JUDGMENT All these criminal appeals take exception to the judgment and order dated 18/10/2013 passed by learned Additional Sessions Judge, Nagpur in Sessions Trial No. 554/2002. For the sake of convenience, accused numbers are referred according to their serial numbers as mentioned in charge (Exh. 20). By the impugned judgment passed by the learned trial Court, accused No. 1 Vijay Kisanrao Mate, accused No. 4 Umesh Sampatrao Dahake, accused No. 9 Kiran Umraoji Kaithe, accused No. 10 Kamlesh Sitaram Nimbarte, accused No. 13 Dinesh s/o. Devidas Gaiki and accused No. 15 Raju Vitthalrao Bhadre came to be convicted for the offences punishable under Sections 147, 148 and 302, 120-B read with Section 149 of Indian Penal Code and are sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs. 500/-, in default to suffer simple imprisonment for three months for the offence punishable under Section 147 of Indian Penal Code, to undergo rigorous imprisonment for one year and to pay fine of Rs. 500/-, in default to suffer simple imprisonment for three months for the offence punishable under Section 148 of Indian Penal Code and to suffer rigorous imprisonment for life and to pay fine of Rs. 1000/- and in default, to suffer simple imprisonment for three months for the offences punishable under Sections 302, 120(b) read with Section 149 of Indian Penal Code. Accused No. 5 Ritesh S/o. Hiramanji Gawande and accused No. 11 Ayub S/o. Amir Khan are convicted for the offences punishable under Section 147 and 302, 120(b) read with Section149 of Indian Penal Code and are sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs. 500/-, in default, to suffer simple imprisonment for three months for the offence punishable under Section 147 of Indian Penal Code and to undergo rigorous imprisonment for life and pay fine of Rs. 1000/-, in default, to suffer simple imprisonment for three months for the offences punishable under Sections 302, 120(b) read with Section 149 of Indian Penal Code. 500/-, in default, to suffer simple imprisonment for three months for the offence punishable under Section 147 of Indian Penal Code and to undergo rigorous imprisonment for life and pay fine of Rs. 1000/-, in default, to suffer simple imprisonment for three months for the offences punishable under Sections 302, 120(b) read with Section 149 of Indian Penal Code. Accused No. 1 Vijay Kisanrao Mate, accused No. 4 Umesh Sampatrao Dahake, accused No. 5 Ritesh Hiramanji Gawande, accused No. 9 Kiran Umraoji Kaithe, accused No. 10 Kamlesh Sitaram Nimbarte, accused No. 11 Ayub Amir Khan, accused No. 13 Dinesh S/o. Devidas Gaiki and accused No. 15 Raju Vitthalrao Bhadre are acquitted of offences punishable under Sections 186, 332, 353 and 307 of Indian Penal Code, under Section 4 read with Section 25 of Arms Act and under Section 135 of Bombay Police Act. Accused No. 2 Mangesh Shivajirao Chavan, accused No. 6 Mayur alias Banti Shivajirao Chavan, accused No. 7 Pandurang Motiram Injewar, accused No. 8 Rajesh Dayaramji Kadoo, accused No. 12 Mahesh Damodhar Bante, accused No. 14 Sandip Nilkanthrao Sanas, accused No. 16 Maroti alias Navva Santoshrao Walake are acquitted of the offences punishable under Sections 147, 148, 149, 186, 120(b), 332, 353, 307, 302 read with Section 34 of Indian Penal Code and under Section 4 read with Section 25 of Arms Act and Section 135 of Bombay Police Act. Trial against accused No. 3 Sachin Arunrao Gawande came to be abated since dead. Trial against accused No. 17 Raju Tukaram Gaikwad could not be conducted since he is absconding. FACTS 1. The case of prosecution can be briefly stated as under: Deceased Pintu alias Swapnil Dilipsingh Shirke (hereinafter referred to as 'deceased Pintu'), Hitesh Uike (P.W. 27) and Pappu Malviya (P.W. 28) were facing trial for the offence punishable under Section 307 of Indian Penal Code in respect of alleged assault by them on accused No. 1 Vijay Mate on 18/7/2001, which was pending in the Sessions Court, Nagpur. Accordingly on 19/6/2002, deceased Pintu, Hitesh Uike (P.W. 27), Pappu Maliviya (P.W. 28) and Gajraj Mahato (P.W. 16), who was accused in some other crime, were brought in the Court by Head Constable Prabhakar (P.W. 21), Head Constable Deepak Trivedi (P.W. 22), Police Constable Deepak Deshbhratar and Gunman Pramod Kalaskar from Jail. Accordingly on 19/6/2002, deceased Pintu, Hitesh Uike (P.W. 27), Pappu Maliviya (P.W. 28) and Gajraj Mahato (P.W. 16), who was accused in some other crime, were brought in the Court by Head Constable Prabhakar (P.W. 21), Head Constable Deepak Trivedi (P.W. 22), Police Constable Deepak Deshbhratar and Gunman Pramod Kalaskar from Jail. Deceased Pintu and Pappu Malviya (P.W. 28) were in the custody of Head Constable Deepak Trivedi (P.W. 22) and Hitesh Uike (P.W. 27) and Gajraj Mahato (P.W. 16) were in the custody of Police Constable Deepak Deshbhratar. Around 11 a.m. they reached the main gate of Court building and after making necessary entries in the register, they came near the lift to go up on 6th floor. Head Constable Prabhakar, Police Constable Deepak Deshbhratar, Gunman Pramod along with Gajraj Mahato (P.W. 16) and Hitesh Uike (P.W. 27) boarded the lift. As there was no space in the lift, other escorting Police and deceased Pintu along with Pappu Malviya (P.W. 28) went by lift thereafter upto 5th floor as the lift did not use to stop on 6th floor and from 5th floor, reached 6th floor by staircase. When they were being taken to Court, it is alleged that all the accused persons having armed with deadly weapons like knife, gupti and sword assaulted deceased Pintu as well as Head Constable Deepak Trivedi (P.W. 22) and Pappu Malviya (P.W. 28) when they tried to intervene. It is the case of prosecution that accused No. 1 Vijay Mate at that time was instigating assailants by saying "Maro Saloko, Jinda Nahi Bachana Chahiye". Due to shouts raised by deceased Pintu and commotion, Police Constable Deepak Deshbhratar, Head Constable Prabhakar (P.W. 21) and Hitesh Uike (P.W. 27) rushed to the spot when assailants ran away from the spot. 2. Due to severe assault on deceased Pintu, he sustained number of bleeding injuries and as such, he along with injured Pappu Malvi and Head Constable Deepak Trivedi was referred to Mure Memorial Hospital where Pintu was declared dead on admission while medical treatment was provided to both the injured persons. Head Constable Prabhakar (P.W. 21) informed about the incident to Dhantoli Police Station by wireless message. 3. Head Constable Prabhakar (P.W. 21) informed about the incident to Dhantoli Police Station by wireless message. 3. On the basis of information received as above, P.I. Yeshkhede (P.W. 36) attached to Sadar Police Station immediately visited the spot of incident on the 6th floor of the Court building and found blood accumulated on the floor and from the spot, he seized one mobile, one knife cover, five pairs of chappals and sleepers lying on the spot and drew spot panchanama (Exh. 613) in presence of panch witnesses - Nitin Domne (P.W. 1) and Shankar Shirke. P.I. Yeshkhede then visited Mayo Hospital and recorded statement of Deepak Trivedi (P.W. 22) (Exh. 455). Since no names of assailants were reported in the statement, first information report came to be registered against unknown assailants vide Crime No. 226/2002. P.I. Yeshkhede then visited the spot and found one gupti, which was lying near the staircase on the 5th floor of the Court building, which came to be seized vide seizure panchanama (Exh. 621) in the presence of panch witnesses - Raju Nagtode (P.W. 3) and Dhiraj Wasnik. 4. PSI Chaudhary (P.W. 31) then visited Mayo Hospital and prepared inquest panchanama of the dead body of Pintu vide Exh. 563 and under requisition (Exh. 564) forwarded the same for post mortem. On the day of incident, PSI Paul (P.W. 35) having learnt about involvement of accused No. 1 Vijay Mate and accused No. 2 Mangesh Chauhan in the present crime, effected their arrest on the same day, i.e. at 3.30 p.m. under arrest panchanama (Exhs. 603 and 604). Accused No. 3 Sachin Gawande (now deceased), accused No. 4 Umesh Dahake and accused No. 5 Ritesh Gawande came to be arrested on the same day under arrest panchanama (Exhs. 606, 607 and 559 respectively) while Yeshkhede, P.I. recorded statements of Pappu Malviya (P.W. 28), Gajraj Mahato (P.W. 16), Hitesh Uike (P.W. 27), Police Constable Prabhakar (P.W. 21) and Police Constable Deepak Deshbhratar. On the same day, at about 7 p.m. by visiting Mayo Hospital, he recorded supplementary statement of Head Constable Deepak Trivedi (P.W. 22) wherein he disclosed names of accused No. 1 Vijay Mate, accused No. 2 Mangesh Chauhan, accused No. 4 Umesh Dahake, accused No. 5 Ritesh Gawande and accused No. 16 Maroti Walake. On recording said statements, Investigating Officer seized blood stained clothes of Deepak Trivedi under seizure panchanama (Exh. On recording said statements, Investigating Officer seized blood stained clothes of Deepak Trivedi under seizure panchanama (Exh. 458) in the presence of panch witnesses - Deepak Gajbhiye (P.W. 2) and Ajil Rashid Khan. 5. On 21/6/2002, P.I. Yeshkhede (P.W. 36) effected arrest of accused No. 6 Mayur Chauhan and accused No. 7 Pandurang Injewar under arrest memos (Exhs. 628 and 629) and on the same day, recorded statements of Vijaya (P.W. 26) and Shefali (P.W. 33), mother and sister of deceased Pintu respectively. On 22/6/2002 P.I. Yeshkhede, Investigating Officer (P.W. 36) seized clothes of deceased Pintu as well as those of accused Nos. 1 to 5 under separate seizure panchanamas (Exhs. 631 to 633). On 23/6/2002, P.I. Nitnaware (P.W. 37) attached to Crime Branch, Nagpur carried further investigation, during the course of which, he collected blood sample and nail clippings of accused No. 6 Mayur Chauhan and accused No. 7 Pandurang Injewar under seizure panchanama (Exhs. 656 and 657) and on 24/6/2002, effected arrest of accused No. 8 Rajesh Kadu under arrest panchanama (Exh. 658) and on the following day, collected his blood sample and nail clippings vide seizure panchanama (Exh. 660). 6. On 26/6/2002, PSI Gadhwe attached to Crime Branch effected house search of accused No. 6 Mayur Chauhan, accused No. 7 Pandurang Injewar and accused No. 8 Rajesh Kadu and seized their clothes, which were stated to be on their person on the day of incident under seizure panchanamas (Exhs. 549, 547 and 548 respectively). 7. On 26/6/2002, PI Nitnaware (P.W. 37) recorded memorandum statement of accused No. 1 Vijay Mate (Exh. 663) and effected recovery of gupti (article 1), which came to be seized under panchanama (Exh. 664) at his instance. On 28/6/2002, PSI Kadu (P.W. 38) arrested accused No. 9 Kiran Kaithe, accused No. 10 Kamlesh Nimbarte, accused No. 11 Ayub Khan and accused No. 12 Mahesh Bante. On 1/7/2002, PI Nitnaware (P.W. 37) seized clothes and articles C-18 and C-19 of accused No. 9 Kiran Kaithe and one big knife at his instance under his memorandum statements (Exhs. 667 and 673 respectively) and in pursuance thereof, effected recovery of the said articles, which came to be seized under panchanama (Exhs. 666 and 670) at the instance of said accused. Said Police Officer under memorandum statement (Exh. 671) seized motor-cycle Yamaha of accused No. 1 Vijay Mate. 667 and 673 respectively) and in pursuance thereof, effected recovery of the said articles, which came to be seized under panchanama (Exhs. 666 and 670) at the instance of said accused. Said Police Officer under memorandum statement (Exh. 671) seized motor-cycle Yamaha of accused No. 1 Vijay Mate. On 2/7/2002, PSI Gadhwe (P.W. 30) recorded memorandum statement of accused No. 13 Dinesh Gaiki (Exh. 552) and in pursuance of his statement, seized blood stained blade of spear from the tool box of scooter bearing Registration No. MH 31/B-9971 at his instance under seizure panchanama (Exh. 551). 8. On 3/7/2002, P.I. Nitnaware (P.W. 37) recorded memorandum statement of accused No. 2 Mangesh Chauhan vide Exh. 675 and effected recovery of one knife (Article 3), which came to be seized (Exh. 676) in the presence of panch witnesses - Dinesh Maldhure and Ganesh Hande (P.W. 32). On 4/7/2002, statement of Sagar Jain (P.W. 20) was recorded by P.I. Nitnaware (P.W. 37). On 5/7/2002, P.I. Nitnaware (P.W. 37) recorded memorandum statements of accused No. 10 Kamlesh Nimbarte (Exhs. 681 and 682) and seized gupti (Article 4) and clothes of said accused under seizure panchanama (Exhs. 683 and 684). On 6/7/2002, said Investigating Officer collected sample of nail clippings of accused persons and on 7/7/2002, on visiting house of accused No. 12 Mahesh Bante and accused No. 11 Ayub Khan seized their clothes being Articles C-22 to C-25), which were alleged to be on their person on the day of incident and seized under seizure panchanama (Exhs. 693 and 694 respectively) in presence of panchas Bhola Chahande and Shankar Shahu. On the same day, accused No. 14 Sandeep Sanas was arrested under arrest panchanama (Exh. 557). The Investigating Officers from time to time forwarded seized muddemal property for its analysis to Chemical Analyser's Office. 9. On 10/7/2002, P.I. Nitnaware (P.W. 37) effected arrest of accused No. 15 Raju Bhadre under panchanama (Exh. 697) and on the following day, effected house search of accused No.14 Sandeep Sanas under house search panchanama (Exh. 699) and seizure panchanama (Exh. 700). On 12/7/2002, accused No. 16 Maroti alias Nawwa came to be arrested under arrest panchanama (Exh. 701) and on the same day, seized blood stained clothes of Hitesh Uike (P.W. 27) and Pappu Malvi (P.W. 28) under seizure panchanama (Exhs. 528 and 529). 10. 699) and seizure panchanama (Exh. 700). On 12/7/2002, accused No. 16 Maroti alias Nawwa came to be arrested under arrest panchanama (Exh. 701) and on the same day, seized blood stained clothes of Hitesh Uike (P.W. 27) and Pappu Malvi (P.W. 28) under seizure panchanama (Exhs. 528 and 529). 10. On 14/7/2002, P.I. Nitnaware (P.W. 37) recorded memorandum statement of accused No. 15 Raju Bhadre (Exh. 706) and in pursuance of said statement, seized blood stained kukri (Article 8) and clothes vide Exh. 707. On 15/7/2002, said Officer recorded memorandum statement of accused No. 16 Maroti alias Nawwa (Exh. 710) and in pursuance of the same, seized one knife (Article 8) and his clothes under seizure panchanama (Exh. 711). On 16/7/2002, the Investigating Officer by requisition memo made query to Dr. Dhawne, who had performed post mortem, with reference to possibility of injuries sustained by deceased Pintu by the weapons seized in the present crime. According to Medical Officer, the cause of death was due to shock and haemorrhage due to injuries, which were possible by sharp edged weapons like gupti, sword and knife and accordingly submitted his report (Exh. 497) to the questionnaire sent by Investigating Officer. 11. On 25/7/2002, requisition letter (Exh. 717) was issued to Shri Somkuwar, Special Judicial Magistrate (P.W. 39) for holding test identification parade, which was held on 21/8/2002, 22/8/2002 and 23/8/2002 according to memorandum panchanamas (Exhs. 718, 719 and 720). Map of scene of offence (Exh. 759) was got prepared from Shri Kadu, Maintenance Surveyor and Chemical Analyser's reports (Exhs. 725 to 747) were received from the office of Chemical Analyser. Few statements of witnesses were then recorded by L.T. Tighare, Deputy Superintendent of Police and on completion of investigation, he submitted charge-sheet against accused in the Court of Judicial Magistrate, First Class, Nagpur. 12. In the course of time, case came to be committed for its trial to the Court of Sessions. Charge was framed against accused as per Exh. 20 for the offences punishable under Sections 147, 148, 186, 353, 332, 307, 302, 120(b) read with Sections 34 and 149 of Indian Penal Code and under Section 4 read with Section 25 of Indian Arms Act and Section 135 of Bombay Police Act. Accused denied all the charges and claimed to be tried. 20 for the offences punishable under Sections 147, 148, 186, 353, 332, 307, 302, 120(b) read with Sections 34 and 149 of Indian Penal Code and under Section 4 read with Section 25 of Indian Arms Act and Section 135 of Bombay Police Act. Accused denied all the charges and claimed to be tried. The defence of accused persons is of total denial and of false implication as according to some accused, they had deposed against deceased Pintu in the cases conducted against him and as such, are falsely implicated. In defence, accused No. 15 Raju Bhadre had examined D.W. 1 Ajay Dhurve and accused No. 8 Rajesh Kadu had examined D.W. 1 Akhtar Hussain to rule out possibility of P.W. 26 Vijaya and P.W. 33 Shefali being present on the spot of incident at the relevant time and on the plea of alibi respectively. 13. Learned Trial Judge thereafter recorded the evidence of as many as thirty-nine witness. The incident had taken place on 19th June, 2002 and evidence of first witness PW 1 Nitin Dongre was recorded on 29th September, 2011. The defence counsel stated before us that the trial could not commence for all these years because of stay thereof as per the prohibitory provision in the Maharashtra Control of Organized Crime Act, 1999, in which some of the accused persons were under trials in that case. PWs 1 to 13 and PW 32 are the Panch witnesses. PW 16 Gajraj Mahato, PW 17 Umesh Shriram Raut, PW 22 HC Deepak Trivedi, PW 26 Smt. Vijaya Shirke, PW 27 - Hitesh Uike, PW 28 Pappu Malviya, PW 29 Jugendra Shukla and PW 33 - Shefali Shirke are the eye witnesses. PW 30 Dattatraya Gadhawe, PW 31 PSI Choudhary, PW 34 PI Narendra Wankhede, PW 37 PI Nitnaware and PSI Kadu are the Investigating Officers. 14. The Trial Court framed in all eight points for determination and recorded the findings against them. For convenience, we reproduce below those points as well as findings:- “POINTS Findings 1. Whether the deceased died a homicidal death? Proved. 2. Whether prosecution prove that assailants hatched criminal conspiracy and were members of an unlawful assembly? Proved. 3. Whether prosecution further prove that assailants were armed with deadly weapons? Proved. 4. Whether prosecution further prove that common object of said unlawful assembly was to commit murder of deceased Pintu? Proved. 5. Whether the deceased died a homicidal death? Proved. 2. Whether prosecution prove that assailants hatched criminal conspiracy and were members of an unlawful assembly? Proved. 3. Whether prosecution further prove that assailants were armed with deadly weapons? Proved. 4. Whether prosecution further prove that common object of said unlawful assembly was to commit murder of deceased Pintu? Proved. 5. Whether prosecution prove that the accused person were the member of said unlawful assembly having common object to commit murder of deceased Pintu and armed with weapons committed the murder of deceased Pintu? Proved against A/1, 4, 5, 9, 10, 11, 13, & 15. 6. Whether prosecution prove that the accused person attempted to commit murder of complainant HC Deepak Trivedi or of the witnesses? No 7. Whether prosecution prove that accused persons deter the public servants and obstructed them while discharging their official duties? No 8. Whether the prosecution prove that accused persons were found weapons in contravention of the provisions of Arms Act? No 9. What order? As per final order.” 15. The learned trial Court on considering evidence on record convicted accused Nos. 1, 4, 5, 9, 10, 11, 13 and 15 and acquitted accused Nos. 2, 6, 7, 8, 12, 14 and 16. Hence, all these criminal appeals came to be preferred as aforesaid. SUBMISSIONS: 16. Smt. Dangre, learned Public Prosecutor commenced her arguments in Criminal Appeal No. 73/2014 filed by State against acquittal of accused Nos. 2, 6, 7, 8, 12, 14 and 16, which was replied by learned Counsel appearing for the respective accused. We have then heard learned Counsel for all the accused in their criminal appeals against conviction, which was replied by learned Public Prosecutor and lastly heard appellant in person, namely, Smt. Vijaya, mother of deceased Pintu, in Criminal Appeal Nos. 55/2014 and 56/2014 preferred against acquittal of accused Nos. 2, 6, 7, 8, 12, 14 and 16 and for enhancement of sentence of convicted accused. 17. 55/2014 and 56/2014 preferred against acquittal of accused Nos. 2, 6, 7, 8, 12, 14 and 16 and for enhancement of sentence of convicted accused. 17. Smt. Dangre, learned Public Prosecutor has contended that to substantiate the charges levelled against accused, prosecution in all examined 39 witnesses, out of which P.W. 1 to 13 and P.W. 32 Ganesh are panch witnesses, P.W. 16 Gajraj, P.W. 17 Umesh, P.W. 22 Head Constable Deepak, P.W. 26 Vijaya, P.W. 27 Hitesh, P.W. 28 Pappu alias Narendra, P.W. 29 Jugendra and P.W. 33 Shefali are eye witnesses while P.W. 18 Anil and P.W. 19 Ramesh are Carriers and P.W. 30 Dattatraya, P.W. 31 Kumar, P.W. 34 Narendra, P.W. 35 Radheshyam, P.W. 36 Yeshkhede, P.W. 37 Nitnaware and P.W. 38 Kadu are the Investigating Officers. 18. To establish involvement of accused, who came to be acquitted, learned Public Prosecutor has invited our attention to material evidence of P.W. 26 Vijaya, P.W. 33 Shefali, P.W. 22 Deepak along with his report (Exh. 455), P.W. 25 Dr. Dhawane, who performed autopsy and issued post mortem report (Exh. 495) so also report (Exh. 497) in reply to query made by Investigating Officer vide Exh. 496, P.W. 36 Yeshkhede and P.W. 37 Nitnaware, both Investigating Officers and has contended that evidence of all these witnesses establish involvement of accused, who are acquitted and their involvement is further stated to be established by other corroborative evidence of recovery of weapon gupti from accused No. 2 Mangesh, knife from accused No. 3 Sachin (now deceased), knives from accused No. 6 Mayur and accused No. 7 Pandurang, gupti from accused No. 12 Mahesh, knife from accused No. 13 Dinesh and knife from accused No. 16 Maroti along with their clothes consisting of full shirt/T-shirt, full pant, etc.. She has further invited our attention to report of P.W. 25 Dr. Dhawane (Exh. 497) and has contended that injuries sustained by deceased Pintu were possible by weapons like gupti and knives. 19. To establish involvement of accused No. 2 Mangesh, Smt. Dangre, learned Public Prosecutor has invited our attention to the specific evidence of P.W. 26 Vijaya, who has identified this accused with his name though had identified accused No. 4 Umesh as accused No. 2 Mangesh. 19. To establish involvement of accused No. 2 Mangesh, Smt. Dangre, learned Public Prosecutor has invited our attention to the specific evidence of P.W. 26 Vijaya, who has identified this accused with his name though had identified accused No. 4 Umesh as accused No. 2 Mangesh. By referring to evidence of P.W. 22 Deepak, it is submitted that his evidence clearly establishes involvement of accused No. 2, but he has not identified said accused in test identification parade. By referring to the evidence of P.W. 33 Shefalli, it is submitted that involvement of accused No. 2 Mangesh is established from her evidence as her evidence is not shaken at all in the cross-examination and in fact, corroborates version of P.W. 26 Vijaya. Evidence of P.W. 26 Vijaya and P.W. 33 Shefali is also relied by the learned Public Prosecutor to establish involvement of accused No. 7 Pandurang, accused No. 8 Rajesh, accused No. 12 Mahesh, accused No. 14 Sandeep and accused No. 16 Maroti and it is submitted that in view of above available evidence, there are no cogent reasons given by learned trial Court for acquitting them. Before concluding her submissions, it is also contended by the learned Public Prosecutor that evidence of P.W. 16 Gajraj, P.W. 17 Umesh, P.W. 21 Prabhakar, P.W. 27 Hitesh, P.W. 28 Pappu alias Narendra and P.W. 29 Jugendra establish the incident of assault, which took place on the sixth floor of the Court building on 19/6/2002 though P.W. 17 Umesh, P.W. 27 Hitesh, P.W. 28 Pappu alias Narendra and P.W. 29 Jugendra did not support the case of prosecution. Thus, sum and substance of the submissions of the learned Public Prosecutor is that on considering above evidence, prosecution can be said to have established involvement of above accused beyond reasonable doubt. 20. Shri Avinash Gupta, learned Counsel for accused No. 8 Rajesh and accused No. 12 Mahesh, has commenced submissions in the appeal against acquittal and submitted that accused No. 8 Rajesh and accused No. 12 Mahesh are rightly acquitted as their case cannot be equated with that of convicted accused. 20. Shri Avinash Gupta, learned Counsel for accused No. 8 Rajesh and accused No. 12 Mahesh, has commenced submissions in the appeal against acquittal and submitted that accused No. 8 Rajesh and accused No. 12 Mahesh are rightly acquitted as their case cannot be equated with that of convicted accused. By referring to the trial Court's judgment, it is submitted that the trial Court has rightly considered evidence of P.W. 26 Vijaya and P.W. 33 Shefali and while considering the same has relied upon their evidence against convicted accused only as neither of these witnesses had named accused No. 8 Rajesh in their statements nor identified him in test identification parade. The learned Counsel by referring to evidence of P.W. 26 Vijaya and P.W. 33 Shefali has contended that accused No. 8 Rajesh was known to them even prior to the incident. In support of plea of alibi raised by accused No. 8 Rajesh, evidence of D.W. 1 Akhtar examined by him is also relied and it is contended that in view of evidence of this witness, it is impossible to hold that at the time of incident, said accused was present on the spot. 21. Learned Counsel Shri Avinash Gupta on advancing submissions on behalf of accused No. 12 Mahesh has contended that his identification before the Court by P.W. 26 Vijaya and P.W. 33 Shefali as having been armed with gupti at the time of incident is false as there is nothing to establish that on what basis, these two witnesses were aware of name of said accused. By referring to the evidence of P.W. 22 Deepak, it is pointed out by the learned Counsel that this witness is silent on identification of accused No. 12. It is thus contended that no test identification parade in respect of said accused was held and, therefore, only evidence against said accused is by way of his identification in the Court by P.W. 26 Vijaya and P.W. 33 Shefali after lapse of about 10-12 years. On the case of prosecution about seizure of clothes of said accused, it is contended that there is no blood found on his clothes as per Chemical Analyser's reports (Exhs. 53 and 54) and, therefore, the trial Court has rightly disbelieved the evidence of P.W. 26 Vijaya and P.W. 33 Shefali against said accused. 22. On the case of prosecution about seizure of clothes of said accused, it is contended that there is no blood found on his clothes as per Chemical Analyser's reports (Exhs. 53 and 54) and, therefore, the trial Court has rightly disbelieved the evidence of P.W. 26 Vijaya and P.W. 33 Shefali against said accused. 22. Shri Gaikwad, learned Counsel for accused No.2 Mangesh, has submitted that admittedly said accused was not put to test identification parade and on evidence of P.W. 26 Vijaya and P.W. 33 Shefali, has contended that since said accused was one of the witnesses in a case tried against deceased Pintu in respect of the incident of firing on accused No. 1 Vijay Mate, he is falsely implicated by them. It is submitted that on the basis of copy of judgment placed on record in the said case, it is established that accused No. 2 Mangesh was examined as one of the witnesses against accused in that case. 23. Shri Tiwari, learned Counsel for accused No. 7 Pandurang, on similar lines, has contended that P.W. 26 Vijaya and P.W. 33 Shefali have falsely implicated him and no recovery of weapon is effected from said accused, but for his clothes, which had no blood stains and even otherwise, he came to be arrested on 21/6/2002, i.e. after two days of incident. By referring to the evidence of P.W. 26 Vijaya, it is contended that she was admittedly not knowing said accused personally and thus, it was necessary to put this accused in test identification parade. However, there was no test identification parade. It is further contended that presence of P.W. 26 Vijaya and P.W. 33 Shefali on the place of incident itself is doubtful as other witnesses, who are relied by prosecution to establish the incident, have not deposed about presence of any of these witnesses. By referring to the evidence of P.W. 26 Vijaya, it is pointed out as to how she is not an eye witness as it was not possible for her to reach the Hospital even before deceased Pintu was brought to Hospital had she been present on the spot on the day of incident. Evidence of P.W. 26 Vijaya and P.W. 33 Shefali is further commented upon with reference to their alleged visit to the Office of Commissioner of Police, Nagpur. Evidence of P.W. 26 Vijaya and P.W. 33 Shefali is further commented upon with reference to their alleged visit to the Office of Commissioner of Police, Nagpur. It is submitted that conduct of both these witnesses rather establishes that they had never visited the said Office. It is also pointed out that though shirt and pant of said accused came to be seized, no blood is detected on his clothes. By referring to the copy of judgment placed on record before trial Court in respect of trial, which was held against deceased Pintu for attempt to commit murder of accused No. 1 Vijay Mate, it is submitted that trial Court has rightly acquitted accused No. 7 Pandurang. 24. Shri Jaltare, learned Counsel for accused No. 6 Mayur, has pointed out that name of said accused is not mentioned in the first information report by P.W. 22 Deepak and while referring to the evidence of P.W. 26 Vijaya and P.W. 33 Shefali, has submitted that their presence on the spot itself is unnatural and for that purpose, has relied upon evidence of P.W. 16 Gajraj, P.W. 36 Yeshkhede and P.W. 37 Nitnaware. On unnatural conduct on the part of close relatives to leave relative in pool of blood without taking to Hospital and again on not immediately reporting to Police, learned Counsel has relied upon judgment in State of Maharashtra vs. Raju Bhaskar Potphode (2007 (4) Crimes 193). It is also submitted that P.W. 26 Vijaya has admitted that before deposing she had gone through her statement recorded by Police and for that proposition, has relied upon judgment in Sharad S/o. Namdeorao Shirbhate vs. State of Maharashtra (2006 (2) Mh.L.J. (Cri.) 1210). On delay in lodging first information report by P.W. 22 Deepak, learned Counsel has relied upon judgments in the case of Ashraf Hussain Shah vs. State of Maharashtra (1996 Cri.L.J. 3147) and Laxman Bapurao Ghaiwane vs. State of Maharashtra (2012 (4) Bom. C.R. (Cri.) 580) and on delay in recording statements of P.W. 26 Vjaya and P.W. 33 Shefali, has relied upon judgment in the case of State of Maharashtra vs. Abdul Kadar @ Raj Mohd. Kadar Badshah and others (1997 Bom. C.R. (Cri.) 820). 25. C.R. (Cri.) 580) and on delay in recording statements of P.W. 26 Vjaya and P.W. 33 Shefali, has relied upon judgment in the case of State of Maharashtra vs. Abdul Kadar @ Raj Mohd. Kadar Badshah and others (1997 Bom. C.R. (Cri.) 820). 25. Shri Trivedi, learned Counsel for accused No. 16 Maroti, by referring to the evidence of P.W. 26 Vijaya and P.W. 33 Shefali, has contended that their evidence does not establish involvement of said accused and that evidence of P.W. 22 Deepak establishes that he has wrongly identified said accused in test identification parade. 26. Accused No. 14 Sandeep is absent and Shri Tiwari, learned Counsel for accused No. 7 Pandurang, has pointed out that there is nothing to establish involvement of accused 14 Sandeep in the crime except for evidence of P.W. 26 Vijaya and P.W. 33 Shefali, who have identified said accused in test identification parade, which evidence, according to learned Counsel, is not convincing in view of the fact that neither of these witnesses has named him in their Police statement. It is thus contended by learned Counsel appearing for respective accused in this criminal appeal preferred by State that it being without any merits, may be dismissed. Heard Shri Doifode, learned Additional Public Prosecutor in reply for State. 27. On concluding hearing in above criminal appeal of State of Maharashtra, we have heard criminal appeals preferred by accused against their conviction. In Criminal Appeal No. 570/2013, Shri Tiwari, learned Counsel for accused No. 11 Ayub Khan Pathan, by referring to the evidence of P.W. 26 Vijaya, has contended that she claims to know some assailants to be along with accused No. 1 Vijay Mate as pointed out by deceased Pintu earlier to her and submitted that this evidence by itself is not sufficient for the said witness to identify accused in test identification parade, more particularly when the test identification parade came to be held on 21/8/2002, i.e. after seven weeks after his arrest on 28/6/2012. With reference to involvement of said accused, on referring to the evidence of P.W. 33 Shefali, it is contended that her evidence is full of material omissions and as such, cannot be acted upon against said accused. With reference to involvement of said accused, on referring to the evidence of P.W. 33 Shefali, it is contended that her evidence is full of material omissions and as such, cannot be acted upon against said accused. It is also contended that test identification parade was conducted without observing the guidelines of this Court referred in Criminal Manual and for that purpose, has relied upon evidence of P.W. 39 Prakash, Special Judicial Magistrate, who had held the test identification parade. By referring to his cross-examination, it is contended that his evidence establishes violation of material guidelines required to be followed while holding test identification parade. 28. By referring to evidence of P.W. 26 Vijaya and P.W. 37 Nitnaware, Investigating Officer, it is submitted by learned Counsel Shri Tiwari that there is every possibility of photograph of accused No. 11 Ayub Amir Khan being shown to the identifying witnesses before test identification parade was held. On the aspect of test identification parade, learned Counsel has relied upon judgments in Subash and Shiv Shankar vs. State of U.P. ( AIR 1987 SC 1222 ), Hari Nath and another vs. State of U.P. ( AIR 1988 SC 345 ), Akbar S/o. Nazir Ahmed and others vs. State of Maharashtra ( 2004 (1) Mh.L.J. 365 ), Muthuswami vs. State of Madras ( AIR 1954 SC 4 ), Siddanki Ram Reddy vs. State of Andhra Pradesh (2011 ALL SCR 49), State of Maharashtra vs. Rajesh alias Kaka Madanlal Soni (1997 Law Suit (Bom.) 413) and Ramcharan Bhudiram Gupta vs. State of Maharashtra (1995 Cri.L.J. 4048). On delay in recording statements and appreciation of evidence, learned Counsel Shri Tiwari has relied upon judgments in Vijaybhai Bhanabhai Patel vs. Navnitbhai Nathubhai Patel and others (2004 SCC (Cri) 2032), Laxman Bapurao Ghaiwane vs. The State of Maharashtra (2012 ALL MR (Cri) 3605) and Kailash Gour and others vs. State of Assam ( AIR 2012 SC 786 ). It is thus contended that conviction of said accused based on test identification parade alone is bad. It is further submitted that on the contrary, possibility of his false implication cannot be ruled out, particularly when he had appeared in the case against deceased Pintu when he was tried for attempt to commit murder of accused No. 1 Vijay Mate and copy of judgment in the said case is placed on record by P.W. 26 Vijaya herself. 29. 29. Shri Jaltare, learned Counsel appearing in Criminal Appeal No. 573/2013 filed by accused No. 10 Kamlesh, has contended that name of said accused is not mentioned in the first information report. It is submitted that accused No. 10 Kamlesh was identified in test identification parade by P.W. 26 Vijaya and P.W. 27 Hitesh. However, P.W. 27 Hitesh identified said accused as one of the assailants in the case against deceased Pintu and, therefore, for this reason, identification as above does not inspire confidence. It is also contended that alleged memorandum statement of said accused does not bear his signature and for this proposition, learned Counsel has relied upon the decision in Jackaran Singh vs. State of Punjab (1995 DGLS (Cri.) Soft 892). It is further contended that even in the seizure panchanama of weapon, there is no mention as to from which place in the house, it came to be recovered. 30. Shri Gaikwad, learned Counsel for accused No. 5 Ritesh in Criminal Appeal No. 573/2013, has submitted that there is no seizure of any weapon from said accused and though shirt of said accused seized is certified to have stained with human blood of Group 'A', panch has not supported prosecution on this aspect. By referring to the evidence of P.W. 22 Deepak, it is contended that he has not identified said accused in test identification parade and by referring to the evidence of P.W. 26 Vijaya and P.W. 33 Shefali, it is contended that said accused was already known to these two witnesses by name and face and as such, no test identification parade was held. It is further pointed out that statement of P.W. 26 Vijaya and P.W. 33 Shefali came to be recorded after two days of incident and though it is the case of prosecution that these two witnesses after the incident had visited the Office of Commissioner of Police, Nagpur, statement of said Officer is not recorded and for this proposition, learned Counsel has relied upon judgments in Ashraf Hussain Shah vs. State of Maharashtra (1996-EQ (BOM)-0-183) and State of Uttar Pradesh vs. Jaggo alias Jagdish (1971-EQ(SC)-)-219). It is prayed by learned Counsel that said criminal appeal may be allowed. 31. It is prayed by learned Counsel that said criminal appeal may be allowed. 31. Shri Dable, learned Counsel for accused No. 4 Umesh in Criminal Appeal No. 573/2013, has submitted similar arguments and pointed out that though accused No. 4 Umesh was arrested on the day of incident and knife is alleged to be seized from him, his clothes came to be seized on 22/6/2002 having no blood stains as mentioned in seizure panchanama. It is contended that in that view of the matter, though according to Chemical Analyser's report, blood is stated to be found on knife (Article 14) and clothes (Article 15) at serial Nos. 27 and 28 in Chemical Analyser's report, as there is no convincing evidence led with reference to sealing of these articles and as they were not immediately sent to Chemical Analyser after their seizure, possibility of tampering these articles by sprinkling human blood upon them cannot be ruled out. On the point of identification of accused No. 4 Umesh, by referring to the evidence of P.W. 26 Vijaya, it is contended that her evidence does not inspire confidence as she failed to identify accused No. 4 Umesh as she had pointed out finger towards accused No. 2 Mangesh claiming him to be Umesh Dahake. The learned Counsel for accused No. 4 Umesh, in the background of above submissions, has relied upon decisions in Mohd. Hussain Babamiyan Ramzan vs. State of Maharashtra (1994 Cri.L.J. 1020) and Gopal Singh and another vs. The State of M.P. and another ( AIR 1972 SC 1557 ). 32. Shri Avinash Gupta, learned Counsel appearing for accused Nos. 9 Kiran and 13 Dinesh in Criminal Appeal No. 564/2013, with reference to accused No. 9 Kiran has submitted that apart from involvement of said accused by P.W. 26 Vijaya and P.W. 33 Shefali, prosecution has relied upon collection of nail clippings of said accused and recovery of knife at his instance along with seizure of clothes being T-shirt, full pant. It is contended that no blood is detected in the nail clippings nor on the knife and full pant. However, on T-shirt, human blood of group 'A' though is certified to have been detected, it is of no consequence in view of the fact that own blood group of said accused could not be determined. 33. It is contended that no blood is detected in the nail clippings nor on the knife and full pant. However, on T-shirt, human blood of group 'A' though is certified to have been detected, it is of no consequence in view of the fact that own blood group of said accused could not be determined. 33. Similarly, while referring to evidence against accused No. 13 Dinesh, it is contended by learned Counsel Shri Gupta that even on obtaining nail clippings, no blood is detected therein while his own blood is of Group 'O' and no blood is detected on his clothes (Articles 37 and 38) and though on spear blade (article 37) human blood is certified to have been detected, no grouping of blood is done. It is further contended that as per evidence of P.W. 26 Vijaya and P.W. 33 Shefali, knife is attributed to accused No. 13, however, according to alleged discovery statement and seizure of weapon, spear is shown to be recovered at the instance of said accused. 34. On the aspect of identification of accused No. 13 Dinesh by P.W. 26 Vijaya and P.W. 33 Shefali, it is submitted by learned Counsel Shri Gupta that during the course of prosecution though deceased Pintu had pointed out said accused to these witnesses along with accused No. 1 Vijay Mate and other assailants in the Court, there is no convincing evidence on this aspect. In that regard, it is further contended that in view of evidence of P.W. 26 Vijaya and P.W. 33 Shefali to have witnessed the incident for 2-3 minutes only in a crowded place, identification of accused No. 13 Dinesh by said witnesses in test identification parade was necessary. However, no such parade was held and as such, identification by P.W. 26 Vijaya and P.W. 33 Shefali first time in the Court after lapse of about 10-12 years cannot be accepted. 35. Learned Counsel Shri Gupta has then submitted with reference to presence of P.W. 26 Vijaya and P.W. 33 Shefali at the spot of incident that though prosecution has examined other witnesses, whose evidence establish incident of assault on deceased Pintu, none of those witnesses deposed about presence of either of these witnesses. 35. Learned Counsel Shri Gupta has then submitted with reference to presence of P.W. 26 Vijaya and P.W. 33 Shefali at the spot of incident that though prosecution has examined other witnesses, whose evidence establish incident of assault on deceased Pintu, none of those witnesses deposed about presence of either of these witnesses. It is also contended that according to P.W. 26 Vijaya, prior to incident, she made a phone call to P.S.I. Bhese seeking protection for deceased Pintu, which was claimed to be received by said Officer, however, prosecution has not placed on record Station diary entry in respect of such phone call received by said Officer nor has collected mobile phone from P.W. 26 Vijaya to carry out investigation referring to her location at the relevant time on that day. It is also contended that Investigating Agency has failed to record statement of Driver of P.W. 26 Vijaya nor said witness has disclosed full name of her Driver Ajay though worked with her from 2001 onwards, but has given names and surnames of accused, who are stated to be shown to her by deceased Pintu prior to incident in the Court along with accused No. 1 Vijay Mate and has thus referred to evidence of D.W. 1 Ajay and has submitted that his evidence establishes that at the time of incident, P.W. 26 Vijaya and PW 33 Shefali were in the house wherefrom they directly went to Hospital. On the alleged visit of P.W. 26 Vijaya and P.W. 33 Shefali to the Office of Commissioner of Police, Nagpur, it is submitted that nothing is brought on record like visitor's register, etc. to establish their visit. It is further contended that neither P.W. 27 Hitesh nor P.W. 28 Pappu Malvi, who on the day of incident, were produced in the Court by Police Constable Prabhakar and are alleged witnesses, had named P.W. 26 Vijaya or P.W. 33 Shefali though both of them claimed to know above witnesses. It is also submitted that evidence of P.W. 21 Prabhakar in fact establishes that when he reached the spot, incident of assault was already over. It is also pointed out that evidence of P.W. 26 Vijaya and P.W. 33 Shefali suffered from material omissions as four unknown assailants are not stated in their statements recorded by Police, which omission is duly got proved by P.W. 36 Yeshkhede, Investigating Officer. 36. It is also pointed out that evidence of P.W. 26 Vijaya and P.W. 33 Shefali suffered from material omissions as four unknown assailants are not stated in their statements recorded by Police, which omission is duly got proved by P.W. 36 Yeshkhede, Investigating Officer. 36. On commenting evidence of P.W. 33 Shefali, it is submitted by learned Counsel Shri Gupta that this witness is unable to state any date when any of the assailants or unknown accused were shown to her in the Court by deceased Pintu nor said witness has stated all the dates when she had attended the Courts. With reference to evidence of P.W. 26 Vijaya, it is also submitted that though this witness thoughtfully states minor details in her examination-in-chief, she did not remember anything and forgets everything while she was under cross-examination. It is also contended that possibility of substitution of statement of P.W. 33 Shefali recorded under Section 161 of Code of Criminal Procedure by Investigation Officer cannot be ruled out as she claims to have duly signed the said statement while no such signature is found on her statement under Section 161 of Code of Criminal Procedure. While concluding submissions on behalf of accused No. 13, learned Counsel Shri Gupta has submitted that evidence of P.W. 26 Vijaya and P.W. 33 Shefali on the point of visit to the office of Commissioner of Police is impossible to be believed in view of the fact that Officer of the rank of Commissioner, on receiving information with reference to incident involving commission of cognizable offences, will not take necessary steps. It is further contended that admittedly both these witnesses are close relations of deceased Pintu and though their evidence cannot be discarded on this count alone, the same needs to be acted upon cautiously as possibility of their being got up witnesses cannot be ruled out. For this proposition, learned Counsel has relied upon judgment in Deoraj Deju Suvarna vs. State of Maharashtra (1994 Cri.L.J. 3602). 37. Learned Counsel Shri Gupta appearing for accused No. 1 Vijay Mate in Criminal Appeal No. 569/2013 has contended that clothes of accused No. 1 being Articles 19 and 20 came to be seized on 22/6/2012 and as per Chemical Analyser's report, no blood is found on his clothes nor his own blood grouping is done. 37. Learned Counsel Shri Gupta appearing for accused No. 1 Vijay Mate in Criminal Appeal No. 569/2013 has contended that clothes of accused No. 1 being Articles 19 and 20 came to be seized on 22/6/2012 and as per Chemical Analyser's report, no blood is found on his clothes nor his own blood grouping is done. On recovery of gupti at the instance of said accused on 22/6/2002, it is contended that said weapon as per Chemical Analyser's report is stated to have stained with human blood on its handle and not on its blade. It is further contended that no specimen of seal is obtained on proforma sent to the Chemical Analyser and the seal used at the time of seizure of articles. It is further contended that said evidence is, even otherwise, not convincing as muddemal articles were sent to Chemical Analyser on 22/7/2002, i.e. after one month, of which no explanation is on record. Learned Counsel Shri Gupta has further contended that from the evidence, it has also not come on record that gupti alleged to have been seized at the instance of accused No. 1 was immediately deposited in Malkhana. For this purpose, learned Counsel has relied on judgment in the case of State of Maharashtra vs. Prabhu Barku Gade (1995 Cri.L.J. 1432(1). With reference to evidence of P.W. 26 Vijaya about accused No. 8 attending marriage of deceased Pintu, learned Counsel has relied on judgment in the case of S.K. Kale, Major vs. State of Maharashtra (1976 LawSuit (SC) 507). It is thus submitted that criminal appeal may be allowed. 38. Lastly, we have heard Shri Dharmadhikari, learned Senior Counsel in Criminal Appeal No. 561/2013 preferred by accused No. 15 Raju Bhadre. He has pointed out that said accused was arrested on 10/7/2002 though was never absconding and at his instance, weapon kupri came to be seized on 14/7/2002 along with his full shirt and pant. However, on neither of these articles, blood stains are said to have been found. On the point of availability of accused No. 15 after the incident, learned Senior Counsel has relied upon judgment in Dinkar Bandhu Deshmukh and another vs. State (AIR 1970 Bombay 438). However, on neither of these articles, blood stains are said to have been found. On the point of availability of accused No. 15 after the incident, learned Senior Counsel has relied upon judgment in Dinkar Bandhu Deshmukh and another vs. State (AIR 1970 Bombay 438). It is further contended that though test identification parades are held after arrest of accused No. 15, he was not put in test identification parade, which was necessary as the event of alleged assault on deceased Pintu lasted for 2-3 minutes in crowded place involving 12-15 assailants. On the count of test identification parade, learned Senior Counsel has relied upon judgments in Siddanki Ram Reddy vs. State of Andhra Pradesh { (2010) 7 SCC 697 }, State of Maharashtra vs. Sukhdev Singh and another { (1992) 3 SCC 700 } and George and others vs. State of Kerala and another { (1998) 4 SCC 605 }. 39. It is further contended by learned Senior Counsel Shri Dharmadhikari that foundation of case of prosecution is that accused No. 1 Vijay Mate while attending Court was accompanied by assailants and deceased Pintu had pointed out them to his mother and sister, however, there is nothing to establish, which of the assailants was accompanying accused No. 1 Vijay Mate. It is thus contended that there is no investigation on this aspect and for this purpose, for appreciation of evidence of P.W. 26 Vijaya and P.W. 33 Shefali, learned Senior Counsel Shri Dharmadhikari has relied upon judgments in Kailash Gour and others vs. State of Assam { (2012) 2 SCC 34 }, Jagjit Singh alias jagga vs. State of Punjab { (2005) 3 SCC 689 }, Vijaybhai Bhanabhai Patel vs. Navnitbhai Nathubhai Patel and others { (2004) 10 SCC 583 } and Sunil S/o. Chokhoba Shambarkar and another vs. State of Maharashtra (2008 (2) Mh.L.J. (Cri.) 244). 40. To counter the submissions of learned Counsel for accused, Smt. Dangre, learned Public Prosecutor with reference to evidence of hostile witnesses relied upon judgment in Paulmeli and another vs. State of Tamil Nadu, through Inspector of Police {(2014) 5 SCC 573}. 40. To counter the submissions of learned Counsel for accused, Smt. Dangre, learned Public Prosecutor with reference to evidence of hostile witnesses relied upon judgment in Paulmeli and another vs. State of Tamil Nadu, through Inspector of Police {(2014) 5 SCC 573}. To establish presence of eye witnesses, P.W. 26 Vijaya and P.W. 33 Shefali, our attention is invited by learned Public Prosecutor Smt. Dangre to limited evidence of P.W. 16 Gajraj, P.W. 27 Hitesh, P.W. 29 Jugendra and P.W. 22 Deepak, which establish incident and in the background of above, has further referred to evidence of P.W. 26 Vijaya. It is submitted that P.W. 26 Vijaya knew accused No. 1 Vijaya Mate and from her evidence, she is found to be aware of all the facts including of Court cases, which were pending against deceased Pintu. Her presence in the Court on the day of incident is submitted to be most natural since she arrived in the Court to meet her son, who was to be produced on that day in the case in which he was being prosecuted. It is further contended that from her evidence, it is clear that she identified accused Nos. 3 Sachin (since dead), 8 Rajesh and 14 Sandeep in test identification parade and accused No. 11 Ayub Khan in the Court since she was knowing them by their faces. It is also contended that from the evidence of P.W. 26 Vijaya, it is proved that she was conversant with criminal cases pending against deceased Pintu, which is claimed to be another factor to establish her presence in the Court on the day of incident. 41. On the aspect of evidence of D.W. 1 Ajay, it is submitted that he is a got up witness as earlier summons issued were not served and thereafter he was served and examined and his evidence, even otherwise, is not convincing in view of the fact that he could not depose anything of his previous employer, however, while working with his subsequent employer having tourist business has knowledge of all minor details of incident. It is also contended that even otherwise, D.W. 1 Ajay is not confronted by P.W. 26 Vijaya nor any steps were taken to that effect to rule out possibility that this is the same person, who was working as Driver of P.W. 26 Vijaya. It is also contended that even otherwise, D.W. 1 Ajay is not confronted by P.W. 26 Vijaya nor any steps were taken to that effect to rule out possibility that this is the same person, who was working as Driver of P.W. 26 Vijaya. For this purpose, learned Public Prosecutor Smt. Dangre has relied upon judgment in the case of State of Haryana vs. Ram Singh (2002) 2 SCC 426 ). 42. On conduct of P.W. 26 Vijaya keeping silence from 19/6/2002 till 21/6/2002 when her statement came to be recorded, it is contended by learned Public Prosecutor Smt. Dangre that from her evidence, it is established that on the day of incident, in the noon she was in the Court and then went to Hospital where she found her son to have died in brutal assault, upon whom funeral came to be performed on the following day and as such, her statement came to be recorded on 21/6/2002 when her mental condition became stable. It is, therefore, contended that such delay does not materially affect the case of prosecution. It is further submitted that all material suggestions are denied by this witness and from the suggestions, in fact, her presence is admitted on the spot. On this, learned Public Prosecutor relied upon judgment in the case of Rajesh Namdeo Mhatre vs. State of Maharashtra ( 2002 (4) Mh.L.J. 266 ). 43. With reference to accused No. 13 Dinesh, having armed with knife and of seizure of spear blade at his instance, it is contended by learned Public Prosecutor Smt. Dangre that size of such blade is 5.1" and it is material to note that P.W. 26 Vijaya had witnessed the incident from the distance of 10-15 feet and being a housewife, her evidence as above cannot be doubted as spear blade involved in this case is similar to knife. 44. While commenting upon evidence of P.W. 33 Shefali, similar submissions are advanced by learned Public Prosecutor Smt. Dangre as her evidence fully corroborates evidence of P.W. 26 Vijaya, whose evidence establishes that she was knowing some assailants by names and faces and has stuck up to her evidence of her attending Court cases and she has identified 11 accused in Court and 4 in test identification parade. It is also contended that suggestions given to this witness also establish her presence on the spot and, therefore, merely because both these witnesses are close relations of deceased Pintu, their evidence cannot be discarded on this count. On this aspect and also on delay in recording statement, learned Public Prosecutor has relied upon judgment in Shyamal Ghosh vs. State of West Bengal { (2012) 7 SCC 646 }. On the issue of appreciation of evidence, discrepancies in the evidence and related witnesses, the learned Public Prosecutor has relied upon judgments in State represented by inspector of Police vs. Saravanan and another ( AIR 2009 SC 152 (1), State of Uttar Pradesh vs. Krishna Master and others { (2010) 12 SCC 324 } and Waman and others vs. State of Maharashtra ( AIR 2011 SC 3327 ). The learned Public Prosecutor has then relied upon the judgment in Abdul Karim Mohammed Shaban vs. State of Maharashtra and another (2006 Cri.L.J. 3658) to the effect that there is no necessity of eye witnesses to mark presence of other witnesses. 45. In reply to the arguments advanced by learned Counsel Shri Jaltare for accused No. 10 Kamlesh that memorandum panchanama is of no consequence since does not bear signature of that accused, learned Public Prosecutor Smt. Dangre has relied upon judgment in State of Rajasthan vs. Teja Ram and others ( AIR 1999 SC 1776 (1) and on the aspect of panch witnesses not supporting the case of prosecution and the relevant documents being panchanama since got proved by Investigating Officer has relied upon judgment in Mohd. Aslam vs. State of Maharashtra (2001) 9 SCC 362 ). On the aspect of delay in holding test identification parade and non compliance of the guidelines, learned Public Prosecutor Smt. Dangre has relied upon judgment in the case of Chandra Prakash vs. State of Rajasthan (2014) 8 SCC 340 ). 46. On involvement of accused No. 1 Vijay Mate, it is contended by learned Public Prosecutor that at his instance weapon gupti came to be recovered, which is stated to have stained with human blood and according to medical evidence, injuries sustained by deceased Pintu are possible by such weapon, which is also identified by P.W. 26 Vijaya and P.W. 33 Shefali. On the aspect of accused No. 4 Umesh, it is pointed out that he is involved by P.W. 33 Shefali and was arrested on the same day and knife came to be seized, which is certified to be stained with human blood and to specific question put to him under Section 313 of Code of Criminal Procedure, he has simply denied it saying false without giving explanation on this aspect. 47. On involvement of accused No. 5 Ritesh, it is contended by learned Public Prosecutor Smt. Dangre that he was also arrested on the same day and his blood stained full pant is certified to be stained with human blood of group 'A', which is of deceased Pintu for which no satisfactory explanation is given by said accused and he is also involved by eye witnesses P.W. 26 Vijaya and P.W. 33 Shefali. 48. On involvement of accused No. 9 Kiran, it is contended by learned Public Prosecutor Smt. Dangre that he is stated to be arrested on the following day of incident and knife is seized from his possession along with his full shirt pant upon which human blood of group 'A', which is of deceased Pintu is found. Similarly, according to medical report of P.W. 25 Dr. Dhawane, 25 injuries sustained by deceased Pintu are certified to be possible by such knife. No explanation is given by this accused, who is also involved by eye witnesses. 49. On involvement of accused No. 10 Kamlesh, who was arrested on the following day of incident and weapon gupti is seized, learned Public Prosecutor Smt. Dangre has submitted that though no blood is detected on his clothes, his involvement is established by eye witnesses. It is further contended that involvement of accused No. 11 Ayub Khan is based on version of eye witnesses, who came to be identified in test identification parade. On involvement of accused No. 13 Dinesh and accused No. 15 Raju, it is contended by learned Public Prosecutor Smt. Dangre that evidence on record is recovery of weapon from said accused though no blood is found on Kukri recovered at the instance of accused No. 15 Raju. It is also contended that according to Medical Officer, injuries are possible by such weapons like knife and kukri and these accused are also involved by eye witnesses. It is also contended that according to Medical Officer, injuries are possible by such weapons like knife and kukri and these accused are also involved by eye witnesses. The learned Public Prosecutor by mentioning aforesaid aspects of the case, concluded her submissions praying that criminal appeals of convicted accused may be dismissed. Lastly, heard appellant-in-person in Criminal Appeal No. 55/2014 and Criminal Appeal No. 56/2014. She has adopted submissions advanced by the learned Public Prosecutor for State. 50. We have heard all the learned counsel for the parties appearing before us in all these criminal appeals at length. CONSIDERATION: 51. The learned counsel for the parties to these appeals were asked to address on all the points as framed by the learned Trial Judge, so also the points they wanted to canvass before this Court. For convenience we proceed to determine the appeals filed by the convicted accused persons by the Trial Judge before taking up the appeals against acquittal filed by the State of Maharashtra and the private appeal by Smt. Vijaya Dilipsingh Shirke, mother of the deceased Pintu. 52. For convenience, we quote the details of the Criminal Appeals by the convicts-appellants before us:- 1. Criminal Appeal No. 569 of 2013 by appellant Vijay Kisanrao Mate [Accused No. 1]. 2. Criminal Appeal No. 561 of 2013 by Raju Vitthalrao Bhadre [Accused No. 15]. 3. Criminal Appeal No. 564 of 2013 by [1] Kiran Umraoji Kaithe [Accused No. 9] and [2] Dinesh Devidas Gaiki [Accused No. 13]. 4. Criminal Appeal No. 573 of 2013 by [1] Umesh Sampatrao Dahake [Accused No. 4], [2] Ritesh Hiramanji Gawande [Accused No. 5], and [3] Kamlesh Sitaram Nimbarte [Accused No. 10]. All the above Criminal Appeals against conviction, except Criminal Appeal No. 570 of 2013 by Ayub Khan Amirkhan Pathan [Accused No. 11], are being decided hereunder. 53. We have gone through the entire evidence with the assistance of learned Counsel for the rival parties. We have also perused all the documents proved by prosecution along with reasons recorded by the learned trial Court for convicting accused Nos. 1, 4, 5, 9, 10, 11, 13 and 15 and for acquitting accused Nos. 2, 6, 7, 8, 12, 14 and 16. 54. It is not in dispute and rather the defence has not disputed that deceased Pintu died homicidal death on sixth floor in the District Court complex with several injuries on his person. 1, 4, 5, 9, 10, 11, 13 and 15 and for acquitting accused Nos. 2, 6, 7, 8, 12, 14 and 16. 54. It is not in dispute and rather the defence has not disputed that deceased Pintu died homicidal death on sixth floor in the District Court complex with several injuries on his person. We would not dilate on this issue and rather we would concur with the finding about the homicidal death recorded by the learned Trial Judge in para 33 of his Judgment. We, thus, hold that the prosecution has duly proved that deceased Pintu died homicidal death. 55. The next question before us is as to whether the prosecution has with requisite evidence proved that there was a conspiracy hatched by the accused persons in furtherance to which the crime in question took place and consequently whether the conviction recorded by the learned Trial Judge against all accused persons under Section 120-B of the Indian Penal Code is justified. The learned Trial Judge has not recorded a categorical finding based on the evidence and reasons as to whether the conspiracy was proved or not. As a matter of fact, we find from the impugned judgment that there is no discussion about the proof of conspiracy by the accused persons on the basis of evidence led in the Court nay even by drawing any inference. It would be appropriate for us to quote the relevant portion from the Judgment of the Trial Judge in that behalf beyond which there is no discussion. We quote paragraphs 35, 36 and 37 as under:- "35. The prosecution alleged that the conspiracy had been hatched by the assailants to eliminate deceased Pintu, therefore the essential features of the offence of conspiracy need to be noted. 36. Sec. 120-A of I.P.C. defines criminal conspiracy and sec. 120-B provides for punishment for an offence of criminal conspiracy. The basic ingredients of the offence of criminal conspiracy are: (1) an agreement between two or more persons, (2) the agreement must relate to doing or causing to be done either (a) an illegal act, or (b) an act which is not illegal in itself but is done by illegal means. The basic ingredients of the offence of criminal conspiracy are: (1) an agreement between two or more persons, (2) the agreement must relate to doing or causing to be done either (a) an illegal act, or (b) an act which is not illegal in itself but is done by illegal means. Therefore, it is plan that meeting of minds of two or more persons for doing so causing to be done an illegal act or an act by illegal means is sine qua non of criminal conspiracy. 37. However, it is observed that conspiracy is always hatched in secrecy and it is impossible for the prosecution to adduce direct evidence of the common object of the conspirators. Therefore, the meeting of minds of the conspirators can be inferred from the circumstances proved by the prosecution, if such inference is possible. The prosecution need not necessarily prove that perpetrators expressly agree to do or cause to be done the illegal acts. The existence of the conspiracy and its objective can be inferred from the surrounding circumstances and conduct of the assailants." In our opinion, the above reasons are not sufficient to hold that the prosecution had established or proved the conspiracy in this case. We, however, find from reading of paragraphs 37 and 38 of the Trial Court Judgment that the Trial Judge has mixed up the issue of conspiracy with the common object as specified in Section 141 of Indian Penal Code. We have, therefore, gone through the entire evidence tendered by the prosecution to find out whether is any satisfactory evidence on record to prove the offence of conspiracy punishable under Section 120-B of Indian Penal Code for which eight accused persons have been convicted. It is true that it is difficult to establish conspiracy by direct evidence and that is the reason why we have also made attempt to find out whether there is any satisfactory indirect evidence to bring home the charge of conspiracy. We, however, find that there is no evidence about the requirement for proof of conspiracy as required by Section 120-A of the Indian Penal Code. We, however, find that there is no evidence about the requirement for proof of conspiracy as required by Section 120-A of the Indian Penal Code. Section 120-A, Indian Penal Code, reads thus;- "120-A. Definition of criminal conspiracy.- When two or more persons agree to do, or cause to be done,- (1) an illegal act, or (2) an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy: Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof. Explanation. - It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object." Thus, the essence of the offence of conspiracy is the fact of combination by agreement. It is not enough that two or more persons pursued the same unlawful object at the same time and in the same place, but it is necessary to show prior meeting of minds 'actus reus.' The evidence in this case nowhere shows any meeting of minds or agreement prior to the actual incident of assault that took place. But the evidence is about sudden appearance of the assailants on the scene like a tidal wave moving towards the deceased Pintu in tandem with deadly weapons showing 'common object' namely to kill him. Thus, there is a marked distinction between 'conspiracy' and 'common object.' We, therefore, hold that the finding holding the accused persons guilty of offence punishable under Section 120-B, Indian Penal Code, is illegal and will have to be set aside. 56. The next aspect, which is important and as argued by the defence counsel in all these appeals is that the learned Trial Judge has utilized the evidence of hostile witnesses to hold that there was evidence to show that the accused persons had committed the offence in question. 56. The next aspect, which is important and as argued by the defence counsel in all these appeals is that the learned Trial Judge has utilized the evidence of hostile witnesses to hold that there was evidence to show that the accused persons had committed the offence in question. According to the counsel for the appellants in all these appeals, learned Trial Judge could not have relied upon the evidence of these hostile witnesses, namely PW 22 - HC Deepak Trivedi, PW 28 Pappu Malviya, PW 27 - Hitesh Uike and PW 16 - Gajraj Mahato, when, as a matter of fact, the Trial Judge has ignored the cross-examinations in which they have denied that they had seen the assailants or the accused persons making assault. The further submission advanced by the defence that PW 26 - Vijaya Shirke and PW 33 - Shefali Shirke, the two eye-witnesses, on whom reliance has been placed by the prosecution were held to have been seen on the scene of offence by these hostile witnesses which is again in ignorance of the cross-examination of these witnesses. For that purpose, the defence counsel took us through the cross-examination of these witnesses. Upon reading of the entire evidence, including cross-examinations of these hostile witnesses, we find merit in the submissions made by the learned defence counsel in that behalf. All these hostile witnesses in their cross-examination clearly denied what they had stated in favour of prosecution in the Examinations-in-Chief point-wise. 57. The next question is about the evidence of the eye-witnesses accompanying the deceased Pintu who were examined before the Trial Judge by the prosecution. We regret to find that the police escorts, in whose custody deceased Pintu was brought to the District Court building complex, so also other accused persons with deceased Pintu, have not supported the prosecution at all and have turned hostile. There is one witness by name PW 17 Umesh Raut, who is said to be the cousin of deceased Pintu. He also turned hostile. We need not reiterate here the tendency of the witnesses, eye-witnesses to keep away from such type of incidents, instead of speaking the truth before the Court. This is one of such cases. There is one witness by name PW 17 Umesh Raut, who is said to be the cousin of deceased Pintu. He also turned hostile. We need not reiterate here the tendency of the witnesses, eye-witnesses to keep away from such type of incidents, instead of speaking the truth before the Court. This is one of such cases. In so far as these hostile witnesses are concerned, we find that all these hostile witnesses, namely PW 16 Gajraj Mahato, PW 27 - Hitesh Uike, PW 28 - Pappu Malviya and PW 22 HC Deepak Trivedi have deposed that large number of assailants had come on the spot with weapons and assaulted deceased Pintu and that is the only evidence which the Court could take into consideration. But then fact remains that all these hostile witnesses have refused to identify a single accused person before the Court as assailant. 58. With the above preface, it is necessary to go to the evidence of PW 26 Vijaya Shirke and PW 33 - Shefali Shirke, her daughter. Obviously, forceful arguments have been made by the defence that they are interested witnesses being the mother and sister of the deceased Pintu and that, therefore, their evidence cannot be accepted. The next argument is that when in the broad daylight the murder took place in a busy place like District Court complex, the prosecution is unable to prove its case through the evidence of independent witness or witnesses. We have already stated that the prosecution did examine independent eye-witnesses not one in number, but in multiple, including the cousin of deceased Pintu. But then, none supported the prosecution. Since defence counsel in all these appeals have objection in accepting the evidence of these two interested witnesses, namely PW 26 and PW 33 Vijaya and Shefali respectively, we have kept in mind after going through several decisions of the Apex Court the trite law that the evidence of such witnesses should be scrutinized with full care and caution and to be careful that they are not allowed to take revenge against innocent accused person. It is with this settled legal principles, we now proceed to scrutinize, analyze and marshal the evidence of these two eye-witnesses - PW 26 Vijaya Shirke and her daughter PW 33 Shefali Shirke. 59. PW 26 Vijaya Dilipsingh Shirke deposed about the motive in the instant case. It is with this settled legal principles, we now proceed to scrutinize, analyze and marshal the evidence of these two eye-witnesses - PW 26 Vijaya Shirke and her daughter PW 33 Shefali Shirke. 59. PW 26 Vijaya Dilipsingh Shirke deposed about the motive in the instant case. We have seen her evidence on the point of motive and we have also seen the finding recorded by the learned Trial Judge on the aspect of motive in para 44 which we quote hereunder:- "44. The legal position regarding proof of motive is an essential requirement for bringing home the guilt of accused. Proof of motive is itself constitute a link of chain of circumstances upon which the prosecution may rely. It has come on record that there is property dispute between the family of deceased Pintu and Accused No. 1 Vijay Mate. However it is well settled that when there is direct evidence regarding the offence committed, the evidence regarding the motive will not pale into significance. Certainly the proof of motive in such a situation helps the prosecution and supports the eye witnesses. The case at hand rests upon the deposition of eyewitnesses to the occurrence. Therefore, even absence of motive, would not by itself make any material difference." By and large, we find that the above finding regarding motive is legal, correct and proper. 60. PW 26 Vijaya Shirke then deposed in para 4 of her evidence that on 18th July, 2001, some unknown had opened fire on Accused No. 1 - Vijay Mate, but he expressed suspicion on her son and two others. An offence was registered against her son and as such Pintu remained in jail till the incident took place. She stated that on 5th June, 2002, when her son Pintu was brought in custody to attend the marriage of her other elder daughter Rajashree, Jitu Gawande and his three associates opened fire towards her son, in which he got injured about which complaint was lodged with Police Station and offences were registered against them. She stated that on 5th June, 2002, when her son Pintu was brought in custody to attend the marriage of her other elder daughter Rajashree, Jitu Gawande and his three associates opened fire towards her son, in which he got injured about which complaint was lodged with Police Station and offences were registered against them. She then deposed that on the date of incident, namely 19th June, 2002, as usual, she along with her daughter PW 33 Shefali went to the Court since her son Pintu was to be brought for attending the criminal case with two friends of her son by names Umesh Raut and Jugen Shukla, and reached in the particular court room between 10.30 and 10.45 a.m., and asked the concerned clerk as to when her son's case would come up and she was told that the case would come up between 12.30 and 1.00 p.m., and she then along with her daughter and others came out of the court room and started waiting near a corner. She noticed Accused No. 1 - Vijay Mate and his associates and sensing some danger, she made a phone call to Sakkardara Police Station, when Mr. Bais, Police Inspector received the phone call to whom she informed about the presence of Accused No. 1 - Vijay Mate and others and, therefore, she requested him to provide security to her son. Mr. Bais stated that the concerned Police Station was Sadar Police Station and to seek security from Sadar Police Station, but she had no contact number of Sadar Police Station and, therefore, she started writing an application. By that time, around 11.15 a.m., she heard Vijay Mate shouting "Maro Sale Ko Zinda Nahi Bachana Chahiye".. She then saw Accused No. 1 and his associates numbering around 14 to 15 assaulting her son Swapni alias Pintu with sharp weapons. He son fell down and Police Constable Deepk Trivedi and another accused Pappu Malviya were trying to rescue her son, but they were also assaulted by accused No. 1 Vijay Mate and his associates. She knew some of the assailants by names and some by faces, because whenever she used to attend the Court, Vijay Mate along with those assailants used to come to the Court and her son used to tell her about them and she was always seeing them in the Court. She knew some of the assailants by names and some by faces, because whenever she used to attend the Court, Vijay Mate along with those assailants used to come to the Court and her son used to tell her about them and she was always seeing them in the Court. She and her daughter along with two friends of her son then rushed to save her son, but three to four boys with weapons came towards them running and, therefore, all of them ran away from back side and then came down. Thereafter, she went to Mure Memorial Hospital and asked the doctor as to where was her son and she saw him dead on a stretcher. She stated that she could identify the assailants and then in the Court, she was asked to identify. We reproduce the relevant para of her evidence as under:- "7. ..................................................................... I can identify the assailants. As the incident had occurred 10 years back, so I will try my level best to identify the assailants. The witness pointed point finger towards accused Vijay Mate and identified him and stated that he was having Gupti in his hand. The witness pointed out the finger towards accused [Mahesh Bante] and identified him and stated that he was having Gupti in his hand. The witness pointed out the finger towards accused Ritesh Gawande and identified him and stated that he was having Gupti in his hand. Witness pointed out finger towards accused Umesh Dahake and identified him as [Mangesh Chauhan]. The witness pointed out the finger towards accused [Mayur Chauhan] and identified him and stated that he was having knife. The witness pointed out the finger towards accused [Maruti Nawwa] and identified him and stated that he was having big knife in his hand. The witness pointed out the finger towards accused Dinesh Gaiki and identified him and stated that he was having knife in his hand. The witness pointed out the finger towards accused Raju Bhadre and identified him and stated that he was having kukari in his hand. The witness pointed out the finger towards accused Kiran Kaithe and identified him and stated that he was having knife in his hand. The witness pointed out the finger towards accused Kamlesh Nimbarte and identified him and stated that he was having knife in his hand. The witness pointed out the finger towards accused Kiran Kaithe and identified him and stated that he was having knife in his hand. The witness pointed out the finger towards accused Kamlesh Nimbarte and identified him and stated that he was having knife in his hand. The witness pointed out the finger towards accused [Pandurang Injewar] and identified him and stated that he was having big knife in his hand. The witness stated that last person she has to identify by name and pointed out the finger towards accused [Mangesh Chauhan] and identified him and stated that he was having Gupti in his hand. I know rest of the accused person by their faces." [Names of acquitted accused are indicated in bracket] 61. In so far as her evidence about identification in the parade is concerned, she deposed in para 8 as under:- "8. On 21-06-2002, Police recorded my statement. On 21-08-2002, I was called in Jail for T.I. Parade. First I was made to sit alone in the room. Thereafter I was called out and taken to place where the boys were standing in one row. One Magistrate was there. I was told to identify the assailants to whom I know by face. In first round, I had identified two person as assailants. Thereafter I was sent out and after some time, I was again called to the place of for T.I. Parade and in second round, I identified two person as assailants. The four person to whom I identified in T.I. Parade as assailants, today they are present in the Court. In first round, two person which were identified as assailants, witness pointed out the finger towards accused Sachin Gawande and Rajesh Kadu and identified them in the Court. In the second round, two persons which were identified as assailants, witness pointed out the finger towards accused Sandeep Sanas and Ayub Khan and identified them in the Court. The witness identified her signature at page Nos. 4 and 13 of T.I. Parade Panchanama dated 21.08.2002. The said signatures are now marked at Exhs. 508 and 509." She stated, she saw the incident from a distance of about 10 to 15 feet. She is B.A. In English Literature and was married in the year 1971 and is fully conversant with Nagpur and its geography. 62. 4 and 13 of T.I. Parade Panchanama dated 21.08.2002. The said signatures are now marked at Exhs. 508 and 509." She stated, she saw the incident from a distance of about 10 to 15 feet. She is B.A. In English Literature and was married in the year 1971 and is fully conversant with Nagpur and its geography. 62. Now turning to the evidence of PW 33 her daughter Shefali Shirke, her evidence is similar to the evidence as deposed by her mother PW 26 Vijaya Shirke. After describing preliminaries to the actual incident that took place, she deposed that Vijay Mate and his 12 to 15 associates rushed upon her brother Swapnil alias Pintu and started assaulting him. She then pointed out and identified the accused persons before the Court, also describing the weapons with them. We quote para 11 from her evidence which reads thus:- "11. Witness pointed out the finger towards accused - Vijay Mate and said that he was having Gupti in his hand. Witness pointed out the finger towards accused - [Mahesh Bante] and identified him and said that he was having Gupti in his hand. Witness pointed out the finger towards accused - [Mangesh Chauhan] and identified him and said that he was having Gupti in his hand. Witness pointed out the finger towards accused Ritesh Gawande and identified him and said that that he was having Gupti in his hand. Witness pointed out the finger towards accused - Kiran Kaithe and identified him and said that he was having Knife in his hand. Witness pointed out the finger towards accused - Dinesh Gaiki and identified him and said that he was having knife in his hand. Witness pointed out the finger towards accused - Banti Chauhan and identified him and said that he was having knife and his hand. Witness pointed out the finger towards accused Raju Bhadre and identified him and said that he was having Kukari in his hand. Witness pointed out the finger towards accused [Maroti Nawwa] and identified him and said that he was having Big Knife in his hand. Witness pointed out the finger towards accused - Umesh Dahake and identified and said that he was having Katyar in his hand. Witness pointed out the finger towards accused [Pandurang Injewar] and identified him and said that he was having Big Knife in his hand. Witness pointed out the finger towards accused - Umesh Dahake and identified and said that he was having Katyar in his hand. Witness pointed out the finger towards accused [Pandurang Injewar] and identified him and said that he was having Big Knife in his hand. Witness pointed out the finger towards accused Kamlesh Nimbarte and identified him and said that he was having Knife in his hand. The witness pointed out the finger towards four accused person and identified them by their faces as assailants. On being asked the names from the said accused persons. Their names are Ayub Khan, [Sandeep Sanas], Sachin Gawande, [Rajesh Kadu]." [Names of acquitted accused are indicated in bracket]. As regards Identification Parade that was held, she stated about it in para 13 of her oral evidence. We quote Para 13 as under:- "13. On 21st of August, 2002, I was called for T.I. Parade in Jail. My mother was also called in Jail for T.I. Parade. During T.I. Parade in two round, I identified two assailant in each round. The said four assailants to whom I identified as assailants during T.I. Parade are today present before the Court. The witness pointed out the finger towards Ayub Khan, Sandeep Sanas, Sachin Gawande, Rajesh Kadu and identified them. The T.I. Parade dated 21-8-2002 now shown to me. It bears my signature at page No. 5 and 14. I put these signatures in the Central Jail at the time of T.I. Parade." 63. The cross-examination of both these witnesses is almost same, so also the arguments and criticism levelled by the defence counsel before us for all the accused persons. 64. Counsel for the appellants in all these appeals have argued that the statements of both PW 26 Vijaya Shirke and PW 33 Shefali Shirke were recorded two days late for which there is no explanation and that they being the interested witnesses, there is a reason to believe that manipulations were made for bringing all these accused in the fold for describing them as the assailants. This Court should, therefore, treat the late recording of statements of both these witnesses as a strong doubtful circumstance. We have carefully considered this submission. This Court should, therefore, treat the late recording of statements of both these witnesses as a strong doubtful circumstance. We have carefully considered this submission. What we find is that the incident took place on 19th June, 2002 at about 11.00-11.15 am, that too in most violent and grisly manner and both these ladies were looking at the assault from a distance of 10-15 feet. When they tried to go nearer, the assailants rushed towards them along with weapons and both these ladies had to run away from the spot. Thereafter, they went to hospital. The body was sent for post-mortem. Several formalities were completed and thereafter the dead body was handed over to them. The funeral was held on the next day, i.e., 20th June, 2002 in full Police Bandobast. Thereafter, their statements were recorded on 21st June, 2002, i.e., immediately on the next day of the funeral. It is further noteworthy that PW 36 PI Vinod Yeskade specifically deposed and which evidence has gone unchallenged that he having visited them, found their mental status not so sound till their statements were recorded and that he could not have insisted for recording their statements. The Trial Court has accepted this explanation. We also agree with the said finding that both these ladies must not have been in such mental status that they would have given their statements on 19th June, 2002 or on 20th June, 2002, on which day, the funeral was held. At any rate, according to us, in this factual background, in no case, it can be said that the statements recorded on 21st June, 2002 were belated statements so as to look at their evidence with any suspicion or doubt. 65. The next submission made by learned counsel for the appellants is about the identification of the accused persons in the Court after the lapse of period of about ten years. In the first place, one must keep in mind the factual background regarding the motive about which we have quoted the evidence of PW 26 Vijaya earlier and then her acquaintance with almost all the accused persons also when the criminal case was being attended by PW 26 Vijaya Shirke and her daughter [PW 33 - Shefali] for over a period of one year when several dates were given in the Court and deceased Pintu was brought in the Court in custody. These witnesses describe that on or about ten to eleven occasions, they had been made aware by deceased Pintu about the accused persons whenever these accused persons used to visit the Court and Pintu used to point out the details about these accused persons to them. The evidence that these two witnesses were attending the Court whenever the deceased Pintu was brought in custody for appearance in the Court is trustworthy and we believe it. The evidence that Accused No. 1 Vijay Mate and his associates used to make rounds in the Court on the dates of appearance of deceased Pintu while he was brought in custody is equally trustworthy. Further, as a natural conduct, we have no doubt that deceased Pintu used to tell his mother and sister about Accused No. 1 - Vijay Mate and his associates including the accused persons who used to make rounds in the Court. Consequently, we have reason to believe that both these witnesses very well knew the names and faces of the accused persons who they named at the first blush when their statements were recorded on 21st June, 2002 and also as described by deceased Pintu. 66. The next question is about the passage of ten years when the evidence began. In the first place, we find that the trial was not held immediately after the incident because of the provision of stay under the Maharashtra Organized Crime Act as told by the learned counsel for the defence before us which took about seven years and thereafter recording of evidence commenced in 2011. That apart, as held by the Apex Court in the cases of Pargan Singh Vs. State of Punjab & another with Harminder Singh Vs. State of Punjab [ (2014) 14 SCC 619 ], there is no reason to discard the identification even if it is made after ten years. We rely upon the said decision by quoting following paragraphs from the said judgment. We are, therefore, unable to accept the submission that it was impossible for these two witnesses to identify the accused persons in the Court when they knew after ten years and that the Court should not rely upon such identification in the Court:- "18. Before entering upon the discussion on this aspect specific to this case, we would like to make some general observations on the theory of "memory". Before entering upon the discussion on this aspect specific to this case, we would like to make some general observations on the theory of "memory". Scientific understanding of how memory works is described by Geoffrey R. Loftus while commenting upon the judgment dated 16-1-2002 rendered in the case of Javier Suarez Medina v. Janie Cockrell by United States Court of Appeals. He has explained that a generally accepted theory of this process was first explicated in detail by Neisser (1967) and has been continually refined over the intervening quarter-century. The basic tenets of the theory are as follows: 18.1 First, memory does not work like a video recorder. Instead, when a person witnesses some complex event, such as a crime, or an accident, or a wedding, or a basketball game, he or she acquires fragments of information from the environment. These fragments are then integrated with other information from other sources. Examples of such sources are: information previously stored in memory that leads to prior expectations about what will happen, and information-both information from external sources, and information generated internally in the form of inferences - that is acquired after the event has occurred. The result of this amalgamation of information is the person's memory for the event. Sometimes this memory is accurate, and other times it is inaccurate. An initial memory of some event, once formed, is not "cast in concrete." Rather, a memory is a highly fluid entity that changes, sometimes dramatically, with the passage of time. Every time a witness thinks about some event-revisits his or her memory of it-the memory changes in some fashion. Such changes take many forms. For instance, a witness can make inferences about how things probably happened, and these inferences become part of the memory. New information that is consistent with the witness's beliefs about what must have happened can be integrated into the memory. Details that do not seem to fit a coherent story of what happened can be stripped away. In short, the memory possessed by the witness at some later point (e.g., when the witness testifies in court) can be quite different from the memory that the witness originally formed at the time of the event. 18.2 Memory researchers study how memory works using a variety of techniques. A common technique is to try to identify circumstances under which memory is inaccurate versus circumstances under which memory is accurate. 18.2 Memory researchers study how memory works using a variety of techniques. A common technique is to try to identify circumstances under which memory is inaccurate versus circumstances under which memory is accurate. These efforts have revealed four major sets of circumstances under which memory tends to be inaccurate. The first two sets of circumstances involve what is happening at the time the to-be-remembered event is originally experienced, while the second two sets of circumstances involve things that happen after the event has ended. 18.3 The first set of circumstances involves the state of the environment at the time the event is experienced. Examples of poor environmental conditions include poor lighting, obscured or interrupted vision, and long viewing distance. To the degree that environmental conditions are poor, there is relatively poor information on which to base an initial perception and the memory that it engenders to begin with. This will ultimately result in a memory that is at best incomplete and, as will be described in more detail below, is at worst systematically distorted. 18.4 The second set of circumstances involves the state of the observer at the time the event is experienced. Examples of suboptimal observer states include high stress, perceived or directly inflicted violence, viewing members of different races, and diverted attention. As with poor environmental factors, this will ultimately result in a memory that is at best incomplete and, as will be described in more detail below, is at worst systematically distorted. 18.5 The third set of circumstances involves what occurs during the retention interval that intervenes between the to-be-remembered event and the time the person tries to remember aspects of the event. Examples of memory-distorting problems include a lengthy retention interval, which leads to forgetting, and inaccurate information learned by the person during the retention interval that can get incorporated into the person's memory for the original event. 18.6 The fourth set of circumstances involves errors introduced at the time of retrieval, i.e., at the time the person is trying to remember what he or she experienced. Such problems include biased tests and leading questions. They can lead to a biased report of the person's memory and can also potentially change and bias the memory itself. 19. 18.6 The fourth set of circumstances involves errors introduced at the time of retrieval, i.e., at the time the person is trying to remember what he or she experienced. Such problems include biased tests and leading questions. They can lead to a biased report of the person's memory and can also potentially change and bias the memory itself. 19. While discussing the present case, it is to be borne in mind that the manner in which the incident occurred and description thereof as narrated by PW-2, has not been questioned on the ground that narration should not be believed because of lapse of time. Instead, the appellants have joined issue on a very limited aspects viz. their identification on the ground that faces of the culprits could not have been remembered after 7 1/2 years of the occurrence as memory fades by that time. 20. We are of the opinion that under the given circumstances and keeping in view the nature of incident, 90 seconds was too long a period which could enable the eye-witness (PW-2) to watch the accused persons and such a horrible experience would not be easily forgotten. Death of a friend and near death experience by the witness himself would be etched in the memory for long. Therefore, faces of accused persons would not have been forgotten even after 7 1/2 years. 21. Whether a particular event or the faces of a person could be remembered would depend upon the circumstances under which those faces are seen. One cannot lose sight of the fact that here is a case where the two accused persons are the assailants who had shot dead Varun Kumar, companion of PW-2. Thereafter, they had fired at PW-2 as well. For PW-2, it was clearly a horror scene resulting into traumatic experience. In a case like this, even when these two assailants had remained before his face for 90 seconds, these 90 seconds was sufficiently long time to observe them closely and the person encountering such an event would not forget those faces even for a life time, what to talk for 7 1/2 years that have elapsed in between. We would like to support our hypothesis with an anecdote. Once a friend of Einstein, the renowned scientist who invented the theory of relativity, asked him to explain that theory. Mr. We would like to support our hypothesis with an anecdote. Once a friend of Einstein, the renowned scientist who invented the theory of relativity, asked him to explain that theory. Mr. Newton explained it in a simple manner for common man's understanding as under: If a boy is sitting with his girlfriend/lover, he would feel the time fly away and 60 minutes would seem as 60 seconds. On the other hand, if a person puts his finger in a hot boiling water, 60 seconds would feel like 60 minutes. This is the theory of relativity." 67. The next submission that was made before us is that all the independent witnesses, though had turned hostile before the Court, did not at all speak about the presence of PW 26 and PW 33 at the time of incident in the District Court building complex and that by itself shows that these two witnesses were not present or rather their presence is highly doubtful as claimed by them. Not only that these witnesses are got up witnesses with a view to rope in as many as accused persons as possible. Further, the conduct of these two witnesses was criticized that though they had gone to the Commissioner of Police, they had not disclosed to the Commissioner of Police that they were the eyewitnesses to the incident. The Commissioner of Police would have caused recording of their statements immediately when they had visited him immediately after the incident nor did they lodge First Information Report to the Police Station. Neither the Commissioner of Police was examined, nor anybody from his office was examined to corroborate their version that they had really visited the office of Commissioner of Police immediately after the incident. This is, therefore, a clear lie on their part and it is impossible that the Commissioner of Police would not cause recording of their statement or get the FIR registered immediately, they being the alleged eye-witnesses. We have carefully considered these submissions. At the outset, we find that non-mention by the hostile witnesses about the presence of PW 26 and PW 33 in their evidence before the Court would not be a relevant circumstance. Even if the same is taken to be of some value, the fact remains that the prosecution declared them hostile and does not want to rely upon their testimony. Even if the same is taken to be of some value, the fact remains that the prosecution declared them hostile and does not want to rely upon their testimony. The non-mention about the presence of these two witnesses by the hostile witnesses by itself would not make any difference while testing their evidence or the case of prosecution. At any rate, the Trial Court on the anvil of Section 145 of the Evidence Act tested this submission and given sound reasons with which we agree. 68. The submission that the Commissioner of Police was not cited as a witness and further that these two witnesses are telling lie about their visit to the Office of Commissioner of Police does not appeal to us. In the first place, there is no need of recording of statement of Commissioner of Police that these two ladies had visited his office. Secondly, the law was already set in motion immediately after the incident when the police came to know about it and to say that these two ladies did not lodge FIR immediately thereafter is too idle. We are not impressed with these submissions. Consequently, the submission that their presence on the spot is doubtful or they are got up witnesses does not appeal to us looking to their sworn testimony before the Court which inspires confidence and is trustworthy. 69. The criticism levelled by the counsel for the Accused No. 2 - Mangesh Chavan, Accused No. 7 Pandurang Injewar and Accused No. 11 - Ayub Amir Khan that these accused were the witnesses in the prosecution launched against deceased Pintu and had deposed in that trial and, therefore, they were being falsely involved in the present crime also does not appeal to us. We do not think that this could be a reason to involve these accused in such a serious charge of murder. We think these two witnesses would never allow the real culprits to go scot free and involve innocents. Further, the statements of these two witnesses were recorded immediately on 21st June, 2002 and the name of accused persons were disclosed as assailants. There was no scope left for any manipulations, since the statements were immediately recorded. We, therefore, do not agree with the submission in that behalf. 70. Further, the statements of these two witnesses were recorded immediately on 21st June, 2002 and the name of accused persons were disclosed as assailants. There was no scope left for any manipulations, since the statements were immediately recorded. We, therefore, do not agree with the submission in that behalf. 70. The counsel for the appellants in these appeals in respect of the Identification Parade that was held were critical about holding of the parade on the ground that it was a farce and in total violation of the guidelines given in the Criminal Manual of the Bombay High Court. Next ground was that the parade itself was held belatedly, i.e., it was delayed by about seven weeks and, therefore, such a parade was required to be rejected. Counsel pointed out to us the discrepancies in holding the parade on the ground that the various provisions of Manual were not followed by the person conducting the Test Identification Parade. Right from the beginning of parade, the guidelines were violated. No respectable person was brought for witnessing the parade. The age group of the accused persons was not considered and the dummies were not properly selected. It was not verified whether the accused were seen by the witnesses earlier. There was a reason to believe that the photographs of Accused No. 11 Ayub were shown before the parade was held and the descriptive particulars of the parade were not mentioned or recorded. In this connection, we have gone through all the relevant documents regarding holding of the parade. We have also seen the evidence of the witness holding the parade. We have also seen the finding recorded by the learned Trial Judge in relation to the criticism about holding of the parade. It would be important to note that accused persons who were named in 161 Statement, were known to the witnesses. But for those four not named, Identification Parade could be relevant. Trial Court has recorded findings in following paragraphs of its Judgment which we reproduce below:- "79. In the present case, in order to support to its case, the prosecution has examined (PW 39) SJM Somkuwar, who has conducted Test Identification Parade on Dt. 21.8.2002, 22.8.2002 and 23.8.2002. He prepared Test Identification Memorandum (Exh. Trial Court has recorded findings in following paragraphs of its Judgment which we reproduce below:- "79. In the present case, in order to support to its case, the prosecution has examined (PW 39) SJM Somkuwar, who has conducted Test Identification Parade on Dt. 21.8.2002, 22.8.2002 and 23.8.2002. He prepared Test Identification Memorandum (Exh. 718 to 720) but he admitted that he did not ask the identifying witnesses whether they were shown either accused person or their photographs before conducting Test Identification Parade and he did not mention the said facts in these Memorandum Panchanamas. Therefore, the defence heavily placed reliance upon the cases of Mohd. Iqbal Vs. State of Maharashtra 2007 ALL MR Cri. 361, Vijay Bhosale Vs. State of Maharashtra 2006 ALL MR Cri. 3390 and Soni Vs. State of U.P. 1983 S.C.C. (Cri.) 49, wherein it has been held that inordinate and un-explained delay in holding T.I. Parade is fatal to the prosecution case. The said cases were appears to be squarely rest upon the evidence of test identification parade. 80. It is true that T.I. Parade has to be held at the earliest opportunity to ensure that the investigation is proceeding on right line and memory of the witnesses does not fade away. But there is no exact timing is mentioned within which the investigating agency has to conduct the T.I. Parade. However, when the witness had plenty of time to see the accused in the broad day light, identification of the witness in the court even for the first time is acceptable. 81. However it is pertinent to note that (PW 26) Vijaya Shirke and (PW 33) Shefali Shirke have categorically deposed that they knew some of the offenders by their names and some of the offenders by their faces. Therefore, if the witnesses knew the offenders since prior to the incident, it may not be necessary to hold test identification parade. As such identification parade do not constitute substantive evidence and these parades are essentially governed by sec. 162 of code of criminal procedure. The code of criminal procedure does not oblige the investigating agency necessarily to hold a Test Identification Parade nor is there any provision under which the accused may claim a right to the holding of Test Identification Parade. Test Identification Parade is conducted with a view to strengthening the trustworthiness of the evidence. 162 of code of criminal procedure. The code of criminal procedure does not oblige the investigating agency necessarily to hold a Test Identification Parade nor is there any provision under which the accused may claim a right to the holding of Test Identification Parade. Test Identification Parade is conducted with a view to strengthening the trustworthiness of the evidence. Such a TIP then provides corroboration to the witness in the court who claims to identify the accused person. 82. It is fairly well settled that identification of accused in the court by the witness constitute the substantive evidence. There is nothing on record to disclose that the faces of accused were totally unknown to both these eye witnesses (PW 26 & 33). On the contrary reading of entire testimonies of these two eye witnesses discloses that they knew the accused even prior to the incident. The crime was perpetrated in broad daylight and witnesses had sufficient opportunity to observe the features of the accused persons. This is not a case where the witnesses had only a fleeting glimpse of the assailants on a dark night. The witnesses had reason to remember their faces as assailants had committed ghastly crime. Now what weight should be attached to such an identification is a matter which will have to determine in the peculiar facts and circumstances of the case." 71. Having examined the above reasons in relation to the Test Identification Parade and in respect of identification of the accused in the court as substantive evidence, we agree with the above legal position recorded by the learned Trial Court. There are decisions and decisions of the Apex Court that the evidence of the Test Identification Parade does not constitute substantive evidence and what constitutes substantive evidence is the evidence before the Court. We, however, do not want to dilate on this issue any further as we would discuss later about the trustworthiness of substantive evidence of these two eye-witnesses as regards accused Nos. 6, 8, 11 and 14 who were not at all named in 161 statements. 72. We, however, do not want to dilate on this issue any further as we would discuss later about the trustworthiness of substantive evidence of these two eye-witnesses as regards accused Nos. 6, 8, 11 and 14 who were not at all named in 161 statements. 72. The next submission that was made before us was that in order to find out whether PW 26 Vijaya was really a truthful witness who claimed that she had made a mobile phone call to Sakkardara Police Station for providing security to her son when she saw the assailants marching towards her son, her mobile phone should have been seized and call details record ought to have been produced by the Investigating Officer Similar is the submission regarding non-examination of Mr. Bais, the Police Inspector at Sakkardara Police Station who is said to have received her phone call and advised her to contact Sadar Police Station for security. We are unable to agree with this submission, since the so called admission to collect such additional evidence would not necessarily adversely affect the case of the prosecution in the wake of substantive evidence which we have already discussed. There may be some pieces of evidence, minor or major, not collected by the prosecuting agency; but then omission to do so cannot result into the prosecution case being thrown out. 73. The next submission made by learned counsel for the appellants is that it is impossible that these two witnesses could remember the names of the accused persons or their faces and the weapons which they had allegedly used for committing the crime. It is important to note that statements of these two witnesses were immediately recorded on 21st June, 2002, and in those statements, there is absolutely no omission about the names and identification of the assailants - accused persons, so also about the weapons. The minor variations about the weapons here and there in those statements would make no difference in view of the attack in tandem by a large number of persons armed with various types of weapons. At any rate, we have already found that these two witnesses were knowing the assailants for the reasons already given by us. The submission that the witnesses have not given the details as to how they knew the assailants, why they knew the assailants, is not disclosed by them is nothing but a faint attempt. At any rate, we have already found that these two witnesses were knowing the assailants for the reasons already given by us. The submission that the witnesses have not given the details as to how they knew the assailants, why they knew the assailants, is not disclosed by them is nothing but a faint attempt. These witnesses have asserted in their evidence about identification of the assailants and also about the weapons they had used. We are, therefore, unable to accept the submissions to that effect. 74. The criticism on the testimony of PW 26 Vijaya Shirke and PW 33 Shefali Shirke about their conduct and the manner in which they behaved at the time of incident and thereafter is not based on any pragmatic foundation. The Trial Court has given answer to this criticism on well settled norms of human behaviour. Instead of repeating or putting the same in different words, we would like to quote the following paragraphs from Trial Court's Judgment with which we fully agree:- "98. In my opinion, there is no presumption that all the person would act similarly in similar situation all the time. Individual reaction to any incident depends upon various factor. It is neither uniform nor similar. Merely because one person reacts in a particular situation, it does not necessarily mean that all others persons would all the time react in the similar nature in similar situation. In the instant case, it has come in the evidence of aforesaid prosecution witnesses that they rushed and tried to save deceased Pintu but at the relevant time, 3 to 4 assailants armed with the weapons rushed towards them, they ran away from the back side. Admittedly, PW 22 HC Deepak Trivedi and PW 28 Pappu Malvi had sustained the injuries in the incident as they were not armed with the weapons, therefore, the aforesaid witnesses felt apprehension that they also would be assaulted as they were un-armed with the weapons, hence they took back. It is trite to say that criminal courts should not expect a set reaction from any eye witness on seeing an incident like murder. It is fallacious to suggest that eye witness would have done this or that on seeing the incident. It is trite to say that criminal courts should not expect a set reaction from any eye witness on seeing an incident like murder. It is fallacious to suggest that eye witness would have done this or that on seeing the incident. A doubt was also thrown by defence about the veracity of the aforesaid eye witnesses on the ground that entire incident took place within 2 to 3 minutes and these witnesses could not have seen what was happening in such short time. This argument, in my opinion, is apparently misconceived. When 10 to 12 persons armed with weapons attacked a single individual in the broad day light and even the incident took place in a very short span of time, it odes not mean that eye witnesses could not have observed the same. 99. It is vivid that witnesses to certain crimes may run away from the scene and may also leave the place due to fear. Some witnesses get a shock, some becomes perplexed and some who have courage comes forward either to lodge the FIR or get themselves examined immediately. There cannot be uniformity in human reaction. Considering this varying nature of human being, merely because (PW 26) Vijay Shirke and (PW 33) Shefali Shirke had not reacted in a particular manner that itself cannot be a ground to discredit their testimony. Albeit their testimony will have to be scrutinized carefully and it has to be ascertained whether the testimony finds corroboration from other material on record." 75. Now, turning to the specific submissions in relation to the convicted accused persons separately, arguing for Accused No. 11 - Ayub Khan, Mr. Tiwari, learned Adv., argued that PW 26 and PW 33 stated by way of omission that deceased Pintu used to tell them about the names of the accused persons and was pointing out their faces on the dates of appearance of Pintu. He then submitted that no details about colour, built up, complexion etc., of this accused or others who were said to have been made known by deceased Pintu to them were even described by these witnesses. We have checked up the submission about the omission about which learned counsel made the submission before us. He then submitted that no details about colour, built up, complexion etc., of this accused or others who were said to have been made known by deceased Pintu to them were even described by these witnesses. We have checked up the submission about the omission about which learned counsel made the submission before us. We find from page 414 of the paper book that there is no such omission in the evidence of PW 26 Vijaya, so also in the evidence of PW 33 Shefali. The only omission appears to be that of last portion of para 11 of Shefalii's evidence where she pointed out finger towards four persons and identified them by their faces as assailants and also gave the names. This act of pointing out a finger was made in the court and we do not think that in law the same could be treated as omission in the statement under Section 161, Criminal Procedure Code, which could be asked to the Investigating Officer. The submission about colour, built up, complexion made by Mr. Tiwari does not appeal to us, as no cross-examination was made in that behalf. We would, however, deal with the substantive evidence about Accused No. 11 Ayub Khan, as said earlier at a later point of time and the evidence about Test Identification Parade may become insignificant. The further submission that even these two eyewitnesses did not describe specifics about the overt act by Accused No. 11 Ayub Khan, as to what weapon he had and what role he played and that there is no corroboration will be considered at a later part of this judgment. 76. Arguing for Accused No. 10 Kamlesh Nimbarte, learned counsel Mr. A.M. Jaltare submitted that neither the name of Accused No. 10 Kamlesh nor of any accused appears in FIRs [Exhs. 106 and 614] when the eye-witnesses claim to know all of them, including Accused No. 10 Kamlesh. He then pointed out that there was omission in holding of knife by Kamlesh and, in fact, a Gupti was recovered by the police from the house of his uncle which shows falsity of the prosecution case. We have considered the submission and we find no merit therein, since FIR was lodged by PW 22 HC Deepak Trivedi and had turned hostile, though he had, according to prosecution, given names of all the accused persons in the supplementary statement. We have considered the submission and we find no merit therein, since FIR was lodged by PW 22 HC Deepak Trivedi and had turned hostile, though he had, according to prosecution, given names of all the accused persons in the supplementary statement. The description of knife in his hand as a weapon and recovery of Gupti is not a material anomaly, as several accused had different types of weapons. 77. Mr. R.V. Gaikwad, learned counsel then argued for Accused No. 5 - Ritesh Gawande and submitted that no weapon was seized from him though the clothes were recovered and his shirt was having stain of 'A' blood group, but then Panch was not examined and, therefore, it was not safe to rely on the evidence of blood stains on clothes. No Test Identification Parade of Ritesh was held and, therefore, prosecution case against him was not proved. We find that there is substantive evidence of two witnesses - PWs 26 and 33 against him about his role and there was no need to hold parade because he was known to the witnesses. 78. Arguing for Accused No. 4 - Umesh Dahake, learned Adv. Mr. Dable submitted that he was arrested on 19th June, 2002 and his clothes though seized on 22nd June, 2002, no blood was found thereon. The knife was seized on the same day, but there is no blood found thereon. He, therefore, submitted that there is no corroborative evidence in relation to Accused No. 4 - Umesh Dahake. PW 26, according to him, failed to identify Accused No. 4 - Umesh Dahake and she also did not say about any weapon with him. The seizure of knife and clothes will have to be rejected and the evidence thereto will have to be discarded in the absence of proper sealing etc. We find that in the substantive evidence of PWs 26 and 33, Accused No. 4 has been named as assailant who actually participated in the assault that was made and at any rate CA report shows blood on Exh. 14 - knife and Exh. 15 clothes, which is the corroborative evidence apart from the substantive evidence. 79. Mr. We find that in the substantive evidence of PWs 26 and 33, Accused No. 4 has been named as assailant who actually participated in the assault that was made and at any rate CA report shows blood on Exh. 14 - knife and Exh. 15 clothes, which is the corroborative evidence apart from the substantive evidence. 79. Mr. A.V. Gupta, learned Senior Adv., for Accused No. 9 Kiran Kaithe and Accused No. 13 Dinesh Gaiki, submitted that the police had seized nails, knife T-shirt, full pant from Accused No. 9 and T-shirt shows blood of Group 'A' while no blood is detected on knife and nails. In the absence of proper sealing of the articles, it cannot be said that the C.A. Report could be reliable. He then submitted with reference to Accused No. 13 Dinesh Gaikee that his nails were also seized and the spear blade was seized from him shows to have human blood, while the clothes had no blood. But both eye-witnesses described that accused No. 13 was having knife and they do not speak of any spear blade which was seized by the police. All this shows, according to Mr. Gupta, that there is falsity in the evidence of these witnesses and the seizures made. He then submitted that Identification Parade was necessary for these two accused persons, but PWs 26 and 33 were not called to identify them. We have considered the submissions made by Mr. Gupta and we find that the T-shirt seized from Accused No. 9 Kiran Kaithe had stains of Blood Group 'A' while the spear blade seized from Accused No. 13 had human blood. While the Blood Group of Accused No. 13 is 'O', that of deceased is 'A'. Whether the witnesses have described spear blade as 'knife' would make no difference looking to the incident that took place in a short time with several assailants making assault. However, the witnesses have clearly identified these accused persons - Accused Nos. 9 and 13 and given their names also immediately on 27th June, 2002, about which there is no omission in their evidence before the Court, apart from the fact that they identified them in the Court. Since their names were already given and they were known, question of holding the parade did not arise and their identification in the Court as a substantive evidence was good enough. 80. Mr. Since their names were already given and they were known, question of holding the parade did not arise and their identification in the Court as a substantive evidence was good enough. 80. Mr. A.V. Gupta, learned Adv., further criticized the evidence of PWs 26 and 33 and submitted that cross-examination about details about the driver engaged by her was made and it is noteworthy that these witnesses were unable to tell the surname of the driver. He submitted that it was impossible that the surname of the driver, who was working with these witnesses, was not even known to them. Therefore, the story about the presence of these two witnesses at the time of incident in the District Court complex is falsified and that is the reason why defence examined PW 26's driver Ajay as DW 1. Taking us through the evidence of driver Ajay, Mr. Gupta argued that his evidence is trustworthy and it is a well settled legal position that the evidence of a defence witness should be given the credibility at par with the evidence of prosecution witnesses. He, therefore, submitted that the evidence of DW 1 - Driver Ajay will have to be accepted and if his evidence examined, it is clear from his evidence that at the time of incident, both the eye-witnesses - PW 26 and PW 33 had not even reached the District Court building complex from their house much less had at all seen the incident. We have carefully considered the submission as well as the evidence of DW 1 Ajay. The learned Trial Judge has given reasons in paragraph No. 116 at page 1476, which we quote hereunder:- "116. Now, so far as the defence witness DW-1 Ajay Dhurve is concerned, the accused person submitted that defence witness is entitled for equal treatment. No doubt, I do not agree with their submission but before looking to his testimony, I must mention the material fact that one Ajay was the driver of [PW 26] Vijaya Shirke, she did not mention his full name. Defence had first issued witness summons to one Ajay Dasture as driver, who was resident of Sahkar Nagar, near Gajanan Mandir, Nagpur, but report Exh. 858 shows that he had left the place 8-10 years back. Defence had first issued witness summons to one Ajay Dasture as driver, who was resident of Sahkar Nagar, near Gajanan Mandir, Nagpur, but report Exh. 858 shows that he had left the place 8-10 years back. Thereafter, on the request of accused person, defence witness summons was issued to another person namely Ajay Bhanudas Dhurve, r/o Vidiya Layout, Plot No. 117, Beltarodi, Nagpur. He was examined by the accused person in their defence. According to him, on the day of incident, he took the (PW 26) Vijaya Shirke and (PW 33) Shefali Shirke from their house directly to the hospital. However, the manner in which he had given the evidence is very difficult to believe. He did not place any document on record to show that he was working as driver with (PW 26) Vijaya Shirke. Even the accused persons did not feel it necessary to place his driving licence on record. He did not know the dates of material events occurred in his family. Even he do not know the date of marriage of his brother. Now, he is working as a Travels Agent since couple of years with one Guddu Pathan but he do not know family background of Guddu Pathan. Therefore, the incident which occurred around 11 years back, how would he recollect it, without noting that fact at any where that is very crucial aspect. Therefore, in my humble opinion, it is very unsafe to act upon his testimony." The criticism was levelled on the reasons recorded by the learned Trial Judge that it was impossible to have documentary evidence about his employment as nobody keeps such documentary evidence. We have ourself carefully perused the evidence of DW 1 Ajay Dhurve. At the outset, we find from the evidence of this witness that this witness did not at all give any details about his employment/engagement as a driver, about his house where he was engaged, when he was engaged and what salary or on what terms and conditions he was engaged, how he was paid in cash or by cheque and in what manner, i.e., weekly, biweekly or monthly and what was the amount of salary that was paid to him, who paid the salary. As a matter of fact, on reading of Examination-in-Chief and cross-examination of this witness PW 1 - Ajay, we have very serious doubt whether he is the same person who was engaged as a driver by PW 26. His evidence does not at all inspire confidence, nor one would believe him to be the same person working as a driver with PW 26. He has not shown any satisfactory material to say so. He never went to police to give his statement. Thus, we find that the evidence of this witness is full of falsity and as a sequel, we agree with the trial court. We, therefore, reject the evidence of DW 1 - Ajay. 81. We are then unable to accept the submissions made by Mr. Gupta that both the eye-witnesses were not able to give surname of the driver or his address etc. We do not find anything surprising in this, as such drivers are engaged and the women like PWs 26 and 33 are not expected to know the surname of the driver or his address, particularly when it is the case of the defence that the driver was engaged by deceased Pintu himself and not by these women. 82. Arguing for Accused No. 15 Raju Bhadre, Mr. S.P. Dharmadhikari, learned Senior Adv., submitted that the Accused No. 15 was arrested on 10th July, 2002 and what is said to have been discovered by him is Kukri having no blood stains so also on clothes seized by the police. No Identification Parade was held and there was no evidence, whatsoever, that Accused No. 15 was any time absconding. The prosecution did not bring any evidence about abscontion of this accused. The vague evidence about association with Accused No. 1 Vijay should not be accepted to involve Accused No. 15 and, therefore, the evidence of PWs 26 and 33 is required to be rejected as against this accused. We have considered the submissions made by learned Sr. Adv., Mr. Dharmadhikari and we find that the reason given by the learned Trial Judge that Accused No. 15 was arrested quite late and, therefore, it cannot expect to find blood stains on the weapons or the clothes. We have considered the submissions made by learned Sr. Adv., Mr. Dharmadhikari and we find that the reason given by the learned Trial Judge that Accused No. 15 was arrested quite late and, therefore, it cannot expect to find blood stains on the weapons or the clothes. We further find that there was no need to have parade held because Accused No. 15 was known to the witnesses and they had stated accordingly immediately in their statements that were recorded on 21st June, 2002. At that point of time, there was no reason for the witnesses to falsely name this Accused No. 15 in the statement under Section 161 and there was no scope for any manipulation. The description about the associates of Accused No. 1 - Vijay will have to be read in the context of entire evidence that was ultimately tendered. Both the eye-witnesses have given full details about the incident, including the names and identification made in the Court. We are, therefore, unable to accept the submission made by Mr. Dharmadhikari. We, however, agree that there is no evidence about abscontion of Accused No. 15, but it would make no difference in view of direct evidence. Citations: Learned counsel for rival sides cited before us decisions of the Bombay High Court as well as the Supreme Court. We find that many of these decisions were cited before the Trial Judge who considered almost all citations and recorded reasons. We have seen those reasons. We have still gone through each and every decision cited before us. We have, thus, thoroughly refreshed our memory about the extant legal position. Keeping in mind the legal pronouncements on various points, we have written the Judgment. We, therefore, think, we need not cite and discuss these decision over here. 83. To sum up, we find that the appellants - accused persons, except Accused No. 11 - Ayub who have been convicted by the Trial Judge, had formed an unlawful assembly and with the common object of committing the murder of Pintu, had entered the District Court premises, ensnared him and assaulted him, causing about 44 injuries. The ocular evidence of PW 26 Vijaya Shirke and PW 33 Shefali Shirke understood in juxtaposition appeals to our conscience as natural, trustworthy, honest and without any infirmities. The ocular evidence of PW 26 Vijaya Shirke and PW 33 Shefali Shirke understood in juxtaposition appeals to our conscience as natural, trustworthy, honest and without any infirmities. We believe the said evidence, and we find no reason to have any doubt in our mind about the evidence of these eye-witnesses. They have had no inimical feeling about the accused persons. The same inspires confidence and particularly when their statements were immediately recorded, leaving no scope for any manipulation or adding the names of any innocent. The common object of the unlawful assembly is clearly proved, though we have held that the prosecution failed to prove the conspiracy within the meaning of Section 120-A of Indian Penal Code. However, Accused No. 1 Vijay Mate clearly led the unlawful assembly by making his propitious choice of choosing the place, namely District Court Complex with full disdain for the 'temple of justice' and created terror and trepidation. 84. The upshot of the above discussion is, all these Criminal Appeals filed by the convicted accused persons, except Accused No. 11 Ayub Khan, must fail and, therefore, will have to be dismissed which we do herein. Criminal Appeal No. 570 of 2013 [Ayubkhan Amirkhan Pathan Vs. State of Maharashtra] Criminal Appeal No. 56 of 2014 with Criminal Appeal No. 73 of 2014: 85. These two Criminal Appeal Nos. 56 of 2014 and 73 of 2014 have been filed by the State of Maharashtra and the complainant - Smt. Vijaya Dilipsingh Shirke against the Judgment and Order of acquittal of Accused Nos. 2, 6, 7, 8, 12, 14 and 16. 86. Learned Public Prosecutor Mrs. B.H. Dangre submitted that the learned Trial Judge has recorded reasons which are clearly perverse in recording the acquittal of these accused persons. Referring to the entire evidence that was read over to us by the counsel for both the parties, she submitted that on the same evidence on which eight accused persons have been convicted, these accused have been acquitted for the reasons which are perverse, flimsy and has, thus, caused miscarriage of justice to the State. She then submitted that in the substantive evidence of PW 26 and PW 33, these accused have been specifically named and even then learned Trial Judge has for no good reasons recorded the order of acquittal. She then submitted that in the substantive evidence of PW 26 and PW 33, these accused have been specifically named and even then learned Trial Judge has for no good reasons recorded the order of acquittal. The Public Prosecutor relied on the arguments made by her in reply to the appeals filed by the convicted accused. 87. Per contra, learned counsel appearing for these accused persons, who have been acquitted, vehemently opposed these appeals against acquittal and submitted that this Court should not interfere with the order of acquittal looking to the settled legal principles in relation to the appeal against acquittal. The High Court would not substitute its view merely because second view is possible. All the defence counsel then submitted that it is not that the acquittal was recorded by the learned Trial Judge for any flimsy reasons and on the contrary as specifically pointed out by Mr. A.V. Gupta, learned Adv., for the defence, that the acquittal was recorded by the learned Trial Judge for want of other material and corroborative evidence and circumstances, since, according to Trial Court, testimony of PW 26 and PW 33 was not supported by other material circumstances or corroborative evidence. All the learned Counsel for the respective respondents - acquitted accused, therefore, prayed for dismissal of these appeals against acquittal. REASONS: 88. We have considered these appeals against acquittal and the grounds raised therein. We have heard learned counsel for the rival parties. We have seen the reasons recorded by the learned Trial Judge for recording acquittal of Accused Nos. 2, 3, 6, 7, 8, 12, 14 and 16. It is important to point out at this stage that the Accused No. 3 - Sachin Gawande died during trial and, therefore, we are concerned with the acquittal of Accused Nos. 2, 6, 7, 8, 12, 14 and 16 who are now seven in number. The Trial Judge recorded the following reasons for making an order of their acquittal:- "117. ...................................................................... Similarly her evidence against A/7 Pandurang Injewar, A/12 Mahesh Bante, A/14 Sandeep Sanas and A/16 Maroti Walke does not inspire confidence." "125. In the case in hand, accused Nos. 1, 4, 5, 9, 10, 11, 13 and 15 along with some other un-identified assailants armed with deadly weapons came on the spot and belaboured the deceased Pintu on account of previous enmity. In the case in hand, accused Nos. 1, 4, 5, 9, 10, 11, 13 and 15 along with some other un-identified assailants armed with deadly weapons came on the spot and belaboured the deceased Pintu on account of previous enmity. The facts and circumstances of the case unequivocally prove the existence of their common object forming unlawful assembly and attacked the deceased Pintu. The evidence so far as against rest of accused persons in question creating doubts to reveal their complicity in the alleged crime and hence, I record my finding accordingly against point No. 5." 89. We find from the careful reading of the entire Judgment that except the above reasons, no reasons appear in the Judgment for recording the order of acquittal of these accused persons. In fact, it is paradoxical. We have already discussed the evidence of the witnesses including the witnesses PW 26 and PW 33 and also indicated the names of these acquitted accused in bracket for emphasis. We have discussed in detail about the trustworthiness of the evidence of these two eye-witness in so far as convicted accused persons are concerned. Upon careful perusal of the entire evidence over and again for the purposes of deciding the appeals against acquittal and keeping in mind the set principles in the matter of appeal against acquittal, we find that from the evidence which we have carefully pondered over while deciding the criminal appeals filed by the appellants-accused persons, Trial Judge has recorded no reasons as to why he recorded the order of acquittal of these accused persons. There is, thus, a clear perversity in our opinion and, in fact, the High Court is entitled to interfere if there is perversity on the part of Trial Judge in recording order of acquittal, or rather High Court is under a duty to interfere when there is voluminous evidence against these acquitted accused persons. We find in the instant case that as we have already extracted evidence in our judgment while deciding the criminal appeals filed by the accused persons from which it is clear that out of these acquitted accused persons, except Accused No. 6 - Mayur Chauhan, Accused No. 8 Rajesh Kadu and Accused No. 14 - Sandip Sanas, all the others, I.e., Accused Nos. 2 - Mangesh Chavan, 7 - Pandurang Injewar, 12 - Mahesh Damodhar Bante, and 16 - Maroti alias Navva Walake have been duly named, identified on 21st June, 2015 itself by PW 26 and PW 33 whom we have believed as the eye-witnesses. In so far as Accused No. 6 - Mayur Chauhan, Accused No. 8 - Rajesh Kadu and Accused No. 14 - Sandeep Sanas are concerned, their acquittal by the Trial Judge deserves to be confirmed for the following reasons:- PW 26 Vijaya named Accused No. 6 - Mayur Chauhan in her evidence before the Court, but the Investigating Officer - PW 36 Vinod on page No. 419 of the paper-book stated that she had not stated the name of Accused No. 6 - Mayur Chauhan when he recorded her statement under Section 161, Criminal Procedure Code and, thus, proved the said omission about him. PW 33 Shefali did not state the name of Accused No. 6 - Mayur Chauhan, but stated the name as "Bunti Chauhan", which nickname was never admitted by anybody, nor proved by the prosecution. But then she admitted that she did not state [paper book page No. 351] about him in her statement recorded by police as assailant which omission was duly proved by PW 36 - Vinod on page No. 414 [para 21 of the paper-book]. In so far as Accused No. 8 - Rajesh Kadu is concerned, PW 26 - Vijaya in her substantive evidence before the Court did not at all name him as assailant, and also admitted that she had not stated his name when her statement was recorded by Police vide page 228 para 36 of the paper book and accordingly the Investigating Officer proved the said omission. PW 33 Shefali took the name of Rajesh Kadu in her substantive evidence before the Court, but then admitted in the cross-examination that she did not state his name when her statement was recorded by police [page 364 of the paper-book]. As regards Accused No. 14 Sandeep Sanas, PW 26 Vijaya did not say a word about Accused No. 14 as assailant in her evidence before the Court. PW 33 Shefali, however, named Accused No. 14 Sandeep Sanas in her evidence. As regards Accused No. 14 Sandeep Sanas, PW 26 Vijaya did not say a word about Accused No. 14 as assailant in her evidence before the Court. PW 33 Shefali, however, named Accused No. 14 Sandeep Sanas in her evidence. It is, thus, clear that in so far as Accused No. 6 Mayur Chavan and Accused No. 8 Rajesh Kadu are concerned, the evidence of both these eye-witnesses suffers from serious infirmity and we think it is risky to convict them. In so far as Accused No. 14 Sandeep Sanas is concerned, Vijaya has not named him at all in her substantive evidence before the Court and PW 33 Shefali has only named him, resulting into want of corroboration for Accused No. 14 Sandeep Sanas from PW 26 Vijaya. We feel it risky to convict Accused No. 14 Sandeep Sanas on the singular testimony of PW 33 Shefali who identified him before the Court for the first time and her evidence not being corroborated by her mother about him. 90. In so far as other acquitted accused persons, i.e., Accused Nos. 2, 7, 12 and 16 are concerned, we find that so far as Accused No. 2 - Mangesh is concerned, initially PW 26 Vijaya had stated by pointing out Umesh Dahake as "Mangesh". But then at the end of same paragraph, she again identified Mangesh Chavan as the assailant. Similarly, both these eyewitnesses - PW 26 and PW 33 in their sworn testimonies which we have already quoted earlier, identified all the other acquitted accused persons, namely Accused Nos. 2, 7, 12, and 16. The submission made by learned counsel for the respondents - acquitted accused persons that the weapons seized from them or the clothes seized from them did not have any blood stains and, therefore, order of acquittal is justified does not appeal to us. In the first place, the evidence regarding finding of blood on shirt or weapon is in the form of a corroborative evidence and is not the substantive evidence. Substantive evidence before the Court is that of PW 26 and PW 33 which the Trial Court has believed, so also we. Though Trial Court believed their evidence in entirety, without recording any reasons, Trial Court recorded the order of their acquittal. Substantive evidence before the Court is that of PW 26 and PW 33 which the Trial Court has believed, so also we. Though Trial Court believed their evidence in entirety, without recording any reasons, Trial Court recorded the order of their acquittal. We, therefore, find that there is a clear perversity on the part of Trial Judge in recording the order of acquittal in relation to all these accused persons who were acquitted, except Accused No. 6 Mayur Chavan, Accused No. 8 Rajesh Kadu and Accused No. 14 - Sandeep Sanas. That being so, we have no other alternative, but to reverse the Judgment and Order of acquittal of the above accused [Accused Nos. 2, 7, 12 and 16] persons which we do herein and convict them of the offences punishable under Sections 147, 148, 149 and 302 read with Section 34 of Indian Penal Code and under Section 4 r/w Section 25 of the Arms Act and u/s. 135 of the Bombay Police Act. 91. In so far as four accused by names Sachin Gawande [Accused No. 3] [dead], Rajesh Kadu [Accused No. 8], Sandeep Sanas [Accused No. 14] and Ayub Khan [Accused No. 11] [convicted] are concerned, their names were never given by PW 26 - Vijaya and PW 33 - Shefali when their statements under Section 161, Criminal Procedure Code, were recorded. They were identified in Test Identification Parade held on 21st August, 2002, i.e., after two months of the incident. Both these witnesses have not said a word about these four persons as to whether they had any weapon in their hands and it was vaguely stated that they were assailants. The relevant portion from the evidence of PW 33 - Shefali in this contest is reproduced below:- "11. ...................................................................... The witness pointed out the finger towards four accused person and identified them by their faces as assailants. On being asked the names from the said accused person. Their names are Ayub Khan, Sandeep Sanas, Sachin Gawande, Rajesh Kadu." "13. On 21st of August, 2002, I was called for T.I. Parade in Jail. My mother was also called in Jail for T.I. Parade. During T.I. Parade in two round, I identified two assailant in each round. The said four assailants to whom I identified as assailants during T.I. Parade are today present before the Court. On 21st of August, 2002, I was called for T.I. Parade in Jail. My mother was also called in Jail for T.I. Parade. During T.I. Parade in two round, I identified two assailant in each round. The said four assailants to whom I identified as assailants during T.I. Parade are today present before the Court. The witness pointed out the finger towards Ayub Khan, Sandeep Sanas, Sachin Gawande, Rajesh Kadu and identified them. The T.I. Parade dated 21.08.2002 now shown to me. It bears my signature at page No. 5 and 14. I put these signatures in the Central Jail at the time of T.I. Parade." This is the evidence of both these witnesses. In other words, the prosecution is relying only on the evidence of identification of these four persons in the Test Identification Parade and there is no other evidence against them. Evidence in the Test Identification Parade, as stated earlier, is not a substantive evidence but is corroborative collected during investigation of a crime. In the substantive evidence, the identification of these four persons is on the basis of Test Identification Parade without any description about the weapons they had overt act, or, as the case may be, as these witnesses specifically described about the weapons in respect of other accused persons. The delay of two months in holding the parade in respect of these four persons may become a material aspect, particularly because all these four persons have not been named in the statements under Section 161, Criminal Procedure Code on 21st June, 2002. That apart, in so far as these four persons, who are said to have been identified as assailants by faces are concerned, the evidence of PW 26 Vijaya is infirm, examined in the light of one of them, namely Accused No. 8 - Rajesh Kadu. We quote the following portions from paras 35 and 36 of PW 26 - Vijaya's evidence:- "35. It is true Rani Annapurnadevi was residing in Chhota Tajbag area till her death. It is true some time, I also resided in the area of Chhota Tajbag. My both brother-in-law are still residing in Chhota Tajbag Area. I was visiting Rani Annapurnadevi and my both the brother-in-law after leaving the said area. Even after the death of Rani Annapurnadevi, I was visiting Chhota Tajbag area. It is true Dayaram Kadu was the servant of Rani Annapurnadevi. My both brother-in-law are still residing in Chhota Tajbag Area. I was visiting Rani Annapurnadevi and my both the brother-in-law after leaving the said area. Even after the death of Rani Annapurnadevi, I was visiting Chhota Tajbag area. It is true Dayaram Kadu was the servant of Rani Annapurnadevi. He used to look after the work of Rani Annapurnadevi and used to sit with her. I was having good relation with Dayaram Kadu as he being servant of Rani Annapurnadevi. It is true at the time of marriage of my elder daughter, I had invited Dayaram Kadu. It is true I had also invited him at the time of marriage of my son Swapnil. It is true the children of Dayaram Kadu used to call me and my husband as maternal Uncle and Aunt. I do not remember if accused Rajesh Kadu had attended the marriage of my son - Swapnil." "36. It is true I did not state to the Police while recording my statement the number of the assailants to whom I identified by faces. I do not remember whether I did state to the Police while recording my statement, the total number of the assailants were 14 to 15. I cannot assign any reason as to why the said fact is not recorded by the Police in my statement. I did not state the name of the accused Rajesh Kadu to the Police while recording my statement. I did not state age, colour, built, complexion, height, clothes worn and the weapons possessed by the assailants of which I did not give names to the Police while recording my statement. I did not state the name of the accused Rajesh Kadu to the Police while recording my statement. I did not state age, colour, built, complexion, height, clothes worn and the weapons possessed by the assailants of which I did not give names to the Police while recording my statement. ….." It is, thus, impossible to believe that Accused No. 8 - Rajesh Kadu was not known to the mother and daughter [PWs 26 and 33 respectively] when Dayaram Kadu was their servant looking after Rani Annapurnadevi and the children of Dayaram Kadu, namely Rajesh Kadu and others used to call PW 26 Vijaya and her husband "Mama and Mami." It is in this background, we find it very risky to convict Accused No. 8 - Rajesh Kadu, Accused No. 11 - Ayub Khan, and Accused No. 14 - Sandeep Sanas, In so far as Accused No. 11 Ayub Khan is concerned, he was, however, convicted by the Trial Court and, therefore, as a result of this discussion, the benefit of doubt will have to be extended to Ayub Khan and consequently Criminal Appeal No. 570 of 2013 filed by him will have to be allowed and he will have to be acquitted, which we do hereunder. 92. Having, thus, decided to allow Appeal against Acquittal against the above accused persons, except Accused No. 6 - Mayur Chavan, Accused No. 8 Rajesh Kadu and Accused No. 14 - Sandip Sanas for the reasons recorded by us, we will have to hear the accused persons [Accused No. 2 - Mangesh Chavan, Accused No. 7 - Pandurang Injewar, Accused No. 12 - Mahesh Damodhar Bante, and Accused No. 16 - Maroti alias Navva Walake] on the question of sentence to be awarded to them. Hence we post these two appeals against acquittal for hearing on the point of sentence on 26th June, 2015. Counsel appearing for them shall address the Court on the above date. Criminal Appeal No. 56/2014: 93. This appeal has been filed by Smt. Vijaya wife of Dilipsingh Shirke, complainant, i.e., mother of deceased Pintu Shirke, for enhancement of sentence by converting life imprisonment into death for the convicted accused persons - the appellants. 94. We have heard Mrs. Vijaya Shirke in person who was present in the Court on the date of hearing along with learned Public Prosecutor Mrs. Dangre. Mrs. 94. We have heard Mrs. Vijaya Shirke in person who was present in the Court on the date of hearing along with learned Public Prosecutor Mrs. Dangre. Mrs. Vijaya Shirke submitted that by making a diabolical plan, her son was murdered in broad daylight in the District Court building complex which terrorized one and all. According to her, punishment of death sentence is the only punishment they deserved in order to have deterrence for such type of accused persons who dared to enter District Court premises for attacking the deceased who was in the Magisterial Custody brought by the police for production before court and who was helpless having no means to resist the attack. She, therefore, submitted that this is the most heinous crime committed in the public place, that too in the temple of justice and, therefore, the punishment of death is required to be awarded to the convicted accused persons. 95. The defence counsel for all the convicted accused persons have opposed the appeal for enhancement of sentence and submitted that there is no element of rarest of rare case as contended by her. 96. Upon hearing Mrs. Vijaya Shirke, the appellant in person before us and the defence counsel and having given our careful thought to the entire matter, we think that the act of the accused persons was dastardly creating trepidation in the temple of justice in a broad daylight by committing the murder of the person in custody of the court. But it cannot be said that it is the rarest of rare case for awarding the sentence of death to the convicted accused persons. That being so, we do not find any merit in the appeal for enhancement of sentence to death filed by Mrs. Vijaya Shirke, the Appellant in Criminal Appeal No. 56 of 2014. 97. In the result, her appeal will have to be dismissed which we do. 98. As a sequel, we make the following order:- ORDER [a] Criminal Appeal No. 569 of 2013 filed by Vijay Kisanrao Mate is dismissed. [b] Criminal Appeal No. 561 of 2013 filed by Raju Vitthalrao Bhadre is dismissed. [c] Criminal Appeal No. 564 of 2013 filed by [1] Kiran Umraoji Kaithe and [2] Dinesh Devidas Gaiki is dismissed. [d] Criminal Appeal No. 573 of 2013 filed by [1] Umesh Sampatrao Dahake, [2] Ritesh Hiramanji Gawande and [3] Kamlesh Sitaram Nimbarte is dismissed. [b] Criminal Appeal No. 561 of 2013 filed by Raju Vitthalrao Bhadre is dismissed. [c] Criminal Appeal No. 564 of 2013 filed by [1] Kiran Umraoji Kaithe and [2] Dinesh Devidas Gaiki is dismissed. [d] Criminal Appeal No. 573 of 2013 filed by [1] Umesh Sampatrao Dahake, [2] Ritesh Hiramanji Gawande and [3] Kamlesh Sitaram Nimbarte is dismissed. [e] Criminal Appeal No. 56 of 2014 filed by Smt. Vijaya Dilipsinghraje Shirke is dismissed. [f] Criminal Appeal No. 73 of 2014 and Criminal Appeal No. 55 of 2014 filed by State of Maharashtra and Smt. Vijaya Dilipsinghraje Shirke respectively, both are partly allowed, and the following respondents-accused persons, namely:- [i] Accused No. 2 - Mangesh Shivajirao Chavan, [ii] Accused No. 7 - Pandurang Motiramji Injewar, [iii] Accused No. 12 - Mahesh Damodhar Bante, and [iv] Accused No. 16 - Maroti alias Navva Santoshrao Walake are hereby convicted of the offences punishable under Sections 147, 148, 149 and 302 read with Section 34 of Indian Penal Code and under Section 4 r/w Section 25 of the Arms Act and under Section 135 of the Bombay Police Act, except for offence punishable under Section 120-B of Indian Penal Code. These appeals are, however, dismissed against other respondents - Accused No. 6 - Mayur alias Banti Shivajirao Chavan, Accused No. 8 - Rajesh Dayaramji Kadu and Accused No. 14 - Sandeep Nilkanthrao Sanas. [g] Those accused persons who are on bail, their bail bonds stand cancelled and all the convicted accused persons are given eight weeks to surrender. [h] Criminal Appeal No. 570 of 2013 filed by Accused No. 11 - Ayubkhan son of Amirkhan Pathan against State of Maharashtra is allowed and the impugned Judgment and Order convicting him of offences punishable under Sections 147, 302, 120(b) read with Section 149 of Indian Penal Code is set aside only qua him, and he is acquitted of the charges for which he was convicted by the learned Trial Judge. He be set at liberty forthwith, if not required in any other crime. 99. As Counsel for accused No. 2 is not present, we would like to post these appeals on 26th June, 2015 at 2.30 p.m. for hearing on sentence for Accused Nos. 2, 7, 12 and 16. Appeal Dismissed.