JUDGMENT : S.S. Shinde, J. 1. Both these appeals have arisen out of the same judgment and order dated 28.11.1997 passed by Additional Sessions Judge, Pune in Sessions Case No. 330 of 1993 thereby convicting the accused/appellants for the offences punishable under Sections 302 read with Section 149, 148 and 147 of the Indian Penal Code (for short “IPC”). Therefore, with the consent of learned counsel for the parties, we have heard the appeals together and same being disposed of by this common judgment. 2. Prosecution case, in brief, is as under:- In the alleged incident one Beera Hiraman Kaskar from Dhangar community was killed. His brother-in-law is ‘Daulat’. These persons are residents of village in Parner Taluka, Dist. Ahmednagar. However, they used to come and stay in the agricultural fields of land owners from village Kulegaon with their goats. Nature of their business was that, when the fields are vacant on the request of land owners, goats are kept during night time in such field, by fixing net around them with a view that, natural manure gets to the field, and they used to charge for the same to the land owner. The complainant was having about 200 goats, whereas Beera (deceased) was having 40-50 goats. Wife of Beera and the complainant Hira are the real sisters, and at the time of the incident, they had halted in the field of one Namdeo Sathe of Kulegaon. The incident had taken place on 04.01.1993. The aforesaid persons used to take the goats for grazing during day time, and at about sunset goats are brought back to the place of hault. Accordingly, on 04.01.1993 Hirabai as well as Bhagubai had come after grazing all the goats and started cooking food. Beera was there on vasti whereas Daulat husband of Hirabai had gone to Marathevasti in connection with some work. 3. It is the prosecution case that, at about 7.30 pm, Barku Accused No. 1was passing through nearby field of said Vasti, when dog barked at him. Accused No. 1 started abusing aforesaid persons and thereafter he gave one kick to said dog. He threatened the complainant saying that, he will bring other persons from the village to beat complainant and her relatives staying in the said field. Then he went to Sathewadi and alongwith Accused No. 2 came at spot. Accused No. 1 started abusing aforesaid persons and thereafter he gave one kick to said dog. He threatened the complainant saying that, he will bring other persons from the village to beat complainant and her relatives staying in the said field. Then he went to Sathewadi and alongwith Accused No. 2 came at spot. Again he abused complainant and others and both of them went to village Kule. Thereafter, after some time Accused No. 1 and 2 along with Accused No. 2 to 7 came in the said field. Accused No. 1 to 3 were armed with sticks and they gave stick blows to Beera. Rest of the accused gave blows by kicks and fists to Beera and at that time, they were saying that why these persons from Dhangar community are sending their dogs behind them i.e. accused. One Mr. Balu & Santosh tried to intervene, but the accused did not pay any heed to them. Thereafter, Daulat husband of the complainant came there. By that time, accused had gone away. When Daulat saw at Beera he found that, Beera is already dead. Said Incident has been witnessed by the complainant and other witnesses in the moon light. 4. It is the prosecution case that, the complainant as well her husband so also Beera and his family members were coming for their livelihood and business to village Kule from their three generations, and, therefore, they were knowing the accused very well. Thereafter, Hirabai came to Poud Police Station on the same day and gave complaint. The complaint was taken down by Police Inspector Mr. Mane. On the basis of said complaint, C.R. No. 1/93 was registered. Police Inspector Mr. Mane came to the spot of incident. Spot panchnmana was drawn on 05.01.1993 at the spot, and one Kolhapur type plastic chappal was found there. Same was seized. Inquest panchnama of the dead body was drawn. Thereafter, the dead body was sent for the post-mortem, to the Rural hospital-1, Poud. Post-morten was conducted, and it was found that, the death of Beera has occurred because of circulatory failure due to profused internal hemorrhage because of the spleen rupture. Viscera was also preserved. Statements of the witnesses were recorded on the same day. Accused came to be arrested. Accused No. 1, 2 and 3 on 06.01.1993 showed willingness in the police station to produce sticks. Viscera was also preserved. Statements of the witnesses were recorded on the same day. Accused came to be arrested. Accused No. 1, 2 and 3 on 06.01.1993 showed willingness in the police station to produce sticks. Accordingly, memorandum was drawn and thereafter they took the police and panchas to the village Kule. Each of the accused took police and panchas to their respective houses and from their houses each of them produced sticks. Those three sticks were attached by separate recovery panchnama. Viscera was sent to the C.A., and on completion of the investigation charge sheet came to be filed. 5. Accordingly, charge was framed against the accused, it was read over and explained to them in Marathi and their plea was recorded. Accused pleaded not guilty. Their defence is that of total denial. It is their case that, they are not at all concerned with the offence because of some persons in the village, they have been falsely implicated in this case. The Trial Court after full fledged trial convicted the appellants herein, hence, these two separate appeals filed by the original accused. 6. In order to find out, whether the death was homicidal, accidental or suicidal, the prosecution examined Dr. Aparna Ramakant Gokhale (PW 1). In her evidence she has stated that, at the relevant time, she was working as a medical officer at Paud, Tq. Mulshi, Dist. Pune. On 05.01.1993 the dead body of Beera Hiraman Keskar was brought to her by police constable J.V. Chavan. She performed the post-mortem on the dead body on the same day between 1.00 pm to 2.15 pm. On examination she stated that, no external injury was seen on thorax, walls, ribs, cartilages, haemotoma of 3 inch × 3 inch was seen over anterio inferior surface of left chest below skin. She further stated that, both the lungs were pale and collapsed. The abdominal cavity was full of blood. In the peritonium about 3 ½ lts. hemorrhagic fluid 10 gms. Clot is present. Stomach was empty, containing little quantity of semi digested food about 20 cc. The large intestine filled with gas. The lever and gallbladder were pale. The spline was enlarged, measuring 9 × 6. In the laddere was large rupture is found over anterior surface of spline which measures 5 × 1× 3”. 7. hemorrhagic fluid 10 gms. Clot is present. Stomach was empty, containing little quantity of semi digested food about 20 cc. The large intestine filled with gas. The lever and gallbladder were pale. The spline was enlarged, measuring 9 × 6. In the laddere was large rupture is found over anterior surface of spline which measures 5 × 1× 3”. 7. She opined that, the death has been caused due to circulatory failure due to profused internal hemorrhagiec because of spleen rupture. She further stated that, viscera was preserved. Internal bleeding and the clot formation of the blood was because of rupture of the spleen. She further stated that, rupture of the spleen is possible if heavy fist blow is given in abdomen and the blow with force is given by stick on abdomen. 8. During her cross examination she stated that, the spleen of ordinary person is 4n ×3n. If the person is having any disease that results into enlargement of spline. The spontaneous rupture of the spline is very rare. If the person falls on blunt object from a height of 15 ft. on spline there is possibility of rupture of spline but in that case there will other injuries also. A person can die by rupture of the spline. It appears that, a suggestion was given that, if the person is assaulted by sticks, the wheelmarks will appear on the body. However, said suggestion has been denied by the said witness. 9. It is clear from the evidence of PW 1 that, if the person is is having any disease, that can result into enlargement of spline. The rupture of spline is very rare. If the person falls on blunt object from a height of 15 ft. on spline, there is possibility of rupture of spline, but in that case, there will be other injuries also. A person can die by rupture of the spline. As already observed, the defence had given a suggestion that, if the person is assaulted by sticks, the wheel marks would appear on the body of said persons. Dr. Aparna (PW 1) specifically stated that, the spontaneous rupture of the spline is very rare. 10. The prosecution examined Heerabai Daulat Shendge (PW 2), who according to the prosecution witnessed the incident. PW 2 in her deposition stated that, they are going from one place to another place with their goats. Dr. Aparna (PW 1) specifically stated that, the spontaneous rupture of the spline is very rare. 10. The prosecution examined Heerabai Daulat Shendge (PW 2), who according to the prosecution witnessed the incident. PW 2 in her deposition stated that, they are going from one place to another place with their goats. She has 200 goats. Her husband, 2 sons and 3 daughters were residing in one family. Bhagubai is her sister and Beera is her husband. They were having 40-50 goats. All of them go to various places where there is sufficient grass for grazing the goats. Her family, and family of her sister were moving together. Incident of assault on Beera had taken place about 2 months less five years. They haulted in the field of Namdeo Sathe, Village Kule. They were residing in the filed itself. The incident has taken place at about 8.00 pm. When she was cooking. Barkya and Sheerya were going from their vasti. Her dog barked at Barkya and Sheerya. Annoyed by it Barkya and Sheerya abused her. They gave kicks to her dog. Then they went towards the village. Then Barkya, Sheerya, Dattu, Gena in all 7 persons came in the said field. She can identify those persons, who are present in the Court. She further stated that, they were armed with sticks and started beating Beera by sticks and kicks. She herself, Anjanabai, Bhagabai and Bayadabai shouted. Accused then ran away. Beera died at the spot. Then she went to Paud police station and narrated the incident to the police. On the basis of her narration of the incident FIR was registered. She put thumb mark on the said complaint and the contents of the said complaint were read over to her. 11. During her cross examination she admitted that, she was not knowing where a Paud police station is situated. She had taken one person of village Kule with her. Her husband was accompanying her. It is stated by her that, they were coming/visiting village Kule since last three generations. They are staying in the agricultural fields of village about six months in a year. On the date of incident, she herself, Beera had gone for grazing the goats, and they returned at 7 pm. Her son Santosh and Balu were also with her. After the goats were bought, nets were fixed by Balu to keep goats inside the nets. They are staying in the agricultural fields of village about six months in a year. On the date of incident, she herself, Beera had gone for grazing the goats, and they returned at 7 pm. Her son Santosh and Balu were also with her. After the goats were bought, nets were fixed by Balu to keep goats inside the nets. Her husband was not there. Beera was also not there at that time. Her husband and Beera came together. They came one hour after the goats were kept in the nets. There are fields surrounding the field wherein they are residing/staying. The field belongs to Namdeo Sathe. She has also stated in detail about surrounding area of the said field wherein they were residing. She stated that, to the western side there is a ditch and then there is a field. The bund of filed of Namdeo Sathe is near to that ditch. There is possibility of person falling in the ditch if the person goes by that bund. Beera was operated for kidney stone. After walking about 10-15 spaces he used to sit. On earlier date he had consumed liquor. Beera was addicted to liquor. On that day also he had come after consuming liquor. The goats were brought by Balu and Santosh. Her husband and Beera came behind them. Her husband also consumed liquor. Beera was walking in zig zag manner. She had stated to the police that, Barkya and Sherya were going from nearby path of the said filed and they abused her. She stated to the police that, kicks were given to the dog by Barkya and Sheerya. Further she stated that, aforesaid version is absent in her FIR. She further stated that, all the accused had come with sticks. However, said version is missing in the FIR. The place where they halted was not having the road to go into village. She stated that, the person of village Kule helped her to state the name of the persons in the police station. Whatever names are told by the said person from village Kule, she was consenting to write down the said names. She specifically stated that, police had not read over the complaint to her after taking her thumb impression. A suggestion was given to this witness that, while walking on Bund Beera fall down in the ditch. Whatever names are told by the said person from village Kule, she was consenting to write down the said names. She specifically stated that, police had not read over the complaint to her after taking her thumb impression. A suggestion was given to this witness that, while walking on Bund Beera fall down in the ditch. However, said suggestion has been denied by her. She was also cross examined by the Advocate appearing for other accused. She specifically admitted in her cross examination that, there is no electricity (light) in the field. The electric lights are at far distance. A suggestion was given to the said witness that, she had no good relations with Accused No. 4. However, said suggestion was denied. She specifically admitted that, at the place where the incident took place there was dark and she could not see what type of clothes were on the person of the accused, who had come there. She shouted while incident was going on and persons from Marathe and Sathe vasti came there. However, she cannot state their names. She further stated that, she cannot tell who gave first stick blow and who gave last stick blow. She further stated that, she cannot tell which accused had beaten by the sticks. 12. If the evidence of PW 2 is considered in its entirety, in her examination in chief itself she had stated that, after narrating the incident, the complaint was written by the concern police officer and said was read over to her. However, in cross examination she stated that, the contents of the complaint were not read over to her. She specifically stated that, they belong to other village and she took one person from village Kule with her while going to Police Station. Though she stated that, they were staying for six months in the said village. However, the fact remains that, they are staying in agriculture fields of various agriculturists. She admitted in her cross examination that, her husband and Beera came together on the date of incident and also they had consumed liquor. Even on the earlier day Beera had consumed liquor. She had stated minute detail of ailment of said Beera. She specifically admitted that, near the bund of filed of Namdeo Sathe there is a ditch and Beera came from said bund. Even on the earlier day Beera had consumed liquor. She had stated minute detail of ailment of said Beera. She specifically admitted that, near the bund of filed of Namdeo Sathe there is a ditch and Beera came from said bund. She stated that, there is a possibility of person falling in the ditch, if person goes from that bund. She further stated that, she saw that, Beera was walking in zig zag manner. It is important to note that, she admitted in her cross examination that, her contention that Barkya and Sheerya came to the field, where complainant and others were residing, and they abused her before the incident. However, the said contention is not appearing in her complaint given to police. Further, her contention that, kicks were given to her dog by Barkya and Sheerya is also not appearing in the police complaint. The name of Sheerya is absent in the FIR. Even her assertion that, all the accused came with sticks is also not appearing in the complaint/FIR. Therefore, it is abundantly clear that, the aforesaid portion was not appearing in her complaint/FIR. Her evidence suffers from omissions and also an improvisation and therefore, creates doubts whether really she had witnessed the incident or not ?. She has specifically stated that, a person from village Kule helped her in stating the name and she gave consent to write down the said names of those persons as accused. It indicates that, this witness did not know the accused. She further admitted in her cross examination that, there was no electricity in the field. The electric lights are at far distance and at the place where the incident took place there was dark. She could not see the clothes of the accused persons. Though the persons from Marathe and Sathe vasti came there, none of such independent witness has been examined by the prosecution. She did not know who has given first stick blow to Beera. If the evidence of PW 2 is considered in its entirety, it does not inspire confidence. It was incumbent upon the prosecution to conduct test identification parade since this witness (PW 2) does not belong to said village and did not know the name of the accused. A person from village Kule helped her in stating the names, and she consented to write down the names of the accused in the FIR. It was incumbent upon the prosecution to conduct test identification parade since this witness (PW 2) does not belong to said village and did not know the name of the accused. A person from village Kule helped her in stating the names, and she consented to write down the names of the accused in the FIR. When there was no electricity and there was complete dark and there are seven accused, at the cost of repetition it needs to be emphasized that, it was incumbent on the part of the Investigating Officer to conduct the test identification parade. The evidence of aforesaid witness does not inspire confidence and deserves to be discarded. 13. The prosecution examined Daulat Ramu Shendge (PW 3). He stated in his deposition that, at the time of incident he had gone to Marathwadi. He heard the shouts of Beera from distance of 100 to 150 fts. He came to the spot, by that time Beera was found in dead condition and he saw sticks in the hands of Barku, Shrirang and Dattu. There were in all 7 persons and they ran away. 14. In his cross examination he has stated that, he is not resident of village Kule and since last so many years he is coming with goats to said village. He has narrated details about, what had happened from morning till the said evening. He admitted in his cross examination that, at the time when he asked sons to take goats to the field it was dark. He denied that, he consumed liquor. However, PW 2 Heerabai who is the wife of PW 3 specifically stated in her deposition that, Beera and her husband had consumed liquor on the date of incident. He specifically stated in his cross examination that, it was so dark nothing was visible and his wife told him that Barku, Shrirang and Dattu were accused persons. He also admitted in his cross examination that, other person from Marathe and Sathe vasti came to the field. If the evidence of PW 3 is considered in its entirety, it does not inspire confidence. In the first place, he was not at the spot when the incident had taken place. He stated that, he was 100-150 fts. away from the spot of incident. There was complete dark. The name of the accused persons are told to him by his wife. In the first place, he was not at the spot when the incident had taken place. He stated that, he was 100-150 fts. away from the spot of incident. There was complete dark. The name of the accused persons are told to him by his wife. Therefore, there is every possibility that PW 3 did not witness the incident and his version is hear-say as sated by his wife (PW 2). 15. The prosecution examined Bayadabai Mahadu Thombhare (PW 4). In her deposition she stated that, the incident took place at about 8.00 pm. She was near her vasti. Her mother and her sister were cooking food. He was sitting. Barkya came there. The dog barked at him. Barkya gave one kick to the dog and gave threats and he went to the village. Thereafter, in all seven persons including Barkya came there. They started beating her father by kick and blows by sticks. Her father died. After her uncle arrived, accused ran away. 16. PW 4 was cross examined by the defence. She admitted in her cross examination that, field in which they were residing was surrounded by other fields. She denied that, there is ditch on western side of the field. In fact PW 2 has admitted in her deposition that, there is a ditch on the western side. She (PW 4) stated that, her father is from Deulgaon, They are moving from place to place with their goats. She stated that, it is not true that, her father was taking medicine. However, it is important to note that, PW 2 in her deposition stated that, Beera was suffering from Kidney problem and he used to take medicine. It is stated by her that, though she stated before the police that, she was in the field and sitting there. However, she is not aware why the police had not recorded the said version in her statement recorded by police. She stated to the police that, Barkya is the person who gave kick to the dog. However, she cannot assign any reason, why the said version is not appearing in her police statement. She admitted in her cross examination that, there was no electricity and they were not carrying anything with them to have light. She further stated that, so many persons came to the spot of incident. However, she cannot assign any reason, why the said version is not appearing in her police statement. She admitted in her cross examination that, there was no electricity and they were not carrying anything with them to have light. She further stated that, so many persons came to the spot of incident. She cannot tell the timing when accused came after giving kicks to the dog. She specifically stated that, Daulat (PW 3) was not present at that time. She cannot tell the description of the clothes of the accused. She stated that, Daulat came after half an hour and then accused ran away. She stated that, persons from Marathe and Sathe vasti came there, however, she cannot tell their names. It is clear from evidence of (PW 4) that, Daulat (PW 3) came after one an half hour after the incident. This witness has stated in her evidence that, there was no electricity and they were not carrying lights with them. There is clear suspicion that, whether she had really witnessed the incident or not? When the statement given before the police was confronted to her and there was no mention in the said statement that, accused Barkya came and gave kicks to the dog. Therefore, the evidence of this witness does not inspire confidence. 17. The prosecution examined Yogesh Pundlik Makhi (PW 5) who is panch witness to the memorandum statement of some of the accused persons. We have carefully perused the deposition of PW 5. He is a panch witness who stated that, according to the memorandum statement, at the instance of three accused sticks are recovered. During his cross examination a suggestion was given that, without reading the memorandum statement, he signed the same. However, said suggestion was denied by him. He further stated that, he had not gone in the house. He has not seen seizure of stick from the accused. He was present only at the time of second seizure of the stick. On the whole, his evidence does not inspire confidence. 18. The prosecution examined Vishnu Rambhau Mane (PW 6), who conducted the investigation of the crime. In his examination in chief, he stated the manner in which the investigation was done. He has also further stated about the sticks recovered at the instance of the Accused. On the whole, his evidence does not inspire confidence. 18. The prosecution examined Vishnu Rambhau Mane (PW 6), who conducted the investigation of the crime. In his examination in chief, he stated the manner in which the investigation was done. He has also further stated about the sticks recovered at the instance of the Accused. During his cross examination he stated that, on all the four sides of the spot of incident there are agricultural lands. He stated that, in the compliant which was narrated by PW 2 it is not stated that, Accused No. 2 abused and gave kick to the dog. It is not stated that, all the accused were armed with sticks. It is absent in the statement of Bayadabai (PW 4) that she was sitting at vasti. She has not stated the names of the persons who was going from Vasti. She stated that, she came to know the names of the accused persons through sister of her mother. It is further stated in the cross examination by him that, when he went to the spot of incident he did not go to the house of the accused to search the sticks. Accused No. 4 was not personally apprehended by him. He does not know who brought Accused No. 4. He does not remember, whether to the western side of spot of incident there is a ditch. After recording the statement of Bayadabai (PW 4), he came to know that, she was not knowing the names of the accused. When C.A. report of the viscera of the deceased was received, it was transpired that deceased had consumed liquor. 19. If the evidence of the investigating officer is considered in its entirety, he has given vital admissions in the cross examination that the informant Heerabai (PW 2) in her complaint did not state that accused were carrying sticks. It is also absent in the complaint given by PW 2 that, the accused no. 2 abused her and gave kick to the dog. It appears that, the sticks are alleged to have recovered from three accused. It is not clear from his evidence that, from which three accused the sticks were recovered. It appears that, the sticks were recovered from Accused No. 1, 5, and 7. The Trial Court convicted the accused for the offences punishable under section 302 read with 149, 147 and 148 of IPC. It is not clear from his evidence that, from which three accused the sticks were recovered. It appears that, the sticks were recovered from Accused No. 1, 5, and 7. The Trial Court convicted the accused for the offences punishable under section 302 read with 149, 147 and 148 of IPC. It is not clear from reading the impugned judgment, whether the accused really formed an unlawful assembly in furtherance of common object to kill Beera and, as a matter of fact succeeded in achieving the said object. 20. If the evidence of Heerabai (PW 2) and other prosecution witnesses is considered in its entirety, they have stated that, before the main incident had taken place, one Barkya and Sheerya were walking from nearby field wherein the prosecution witnesses are staying and goats are tied. It is alleged by the prosecution witnesses that, their dog barked at him and he gave one kick to the said dog and due to said incident he came with other six accused at about 8 pm so as to teach lesson to complainant and other witnesses, and assaulted Beera. The prosecution has not brought on record clinching evidence that, in furtherance of common object of killing Beera each of the member of unlawful assembly gathered at the spot and formed unlawful assembly, and achieved the said object. All the witnesses unequivocally stated that, at the spot of incident there was no electricity. One of the witness has stated that, there was total dark and nothing was visible. One of the witness stated that, they did not carry lamp or torch or anything so as to have light at the said place. The evidence of prosecution witnesses is contradictory and does not inspire confidence, so as to base conviction of accused on said shaky evidence. 21. Admittedly, the alleged eye witnesses do not belong to the said village and they came there with their goats. They are from some other village. It has come in the evidence of PW 2- Heerabai that, one person from the said village accompanied her and he was telling the names of accused persons and she was consenting to write down their names in the complaint. She did not know the names of the accused persons. The electricity at the spot was not available and as stated by one of the witness, there was complete dark. She did not know the names of the accused persons. The electricity at the spot was not available and as stated by one of the witness, there was complete dark. In the aforesaid scenario it was incumbent upon the prosecution to conduct test identification parade, so as to find out the real culprit. If the entire evidence brought on record by the prosecution is considered, it does not inspire confidence, so as to upheld the conviction of the accused. The evidence of informant star witness PW 2- Heerabai suffers from omissions, exaggerations and improvements. In that view of the matter, in our considered view, the Trial Court has not properly appreciated the evidence on record, and reached to a erroneous conclusion, and as a result ordered the conviction of 7 accused, which is not legally sustainable. In the result following order:- ORDER (i) Both Criminal Appeals are allowed. (ii) The impugned judgment and order dated 28.11.1997 passed by Additional Sessions Judge, Pune in Sessions Case No. 330 of 1993 is hereby quashed and set aside. (iii) The Appellants/ Accused i.e. Accused No. 1-Barku Chandar Jagtap, Accused No. 2- Shrikant @ Shrirang Khandu Makar, Accused No. 3- Dattu Savla Bhalerao, Accused No. 5- Shrirang Dadu Bhalerao, Accused No. 6- Nivrutti Santu Yadav and Accused No. 7- Lavhu Dattu Bhalerao in Appeal No. 761 of 1997 are acquitted from the offences punishable under Section 302 read with 149, 147 and 148 of Indian Penal Code. (iv) The Appellant/Accused-Genbhau Laxman Sathe (Orig Accused No. 4) in Appeal No. 793 of 1997 is acquitted from the offences punishable under Section 302 read with 149, 147 and 148 of Indian Penal Code. (v) The fine amount, if any, deposited by the appellants, shall be refunded to them. (vi) The Appellants are already on bail. Their bail bonds shall stands cancelled. (vii) The Appellants shall furnish bail bond of Rs. 10,000/- with one surety each in the like amount in view of Section 437(A) of Code of Criminal Procedure. (viii) Both the Appeals are allowed and stands disposed of accordingly.