. It mentioned the place of occurrence as sufficiently lighted by street lamps and lights emanating from the shops. 7. The accused were taken into custody and their confessions recorded under Section 27 of the Evidence Act marked Exhibits P9, P10, P11, P12, P13 & P14 leading to recovery of a bamboo stick, Exhibit. P21; a wooden bait, Exhibit P18; lathi, Exhibit P20; bamboo stick, Exhibit P17; bamboo stick, Exhibit P15; knife, Exhibit P19; a round iron rod, Exhibit P22. The confessions made and consequent seizures were also witnessed and signed by PW 5 and PW 19. The confession of appellant Badal Raksel marked Exhibit P27 led to recovery of a gupti marked Exhibit P28 witnessed by PW 7, Mohd. Firoz and PW 8, Rajkumar Sahu. 8. The confessions made and consequent seizures were also witnessed and signed by PW 5 and PW 19. The confession of appellant Badal Raksel marked Exhibit P27 led to recovery of a gupti marked Exhibit P28 witnessed by PW 7, Mohd. Firoz and PW 8, Rajkumar Sahu. 8. The appellants were named in the F.I.R. lodged on 7.1.2010 at 12.40 hours by PW 2 and which was wholly consistent with the origin, sequence of events and the manner of assault as mentioned by him earlier in the Merg Intimation and Dehati F.I.R. In his deposition in Court, he again mentioned the same origin, sequence of events culminating in assault on the deceased and also named the appellants and that they were accompanied by others. The witnesses deposed in Court that after the slapping episode by the deceased Badri said he would come back with his friends. The deceased informed the Civil Lines Police Station and a Patrol party had come to the spot before the occurrence. Appellant Channa came with three others and suggested to settle matters amongst themselves as they were all friends. Rajan @ Macchili Sardar was one of the persons who then came also and slapped the deceased. Three to four more persons came, not present in Court, assaulted the witness who fell down. Tariq and Badri held the deceased. Three to four masked persons and Rajan @ Machli Sardar surrounded the deceased who fell down bleeding. Hasan did not hold the deceased. The witness could not say the exact nature of assault made on the deceased by each accused person. Badri, Tariq, Rajan @ Machli Sardar along with two/three masked persons then assaulted the deceased with lathi, danda, rod and knife. He was not aware if PW 18 was also injured and learnt of the same only at the hospital. The witness acknowledged his signature on Exhibits P2 and P3 but sought to resile from the same as not being aware of its contents having signed without reading as he was disturbed. 9. PW 18, the injured witness, recognized all the appellants in the Court room and stated that two accused Badri and Tariq were not present. Tariq had earlier tried to pacify matters. Accused Dheeraj, Badri, Channa and Rajan had surrounded the deceased. Badri assaulted the deceased with a gupti. Three masked persons assaulted the witness with a rod and he fell down. Tariq had earlier tried to pacify matters. Accused Dheeraj, Badri, Channa and Rajan had surrounded the deceased. Badri assaulted the deceased with a gupti. Three masked persons assaulted the witness with a rod and he fell down. Dheeraj and Badri asked him to get up. Rajan hit the witness on the chest with a wooden bait and he again fell down. Badri, Dheeraj, Rajan and Channa again started to assault the deceased and dragged him towards Sunny mobile shop. Badal was not present. He acknowledged that Badri assaulted the deceased near the electric pole. Dheeraj, Rajan, Channa and three masked persons had also assaulted the deceased. 10. The other private witnesses turned hostile. 11. Learned Senior Counsel Shri Tiwari making the lead arguments submitted that accused Tariq had been acquitted in a separated Trial on 30.9.2013. PW 18 Jatin, who was PW 9 in the separated Trial gave a completely different version of events. 12. PW 18 in the trial of Tariq deposed that appellant Channa was not present during the assault and had left prior to the same. PW 2 also does not allege assault by Channa or any other appellants. The assault is alleged against Tariq who has been acquitted and Badri, whose case was transferred to the Juvenile Board, accompanied by three masked persons. PW 2 deposed that Tariq held the deceased from behind and Badri, three masked persons and Raja @ Macchli Sardar, named by the witness for the first time in Court, had surrounded the deceased. The witness claims to have eye witnessed the assault on the deceased yet he states that he is unaware if PW 18 was also injured in the fracas. Bed-head-ticket of PW 18 at the Government Hospital, Exhibit P63, states that he was injured by stones. This has not been questioned or disputed by the prosecution. 13. PW 2 denied knowledge of the Merg statement and Dehali F.I.R., Exhibits P2 and P3 which were prepared by the police and signed by him without reading as he was mentally disturbed. The evidentiary value of both PW 2 and PW 18 is therefore doubtful and their credibility low. Exhibits P2, P3 and the F.I.R. Exhibit P60 are not substantive evidence on which conviction can be based and have limited relevance under Section6 of the Evidence Act. They can at best be corroborative evidence only or be used to contradict. The evidentiary value of both PW 2 and PW 18 is therefore doubtful and their credibility low. Exhibits P2, P3 and the F.I.R. Exhibit P60 are not substantive evidence on which conviction can be based and have limited relevance under Section6 of the Evidence Act. They can at best be corroborative evidence only or be used to contradict. If they were written contemporaneous to the assault at the Vardan Hospital nothing was unusual if the witness stated that he signed without reading as he was mentally disturbed because of the death of his friend. 14. That leaves PW 18 as the solitary witness regarding the presence of Channa as one of the assailants. PW 2 has not named Dheeraj as present and participating contrary to PW 18. Conviction cannot be safely based on the evidence of a solitary injured witness who may be partly reliable and partly unreliable. Referring to Section 134 of the Evidence Act reliance was placed on Vadivelu Thevar Vs. State of Madras AIR 1954 SC 614, Jagdish Prasad Vs. State of M.P., AIR 1994 SC 1251 Rishipal Singh Vs. State of Punjab 2012 AIR SCW 594. It was next submitted that PW 18 was a completely unreliable witness with no credibility as he subsequently talks of Badri, Dheeraj, Channa and Rajan all being present at the time of assault. Both PW 2 and PW 18 being unreliable witnesses their statements cannot be used to corroborate even. 15. PW 14, Dr. Sanjay Jindal, of Vardan Hospital examined PW 18. His report, Exhibit P52, does not mention assault by an iron rod as alleged. PW 18 was not stating the truth when he said that he had become unconscious at the hospital and recovered the next day noon. The witness has stated that PW 18 was in senses during treatment. Likewise PW 19, Dr. Naresh Krishnani, of the Government Hospital where PW 18 was subsequently shifted has also stated that PW 18 was in senses throughout from admission to discharge and confirmed that the bed-head-ticket stated injuries from stones. PW 20, Investigating Officer, also deposed that bed-head-ticket contained injury by stones to PW 18. 16. An alternate submission was made that even if the evidence of PW's 2 & 18 is accepted for upholding the conviction of the appellants, there is no evidence for any overt act of assault made by them. PW 20, Investigating Officer, also deposed that bed-head-ticket contained injury by stones to PW 18. 16. An alternate submission was made that even if the evidence of PW's 2 & 18 is accepted for upholding the conviction of the appellants, there is no evidence for any overt act of assault made by them. The assault is attributed to co-accused Badri alone. There is no evidence to show that the appellants were aware that Badri was carrying a "gupti" to assault the deceased. The appellants are alleged to have only surrounded the deceased. Even common object for murder cannot be attributed to them. The Trial Court held that there was no intention to kill PW 18. At best the appellants may have intended to warn the deceased to behave himself. No evidence was led in support of any alleged plea of old animosity and motive because of the same. Reliance was placed on Manoj @ Bau Vs. State of Maharashtra, AIR 1999 SC 1620 . 17. The appellants are alleged to be possessed of hard blunt substance. Injury No. 4 to 9 and 13 are stated to be caused by hard blunt substance. There were two to three masked persons who had also assaulted. There is difference in the evidence of PW 2 and PW 18 with regard to who all had surrounded and assaulted. If PWs 2 and 18 have made different statements with regard to presence of the appellants like Channa and two views are possible, the benefit of doubt has to be given to the appellant. 18. Assailing the memorandum of confession and consequent recovery it was submitted that PW 5, Suraj Naidu, has not supported any of the confession and recovery as recorded or made in his presence. PW 5 had stated that he was asked to sign on fifteen to twenty papers at the police station with regard to seizure indicative of the fact that the alleged seizures were made suo motu by police in absence of any witness. He has further stated that he was not aware as to what was written on those papers. PW 19, Taranjeet Saluja, has supported some only. The danda stated to have been recovered on alleged confession was never sealed which vitiates the recovery. He has further stated that he was not aware as to what was written on those papers. PW 19, Taranjeet Saluja, has supported some only. The danda stated to have been recovered on alleged confession was never sealed which vitiates the recovery. Without prejudice to all of the above it was submitted that the recovery was of general items available to all and that too from open public place accessible to all. There was nothing to link the items seized as weapons of assault in the case. Reliance was placed on Mustakin @ Surajuddin Vs. State of Rajasthan 2000 AIR SCW 4410. 19. The FSL report was not exhibited and marked. Even if Section 293 Cr.P.C. makes it acceptable still there was no report to suggest that the blood found on the allegedly seized items was human blood much less matched the blood group of the deceased. The learned Sessions Judge could not have imposed his personal opinion to hold that it was human blood in absence of any mentioned in the forensic report. 20. Shri Ottalwar, Advocate submitted that the occurrence was of a winter night. There was no light for identification. PW 18 talks of assault by stones. It was not possible for him in the dark to identify who assaulted him. It was next submitted that Exhibit P2, Merg intimation, Exhibit P3, Dehati F.I.R. and Exhibit P60, F.I.R. were not substantive evidence but only reporting of a crime for investigation by the police. Any statement made in the same cannot take precedence over deposition of the witness in Court. PW 2 to whom the exhibits are attributed has denied materially and there are vital contradictions also. Both PW's 2 and 18 are unreliable infirm witnesses whose evidence cannot be justification for conviction in absence of independent corroboration. It cannot be said that the prosecution has proved its case beyond reasonable doubt. 21. Shri Sharma submitted that the evidence of PWs 2 and 18 does not confirm the presence of each other and therefore both of them are doubtful and unreliable. 22. Learned Counsel for the State submitted that while the deceased was talking to PW 18, Badri and Shailendra were using abusing language in a high tone to which the deceased objected leading to the slapping by the deceased. Badri retaliated by saying that he was going to bring his friends and then came back with others. 22. Learned Counsel for the State submitted that while the deceased was talking to PW 18, Badri and Shailendra were using abusing language in a high tone to which the deceased objected leading to the slapping by the deceased. Badri retaliated by saying that he was going to bring his friends and then came back with others. PW 18 has clearly stated that Badri assaulted the deceased with a knife near the light-pole. The presence of the light-pole with burning light is proved from the place of crime report marked Exhibit P7 that there was sufficient light from the burning street light. Exhibits P2 and P3 are in very close proximity to the occurrence and therefore are the truth as there was no time for embellishment. Well thought statements were being made later different in nature in the Court room. The witnesses to the memorandum and seizure list have not denied their signatures. Therefore they cannot be called inadmissible documents. PW 14, Dr. Sanjay Jindal, of Vardan Hospital has stated that he was told by those who brought PW 18 that he had been assaulted by hard blunt object. PW 19, Dr. Naresh Krisnnani, of the Government Hospital where PW 18 was referred also said that he was told of assault by hard blunt object. The injuries found on his person evident from Exhibit P63, four centimeter stitched wound on the left parietal region of the head, speaks for itself that it was serious in nature which could not have been caused by stones. PW 18 in his chief has himself stated that he was assaulted on the head with an iron rod. PW 2 stated in Exhibit P3 that Hasan assaulted PW 18 with iron rod. Exhibit P52, the requisition by police for medical test of PW 18 also mentions of assault on head by iron rod. The police was not present at the time of occurrence. This was obviously based on the information furnished by the injured or his friends. No nature or size of the stone has been mentioned. It was a fanciful story sought to be introduced by PW 18 to save the appellants given the fact that PW 2 had stated that the appellant Channa had suggested that they were all friends and should sort out matters amongst themselves. No nature or size of the stone has been mentioned. It was a fanciful story sought to be introduced by PW 18 to save the appellants given the fact that PW 2 had stated that the appellant Channa had suggested that they were all friends and should sort out matters amongst themselves. PWs 2 & 18 are reselling from their original statements out of fear of retribution from the appellants if they deposed truthfully. Even if Badri assaulted alone with a gupti the appellants were members of an unlawful assembly and therefore conviction 302/149 IPC does not merit interference. The contradiction if any in their statements and depositions are minor and not vital which must be seen as attempts to cover up and save the accused only. 23. We have considered the respective submissions on behalf of the appellants the State and also perused the judgment dated 30.9.2013 acquitting Tariq. 24. The incident can be divided in two parts. The first when the deceased slapped one of the two persons mouthing abuses. The two persons went away saying that they would come back with their friends and came back with others leading to assault in the second part. The appellants can again be divided in two categories. Those named in Exhibit P2, P3, F.I.R. and deposition in Court coupled with their confessions leading to recovery of weapons of assault. The other category is of appellants though named in the two Exhibits and F.I.R., but nothing has been stated about them in the deposition but there is recovery of weapons of assault on their confession also. 25. Exhibit P7, the crime detail form reveals the place of occurrence as sufficiently lighted from the street light and the illumination from bulbs burning in the shops. PW 18 states that Badri assaulted the deceased near the electric pole. The place of occurrence has not been disputed by the appellants. Availability of sufficient light for identification of actors in the occurrence therefore becomes an established and undisputed fact, especially when they were all known to each other since earlier as stated by Channa asking to settle matters amongst themselves. PW 18 had further stated that he recognized the appellants who were present in Court with the exception of Taqriq and Badri. The submission on behalf of the appellants regarding lack of light for identification therefore has to be rejected. 26. PW 18 had further stated that he recognized the appellants who were present in Court with the exception of Taqriq and Badri. The submission on behalf of the appellants regarding lack of light for identification therefore has to be rejected. 26. Section 141 of the Penal Code designates an assembly as unlawful if it consists of five or more persons with a common object to commit any offence by use of criminal force or show of criminal force. Section 146 creates offence of rioting if force or violence is used by an unlawful assembly in prosecution of the common object. Section 148 provides for punishment when rioting is done with a deadly weapon likely to cause death. Section 149 provides for vicarious and constructive liability against all members of the unlawful assembly for an offence committed by any member of the same in prosecution of the common object or if the members constituting the assembly knew as likely to be committed in prosecution of the common object. There will hardly be direct evidence available with regard to the common object of the assembly or was such as the members of the assembly knew was likely to be committed in pursuance of the common object. It is therefore essentially a question of fact to be gathered or inferred from the facts of a given case considering the nature of the assembly, the weapons carried by the members, the behavior of the members at or near the place of occurrence. No rigid formula definition of common object of an unlawful assembly is therefore possible. 27. The scope and applicability of Section 149 I.P.C. was considered in Bharat Soni Vs. State of Chhattisgarh, (2012) 12 SCC 657 from past precedents and summarised as follows: 17. In Dani Singh v. State of Bihar the meaning of the words "common object" had been considered by this Court. The relevant part of the discussion may be summarised up below: "11. ... The word 'object' means the purpose or design and, in order to make it 'common', it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. 12. ... ... The word 'object' means the purpose or design and, in order to make it 'common', it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur in it. 12. ... The 'common object' of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly. What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behavior of the members at or near the scene of the incident. ... 13.... An object is entertained in the human mind, and it being merely a mental attitude, no direct evidence can be available and, like intention, has generally to be gathered from the act which the person commits and the result therefrom. Though no hard-and-fast rule can be laid down under the circumstances from which the common object can be culled out, it may reasonably be collected from the nature of the assembly, arms it carries and behavior at or before or after the scene of incident." 28. Even while commission of an overt act by each member is not necessary yet the basic minimum has to be proved by inferential evidence that it was an unlawful assembly, the person was a member of such assembly, the assembly had a common object or that the members knew that the act in question was likely to be committed in prosecution of the common object. In the present case, the slapping incident by the deceased took place around 8:30-9:00 pm. Badri left saying he would come back with his friends. Obviously to teach a lesson to the deceased. The assembly of persons who came back undoubtedly consisted of more than five persons some of whom were identified and others unidentified. They came back carrying weapons of assault like knife and, iron rods and wooden bait. Badri left saying he would come back with his friends. Obviously to teach a lesson to the deceased. The assembly of persons who came back undoubtedly consisted of more than five persons some of whom were identified and others unidentified. They came back carrying weapons of assault like knife and, iron rods and wooden bait. They were thus obviously aware of the object of their assembly which naturally was unlawful under Section 142 I.P.C. The deceased anticipated trouble when Badri left threatening to come back with his friends and therefore called the police station. A police patrol party came and left before the unlawful assembly returned. The assault was not on the spur of the moment but a very conscious act, the assembly having come armed. The appellants then surrounded the deceased obviously to prevent his escape and facilitate the assault. At the time of occurrence or after the deceased was stabbed by Badri and fell down, the others including Hasan at no point of time tried to prevent the assault or help the deceased. The Post Mortem report Exhibit P33 makes it apparent that the appellants continued to assault the deceased even after he fell down after the knife blow. It can safely be said that the members of the unlawfully assembly were well aware and also knew that the act was likely to be committed in prosecution of the common object. 29. We shall now consider the issue for evidentiary value of the F.I.R. In Aghnoo Nagesia Vs. State of Bihar, (1966) 1 SCR 134 it was observed that:-- "10. Section 154 of the Code of Criminal Procedure provides for the recording of the first information. The information report as such is not substantive evidence. It may be used to corroborate the informant under Section 157 of the Evidence Act or to contradict him under Section 145 of the Act, if the informant is called as a witness....." 30. In Chandra Bhal Vs. State of U.P. (1971) 3 SCC 983 it was observed as follows:-- "4. .......It... marks the beginning of the investigation into the reported offence and its value must accordingly depend on the circumstances of each case including the nature of the crime, the position of the informant and the opportunity he had of witnessing the whole or part of the commission of the alleged offence." 31. In Dharma Rama Bhagare Vs. .......It... marks the beginning of the investigation into the reported offence and its value must accordingly depend on the circumstances of each case including the nature of the crime, the position of the informant and the opportunity he had of witnessing the whole or part of the commission of the alleged offence." 31. In Dharma Rama Bhagare Vs. State of Maharashtra, (1973) 1 SCC 537 it was observed:-- "7....We are, therefore, unable to agree with Shri Dholakia that the prosecution case should be thrown out on the mere ground that in the first information report an altogether different version was given..." 32. The occurrence is of 9:45 pm. They were all known to each other evident from PW 2 stating in evidence that before the assault, appellant Channa had stated that they were all friends and should sort out matters amongst themselves. There was sufficient light for identification at the place of occurrence. The deceased and PW 18 were taken immediately to the Vardan hospital and PW 2 gave the first information to the police as soon as 22:30 hrs and the Dehati F.I.R. was recorded at the hospital minutes later at 22.45 hrs. Both were signed by PW 2. The latter specifically stated that he had read the contents and understood the same as recorded correctly and per information given by him. The F.I.R., Exhibit P60 was based on Exhibit P3 and was again signed by PW 2 with the confirmation that he had read and understood the contents. He was a businessman by profession and stated that he read and understood hindi well. He also stated that the deceased was a good friend of his. His attempt to become hostile does not vitiate his evidence completely and it is not possible to accept his deposition that he signed Exhibits P2 and P3 without reading them especially when he stated that he was a businessman well conversant with hindi and that the deceased was a good friend of his. The statement under 161 Cr.P.C. was to the same effect though the witness denied during deposition that he had named the appellants during investigation. In cross examination, PW 20 the Investigating officer stated that Exhibit P2, P3, P60 and the statement under Section 161 Cr.P.C. were recorded as per statements made by PW 2. No cross examination was done of the witness on this aspect on behalf of PW 2. In cross examination, PW 20 the Investigating officer stated that Exhibit P2, P3, P60 and the statement under Section 161 Cr.P.C. were recorded as per statements made by PW 2. No cross examination was done of the witness on this aspect on behalf of PW 2. In Damodarprasad Chandrikaprasad Vs. State of Maharashtra, (1972) 1 SCC 107 it was observed:-- "13. ........Another purpose for which the first information report can be used is to show the implication of the accused to be not an afterthought or that the information is a piece of evidence res gestate ...." 33. In Bable Vs. State of Chhattisgarh, (2012) 11 SCC 181 likewise the informant had gone hostile. It was observed:-- "14......The FIR, Ext. P-1, has duly been proved by the statement of PW 10, Sub-Inspector, Suresh Bhagat. According to him, he had registered the FIR upon the statement of PW 1 and it was duly signed by him. The FIR was registered and duly formed part of the records of the police station which were maintained in normal course of its business and investigation. Thus, in any case, it is a settled proposition of law that the FIR by itself is not a substantive piece of evidence but it certainly is a relevant circumstance of the evidence produced by the investigating agency. Merely because PW 1 had turned hostile, it cannot be said that the FIR would lose all its relevancy and cannot be looked into for any purpose." 34. A combined reading of Exhibit P2, P3 and P60 reveals consistency with regard to the origin and sequence of events culminating in the assault and presence of the appellants Mohammad Hasan, Shailendra Rajput @ Raja, Sandeep Channa, Dheeraj Kumar and Rajan @ Machli Sardar. The deposition in Court with regard to the aforesaid appellants is again consistent to the former in sequence of events culminating in assault. The contradictions are trivial in nature. It is settled law that the evidence of a hostile witness, if PW 2 can legitimately be called hostile on vital issues, is not to be thrown out completely but is admissible to the extent of corroboration by other evidence. Rajan @ Machli Sardar was specifically named as one of the persons who had surrounded the deceased along with Badri and two to three masked persons. Rajan @ Machli Sardar was specifically named as one of the persons who had surrounded the deceased along with Badri and two to three masked persons. PW 2 stated a blatant lie when he said that he was naming Rajan @ Machli Sardar for the first time in Court. In cross examination he tried to deny presence of the aforesaid appellants with hockey stick, rod, knife and danda but immediately suo moto clarified that he did not see them and not that they were not present. The suo moto clarification offered leaves no doubt that he was deliberately trying to save the appellants by creating a bogey of evidence which otherwise was clear and cogent. Evidently there is sufficient material to hold the presence of the aforesaid appellants during the occurrence and that they constituted an unlawful assembly. 35. PW 18 was injured in the same occurrence. The defense did not put forth any other story of the injuries having occurred in some other incident of stone pelting. PW 18 did not state that he was not injured in the same occurrence. He was also taken first to Vardan hospital together with the deceased. Exhibit P52, the police requisition for injury report mentioned the head injury to have been caused by iron rod. PW 14, the Doctor at Vardan hospital stated that it was a lacerated wound three to four centimeters in size on the left side of the scalp grievous in nature caused by sharp or blunt object. Exhibit P63, the medical report of the government hospital by PW 19 recommended CT scan and reported vertigo, vomiting and convulsions. There is evidence that the actors were all known to each other since earlier. There was sufficient light available at the place of occurrence. The witness does not state the size of the stone he was assaulted with nor who assaulted him. In the nature of the assembly with several persons present there it is difficult to accept that the accused or any one of them indulged in stone pelting taking the risk of injuring their own colleague also. Obviously he was now trying to save the assailants who were known to him since earlier. 36. In his evidence PW 18 stated he saw Badri assaulting the deceased and that Tariq trying to pacify matters. The witness saw Dheeraj, Badri, Channa and Rajan standing surrounding the deceased. Obviously he was now trying to save the assailants who were known to him since earlier. 36. In his evidence PW 18 stated he saw Badri assaulting the deceased and that Tariq trying to pacify matters. The witness saw Dheeraj, Badri, Channa and Rajan standing surrounding the deceased. The fact that PW 2 did not name Dheeraj cannot be considered a vital omission in the nature of occurrence. Where there were a large group of persons assaulting to identify each one of them without a single omission even if known cannot be called a vital contradiction. The prosecution evidence is not required to be completely and absolutely impeccable in a mob assault before it can be accepted. The witness in deposition accepted that he was assaulted on the head with an iron rod by three masked persons constituting the unlawful assembly. He specifically names Badri, Channa and Rajan as having assaulted him and that thereafter, Badri, Dheeraj, Rajan and Channa again started to assault the deceased and dragged him towards Sunny mobile shop which evidently is contiguous to the place of occurrence evident from the crime detail report Exhibit P7 detailing the place of occurrence. PW 5 was the staff of the owner of Sunny mobile shop. In cross examination he admitted previous enmity between the parties and that the assault on the deceased was near the electric pole. The witness admits that he was injured in the occurrence and that the police took him to Vardan hospital first and also recorded his statement. His denial of having made any statement to the police as he was unconscious till next noon is falsified by the report of PW 14 and PW 19 that he was conscious throughout. In his statement recorded under Section 161 Cr.P.C. on 7.1.2010, the witness named the appellants accompanied by others assaulted. Badri knifed the deceased and others started to assault after the deceased fell down. Hasan assaulted him with an iron rod. Though he tried to resile from his statements to the police, PW 20, the Investigating officer reiterated having recorded his statement correctly and no cross examination was done of PW 20 in this regard on behalf of the witness. Significantly, the witness evaded summons twice to depose and had to be produced after warrant of arrest was issued. 37. PW 18, was an injured witness. Significantly, the witness evaded summons twice to depose and had to be produced after warrant of arrest was issued. 37. PW 18, was an injured witness. Normally the credibility of his evidence would be high. But he tried to turn hostile. Nonetheless as discussed despite turning hostile he did not deny the genesis of the occurrence and its sequence along with presence of the appellants as members of the unlawful assembly, acts by them, having been taken to the hospital with the deceased and then to the government hospital also. In Surender Singh Vs. State of Haryana, (2006) 9 SCC 247 the conviction was upheld despite the injured witness having turned hostile as it was corroborated on material particulars observing:-- "9. The testimony of an injured witness has its own relevancy and efficacy. The fact that the witness is injured at the time and in the same occurrence lends support to the testimony that the witness was present during occurrence and he saw the happening with his own eyes. Curiously enough even the injured witness PW 2 has turned hostile....." 38. In Alagarsamy Vs. State, (2010) 12 SCC 427 three injured witnesses turned hostile. The conviction was yet upheld because of corroboration of material particulars observing:-- "46. .....The law is now well settled that merely because the witness is declared as hostile witness, whole of his evidence is not liable to be thrown away." 39. In absence of any material contradictions in the evidence of PW 2 and PW 18, the thread of consistency, exaggerations and embellishment well thought out at subsequent point of time cannot create such a doubt on their entire evidence so as to discard their evidence in entirety to give acquittal. The position in Indian conditions with regard to such witnesses was noticed in Rizan Vs. State of Chhattisgarh, (2003) 2 SCC 661 observing as follows:-- "12. .........It is always open to a court to differentiate accused who had been acquitted from those who were convicted. The doctrine is a dangerous one, specially in India for if a whole body of the testimony were to be rejected, because a witness was evidently speaking an untruth in some aspect, it is to be feared that administration of criminal justice would come to a dead stop. Witnesses just cannot help in giving embroidery to a story, however true in the main. Witnesses just cannot help in giving embroidery to a story, however true in the main. Therefore, it has to be appraised in each case as to what extent the evidence is worthy of acceptance, and merely because in some respects the court considers the same to be insufficient for placing reliance on the testimony of a witness, it does not necessarily follow as a matter of law that it must be disregarded in all respects as well. The evidence has to be sifted with care. The aforesaid dictum is not a sound rule for the reason that one hardly comes across a witness whose evidence does not contain a grain of untruth or at any rate exaggeration, embroideries or embellishment........" 40. Section 391 Cr.P.C. provides for taking or directing taking of additional evidence by the appellate Court. The said provision has no application in the facts of the case merely because Tariq may have been acquitted. The acquittal of a co-accused cannot entitle the other accused to acquittal automatically and their conviction cannot be vitiated on that ground. Tariq has not been honorably acquitted but facilitated by PW 2 and PW 18 stating that he was not the same Tariq involved in the assault. There is no identity dispute with regard to the present appellants. In Gurcharan Singh Vs. State of Punjab, AIR 1956 SC 460 it was observed as follows:-- "8.....The highest that can be or has been said on behalf of the appellants in this case is that two of the four accused have been acquitted, though the evidence against them, so far as the direct testimony went, was the same as against the appellants also; but it does not follow as a necessary corollary that because the other two accused have been acquitted by the High Court the appellants also must be similarly acquitted...." 41. PWs 5 and 19 did not deny their signatures as witness to the memorandum of confession by the appellants and consequent seizure disclosures by them. The seized articles were sent for forensic examination. The Forensic report was specifically not marked as Exhibit it is nonetheless admissible in evidence under Section 293 Cr.P.C. Blood has been found on the items recovered based on their confessions used for assault. In the facts of the case the mere absence of a serologist report cannot vitiate the same. The seized articles were sent for forensic examination. The Forensic report was specifically not marked as Exhibit it is nonetheless admissible in evidence under Section 293 Cr.P.C. Blood has been found on the items recovered based on their confessions used for assault. In the facts of the case the mere absence of a serologist report cannot vitiate the same. The recovery though from public place was effected from concealment and not a place visible to all. In State of H.P. Vs. Jeet Singh, (1999) 4 SCC 370 it was observed as follows:-- "26. There is nothing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is "open or accessible to others". It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others, it would vitiate the evidence under Section 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For example, if the article is buried in the main roadside or if it is concealed beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such article is disinterred, its hidden state would remain unhampered. The person who hid it alone knows where it is until he discloses that fact to any other person. Hence, the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others." 42. In Jagdish Prasad (supra) relied upon on behalf of the appellants it was observed that if there was a solitary eye witness neither wholly reliable nor wholly unreliable there must be corroboration direct or circumstantial. The same principle was stated in Vadivelu Thevar (supra). They have no application to the facts of the present case. Manoj @ Bau (supra) has no application again in view of the evidence of PW 18 regarding previous animosity. In any event a plea for lack of motive does not raise a presumption of innocence if there be evidence otherwise. 43. They have no application to the facts of the present case. Manoj @ Bau (supra) has no application again in view of the evidence of PW 18 regarding previous animosity. In any event a plea for lack of motive does not raise a presumption of innocence if there be evidence otherwise. 43. There is no discussion or consideration with regard to the conviction of the aforesaid appellants under the Arms Act. We are therefore unable to concur with their conviction to that extent. 44. We shall now take up for consideration such of the appellants who though named in Exhibit P2, P3, and F.I.R. find no reference whatsoever during the deposition in Court of PW 2 and PW 18. Both the witnesses talked of the named appellants being accompanied by three to four masked persons who also assaulted. If their faces were covered identification was not possible. Such of the appellants have to be given the benefit of doubt. The confession under Section 27 of the Evidence Act is not substantive evidence but only corroborative evidence. In absence of proper evidence it will be impermissible and unsafe to convict on basis of alleged confession and recovery only. In Gulab Chand Vs. State of M.P., (1995) 3 SCC 574 . It was observed as follows:-- "4. ........ It is true that simply on the recovery of stolen articles, no inference can be drawn that a person in possession of the stolen articles is guilty of the offence of murder and robbery. But culpability for the aforesaid offences will depend on the facts and circumstances of the case and the nature of evidence adduced. It has been indicated by this Court in Sanwat Khan v. State of Rajasthan that no hard and fast rule can be laid down as to what inference should be drawn from certain circumstances. It has also been indicated that where only evidence against the accused is recovery of stolen properties, then although the circumstances may indicate that the theft and murder might have been committed at the same time, it is not safe to draw an inference that the person in possession of the stolen property had committed the murder. A note of caution has been given by this Court by indicating that suspicion should not take the place of proof..." The conviction of the appellants in Cr. Appeal Nos. A note of caution has been given by this Court by indicating that suspicion should not take the place of proof..." The conviction of the appellants in Cr. Appeal Nos. 338 of 2011, 400 of 2011, 405 of 2011, 413 of 2011 and 606 of 2011 call for no interference except to the extent it is under the Arms Act. The said appeals are dismissed with that modification. The conviction of the appellants in Cr. Appeal Nos. 357 of 2011, 404 of 2011 and 447 of 2011 are set aside as it cannot be held that the case has been proved against them beyond reasonable doubt. They are acquitted and directed to be released forthwith if not wanted in any other case. Appeal Partly Allowed