JUDGMENT : A.B. Chaudhari, J. 1. Criminal Appeal No. 282/2003 was filed by the State of Maharashtra, against the judgment of acquittal for an offence punishable under Section 302, 307, 147, 148 read with Section 149 of the Indian Penal Code in favour of the original accused Nos. 2 to 5 while Criminal Appeal No. 131/2003 was filed by the appellant-Raju Laxman Pardhe, who alone was convicted by the same judgment i.e. dated 28.01.2003 passed by Additional Sessions Judge, Amravati in Sessions Case No. 22/1994, by which he was convicted for an offence punishable under Section 302 of the Indian Penal Code and was sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 1,000/-. FACTS: On 11.09.1993 at about 5.00 p.m. the incident occurred at village Hiwarkhed in the jurisdiction of Morshi Police Station. Original accused persons numbering six had formed an unlawful assembly, armed with weapons like Gupti, iron bars and sticks and committed murder of Mohan Pardhe and attempted to commit murder of Arun Pardhe and Shaligram Pardhe. Report was lodged by P.W. 1-Arun brother of deceased Mohan which is at Exh. 52 and was registered at Exh. 53. He described the incident that at about 5.00 p.m. the complainant Arun Pardhe was sitting on cot in front of his house while his brother Mohan, the deceased stated that he was going to take dinner at obsequies ceremony of Bapurao Pardhe and accordingly he alone preceded. Immediately, the complainant heard the alarm/shouting towards the house of Laxman Pardhe accused No. 3 and he ran to that side when he saw Raju Pardhe accused No. 1 dealt the blow of Gupti on the person of deceased Mohan while father of Raju i.e. accused No. 3 inflicted blows of iron pipe on the head of the complainant and he sustained injuries above and below the right eye. At about 2.30 p.m., after completion of obsequies ceremony of Bapurao Pardhe at the river, the complainant had gone to the house of Bapurao where his brother Mohan was talking to the other guests and accused persons assembled there and telling that the deceased Bapurao, being the milk brother of Laxman, they should have incurred expenses on the Tervi function on which Mohan was assaulted by them. After the incident of assault on Mohan, on receipt of the telephone message. After the incident of assault on Mohan, on receipt of the telephone message. P.W. 7-Dilip Shingade, rushed to the spot of incident and saw Mohan lying in injured condition and was referred to Primary Health Centre, Morshi. He recorded spot panchanama, seized blood mixed earth etc. Thereafter, he referred the complainant Arun Pardhe and Shaligram Pardhe for medical examination, attached one Gupti from Narendra Pardhe. Mohan was declared dead in the hospital. Inquest was made. Post mortem was conducted. Accused persons were arrested. Map of the spot was drawn, articles were recorded. Chemical Analyser's report was obtained and finally chargesheet was filed. After committal of the case to the Sessions Judge, the trial was held. The learned trial Judge heard the evidence and arguments and finally convicted the appellant accused No. 1 Raju while acquitted all other accused persons. Hence, these appeals; by the State against acquittal of other appellants and by Raju against order of conviction. ARGUMENTS: 2. In support of Criminal Appeal No. 282/2003, preferred by the State, the learned A.P.P. for the State vehemently argued that the trial Judge erred in acquitting other accused persons except convicting accused No. 1 Raju. He submitted that there is perverse appreciation of evidence in doing so. He submitted that the finding of trial Judge for acquitting the other accused persons is clearly faulty, perverse and, therefore, the judgment of acquittal should be reversed. Per contra, Mr. Manohar, learned counsel for the respondent, supported the order of acquittal recorded by the trial Judge. CONSIDERATION: 3. We have considered the submissions made by the learned counsel for the rival parties. We have seen the reasons recorded by the trial Judge for recording acquittal of other accused persons except Raju. We agree with the reasons recorded by the trail Judge for acquitting other accused persons except Raju. We quote reasons recorded by the learned trial Judge in paragraphs 37, 38, 39 and 40 of the judgment, which are as under: "37. .....While cross-examined by the defence, the defence brought the omissions in the evidence of P.W. 1-Arun in para 11 that, there is no mention in his report that accused No. 2 Sanjay caught hold both the legs of Mohan and fell him down on the ground. Thus, as regards accused No. 2, P.W. 1 - Arun appears to have given exaggerated account in that respect, defence have brought on record the omissions. Thus, as regards accused No. 2, P.W. 1 - Arun appears to have given exaggerated account in that respect, defence have brought on record the omissions. Thus excluding this evidence of omission against accused No. 2, Sanjay, then in the evidence of P.W. 1-Arun, only evidence remains against accused No. 1 Raju about assault with weapon gupti to the person of Mohan. In the evidence of P.W. 1-Arun, there appears no overt act on the part of accused No. 3 Laxman, accused No. 4 Sail. Suman and accused No. 50 Sunita as assailants of deceased Mohan. Thus, on close scrutiny of the evidence of P.W. 1-Arun, it is seen that as regards deceased Mohan, there is evidence which is cogent only against accused No. 1 Raju. 38. ......P.W. 2-Narendra stated that accused No. 4 Suman and accused No. 5 Sunita came with sticks and they also assaulted Mohan with sticks. Regarding this version of P.W. 2 - Narendra we have no any corroboration from the medical evidence of P.W. 5-Dr. Nikam and therefore, I find that the evidence of P.W. 2-Narendra against accused Nos. 4-Suman and accused No. 5-Sunita is also by way of exaggeration and went to that extent, the evidence of P.W. 1 - Arun is also silent. Even there is no overt act attributed against accused No. 3 Laxman as the assailant of deceased Mohan. Thus, in the evidence of P.W. 2 - Narendra, the material role is assigned to accused No. 1 Raju as assailant of Mohan with gupti. 39. .....As regards accused No. 2 Sanjay, P.W. 3-Shalikram stated that accused No. 2 Sanjay caught both the legs of Mohan and pulled and because of that Mohan fell down on the ground. This version, in my opinion, is also exaggerated one when it is not mentioned in the F.I.R. immediately lodged by P.W. 1-Arun and it appears that to this extent, his version his exaggerated. As against accused No. 4, Suman and accused No. 5 Sunita, P.W. 3 - Shalikram stated that accused Nos. 4 and 5 inflicted stick blows on the person of Mohan. As against accused No. 4, Suman and accused No. 5 Sunita, P.W. 3 - Shalikram stated that accused Nos. 4 and 5 inflicted stick blows on the person of Mohan. In this regard, the defence brought omission in para 8 and we found that there is no specific mention in the statement of P.W. 3 - Shalikram dated 12093 that accused No. 4 Suman and accused No. 5 Sunita in the context of inflicting stick blows on the person of Mohan while he was laying odnw on the ground. Thus, against accused No. 4 Suman and accused No. 5 Sunita, we find somewhat exaggeration even in the evidence of P.W. 3 - Shalikram Pardhe. Even otherwise, there is no medical corroboration to this evidence about the assault by sticks to deceased Mohan. So far as accused No. 3 Laxman is concerned, no active role is attributed against him as assailant of Mohan in the evidence of P.W. 3-Shaligram. 40. .....Thus, on close scrutiny of the evidence of P.W. - 1, P.W. - 2 and P.W. - 3, it is seen that there is no overt act attributable against accused No. 3 Laxman and the version against accused Nos. 4 Suman and 5 Sunita, found to be exaggerated, not corroborated by the medical evidence on record and even as regards accused No. 2 Sanjay, the omission is duly proved in the evidence of P.W. 1-Arun on the basis of report and I found evidence of P.W. 2-Narendra and P.W. 3 - Shalikram even exaggerated as against accused No. 2 Sanjay. Thus in this premises, when there is no cogent and reliable evidence against overt act to accused No. 2 Sanjay, accused No. 3 Laxman, accused No. 4 Suman and accused No. 5 Sunita, in the assault on the person of deceased Mohan, I am of the opinion that it cannot be said that these accused persons Nos. 2 to 5 were the members of an unlawful assembly in prosecution of the common object and when in the peculiar facts and circumstances of the case, the present incident was not the result of preplanning or prior meeting of minds and when both the parties appears to be in relation of deceased Baptirao Pardhe, for whose Terwi function there was gatherings of the relatives and guests. As stated supra, mere presence would not suffice to call the individual as the member of an unlawful assembly and it is only the overt act of the concerned culprit, i.e. the deciding factor whether he or she was or was not the member of an unlawful assembly during the course of incident. To be precise, there is cogent evidence of P.W. 1-Arun, P.W. 2-Shalikram only against accused No. 1 Raju." For the above reasons recorded by the trial Judge, looking to the limitation of this Court in an appeal against acquittal, the order of acquittal cannot be interfered with. We are, therefore, inclined to dismiss the appeal filed by the State. 4. Insofar as Criminal Appeal No. 131/2003, filed by accused Raju Pardhe is concerned, Mr. Manohar, learned counsel for the appellant contended that particularly speaking about this case, prosecution has suppressed the genesis of the case and the thus prosecution is guilty of supprecio varie suggestio falsi. He submitted that there is lacerated injury on the person of the appellant-Raju, which is proved by the doctor concerned and another injury on the person of Laxman. The prosecution has miserably failed to explain the injuries particularly, when it is the case of the prosecution that the witnesses had interfered in the quarrel that was going on and not only that P.W. 2-Narendra had taken out Gupti from his house and handed over it to police, which was said to have been utilized at the time of incident. He then submitted that even P.W. 1-Arun, who is stated to have injured, also admitted that the deceased Mohan was abusing appellant Raju and his father Laxman while they were sitting for dinner at the house of Dadarao. The learned counsel then submitted that looking to the geography of the area where the incident is said to have taken place, there is all the more impossibility of witnesses seeing the incident as claimed by them. The learned counsel for the appellant then contended that if the evidence of witness is seen, in the first place, P.W. 1-Arun, P.W. 2-Narendra and P.W. 3-Shalikram are all the witnesses who are closely related to the deceased namely; brothers and father of the deceased and they are highly interested witnesses whose testimony was required to be carefully scrutinized for finding out the truth. The learned trial Court, however, without examining the fact that they were interested witnesses, without applying the rule of caution, accepted the testimony despite the fact that the medical evidence does not tally with the ocular version of the witnesses and the same was accepted, though inconsistent. He then submitted that defence from the cross-examination of the witnesses for the prosecution as well as examined defence witness, whose name was mentioned by informant at the first blush in the F.I.R., was examined before the trial Court since the said witness was withheld from the court. The said witness D.W. 3 Someshwar an independent witness from the other village, unfolded the genesis of the prosecution case and, therefore, the trial Court should have carefully assessed his evidence particularly because the trial Court decided to rely on the interested witnesses i.e. the blood relatives of the deceased. Mr. Manohar, took us through the entire evidence on record so also the learned A.P.P. 5. Per contra, Mr. Uikey, the learned A.P.P. for the State, submitted that though it is true that the interested witnesses were examined by the prosecution i.e. P.W. 1-Arun, P.W. 2-Narendra and P.W. 3-Shalikram, as eye witnesses, the fact remains that the injured party was on the side of the complainant only and the defence was not probabilised as contended. The trial Court has scrutinized the evidence of the interested witnesses P.W. 1-Arun, P.W. 2-Narendra and P.W. 3-Shalikram and did not find any fault with their evidence and, therefore, did not reject their evidence. He then contended that all other accused have been acquitted except accused No. 1 Raju since there is direct evidence of assault on deceased Mohan by means of Gupti, repeatedly. He, therefore, submitted that the appeal filed by appellant-Raju be dismissed. CONSIDERATION: We have heard learned counsel for the rival parties at length. Perused the entire evidence as well as record with the assistance of learned counsel for the rival parties. It is no doubt true that P.W. 1 - Arun, P.W. 2-Narendra and P.W. 3-Shalikram are the witnesses who are blood relatives of the deceased. P.W. 1 - Arun and P.W. 2-Narendra are the real brothers while P.W. 3-Shalikram is father of the deceased. The evidence of this witness is, therefore, required to be carefully analysed keeping in mind the rule of caution. P.W. 1 - Arun and P.W. 2-Narendra are the real brothers while P.W. 3-Shalikram is father of the deceased. The evidence of this witness is, therefore, required to be carefully analysed keeping in mind the rule of caution. We find from the evidence of P.W. 1-Arun that he lodged the F.I.R. with Police Station, Morshi immediately after the incident. It is noteworthy that in his F.I.R. itself he has mentioned that Someshwar Dayaramji Mahore, r/o Ner Pinglai was the person present at the time of the incident. It is not in dispute that the statement of Someshwar under Section 161 of the Cr.P.C. was recorded by police but the prosecution withheld the said witness from the court and did not examine him, for the reason best known to the prosecution. No explanation has also been tendered by the Investigating Officer as to why though name of Someshwar was mentioned as eye witness in the F.I.R. itself immediately after the incident, he was withheld from the Court. Someshwar was an independent witness and should have been examined by the prosecution in a situation when the prosecution decided to examine the only interested witnesses i.e. P.Ws. 1, 2 and 3 as witnesses to the incident. We will discuss the evidence of (D.W. 3) Someshwar at later point of time. 6. We, however, would from the evidence of P.W. 1-Arun, find that he admitted that it was the deceased Mohan who was addressing accused-Raju and his father Laxman in insulting and abusive words before the incident took place. So also, the evidence of P.W. 2-Narendra shows that it is he who had got Gupti that was utilised in the incident of assault at his house and police had then recovered it from his house. P.W. 3-Shaligram, father of the deceased, stated that three blows of Gupti were given by appellant Raju on the person of the deceased. The medical evidence, however, shows that there was only one penetrating would by means of Gupti and i.e. injury No. 2 and corresponding internal injury i.e. linear cut over pericardium on left side. This medical evidence does not at all support the version of this witness who stated that accused No. 1-Raju has given repeated blows on the person of Mohan. 7. This medical evidence does not at all support the version of this witness who stated that accused No. 1-Raju has given repeated blows on the person of Mohan. 7. Keeping in mind the above position, we then go to the evidence of D.W. 3-Someshwar about which we have already stated that he was the person who was named in the F.I.R. as well as statement as eye witness by P.W. 1-Arun. We have carefully perused the entire evidence of (D.W. 3) Someshwar. We have perused the cross-examination of Someshwar. To our dismay, we find that though statement under Section 161 of the Cr.P.C. of this witness was recorded by police, omissions, if any in his deposition and the statements were never brought to his notice by the learned prosecutor nor they were proved from the Investigating Officer. But then the prosecution must thank itself for the same and we need not to make any comments. D.W. 3-Someshwar, to repeat, is an independent eye witness, who was named in the F.I.R. as eye witness and whose statement under Section 161 of the Cr.P.C. was recorded by police. His substantive evidence before the Court reads thus: "2. The incident is of dated 1, 1993. On that date there was obituary ceremony of my father-in-law Bapurao Pardhe. Therefore, I went to village Hiwarkhed at about 8 or 9 A.M. in the morning to attend the ceremony. Then at about 10 or 10.30 A.M. we went to the river. Near about all the relatives and other guests total in number 200 had come to river. Firstly Dadarao Pardhe offered his hair. Then Laxman Pardhe and Arun Pardhe offered their hair. However, Arun Pardhe did not offer his mustache. Therefore, accused No. 1 Raju asked Arun to offer mustache. On that Mohan, Arun and Shaligram gave abuses to accused No. 1 Raju. Naresh Pardhe was also there. They said to accused No. 1 Raju to kill him in the village further saying that, he has been too much affront. The guests persons gave understanding to them, and they were (Mohan, Shaligram, Arun and Naresh) sent back from river to home. Accused No. 1 Raju Pardhe and accused No. 3 Laxman Pardhe were with us while returning from the river. Accused No. 1 Raju and accused No. 3 Laxman Pardhe then went to their house. The guests persons gave understanding to them, and they were (Mohan, Shaligram, Arun and Naresh) sent back from river to home. Accused No. 1 Raju Pardhe and accused No. 3 Laxman Pardhe were with us while returning from the river. Accused No. 1 Raju and accused No. 3 Laxman Pardhe then went to their house. We were at the house of Bapurao Pardhe." On the incident proper, we quote paragraph 3 of his evidence, which are as under: "3. The guest persons took the meal at the house of Bapurao Pardhe. With the guests persons, Arun Pardhe, Shaligram Pardhe and Narendra Pardhe took their meal and then all the three went to their house. However, accused No. 1 Raju and accused No. 3 Laxman Pardhe did not take the meal and therefore, I along with Dadarao Pardhe and Ramesh Pardhe went to call to the house of Laxman Pardhe. Accused No. 1 Raju and accused No. 3 Laxman Pardhe therefore, came with us. By that time, it was about 3.30 or 4 P.M. We came up to in front of house of Bapurao Pardhe. There is a lane in front of house of Laxman Pardhe and Bapurao Pardhe. Mohan (deceased) came running with gupti. Arun and Narendra also came running holding pipes. Shaligram came with slick. Accused No. 1 Raju caught hold the hand of Mohan holding gupti. There was grappling between accused No. 1 Raju and Mohan (deceased) and in that they both fell down on the ground. The gupti in the hand of Mohan struck to the chest of Mohan. Shalikram Arun and Naresh started assaulting to the accused No. 1 Raju and accused No. 3 Laxman, by stick and pipes. and due to that accused No. 1 Raju and accused No. 3 Laxman received injuries. The relatives rushed to the spot. Mohan was lifted and was taken to the house. Then accused No. 1 Raju went to give report. Police persons came. Police made enquiry from me about the incident, and I had narrated the incident to the police." Reading of the above evidence, to our mind, clearly shows that the prosecution case is befouled and the defence case is probabilized in full particulars. We would like to quote paragraph 4 of the cross-examination by learned APP for the State of the witness, which is as under: "4. We would like to quote paragraph 4 of the cross-examination by learned APP for the State of the witness, which is as under: "4. I do not know the names of guests persons which came to the house of Bapurao Pardhe. Not true to say that I had gone to Hiwarkhed one day earlier in evening lime and was at the house of Dadarao in the night time. I cannot tell the names of guests persons present at the river. Not true to say that I left Hiwarkhed at about 3 or 3.30 P.M. for going back to my village. Not true to say that I am deposing that I saw the incident for the first time. The accused persons and the complainant party are of my caste. Not true to say that I am deposing false to save the accused persons." The above cross-examination shows that his evidence before the Court has not at all been challenged. 8. Thus, we have absolutely no reason not to accept the evidence of this witness though he is examined as Defence Witness No. 3 at least for the purpose of probabilising the defence case. It is well settled legal position that the benefit of doubt in such types of cases must go to the accused. We, therefore, hold that the appellant accused No. 1 is required to be given benefit of doubt in the wake of discussion made by us on merits of the evidence. In the result, we pass the following order. ORDER (i) Criminal Appeal No. 282/2003 is dismissed. (ii) Criminal Appeal No. 131/2003 is allowed. (iii) The judgment and order dated 28th February. 2003 passed by Additional Sessions Judge, Amravati convicting the appellant Raju s/o. Laxman Pardhe for the offence punishable under Section 302 of the Indian Penal Code and sentencing him to suffer life imprisonment and to pay a fine of Rs. 1000/- in default to suffer R.I. for two months, is set aside. (iv) The appellant-Raju s/o. Laxman Pardhe is held not guilty of the offence punishable under Section 302 of the Indian Penal Code and is acquitted of the said charge. Bail bonds furnished by the appellant-Raju s/o. Laxman Pardhe stand cancelled.