JUDGMENT : SUNIL K. KOTWAL, J. 1. Criminal Appeal No. 25/2006 and Criminal Appeal No. 217/2006 are directed against the judgment and order of conviction passed by Sessions Judge, Jalna in Sessions Case No. 103/2004, convicting the appellants for the offences punishable under sections 325 read with section 149, 341 read with section 149, 147 and 148 of the Indian Penal Code (For short “I.P.C.). Criminal Appeal No. 282/2006 and Criminal Revision Application No. 44/2006 are filed by State and original informant Arun Naval respectively, against the order of acquittal passed by Sessions Judge, Jalna in Sessions Case No. 103/2004 and for enhancement of sentence. 2. The facts leading to institution to these appeals and revision are that all accused Nos. 1 to 10 are the residents of village Shrishti, Taluka Partur. Land of the accused and land of the family of Nandu Naval (hereinafter referred to as “deceased”) were adjacent to each other. Deceased and his three brothers used to cultivate their land jointly. Dispute frequently arose in between the family of the deceased and accused persons on account of their agricultural land and on the basis of reports lodged by family members of the deceased, chapter cases were filed against the accused persons. However, accused used to threaten the deceased and his brothers to beat them and to cause death of either of the brothers. Despite mediation by respectable villagers, the relations in between family of the deceased and accused persons remained strained. 3. On 30-6-2004 at about 4.00 to 4.30 p.m. when deceased Nandu was returning from his agricultural land known by local name “Mala” and when he reached near the land of Nandu Ambhore by Lingsa Panand, that time accused Nos. 1 to 10 intercepted the deceased and assaulted him by sticks, iron pipe, axe and dagger. Coincidently informant Arun Naval (PW-2) was also proceeding towards land “Mala” and at the time of occurrence and he was near Lingsa Panand. When he witnessed the occurrence, he started shouting and asked the accused not to beat the deceased. In response, some of the accused rushed towards Arun Naval (PW-2) and threatened to kill him. By that time, Pralhad Dattatraya Ambhore (PW-4) and Nandu Ambhore rushed on the spot. When the accused noticed the arrival of these witnesses, they escaped from the spot. In response, some of the accused rushed towards Arun Naval (PW-2) and threatened to kill him. By that time, Pralhad Dattatraya Ambhore (PW-4) and Nandu Ambhore rushed on the spot. When the accused noticed the arrival of these witnesses, they escaped from the spot. Due to the assault by accused, the deceased sustained injuries on his both legs, hands, head and his arms and legs had become motionless. Pralhad Ambhore (PW-4) immediately arranged for a car and his servant Damodar Mavkar (PW-5) took the deceased by car to bus-stand Shrishti. From the bus stand jeep was engaged and the deceased was brought to Police Station, Ashti. A.P.I. Bhosle (PW-14), who was present at Police Station, Ashti, when noticed the bleeding injuries sustained by the deceased and his deteriorating condition, advised the informant Arun Naval (PW-2) to immediately take the deceased for medical treatment. He handed over letter to P.H.C. Ashti. However, as the Medical Officer was not present at P.H.C. Ashti, the deceased was taken to Rural Hospital, Partur and from there he was referred to Civil Hospital, Jalna. At Rural Hospital, Partur Dr. Prashant Ambhore (PW-3) examined and provided primary treatment to the deceased before referring him to Civil Hospital, Jalna. However, on the way to Civil Hospital, Jalna deceased succumbed to his injuries. Thereafter the dead body of deceased was kept at Civil Hospital, Jalna. By that time, informant Arun Naval (PW-2) lodged F.I.R. (Exh.51) to Police Station, Ashti at about 6.30 p.m. Crime No. 31/2004 for the offences punishable under sections 143, 147, 148, 341, 504 and 307 read with section 149 of Indian Penal Code came to be registered against accused Nos. 1 to 10. A.P.I. Bhosle started investigation of this crime. After receiving the intimation of death of the deceased, section 307 of the Indian Penal Code was converted into section 302 of the Indian Penal Code. 4. During the course of investigation, A.P.I. Bhosle (PW-14) had drawn spot panchnama and seized samples of blood mixed earth and normal earth from the spot of the occurrence. On 1-7-2004, Dr. Uday Paritkar (PW-1) performed postmortem examination of the dead body of the deceased at Civil Hospital, Jalna. Accused Nos. 7 to 10 came to be arrested on 1-7-2004. In the meantime A.P.I. Bhosle (PW-14) was transferred and further investigation was carried out by A.P.I. Shetekar (PW-15). He arrested accused Nos. On 1-7-2004, Dr. Uday Paritkar (PW-1) performed postmortem examination of the dead body of the deceased at Civil Hospital, Jalna. Accused Nos. 7 to 10 came to be arrested on 1-7-2004. In the meantime A.P.I. Bhosle (PW-14) was transferred and further investigation was carried out by A.P.I. Shetekar (PW-15). He arrested accused Nos. 1 to 6 and on 5-7-2004 attached blood stained clothes on the person of the accused under panchnama recorded at Police Station. During investigation as per disclosure statement given by accused persons, the weapons of the offence were recovered from the accused and were seized under different panchnamas. Blood sample of the deceased as well as accused were collected and all seized articles were referred to Chemical Analyzer, Aurangabad. After completion of investigation, charge-sheet was submitted to J.M.F.C. Partur. 5. Offence punishable under section 302 of Indian Penal Code being exclusively triable by Court of Sessions, this case was committed to Sessions Court, Jalna. 6. Charge (Exh.29) was framed against accused Nos. 1 to 10 for committing offence punishable under sections 147, 148, 341, 506, 302 read with section 149 of the I.PC. Accused pleaded not guilty and claimed trial. 7. Defence of the accused is of total denial. They contended that on account political rivalry and village politics they have been falsely implicated. 8. Prosecution examined total 15 witnesses. Defence examined Mahadeo Solanke (DW-1) who is Branch Manager of District Co-operative Bank, Jalna to prove the defence of alibi taken by accused No. 7. 9. After considering the oral and documentary evidence placed on record, trial Court pleased to convict only accused Nos. 1 to 3, 6, 8, 9 and 10 for the offences punishable under sections 147, 148, 341 and 325 read with section 149 of the Indian Penal Code. The convicted accused were sentenced to suffer rigorous imprisonment for five years and to pay fine of Rs. 1,000/- in default rigorous imprisonment for six months each for the offence punishable under section 325 read with section 149 of the Indian Penal Code. They were sentenced to suffer rigorous imprisonment for three months and to pay fine of Rs. 250/- each in default rigorous imprisonment for 15 days for the offence punishable under section 147 of the Indian Penal Code. Further, they were sentenced to suffer rigorous imprisonment for six months and fine of Rs. They were sentenced to suffer rigorous imprisonment for three months and to pay fine of Rs. 250/- each in default rigorous imprisonment for 15 days for the offence punishable under section 147 of the Indian Penal Code. Further, they were sentenced to suffer rigorous imprisonment for six months and fine of Rs. 500/- each in default rigorous imprisonment for one month for the offence punishable under section 148 of the Indian Penal Code and rigorous imprisonment for 15 days each and to pay fine of Rs. 100/- in default rigorous imprisonment for 7 days each for the offence punishable under section 341 read with section 149 of the Indian Penal Code. The substantive sentence was to run concurrently and direction was given to pay the deposited fine amount to the widow of the deceased. Accused Nos. 4, 5 and 7 were acquitted of all the offences with which they were charged. Therefore, appeals against the order of conviction, State appeal and Revision against the order of acquittal arise. 10. Heard strenuous arguments submitted by Shri Jaydeep Chattergee, Advocate for the original accused and the learned A.P.P. for the State. 11. At the outset, learned Counsel for the appellants/convicted accused submitted that conviction of the accused Nos. 1 to 3, 6, 8, 9 and 10 is perfect. His only contention is that considering the old age of accused Uttam Ambhore, Ramkisan Ambhore and sentence already undergone by other convicted accused, the rigorous imprisonment for five years for the offence punishable under section 325 of the Indian Penal Code be reduced to the imprisonment already undergone by the accused. 12. Learned Counsel submitted that all the injuries noted by Dr. Uday Paritkar (PW-1) are on the limbs of the deceased and none of the injury is on vital part of the body. Learned Counsel for the appellants/convicted accused submitted that while assaulting the deceased, the assailants had chosen either hand and leg of the deceased which indicates the lack of intention to kill the deceased. Therefore, conviction of the accused under section 325 read with section 149 of the Indian Penal Code will be justified and accused cannot be convicted under section 302 of the Indian Penal Code for committing murder of the deceased, which requires causing death with intention to kill. 13. Therefore, conviction of the accused under section 325 read with section 149 of the Indian Penal Code will be justified and accused cannot be convicted under section 302 of the Indian Penal Code for committing murder of the deceased, which requires causing death with intention to kill. 13. Learned A.P.P. for the State submitted that total 9 injuries were found on the body of the deceased which indicate that the accused had brutally assaulted the deceased. He points out that one of the accused was also holding dagger in his hand which is sufficient to hold that accused had intention to kill the deceased, and therefore, the culminative effect of the brutal killing of the deceased at the hands of the accused is that they had requisite intention to kill the deceased at the time of assault. He prays for conviction of the accused under section 302 read with section 149 of the Indian Penal Code. 14. The next submission of learned A.P.P. is that the sentence of five years rigorous imprisonment for the offence punishable under section 325 of the Indian Penal Code is reasonable sentence considering the brutal attack on the deceased by accused. According to A.P.P., old age of some of the accused cannot be a proper reason to reduce the sentence imposed by the trial Court. 15. Out of the 15 witnesses examined by the prosecution, only Arun Naval (PW-2) and Pralhad Ambhore (PW-4) are eye witnesses who coincidently reached on the spot. The testimony of the remaining witnesses is regarding the circumstantial evidence brought on record by the prosecution. Undisputedly including deceased, his family members are on inimical terms with the accused persons on account of the dispute of the landed property. Therefore, at least the testimony of Arun Naval (PW-2) must pass the test of close scrutiny by this Court. 16. Arun Naval (PW-2) deposed on oath that on 30-6-2004, in the morning hours the deceased went to the agricultural land “Mala” and at about 4.00 p.m. Arun (PW4) started for going towards land “Mala”. When he reached to Lingsa Panand, near the agricultural land of Nandu Ambhore, he witnessed that accused Nos. 1, 2, 3, 5, 6, 7, 8, 9 and 10 were beating the deceased. When he reached to Lingsa Panand, near the agricultural land of Nandu Ambhore, he witnessed that accused Nos. 1, 2, 3, 5, 6, 7, 8, 9 and 10 were beating the deceased. According to this witness, accused No. 1 was armed with dagger and iron pipe, accused No. 2 was armed with iron bar, accused No. 6 was armed with axe and remaining accused were holding sticks in their hands and they were assaulting deceased by means of respective weapon in their hands. Arun (PW-1) when shouted, accused Nos. 8 and 10 rushed towards him and threatened to kill him. That time Nandu Bhagwanrao Ambhore and Pralhad Ambhore (PW-4) reached on the spot. Thereafter the accused left the spot of the incident. Regarding this occurrence Pralhad Ambhore (PW-4) has also fully corroborated by deposing that on the date of incident at about 4.00 p.m. when he was returning to his village near the land of Nandkumar Ambhore, he heard noise and the shout of Arun Naval (PW1) as “save, save”. Therefore, he rushed on the spot and witnessed that accused Nos. 1, 2, 3, 4, 8, 10, 6 and 9 were assaulting the deceased by iron pipes, sticks, iron bar, big knife and axe. According to this witness, he asked the accused not to beat the accused, otherwise he would die. This witness confirmed that Nandu Ambhore and the informant Arun Naval (PW-1) were present on the spot. 17. This is the material testimony of Arun Naval (PW-2) and Pralhad Ambhore (PW-4) regarding actual occurrence of the incident. The remaining part of the evidence is regarding shifting of the deceased to the rurlal hospital till the deceased reached to Civil Hospital, Jalna. 18. It is to be noted that Pralhad Ambhore (PW-4) is absolutely independent witness and despite searching cross-examination of this witness, nothing could be elicited which brings on record slightest possibility that this witness had any reason to falsely implicate the accused in the present case. Only because one criminal case is pending against this witness at the instance of one Haribhau Ambhore, inference cannot be drawn that this witness carried grudge against any one of the accused. 19. Only because one criminal case is pending against this witness at the instance of one Haribhau Ambhore, inference cannot be drawn that this witness carried grudge against any one of the accused. 19. Even the omissions pointed out by learned defence Counsel in the testimony of this witness are the minor discrepancies which do not shake the basic version of this witness regarding witnessing the occurrence of the incident of brutal assault to deceased at the hands of the accused. The Apex Court had occasion to consider as to what importance should be given to such minor discrepancies in the case of Bharwada Bhoginbhai Hirjibhai vs. State of Gujarat reported in AIR 1983 SC 753 , wherein the Apex Court ruled that, “Overmuch importance cannot be attached to minor discrepancies emerged in the testimony of prosecution witnesses. The reasons are obvious :— (1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. (2) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details. (3) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person’s mind, whereas it might go unnoticed on the part of another. (4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder. (5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guesswork on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person. (6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which taken place in rapid succession or in a short time span. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time-sense of individuals which varies from person to person. (6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which taken place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on. (7) A witness, though wholly truthful, is liable to be overawed by the Court atmosphere and the piercing cross-examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him – perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment”. 20. Thus, in the light of the above discussed trite law, no importance can be given to the minor discrepancies emerging in the testimony of Pralhad Ambhore (PW-4). However, it cannot be ignored that he has not named accused Nos. 5 and 7 as the assailants who were assaulting the deceased. Even Arun Naval (PW-2) has not whispered a word regarding presence of accused No. 4 on the spot at the time of occurrence of the incident of assault to the deceased. Considering these circumstances on record, the learned trial Court has rightly extended the benefit of doubt in favour of accused Nos. 4, 5 and 7. In addition to this, the defence witness Mahadeo Solanke (DW-1), who is the Branch Manager of District Central Co-operative Bank, Jalna, also deposed that at the relevant time of the occurrence accused No. 7 was present on duty in the District Central Co-operative Bank, Jalna, Branch-Ashti. Mahadeo (DW-1) stood constant despite searching cross-examination by special A.P.P., who could bring on record in cross-examination of this witness that being Inspector and Recovery Officer accused No. 7 has to visit different villages for survey regarding different loan proposals. Mahadeo (DW-1) stood constant despite searching cross-examination by special A.P.P., who could bring on record in cross-examination of this witness that being Inspector and Recovery Officer accused No. 7 has to visit different villages for survey regarding different loan proposals. Thus, the testimony of this defence witness together with omission of name of accused No. 7 by star eye witness Pralhad (PW-4) as one of the assailants, was rightly considered by learned trial Court while extending benefit of doubt in favour of accused No. 7. We do not find any fault on the part of the learned trial Court while acquitting accused Nos. 4, 5 and 7. 21. Regarding the involvement of convicted accused, Arun Naval (PW-2) and Pralhad Ambhore (PW-4) are consistent despite lengthy and searching cross-examination by learned defence Counsel. After witnessing the occurrence when Arun Naval (PW-2) with the help of Pralhad Ambhore (PW-4) and his servant took the deceased to Police Station, Ashti, that time P.S.I. Bhosle (PW-14) asked these witnesses to wait at Police Station, Ashti and he advised the remaining persons, who accompanied the injured deceased, to take him to the hospital. Arun Naval (PW-2) has duly proved F.I.R. (Exh.51) which was registered at 6.30 p.m. on 30-6-2004. Thus, it can be gathered that the oral testimony of Arun Naval (PW-1) and eye witness Pralhad Ambhore (PW-4) is also fully corroborated by prompt lodging F.I.R. 22. Dr. Prashant Ambhore (PW-3) is the witness who examined the deceased when was brought to Rural Hospial, Partur on 30-6-2004 at 6.40 p.m. According to this witness, he immediately provided emergency treatment to the deceased who was bleeding profusely and referred him to Civil Hospital, Jalna. This witness only opined that bones of the both hands and both legs of the deceased had fracture. In fact evidence of this witness does not carry much importance, but it can be used as further corroboration to the testimony of Dr. Uday Paritkar (PW-1) who performed autopsy examination of the dead body of deceased on 1-7-2004. 23. From the testimony of Dr. Uday Paritkar (PW-1) it emerges that on postmortem examination he noticed the following external injuries on the dead body of deceased :— (1) Cut and lacerated wound on right side of vertex – 3 x 1 x ½ cm. (2) Contusion right lateral to right arm 2x1 and another 3x1 cm one below another. 23. From the testimony of Dr. Uday Paritkar (PW-1) it emerges that on postmortem examination he noticed the following external injuries on the dead body of deceased :— (1) Cut and lacerated wound on right side of vertex – 3 x 1 x ½ cm. (2) Contusion right lateral to right arm 2x1 and another 3x1 cm one below another. (3) Cut and lacerated wound right lateral of right forearm 2x1x½ cm. Radius bone protruding outside. (4) Abrasion at palm right ring finger ¼th x ¼th cm, with fracture of finger bone. (5) Contusion left mis forearm 3 cm circular, with fracture of radius middle 1/3rd (6) Contusion left wrist 4 x 1 cm circular, 2 and 3rd metacarpal bone fractured. (7) Abrasion below ring and middle finger. (8) Cut and lacerated wound right left anteriorly approximately 2 x ½ x ½ cm, one below another six such wounds with fracture of tibia and fibula. (9) Cut and lacerated wound left leg 2 x ½ x ½ cm. One below another five such wounds were present. 24. According to Dr. Uday Paritkar (PW-1), cause of death of deceased was ‘cardio respiratory arrest due to haemorrhagic shock due to multiple fracture on body’. He has also made it clear that there were 13 cut wounds on the person of the deceased which are possible due to axe (Article-36). He also found 7 fractures on the body of deceased which were caused by hard and blunt object like sticks (Article-4, 5) and iron pipe (Article-1). However, from his cross-examination it becomes clear that injury No. 1 i.e. contused lacerated wound on vertex is not head injury and it is possible due to fall on the hard surface. This witness has also made it clear that no injury was found on the vital part of the body of deceased. 25. So far as remaining circumstantial evidence on record in the form of preparation of spot panchanama and seizure of blood stained clothes of the accused is concerned, we find that seizure of the clothes of the accused is doubtful and from the cross-examination of panch Shaikh Moin (PW-13) it emerges that at the time of seizure all the clothes were kept at Police Station on one table. Thus, prosecution cannot prove that the so called clothes of the accused were seized from actual person of the accused. Thus, prosecution cannot prove that the so called clothes of the accused were seized from actual person of the accused. So also all the articles including seized clothes, sample of earth and seized weapons were not kept in a sealed condition till they reaches to the Chemical Analyzer for examination. Prosecution has not taken pains to examine the custodian of muddemal articles at Police Station as well as the Carrier of this muddemal, to establish that from the time of seizure till the muddemal reached to Chemical Analyzer, it was kept in a sealed condition. Thus, the possibility of tampering of these muddemal articles cannot be ruled out. Therefore, the circumstantial evidence placed on record is nothing but a useless piece of evidence. 26. However, as observed above, the oral testimony of eye-witnesses Arun (PW-2) and Pralhad (PW-4) is totally trustworthy and free from material infirmities and that can be relied upon to base the conviction of accused Nos. 1 to 3, 6, 8, 9 and 10. 27. On the basis of this direct evidence the prosecution has duly proved that on the date and time of the incident, these convicted accused went together armed with deadly weapons, intercepted the deceased on way to his house and brutally assaulted him by their respective weapon. These circumstances on record are sufficient to hold that the accused assaulted deceased and caused grievous hurt to him in furtherance of the common object of that unlawful assembly. Therefore, conviction of the accused under sections 147, 148, 341 read with section 149 of the Indian Penal Code is justified and needs no interference. 28. So far as conviction of the convicted accused under section 325 of the Indian Penal Code is concerned, contention of the learned Counsel for the appellants/convicted accused is acceptable that choosing only the hands and legs of the deceased while inflicting the blows of respective weapons by accused indicates that they did not intend to cause death of the deceased. Otherwise they would have inflicted the blows of the respective weapons on the vital part of the body such as head and chest. Avoiding such vital part of deceased by accused is certainly sufficient to hold that the accused only voluntarily caused grievous hurt to the deceased which unfortunately resulted into death of the deceased. Otherwise they would have inflicted the blows of the respective weapons on the vital part of the body such as head and chest. Avoiding such vital part of deceased by accused is certainly sufficient to hold that the accused only voluntarily caused grievous hurt to the deceased which unfortunately resulted into death of the deceased. Therefore, as submitted by learned Counsel for the appellants/convicted accused, the conviction of the above convicted accused under section 325 read with 149 of the Indian Penal Code is perfect and needs no interference. Otherwise also, the learned Counsel for appellants/convicted accused has not assailed the correctness of conviction by the trial Court. He has only concentrated his argument on the point of quantum of sentence. 29. At the outset, we must observe that there cannot be a precedent as to what quantum of sentence should be imposed under the peculiar circumstances. Quantum of sentence depends upon facts and situation of each and every case. In the case at hand, one unarmed person was brutally assaulted by accused persons resulting into 13 cut injuries and 7 fracture injuries on the body of the deceased. As a culminative effect of these injuries the death of deceased was resulted. Such type of brutal act cannot be dealt with by soft hands by taking extreme lenient view to reduce the sentence already undergone by them. Only old age of four accused cannot be a ground to reduce their sentence when the learned trial Court has assigned sound reasons for imposing the rigorous imprisonment of five years for the offence punishable under section 325 read with section 149 of the Indian Penal Code. We hold that the sentence imposed by trial Court for the offence punishable under section 325 read with section 149 of the Indian Penal Code is definitely reasonable. On the other hand, trial Court has shown every possible leniency while awarding such sentence. We do not find any reason to interfere with the judgment of conviction and sentence imposed by the learned trial Court while convicting the accused for the offences punishable under section 325 read with section 149, 341 read with section 149 and under sections 147 and 148 of the Indian Penal Code. So also acquittal of accused Nos. 4, 5 and 7 is recorded by trial Court by assigning sound reasons and by taking possible view. So also acquittal of accused Nos. 4, 5 and 7 is recorded by trial Court by assigning sound reasons and by taking possible view. Therefore, such acquittal cannot be interfered with in the present appeal. 30. In the result, we hold that all the appeals and revision fail and deserve to be dismissed. Hence, the following order. ORDER 1. Criminal Appeal Nos. 25/2006, 217/2006, 282/2006 and Criminal Revision No. 44/2006 are dismissed. 2. Appellants/Convicted accused in Criminal Appeal Nos. 25/2006 and 217/2006 i.e. accused Nos. 1, 2, 3, 6, 8, 9 and 10 shall surrender to their bail bonds before the trial Court immediately. 3. The bail bonds of acquitted accused i.e. accused Nos. 4, 5 and 7 shall stand cancelled. Appeals and Revision dismissed.