Oral Judgment P.V. Hardas, J. 1. The Appellants /original accused Nos.1 to 4 and 6 who stand convicted for offence punishable under Sections 143, 147, 148, 324, 451 and 302 of the Indian Penal Code and sentenced to rigorous imprisonment for three months, rigorous imprisonment for six months, rigorous imprisonment for one year, rigorous imprisonment for one year, rigorous imprisonment for one year and to each accused to pay fine of Rs.300/- in default of which to undergo rigorous imprisonment for two months and imprisonment for life and to each accused to pay a fine of Rs.3,000/- in default of which to undergo further rigorous imprisonment for two years, respectively, with a direction that the substantive sentence shall run concurrently, by the 4th Additional Sessions Judge, Satara, by judgment dated 7 September 1998, in Sessions Case No.86 of 1989 by this Appeal question the correctness of their conviction and sentence. 2. Briefly stated the facts asare necessary for the decision of this Appeal are as follows : P.W. 15 – PSI Hindurao Kejkar who on 11 December 1988 was attached to the Umbraj Police Station was informed by the P.S.O. about some incident at Antavdi. He was also informed that two to three injured had been brought to the Masur outpost and one of the injured was seriously injured. P.W.15 – PSI Kejkar accordingly proceeded to the Masur outpost. He was informed by Head Constable Mandlik that the injured had been sent to Krishna Hospital. The complainant, who had sustained simple injuries was present in the outpost. Accordingly his report was scribed at Exhibit 49. On the basis of the said report an offence vide Crime No.232 of 1988 was registered under Section 307 of the Indian Penal Code. A Head Constable was deputed in search of the accused. P.W. 15 – PSI Kejkar then proceeded to the scene of incident and in the presence of panchas drew the scene of incident Panchanama at Exhibit 33. From the scene of incident, samples of ordinary mud and bloodstained mud, a pillow, a wooden log and an iron bar were seized. The complainant had produced a pitcher which was also seized under the said Panchanama. Statements of witnesses were recorded. Meanwhile, Head Constable Nadaf had arrested accused No.1 – Bhaskar, accused No.2 – Vilas and accused No.3 – Mohan. The bloodstained clothes on the person of the accused were also seized. The complainant had produced a pitcher which was also seized under the said Panchanama. Statements of witnesses were recorded. Meanwhile, Head Constable Nadaf had arrested accused No.1 – Bhaskar, accused No.2 – Vilas and accused No.3 – Mohan. The bloodstained clothes on the person of the accused were also seized. On the next day, the statement of P.W.11 - Jiva was recorded. Since injured Hanmant had succumbed to his injuries, Section 302 of the Indian Penal Code came to be added. Supplementary statements of the witnesses were recorded and the investigation was thereafter handed over to P.W. 16 – Dy.S.P. Ajit Patil. 3. P.W.16 – Dy.S.P. Ajit Patil who was entrusted with the investigation of Crime No.232 of 1988 recorded the supplementary statements of the witnesses. Accused Vasant was arrested and his clothes were seized. A search was made for the absconding accused. During custodial interrogation, accused Vasant expressed his willingness to point out the place where his clothes had been concealed. Accordingly a memorandum was drawn and the accused led the police and the pancha and produced his clothes which were seized. Accused Mohan during custodial interrogation also expressed his willingness to produce his clothes and accordingly a memorandum was drawn. Accused Mohan led the police and the pancha and produced his clothes which were seized. On 15 December 1988, P.W.12 – Executive Magistrate Sharad Sudam was requested to hold the test identification parade. The accused were referred to the medical officer for drawing their blood sample. During custodial interrogation, accused Vasant expressed his willingness to point out the place where sticks had been concealed. Accordingly the disclosure memorandum of the accused was recorded. The accused led the police and the pancha and produced the sticks which were seized. On 19th the clothes of Laxmibai were seized. Accused No.6 – Mugutrao was arrested. During custodial interrogation, accused No.6 – Mugutrao expressed his willingness to point out the place where an axe and his clothes had been concealed. Accordingly a memorandum was recorded and the accused led the police and the pancha and discovered the axe and clothes which were seized. Statements of witnesses were recorded. Further to the completion of investigation, a charge-sheet against the accused was submitted. 4. The injured had been examined at the Krishna Hospital at Karad. As per the injury certificate at Exhibit 24, P.W.8 – Shamrao had sustained the following injuries: “1. Statements of witnesses were recorded. Further to the completion of investigation, a charge-sheet against the accused was submitted. 4. The injured had been examined at the Krishna Hospital at Karad. As per the injury certificate at Exhibit 24, P.W.8 – Shamrao had sustained the following injuries: “1. Contused lacerated wound over scalp occipital region 5 cm in length. 2. Rt. Eyebrow 1 cm in length superficial abrasion.” 5. The Medical Officer had opined that the injuries may be caused by hard, sharp or blunt object. He had been discharged on 19 December 1988. 6. P.W.7 – Laxmibai, as per Exhibit 25 had sustained the following injuries: “1. Right Black Eye. 2. Contused lacerated wound Rt. parietal region 5 cm in length.” 7. The Medical Officer had opined that the injuries were possible by hard and blunt object. 8. As per Exhibit 26, P.W.6 – Shivaji had sustained the following injuries: “1. Contusion on cervical spinal region of 1.5” x 1/2”. 2. Contusion on left supra scapular region of 2” x 1/2”. 3. Contusion on right supra scapular region of 1” x 1/2”. 4. Abrasion on left pinnapular of 1/2cm x 1/2 cm. 5. Abrasion on left mastoid region of ½ cm x ½ cm. 6. Abrasion on left hip-joint of 1” x 1/2”. 9. The aforesaid injuries were simple and were caused by hard and blunt object. 10. Postmortem on the dead body of deceased was performed by P.W.5 Dr. Leena Salunkhe. As per P.W.5 – Dr. Leena Salunkhe, deceased Hanmant had sustained the following external injuries: “1. Contusion all over left eye with blackish discolouration all around eye ball 2” x 1/2”. Conjunctiva – Red. Haematoma. 2. Contusion over left pecuporal area just above the ear 2” x 2”. 3. C.L.W. Over left ear pinna posteriorly, 1” x 1” x 1/4”. Cartilage broken, margins irregular, Clot present all around. 4. Abrasion over right parital area 3” above the right ear. 2” x 2” X 1/16” contusion all around it. 5. Contusion over the right teupero parital area 4” x 3”. 6. Prick marks over left cubital fossa present. 7. Sensitivity test mark over left forearm present.” 11. According to P.W.5 – Dr. Salunkhe, injury Nos. 6 and 7 were I.V. prick marks. Injury Nos.1 and 2 corresponded to internal injury Nos.1, 2 and 4. 5. Contusion over the right teupero parital area 4” x 3”. 6. Prick marks over left cubital fossa present. 7. Sensitivity test mark over left forearm present.” 11. According to P.W.5 – Dr. Salunkhe, injury Nos. 6 and 7 were I.V. prick marks. Injury Nos.1 and 2 corresponded to internal injury Nos.1, 2 and 4. The cause of death was coma and death was due to extensive head injury with fracture skull. According to P.W.5 – Dr. Salunkhe, the internal damage was sufficient in ordinary course of nature to cause death. She has further opined that the injuries could be caused by hard and blunt object like “stick, iron bar and handle of an axe”. 12. On committal of the case to the Court of Sessions, the Trial Court vide Exhibit 3 framed charge against accused Nos.1 to 6 for offence punishable under Sections 143, 147, 148, 149, 302 read with 149 and 307 read with 149, 452 read with 149 and in the alternative, 302 read with 34 of the Indian Penal Code. The defence of the Appellants was of denial. Prosecution in support of its case examined 16 witnesses. The Trial Court upon appreciation of the evidence convicted and sentenced the Appellants as afore stated while acquitting original accused No.5 – Mahadeo. 13. In order to effectively deal with the submissions advanced before us by Mr. Mohite, learned counsel for the Appellants and Dr. Shaikh, learned Additional Public Prosecutor, it would be useful to refer to the evidence of the prosecution witnesses. 14. P.W.6 – Shivaji, an eyewitness and the first informant deposes that houses of accused Nos.1, 2 and 6 are at a distance of 100 ft. from his house. On 10 December 1988 there was a quarrel in respect of the offering to be made to the family beti between the accused and P.W.11 – Jiva and P.W.8 – Shamrao. This was informed to P.W.6 – Shivaji. In respect of the incident P.W.6 – Shivaji deposes that at about 7.30 a.m. P.W.8 – Shamrao had gone for fetching water as usual carrying a pitcher along with him. As he had gone near the brook for fetching water, accused No.1 – Bhaskar had pelted a stone at the pitcher and therefore P.W.8 - Shamrao returned home. In respect of the incident P.W.6 – Shivaji deposes that at about 7.30 a.m. P.W.8 – Shamrao had gone for fetching water as usual carrying a pitcher along with him. As he had gone near the brook for fetching water, accused No.1 – Bhaskar had pelted a stone at the pitcher and therefore P.W.8 - Shamrao returned home. Shivaji had narrated the incident to the complainant and therefore P.W.6 – Shivaji along with his deceased father Hanmant and his brother went towards the house of accused No.1 – Bhaskar and questioned the accused as to why they have obstructed Shamrao from fetching water from the brook. In respect of the obstruction of the accused, Hanmant instructed his son P.W.11 – Jiva to lodge a report at the Masur Police Station. At about 10.00 a.m., P.W.6 - Shivaji along with his parents and P.W.8 – Shamrao were sitting in the cattle shed which was adjoining to the residential house. P.W.7 – Laxmibai was inside the house cooking food. Suddenly all the accused 1 to 6 came towards the cattle shed of deceased Hanmant variously armed with axe, sticks and iron rod. According to P.W.6 – Shivaji, accused No.6 – Mugutrao dealt a blow of an axe on the head of Hanmant. On receiving the blow, Hanmant came out of the cattle shed. P.W.6 – Shivaji came out of the cattle shed and went towards the house of one Vasant Shinde. Thereafter accused No.2 – Vilas dealt with a blow of an axe on the head of P.W.8 – Shamrao, while accused Mohan and Vasant had held Shamrao. Hearing the cries, P.W.7 – Laxmibai came out of the house and snatched the axe which was held by Mugutrao. Accused No.6 – Mugutrao thereafter took a log of wood and assaulted Laxmibai and deceased Hanmant with the said log. Meanwhile, accused Mohan, Vasant and Vilas also attacked P.W. 6 – Shivaji. Mohan, Shivaji and Shamrao sustained several injuries. P.W.6 – Shivaji became unconscious. He regained consciousness after some time and noticed the injured. The injured were then taken in the bullock-cart to the hospital. Shivaji came to Masur Police Station, while the injured proceeded further. The report of Shivaji was accordingly scribed at exhibit 49. 15. In cross examination he has admitted that he had reached Masur at about 10.30 to 10.45 a.m. and had first gone to the outpost. The injured were then taken in the bullock-cart to the hospital. Shivaji came to Masur Police Station, while the injured proceeded further. The report of Shivaji was accordingly scribed at exhibit 49. 15. In cross examination he has admitted that he had reached Masur at about 10.30 to 10.45 a.m. and had first gone to the outpost. He admits that he had narrated the incident to the police and the police had scribed his report. He has admitted that the Medical officer had enquired from him and he had disclosed to the Medical Officer the manner in which he had sustained the injuries. He then states that at 4.00 p.m. he had gone to the outpost and thereafter to the Umbraj Police Station where his report was scribed. In cross examination, he was questioned if the incident of assault had occurred inside the house and accordingly he was confronted with the portion marked 'E' in his report. Certain omissions have been elicited on that he had not stated that accused Vasant and Mohan had held Shamrao. Omission is also elicited that he had not stated that Hanmant had gone near the house of one Vasant. Omission is also elicited that he had not stated that Laxmibai had snatched the axe which was held by accused Mugutrao. Omission is also elicited that he had not stated that Laxmibai led prostrate on Hanmant in order to protect him. Omission is also elicited that he had not stated that accused Mugutrao had assaulted deceased Hanmant with a log on his head. He has then admitted that when Hanmant was assaulted, Laxmibai was inside the house. He has also admitted that he along with P.W.8- Shamrao was also inside the house. The tenor of the First Information Report at Exhibit 49 clearly discloses that deceased Hanmant was assaulted only by accused No.6 – Mugutrao while the other accused had assaulted the other injured witnesses. 16. Prosecution has also examined P.W.7 – Laxmibai, who also deposes about the accused assaulting Hanmant as well as assaulting the witnesses. In cross examination, she has admitted that her statement had been recorded on 1 February 1989 i.e. practically after fifteen days of the incident. She has further admitted that she had not sustained any injury by an axe. 17. Prosecution has also examined P.W.7 – Laxmibai, who also deposes about the accused assaulting Hanmant as well as assaulting the witnesses. In cross examination, she has admitted that her statement had been recorded on 1 February 1989 i.e. practically after fifteen days of the incident. She has further admitted that she had not sustained any injury by an axe. 17. Prosecution has examined P.W.8 – Shamrao, who claims that on the day of the incident, he had gone for fetching water and was prevented from drawing water by the accused by pelting a stone at him. He then deposes about the complainant also going to the house of the accused and questioning the accused as to why Shamrao was not permitted to draw water from the brook. He then deposes about the accused coming to the cattle shed of Hanmant and assaulting. In cross examination he has admitted that he was in the hospital for about ten days. Omission has been elicited in respect of the non-disclosure of the names of the accused Vasant, Mohan and Mahadeo. He was confronted with portion marked 'G' from his statement that there was a scuffle between the accused and Shamrao in which Shamrao had sustained an injury on his right eyebrow. He was confronted with portion marked 'G' from his previous statement which he had denied to have stated. Similarly, omission has been elicited that he had not stated that the accused had pushed Hanmant when Hanmant had gone to question the accused. Omission has been also elicited that he had not stated that accused Bhaskar had stated that Hanmant would be dealt after the other relatives come from Saidapur. Omission is also elicited that he had not stated that accused Mohan and Vasant had helped him while other accused had assaulted him. 18. Prosecution has then examined P.W.9 – Sampat and P.W.10 – Ganpat who claim to have witnessed the incident by standing near the scene of the incident. None of the eyewitnesses referred to their presence. In any event, we find that no reliance can be placed on the testimony of these two witnesses. 19. Prosecution has also examined P.W.11 – Jiva, who claims that he had been instructed by Hanmant to lodge a report at the Masur Police Station. None of the eyewitnesses referred to their presence. In any event, we find that no reliance can be placed on the testimony of these two witnesses. 19. Prosecution has also examined P.W.11 – Jiva, who claims that he had been instructed by Hanmant to lodge a report at the Masur Police Station. Accordingly he had proceeded to the Masur Police Station at about 9.00 a.m. and had reached at about 10.00 a.m. According to him he had narrated the incident, but his report was not scribed. He, therefore, returned back to the village and had noticed accused No.1 – Bhaskar being present in the police station. He then deposes about the injured being brought in a bullockcart to the police station. In cross examination he was confronted with portion marked 'H' from his previous statement that Shamrao – P.W.8 had informed him that Shamrao had sustained an injury by a stone. 20. The Trial Court has not placed much reliance on the test identification parade which was conducted by P.W.12 – Executive Magistrate Sharad Sudam. Since the articles seized pursuant to the disclosure statement of the accused were not sealed immediately on their seizure and there was no evidence that the articles had remained in a sealed condition till they were ultimately examined by the Chemical Analyzer, according to us no reliance can be placed on the finding of blood of 'O' group on one of the axe which was seized. 21. Mr. Mohite, learned counsel for the Appellants has therefore urged before us that the recitals of the First Information Report clearly reveal that it was accused No.6 Mugutrao who had assaulted the deceased with an axe. It is also urged by Mr. Mohite that though there was a fracture of a skull, there was no external injury on the vortex of the head. Injuries which were sustained by deceased appear to be glancing blows which could be as a result of use of blunt side of the axe or by inflicting injuries by the handle of the axe. Mr. Mohite had invited our attention to the evidence of the Medical Officer i.e. P.W.5 – Dr. salunkhe who has also admitted about the use of handle of the axe. The Medical Officer has completely ruled out the possibility of the injuries being caused either by the sharp blade or by a blunt edge of the axe. Mr. Mohite had invited our attention to the evidence of the Medical Officer i.e. P.W.5 – Dr. salunkhe who has also admitted about the use of handle of the axe. The Medical Officer has completely ruled out the possibility of the injuries being caused either by the sharp blade or by a blunt edge of the axe. It is also urged by Mr. Mohite that the common object of the unlawful assembly could not have been for causing murder of deceased Hanmant. Hanmant was accompanied by the other witnesses when he had gone to the house of the accused. The common object at the most may have been to cause some grievous injury to deceased Hanmant and the other prosecution witnesses. It is therefore urged by learned counsel for the Appellants that since the incident is of the year 1988 and the age of accused No.6 is more than 75 years, the accused may be sentenced for the period of imprisonment already undergone by him and the offence be converted from Section 302 to 304 Part II. The learned Additional Public Prosecutor who has vehemently opposed the aforesaid submission has urged for the dismissal of the Appeal. 22. The incident in the morning was certainly an incident of a trivial nature. The entire incident was in respect of preventing P.W.8 – Shamrao from drawing water from the brook. Deceased Hanmant accompanied by the other witnesses had gone to the house of accused No.1 – Bhaskar in order to question him. Admittedly, apart from a slight disagreement on the previous event, there was no enemity between the accused and the complainant. Even on the day of the incident, Hanmant had questioned the accused as to why Shamrao was prevented. There does not appear to have been a very serious quarrel which would in any manner impel the accused to commit the murder of deceased Hanmant. The common object of the unlawful assembly at the most may have been to cause injuries to Hanmant and the other prosecution witnesses, but by no stretch of imagination can it be said that the common object of the assembly was to commit murder of either Hanmant or other witnesses. That with common object their unlawful assembly proceeded to the house of Hanmant. That with common object their unlawful assembly proceeded to the house of Hanmant. The recitals of the FIR at Exhibit 49 clearly speak for themselves that it was accused No.6 – Mugutrao who assaulted Hanmant with an axe. The FIR does not ascribe the overact to any other accused of having caused injuries to Hanmant. The other accused had assaulted the other prosecution witnesses and for which they stand convicted for offence punishable under Section 324 of the Indian Penal Code. 23. Since the common object of the unlawful assembly was to cause hurt or grievous hurt particularly to the prosecution witnesses, and the deceased, an intention to commit murder of deceased Hanmant cannot certainly be ascricv bed either to accused No.6 – Mugutrao or to the other accused. There are no injuries inflicted on the head. The sharp blade of the axe was not used for infliction of the injuries. Even the blunt side of the axe was not used for causing injuries to Hanmant. Possibly as per the medical evidence the handle of the axe was used for causing injuries. Thus, knowledge also cannot be attributed to accused No.6 that by inflicting injuries on the ear of deceased Hanmant, the injury would result into fracture which would cause death of deceased Hanmant. The offence, therefore, in our opinion, would be one squarely falling in Section 304 Part II of the Indian Penal Code. The conviction of all the accused for offence punishable under Section 302 of the Indian Penal Code therefore would be wholly unsustainable. 24. On an enquiry being made by us, Mr. Mohite learned counsel for the Appellant has informed us that accused No.6 is presently aged about 75 years and has undergone approximately two months of imprisonment. It is therefore urged before us that the accused be released on the term of imprisonment already undergone by him, by looking to the age of the accused as well as to the fact that the incident had occurred in 1988 and the judgment convicting the accused was pronounced in 1998 i.e. about sixteen years back. Mr. Mohite has also referred to the judgment of the learned Single Judge of this Court in NamdeoKisan Bhakare v. State of Maharashtra 1996 Cri. L.J. 562. 25. Accused No.6 – Mugutrao was aged about 50 years when the charge sheet had been filed. Mr. Mohite has also referred to the judgment of the learned Single Judge of this Court in NamdeoKisan Bhakare v. State of Maharashtra 1996 Cri. L.J. 562. 25. Accused No.6 – Mugutrao was aged about 50 years when the charge sheet had been filed. The age of accused No.6 presently would be in the region of about 76-77 years. We are also informed by learned counsel for the Appellants that on account of advanced age, accused No.6 is suffering from ailments associated with advanced age. It is true that accused No.6 Mugutrao has undergone only two months of actual imprisonment. Normally the aforesaid sentence would be wholly insufficient for conviction under Section 304 Part II. However, in the peculiar facts of the case and particularly in the light of the fact that the sword of the conviction and sentence had been hanging on the head of accused No.6 for the last sixteen years as well as the trauma of the trial from 1988, we are inclined to accede to the request of the Appellant. However, according to us, the interests of justice would be met by enhancing the fine payable by accused No.6. 26. The learned Single Judge of this Court in the peculiar facts of the case had enhanced the fine from Rs.1,000/- to Rs.15,000/- and had released the accused on the period of imprisonment which was already undergone which was similar to the period undergone by the accused on the ground that the incident had occurred about nine years prior to the decision of the Appeal. 27. Accordingly Criminal Appeal 726 of 1998 is partly allowed. The conviction and sentence of Appellant Nos.1 to 4 / original accused Nos.1 to 4 for offence punishable under Section 302 read with 149 is hereby quashed and set aside and they are acquitted of the offence punishable under Section 302 read with 149. Fine, if paid by them be refunded to them. The conviction and sentence of Appellant No.5 / original accused No.6 – Mugutrao Dnyanu Shinde for offence punishable under Section 302 read with 149 is set aside and instead accused No.6 – Mugutrao Shinde is convicted for offence punishable under Section 304 Part II of the Indian Penal Code and is sentenced to the period of imprisonment already undergone by him. In addition to the period of sentence already undergone by him, accused No.6 – Mugutrao Shinde is sentenced to pay a fine of Rs.15,000/-, in default of which to undergo further rigorous imprisonment for six months. Fine to be paid by Appellant No.5 / original accused No. 6 - Mugutrao Shinde within six weeks. 28. The conviction of Appellants 1 to 5 / original accused Nos.1 to 4 and 6 for offence punishable under Section 143 of the Indian Penal Code, 147, 148, 324 r/w 149, 451 r/w 149 is confirmed, but the substantive sentence of imprisonment is set aside and instead they are sentenced to the period of imprisonment already undergone by them. The sentence of fine, however, remains unaltered. The substantive sentence shall run concurrently. The entire amount of fine, if recovered from the accused be paid to P.W.7 – Laxmibai Shinde – wife of deceased Hanmant. The bail bonds of all the accused stand cancelled.