JUDGMENT C. V. BHADANG, J.:- The appellants herein are original accused nos. 1, 2 and 6 in Sessions Trial No.62/2009 on the file of the learned Sessions Judge, Yavatmal. The appellants and three others were tried for the offences punishable under Sections. 147, 148, 149, 120-B and Section 302 of Indian Penal Code r/w Section 4/25 of the Arms Act, for having formed an unlawful assembly, armed with deadly weapons, with the common object causing death of one Parmanand Mishra. By a judgment and order dated 20.8.2011, the learned Sessions Judge convicted the appellants for the offence punishable under Section 302 r/w 34 or Indian Penal Code and they have been sentenced to suffer imprisonment for life and to pay a fine of Rs.5,000/- each and in default to suffer simple imprisonment for six months. The appellants have also been convicted for the offence punishable under Section 4/25 of the Arms Act and sentenced to suffer rigorous imprisonment for three years and to pay a fine of Rs.2,000/- each and in default to suffer simple imprisonment for two months. The appellants, however, have been acquitted of the offences punishable: under Sections 147, 148, 149, 120-B of Indian Penal Code. The original accused nos.3, 4 and 5 were acquitted of all the offences as charged. Feeling aggrieved by the judgment of conviction and sentence, this appeal is filed. 2. The prosecution case may be briefly stated thus:- The incident in question had taken place on 2.1.2009 at about 7:35 p.m. in front of Pan shop of one Dinesh Dhargave at Waghapur Naka, Yavatmal. According to the complainant - P.W.2 Golu @ Prashant Arun Fulkar, he had gone to the Pan shop of Dinesh Dhargave, where now deceased Parmanand Mishra was sitting inside the Pan shop. Parmanand had asked him to wait there for ten minutes and he will return after taking dinner. Parmanand, accordingly, went to his house and returned within five minutes. At that time, two motorcycles came there from the State Bank square and stopped at Waghapur Naka. The appellants/accused and the other accused had allegedly come to the spot riding on the motorcycles. According to the complainant, accused Nilesh Thakur took out a sword from a sheath and assaulted on the head of Parmanand. Accused Milind Badse pulled out Parmanand from the Pan shop and assaulted him by knife. The appellants/accused and the other accused had allegedly come to the spot riding on the motorcycles. According to the complainant, accused Nilesh Thakur took out a sword from a sheath and assaulted on the head of Parmanand. Accused Milind Badse pulled out Parmanand from the Pan shop and assaulted him by knife. Accused Babbi Sadashiv Kokande assaulted Parmanand by means of sword. Parmanand was saying that "Milya Badshye Maru Nako". Thereafter, all of them left the spot on their vehicles. The complainant, along with two to three others, took Parmanand to the Government Hospital, where Parmanand was declared dead. He, thereafter, went to Police Station Yavatmal (City) at about 9:15 p.m. and lodged complaint (Exh.102), on the basis of which the First Information Report (Exh.103) was registered in Crime No.2/2009 under Sections 147, 148, 149 and 302 of Indian Penal Code and Section 4/25 of Arms Act. 3. P.W.11 - Girish Yeshwantrao Bobde is the Investigating Officer, who carried out the investigation, in which he recorded the spot panchanama of the scene of occurrence and certain incriminating articles were seized professedly on a confessional statement of the accused. The Investigating Officer recorded the statements of the witnesses and inquest panchanama of the dead body was drawn and it was sent for postmortem examination. The seized articles were referred for the report of the Chemical Analyzer. On completion of investigation, a chargesheet was filed in the Court of Judicial Magistrate First Class at Yavatmal, which was committed to the Court of Sessions. 4. The learned Sessions Judge framed charge (Ex.22) for the offences punishable under Sections 147, 148, 302 r/w 149, under Section 120-B of Indian Penal Code and under Section 4/25 of Arms Act against the appellants and the other accused, to which the appellants pleaded not guilty and claimed to be tried. 5. The prosecution examined in all twelve witnesses at the trial and produced the record of the investigation. The appellants/accused did not enter the witness box, however, examined one defence witness D.W.1-Suresh Marotrao Madavi. The learned Sessions Judge came to the conclusion that Parmanand died a homicidal death and the appellants/accused were found guilty of having intentionally caused death of Parmanand by the weapons. Accordingly, the appellants were convicted and sentenced as aforesaid. 6. The appellants/accused did not enter the witness box, however, examined one defence witness D.W.1-Suresh Marotrao Madavi. The learned Sessions Judge came to the conclusion that Parmanand died a homicidal death and the appellants/accused were found guilty of having intentionally caused death of Parmanand by the weapons. Accordingly, the appellants were convicted and sentenced as aforesaid. 6. It is submitted by the learned Counsel appearing on behalf of the appellants that the evidence of the alleged eyewitnesses P.W.2 - Golu @ Prashant. P.W.3 Santosh and P.W.8 - Pramod is not reliable. He submitted that there arc material discrepancies between the version given by these witnesses, which would falsify each of them. It is also submitted that there is no independent corroboration forthcoming to the evidence of complainant (P. W.2). He, therefore, submitted that the conviction could not have been based on the evidence of P.W.2 Golu @ Prashant, P.W.3 Santosh and P. W.8 - Pramod. The learned Counsel also submitted that there are material contradictions between the version given by P.W.9 and P.W.11 on the point of seizure of weapons and consequently, the same cannot be said to be proved. He also submitted that the evidence of the sole witness, examined in defence, would show that there was load-shedding on the date and time of the incident and there was darkness in the area, offering no opportunity for identification of the assailants. He, submitted that the material witnesses, namely, Dinesh Dhargave and Sanjay Landge are not examined. The learned Counsel was at pains to point out that P.W.11 - PSI Girish Bobde, the Investigation Officer, has admitted that it had transpired in the investigation that the assailants were covering their faces. The learned Counsel, therefore, submitted that this was a case in which two views were possible and the appellants would be entitled to the benefit of doubt. 7. On the contrary, it is submitted by the learned Additional Public Prosecutor that the evidence of the eyewitnesses is consistent, reliable and one inspiring confidence. He submitted that it is not necessary that the prosecution should examine all the witnesses, if the evidence of the material eyewitnesses is found to be acceptable. He, therefore, submitted that the non-examination of Dinesh Dhargave and Sanjay Landge would not be material. He submitted that it is not necessary that the prosecution should examine all the witnesses, if the evidence of the material eyewitnesses is found to be acceptable. He, therefore, submitted that the non-examination of Dinesh Dhargave and Sanjay Landge would not be material. The learned Additional Public Prosecutor also submitted that there is sufficient corroboration to the evidence of the eyewitnesses and the trial Court has rightly found the appellants guilty. It is, therefore, submitted that the appeal be dismissed. 8. The oral evidence led by the prosecution is as under: Eyewitnesses :- P.W.2 - Golu @ Prashant Arun Fulkar (Exh.101). P.W.3 - Santosh Suresh Kale (Exh.104). P.W.8 – Pramod Ashokrao Karale (Exh.122). Panch witnesses: P.W.4 - Mahesh Dattopant Kharjule (Exh.106). P.W.5 - Mohd. Irfan Abdul Rahman (Exh.108). P.W.6 - Bharmal Motilal Swami (Exh.112). P.W. 9 - Vinod Shamrao Pawar (E xh.123). Medical Witnesses: P.W.7 - Dr. Prakash Premchand Chimnani (Exh.119) examined appellant/accused Nilesh Thakur. P.W.12 - Dr. Amol Balwant Shinde (Exh.151) conducted post-mortem on the dead body of the deceased. Police Witnesses : P.W.10 - Prakash Govindrao Nawale (Exh.126) registered FIR. P.W.11 - PSI Girish Yeshwantrao Bobde (Exh.131) the Investigating Officer. Other Witnesses : P.W.1 - Mangesh Ramrao Nandekar (Exh.97) Mobile shop owner. 9. P.W.2 – Golu @ Prashant has stated that he was knowing deceased Parmanand as this witness was doing work in his house. The incident had occurred on 2.1.2009 at about 7:35 p.m. He had gone to the Pan shop of Dinesh at Waghapur Naka. Deceased Parmanand was sitting inside the Pan shop. Deceased asked this witness to wait for ten minutes and he will return after taking dinner. Accordingly, the deceased returned from his house within five minutes. At that time, two motorcycles came there from the State Bank square and stopped at Waghapur Naka. Thereafter, this witness has named accused Nilesh, who, according to this witness, took out a sword from sheath and assaulted Parmanand on the head. The appellant Milind Badse pulled out Parmanand from the Pan shop and assaulted him by knife. Thereafter, Babbi Sadashiv Kokande assaulted deceased by means of sword. Deceased was saying "Milya Badshye Maru Nako". Thereafter, they left the spot on their vehicles. The appellant Milind Badse pulled out Parmanand from the Pan shop and assaulted him by knife. Thereafter, Babbi Sadashiv Kokande assaulted deceased by means of sword. Deceased was saying "Milya Badshye Maru Nako". Thereafter, they left the spot on their vehicles. This witness had lodged a report with Police Station Yavatmal (City) at 9:15 p.m. It has come in the cross-examination of this witness that while lodging the report, he had not stated the names of the accused/appellant nos.2 and no.3 (original accused nos.2 and 6). On the left side of the Pan shop of Dinesh, there is a Pan shop of Anand Vithalrao Mankar and to the right side, there is a tea shop of Sanjay Kamble. There is auto-star nearby where usually there are 8 to 10 autos parked. There is a Pan shop of one Sanjay at a distance of 15 ft. from the Pan shop of Dinesh Dhargave. It has come in the evidence of this witness that the road near the spot of the occurrence has traffic and there is usually a crowd there up to 10:00 p.m. This witness is residing in the house of Parmanand from 8 to 10 years. Dinesh Dhargave was present at the time of incident and thereafter was standing by the side of his Pan shop. While Parmanand was taken to the hospital, Ashish Dhoble was present. This witness has stated that at the time of preparation of spot panchanama, police had enquired with him about the incident but he had not stated anything to the police. This witness has also admitted that he was not on good terms with accused Milind Badse and Nilesh Thakur. 10. Next witness i.e. P. W.3 - Santosh Suresh Kale is working in the mutton shop of P. W. 8 - Pramod Karale at the medical square. This witness has stated that on 2.1.2009 he was going back to his house after closing the shop at 7:30 p.m. He was proceeding by Waghapur Naka road along with P. W.8 - Pramod Karale. At about 7:45 p.m. when they reached at Waghapur Naka, two motorcycles reached there. Three persons were riding on one motorcycle and on another there were two persons riding. Another motorcycle also arrived there from Waghapur, on which there was one person riding. At about 7:45 p.m. when they reached at Waghapur Naka, two motorcycles reached there. Three persons were riding on one motorcycle and on another there were two persons riding. Another motorcycle also arrived there from Waghapur, on which there was one person riding. Two persons out of those three persons sitting on the motorcycle rushed to the Pan shop of Dinesh Dhargave. So also one person from the other motorcycle rushed towards Pan shop. Accused Nilesh Thakur took out a sword and assaulted on the head of Parman and. Accused Milind Badse pulled Parmanand from the Pan shop and assaulted him with knife. Thereafter, accused Babbi assaulted Parmanand by sword. This witness also named the accused Manoj Suryawanshi, who assaulted deceased by knife and thereafter all of them ran away on their motorcycles. At that time, they were saying "Chal Re Sachin Chal Re Bapu". In the cross-examination, this witness has admitted that he has not stated about the incident to the relatives of the deceased by going to his house. There were 4 to 5 customers present on the shop of Dinesh Dhargave. He also has not informed the police about the incident nor his friends or anybody else. He has not gone to the police station for about 10-12 days. It was only after 12 days of the incident that he had gone to the police station. Police had not come to his house for recording his statement. It appears that the statement of this witness was recorded before the Judicial Magistrate First Class, Yavatmal, in which he had not named the accused Manoj Suryawanshi. Similar is the case with the appellant/accused Babbi, whose name does not figure in the statement of this witness, recorded by the Judicial Magistrate First Class, Yavatmal. Thus, there is material improvement, so far as appellant Babbi is concerned, over the statement recorded before the Magistrate. 11. Next eyewitness is P.W.8 - Pramod Ashokrao Karale. According to the learned Counsel for the defence, both P.W.3 Santosh and P.W.8 - Pramod are mere chance witnesses. This witness is having his mutton shop at medical square, Yavatmal and it is the evidence that at about 7:00 to 7:15 p.m., he was proceeding to his house after closing the shop along with P.W.3 Santosh Kale. According to the learned Counsel for the defence, both P.W.3 Santosh and P.W.8 - Pramod are mere chance witnesses. This witness is having his mutton shop at medical square, Yavatmal and it is the evidence that at about 7:00 to 7:15 p.m., he was proceeding to his house after closing the shop along with P.W.3 Santosh Kale. When they reached Waghapur Naka at about 7:30 p.m., two wheeler vehicles Victor and Splendor came from State Rank square and stopped near the Pan shop of Dinesh Dhargave. Four persons arrived on that two vehicles. Parmanand Mishra was sitting in the Pan shop of Dinesh Dhargave. One person by name Nilesh Thakur got down from the vehicle and assaulted by sword on the head of Parmanand. Accused Milind Badse pushed Parmanand Mishra out of Pan shop and he assaulted on the person of Parmanand by knife and the appellant Babbi and Manish Suryawanshi assaulted Parmanand by weapons. As he was frightened, he went to his house. The assailants ran away. Even this witness had not informed about the incident to the family members of the deceased nor had gone to the police station. He had not disclosed the incident to anybody or gone to Government Hospital. It was after 13 days of the incident, he opened his shop. He has stated that his statement was not recorded by the police. In the further part of the cross-examination, it has come that he had stated the name of Milind Badse having assaulted deceased Parmanand by knife. However, that does not figure in the statement recorded before the Magistrate. This witness has stated that he was knowing the assailants at the time of incident. He had not stated the names of the persons, who were riding on the motorcycles in his statement recorded under Section 164 of the Code of Criminal Procedure. 12. In the further part of the cross-examination, it has come that the police, Advocates. Medical Officers etc. are his customers at the mutton shop. P.S.I. Mahesh Togarwad used to come to his shop. He had not stated about the incident to any of his customers or to the police. 13. From the evidence as set out above and more particularly the conduct of these witnesses, it cannot be said that their evidence inspires confidence. Medical Officers etc. are his customers at the mutton shop. P.S.I. Mahesh Togarwad used to come to his shop. He had not stated about the incident to any of his customers or to the police. 13. From the evidence as set out above and more particularly the conduct of these witnesses, it cannot be said that their evidence inspires confidence. It has come in the evidence of the Investigating Officer P.W.11 - Girish Bobde that the statements of these witnesses were recorded on 12.1.2009 i.e. after ten days of the incident. On the contrary, the prosecution has not examined Dinesh Dhargave and Sanjay Landge, who were also allegedly the eyewitnesses. The evidence of P.W.11 - Girish Bobde would show that it had transpired in the investigation that Dinesh and Sanjay had witnessed the incident. Their statements were recorded immediately on the next date i.e. on 3.1.2009. It is true that it is not necessary for the prosecution to examine all the eyewitnesses and the fate of the prosecution would depend upon facts and circumstances of each case, in a case where there is non-examination of some of the eyewitnesses. In the present case, on one hand, the prosecution has failed to examine Dinesh and Sanjay, who were the natural witnesses and whose statements were recorded promptly and on the other hand, the prosecution has sought to examine P.W.3 - Santosh and P.W.8 – Pramod, who appear to be chance witnesses and whose statements have been recorded after a delay of ten days, which is not explained. There is one more circumstance, namely, P.W.11 Girish Bobde has stated in his evidence that it transpires during his investigation that the assailants had covered their faces by handkerchiefs. If that be so, certainly the identification of the assailants by name by P.W. 2 - Golu @ Prashant, P.W.3 Santosh and P.W.8 - Pramod would become doubtful. So far as P.W.2 - complainant is concerned, he had given the name of only appellant Milind in his complaint. He had not named other accused. Admittedly, there is no identification parade conducted in this case. In that view of the matter, the identification of the accused by the complainant - P.W.2, for the first time before the Court, would certainly lose its significance. He had not named other accused. Admittedly, there is no identification parade conducted in this case. In that view of the matter, the identification of the accused by the complainant - P.W.2, for the first time before the Court, would certainly lose its significance. So far as the naming of the appellant Milind is concerned, it does appear from the complaint (Exh.102) that the deceased Parmanand had said while he was being assaulted that "Milya Badshye Maru Nako". The possibility of the complaint naming him on account of that cannot be ruled out. In our considered view, the non-examination of Dinesh and Sanjay coupled with the non-holding of identification parade would certainly render the eyewitnesses account of the incident untrustworthy and not acceptable. The complainant - P.W.2 has also stated that he had not disclosed the names of the other assailants (that is other than Milind Badse) prior to 5.1.2009. In view of this, we do not find that the evidence of P.W.2 – Golu @ Prashant, P.W.3 -Santosh and P. W.8 - Pramod can be relied upon. 14. So far as the evidence regarding disclosure made on confessional statement is concerned, it has come in the evidence of the Investigating Officer that he arrested the appellant/accused Nilesh on 6.1.2009. It is on the same day that the said appellant made confessional statement showing his willingness to produce the weapon used in the commission of the offence, which is concealed at Ekvira Maidan at Yavatmal. The memorandum was accordingly reduced into writing in the presence of Panchas. Accused then led the police and the Panchas to Ekvira Maidan, wherefrom the appellant Nilesh produced two swords and one knife from waste box near a D.P. They were wrapped in a towel. The same were seized as per seizure panchanama (Exh.124). So far as the evidence regarding the discovery is concerned, it is admittedly from an open space, which is accessible to the public. Thus, no reliance can be placed on the same. 15. In view of the discussion as above, the prosecution case which is based on the ocular testimony, the confessional statements and seizure and the forensic evidence cannot be said to be proved beyond reasonable doubt. In this case, there is also a defence witness examined in order to show that there was load-shedding and absence of any sufficient light so as to facilitate identification. In this case, there is also a defence witness examined in order to show that there was load-shedding and absence of any sufficient light so as to facilitate identification. In the face of the discussion as above, it would not be necessary to look into this aspect, in view of the fact that admittedly P.W.2 had not given the names of the assailants other than Milind Badse coupled with the fact that there is no identification and the evidence of the Investigating Officer that the assailants had covered their faces at the time of assault. For the aforesaid reasons, we find that the appeal deserves to be allowed. Consequently, the following order is passed. ORDER Criminal Appeal is allowed. The judgment of conviction and sentence is set aside. The appellants are acquitted of the offences for which they were charged and convicted. The appellants be set at liberty forthwith, if not required in any other case. Appeal allowed.