JUDGMENT Prithviraj K. Chavan, J. - This is an appeal by the State challenging the judgment and order of acquittal passed by the Additional Sessions Judge, Thane in Sessions Case No. 641 of 1993 by which the Respondents came to be acquitted of the offences punishable under Sections 147, 148, 302 r/w 149, 324 read with 149 of IPC. 2. The prosecution story, as emerged from the record, can be summarized as follows: 3. Deceased Sitaram Laxman Dalvi was serving as a Police Constable at Jawahar Police Station. The Complainant Ishwar Dalvi (PW-1) is the nephew of the deceased and the first informant. The incident in question occurred on 30.06.1993 at village Gavis Khurd. At about 9.00 p.m. deceased Sitaram Dalvi, PW-1 Ishwar Dalvi, PW-2 Ankush Dalvi (injured witness), PW-3 Krishna Devji Dalvi, PW-6 Sanjay Dalvi who were residents of Pahuni village had gone for fishing in the complainant''s field. Around 10.30 p.m. Anant Narayan Paste (now deceased), Mahadu Paste (now deceased), Ramesh Paste (now deceased) along with Bhau Paste suddenly came over there. It is alleged that all of them along with some other persons started assaulting the complainant and the witnesses by inflicting blows of lathi. The complainant was assaulted over his head by means of a lathi. Accused Anant Paste inflicted a blow of lathi on the back of PW2 Ankush Dalvi. On hearing the melee and shouts, five of the assailants ran towards Ghateshkhurd. Due to fatal injury sustained by deceased Sitaram Dalvi over his head, he became unconscious. The complainant and his colleagues carried him to Rural Hospital at Wada. After reaching the injured to Wada Hospital, the complainant went to the police station at Wada and reported the matter. By that time, Doctor declared Sitaram Dalvi dead. Thereafter, PW-1 Ishwar Dalvi went to Wada Police Station and lodged a report against all the accused on the basis of which a crime bearing No. 189 of 1993 under Sections 302, 147, 148, 149 and 324 of IPC has been registered. 4. On 07.01.1993, P.I. Satpute went to Rural Hospital and drew an inquest panchnama. Body of the deceased was sent for postmortem. The Investigating Officer visited the scene of occurrence. A spot panchnama was drawn. The accused were arrested. 5. 4. On 07.01.1993, P.I. Satpute went to Rural Hospital and drew an inquest panchnama. Body of the deceased was sent for postmortem. The Investigating Officer visited the scene of occurrence. A spot panchnama was drawn. The accused were arrested. 5. Accused Manoj Paste and accused Mahadu Paste, while in police custody on 05.08.1993, produced a weapon i.e. a spear and one lungi which were seized under a panchnama. After recording the statements of the witnesses and after completing the investigation, the Investigating Officer laid a chargesheet in the court of the Judicial Magistrate First Class, Wada against the accused. 6. After committal, the learned Additional Sessions Judge framed a charge against all the accused as above. The accused pleaded not guilty and claimed to be tried. In support of its case, the prosecution examined 12 witnesses. 7. The defence of all the accused, as emerged from the line of cross-examination as well as from their statements under Section 313 of the Cr.P.C. is that they have been falsely implicated in this case. It is, inter alia, stated by the accused that the witnesses have testified against them merely on suspicion as it was a rainy night. No defence evidence came to be adduced on their behalf. 8. The learned Additional Sessions Judge, Thane, after going through the evidence of the prosecution witnesses and after hearing the prosecution and defence, found various discrepancies and inconsistencies in the testimonies of the prosecution witnesses. 9. In the impugned judgment, the learned Additional Sessions Judge placed implicit reliance upon an authority of the Supreme Court in the case of Sarwan Singh Rattan Singh v/s. The State of Punjab, (1957) AIR SC 637 wherein it has been held thus : " in a criminal case, more suspicion, however, strong cannot take the place of proof" Their Lordships have further observed that:- " There may also be an element of truth in the prosecution story against the accused. Considered as a whole, prosecution story may be true, but between ''may be true'' and ''must be true'' there is inevitably a long distance to travel and the whole of this distance must be covered by legal, reliable and unimpeachable evidence." (emphasis supplied) 10. Thus, the learned Additional Sessions Judge acquitted all the accused of the offences with which they were charged. 11. At the outset, the learned Additional Public Prosecutor Ms. Thus, the learned Additional Sessions Judge acquitted all the accused of the offences with which they were charged. 11. At the outset, the learned Additional Public Prosecutor Ms. Sonawane contended that all the accused by forming an unlawful assembly and with a common intention attacked the victim and others with deadly weapons like spear resulting into death of Sitaram Dalvi. Not only that, the accused caused injuries to other four witnesses. The learned APP took us through the testimonies of injured witnesses vis-a-vis the medical and the postmortem report on record. 12. It is contended that deceased Sitaram Dalvi died a homicidal death due to deep wound to the posterior part of the scalp which had resulted due to blows of lathi inflicted by accused Ramesh Paste and Manoj Paste. Due to the blows, the skull of the deceased was fractured. The learned APP also drew our attention to the injury certificate in respect of PW-3 Krishna Devji Dalvi and PW-2 Ankush Dalvi. 13. Ms. Sonawane, the learned APP further drew our attention to a fact that even though incident in question took place around 10.30 p.m., there was moon light, so as to say, it was full moon night and apart from that witnesses had carried a torch light because of which they could witness the assailants/accused. PW3 Krishna had named all six accused; whereas PW-7 Waman Dalvi described the weapons (spear) held by accused Ramesh and a lathi by accused Manoj Paste. 14. According to the learned APP, the learned Additional Sessions Judge has failed to appreciate the evidence of the injured witnesses as well as the injury certificate and postmortem report in its correct perspective, thereby reaching an erroneous and unmerited acquittal of all the accused of the charges framed against them. It is submitted that learned Sessions Judge ought to have taken into consideration the report of Dr. Deshpande, who opined that the injuries noticed by him on the person of the deceased could have been caused by a sharp weapon. The homicidal death of the deceased is supported by the medical evidence on record. 15. Thus, the learned APP prays for quashing the impugned judgment and order of acquittal and convicting the Respondents Madhav Paste, Manoj Paste and Bhau Paste of the offences with which they were charged. The homicidal death of the deceased is supported by the medical evidence on record. 15. Thus, the learned APP prays for quashing the impugned judgment and order of acquittal and convicting the Respondents Madhav Paste, Manoj Paste and Bhau Paste of the offences with which they were charged. Since, the Respondents/accused Ramesh Paste, Anant Paste and Mahadu Paste have died, the Appeal abates in so far as, those respondents are concerned. 16. The learned Counsel for the Respondents, Mr. B.G. Tangsali has submitted brief notes of arguments. He tried to bring on record inconsistencies in the testimonies qua the prosecution witnesses, which, according to the learned Counsel, rendered their testimonies doubtful and unworthy of credit. It is submitted that there are material omissions on record, which deeply affect the prosecution''s case. It is significant in the light of the fact, as argued by the learned Counsel, that neither there was any enmity between the two groups, nor the incident in question occurred in the land of the respondents. The learned Counsel has supported the impugned judgment and order of acquittal. 17. Indubitably, deceased Sitaram Dalvi died a homicidal death, which is apparent from inquest panchnama and a postmortem report Exhibit 38. Column No.11 of the postmortem report reveals that rigors mortis was well marked in upper and lower part of the body. The postmortem was conducted on 01.07.1993 at 1.00 p.m. Column No. 17 of the postmortem report reveals as follows: 17. surface wounds and injuries: Their nature, position dimensions (measured) and directions to be accurately stated - their probable age and cause to be noted. If bruises be present what is the condition of the subcutaneous tissues? (N.B. when injuries are numerous and cannot be mentioned within the space available they should be mentioned on a separate paper which should be signed) Posterior aspect Deep wound on the posterior aspect of the scalp. Edges are retracted slightly (illegible) lacerated wound. Situated just above the occipital prominence, transversely situated size : length 4 1/2", Depth 3/4" Width - 2" (middle part blood clots around the wound) 18. other injuries discovered by external examination or palpation as fractures etc. Fracture just beneath the injury. Brain tissue popping out of the injury. Depressed fracture present with small part (size 1/2" x 1/4") of the above missing) (a) Can you say definitely that the injuries shown against serial Nos. other injuries discovered by external examination or palpation as fractures etc. Fracture just beneath the injury. Brain tissue popping out of the injury. Depressed fracture present with small part (size 1/2" x 1/4") of the above missing) (a) Can you say definitely that the injuries shown against serial Nos. 17 and 18 are antemortem injuries? Yes. 19. Head- (I) Injuries under the scalp, their nature (ii) Skull :- Vault and basedescribe fractures their sites, dimensions directions, etc. (iii) Brain - The appearance of its coverings, size weight and general conditions of eh organ itself and any abnormality found in its examination to be carefully noted (wight M.3 gram F. 2.75 grams) Contused lacerated wound as mentioned above fracture skull mentioned above. Skull opened and frank blood with few clots found in the subdural space and (illegible) space Brain laceration present in the lower part of the brain. Blood clots present in the area. 22. Cause of death is fracture skull with internal Brain injury with subdural hemorrhage. 18. Thus, deceased Sitaram Dalvi died a homicidal death due to fracture of skull with internal brain injury with subdural haemorrhage. 19. Before analysing the evidence of the prosecution witnesses, it would be essential to set down a few facts which are no more in dispute. 20. Firstly, even though there was a homicidal death of Sitaram Dalvi, the prosecution has not succeeded in bringing forth real motive behind the offence in view of the fact that there was no enmity between the accused on one hand and the prosecution witnesses on the other. 21. The second important aspect is that the field where the alleged incident had occurred does not belongs to any of the parties. In the light of these uncontroverted facts, the evidence of the prosecution witnesses will have to be scanned. 22. The prosecution examined 12 witnesses out of which PW-2 Ankush Dalvi, PW-3 Krishna Devji Dalvi, Dalvi PW-4 Krishna Babu Dalvi and PW-5 Sanjay Dalvi are the injured witnesses. 23. It is the case of the prosecution that at the time of the incident, besides the deceased, PW-1 Ishwar Dalvi too sustained injuries along with PW-2 to PW-5. 24. When PW-8 Dr. Vijay Deshpande examined PW-4 Krishan Babu, he noticed small superficious abrasion on the lateral aspect of left ankle. P.W-2 Ankush Dalvi sustained superficious abrasion on the posterial aspect of right shoulder admeasuring 1/2" X 1/2". 24. When PW-8 Dr. Vijay Deshpande examined PW-4 Krishan Babu, he noticed small superficious abrasion on the lateral aspect of left ankle. P.W-2 Ankush Dalvi sustained superficious abrasion on the posterial aspect of right shoulder admeasuring 1/2" X 1/2". If it is the case of the prosecution that PW-1 Ishwar Dalvi had also sustained injury, but then PW-8 Dr. Vijay Deshpande did not notice any injury on the person of PW-1 Ishwar Dalvi. 25. Turning to the main incident of assault upon the deceased as well as the injured witnesses; the first witness is PW-1 Ishwar Dalvi. The sum and substance of his evidence indicates that deceased Sitarm Dalvi was his uncle. On the fateful night of 30.06.1993, PW-1 Ishwar along with other injured witnesses decided to go for fishing. They started at about 9.00 p.m. from their house armed with fishing net, torch etc. They reached the field at about 10.00 p.m. and started catching fish. At that time, accused No.1 Madhav Paste along with rest of the accused came over there. They raised shouts saying "dhara mara yanna" (hold and beat them). Thereafter, five of them started beating the witnesses by inflicting blows of lathi. There was a blow inflicted on his left hand. He, therefore, ran way from the spot and stood away at the distance of 25 feet. He, therefore, testified that he had not seen as to who had assaulted whom. 26. According to the him, the incident lasted for about half an hour and thereafter, the assailants ran away. PW-1 Ishwar Dalvi, thereafter, went to the spot and noticed Sitaram lying in the field with injuries on his head. Sitaram was taken to Rural Hospital, Wada. The Medical Officer refused to admit him and asked them to go to the police station. Thereafter, the witnesses took the injured to Wada police station and then, as per the requisition of police, Sitaram was admitted in the hospital. PW-1 Ishwar Dalvi lodged a report with the police, which is at Exhibit-25. 27. In his cross-examination, he admits that deceased Sitaram was addicted to liquor and was not attending his duty. He admits that accused No.1 Madhav Paste is a social worker and he is the Vibhav Pramukh (head) of Shivsena. He admits that house of accused No.1 Madhav Pashte is at the distance of 7 to 8 miles from the place of incident. He admits that accused No.1 Madhav Paste is a social worker and he is the Vibhav Pramukh (head) of Shivsena. He admits that house of accused No.1 Madhav Pashte is at the distance of 7 to 8 miles from the place of incident. His cross-examination further reveals that it was a dark night when the incident occurred. When they suddenly heard sound as "dhara hyanna mara", they were frightened and started running. He admits that while running, he received a blow of lathi on his left hand. However, accused No.2 Ramesh Pashte inflicted a blow of lathi on his left hand has been proved to be a contradiction, since his earlier statement reveals that it was accused No.3 Manoj Pashte who inflicted a blow of lathi on his left hand. 28. In his report dated 01.07.1993, there is no mention of the name of accused No.1 Madhav Paste. Interestingly, he admits that after lodging a complaint with the police, he did not disclose about the incident to anybody. Such conduct of this witness is unnatural, as despite sustaining severe injuries and even after the death of deceased Sitaram, what could be the reason for not disclosing such an important incident to any one is an unsolved mystery, in the light of the fact that the prosecution has not succeeded in bringing the real motive behind the offence. This is significant in the light of the fact that PW-1 further admits that Police-Patil of the village is also sarpanch to whom the matter could have been reported. Though, he denied the suggestion that he belongs to Lal Bawta party, a possibility of some political rivalry cannot be totally ruled out. If the houses of the accused Nos. 2 to 6 were about 2 miles away from the field in question, how and why they should come to the field in the dark night of rainy days, has not been clarified by the prosecution. More particularly, in view of the fact that the field does not belongs to any of the accused. 29. The common object of an unlawful assembly, amongst others, must be to use or show of criminal force, to commit criminal trespass or by use of criminal force to compel any person to do what he is not legally bound to do. This is a case of rioting armed with deadly weapons. 29. The common object of an unlawful assembly, amongst others, must be to use or show of criminal force, to commit criminal trespass or by use of criminal force to compel any person to do what he is not legally bound to do. This is a case of rioting armed with deadly weapons. The main ingredient of rioting is use of force or violence by an unlawful assembly. A careful scrutiny of the evidence indicates that the prosecution has not produced sufficient material on record to substantiate the fact that there was an unlawful assembly comprising the accused/respondents. PW-2 Ankush Dalvi testified that around 9 to 9.30 p.m. all of them went to field for catching fish. He refers the said field as "our field", however, none of the other witnesses testified that the said field belongs to complainant or the prosecution witnesses. There is no documentary evidence to show that the field belongs to either PW-2 Ankush or the rest of the witnesses. Be that as it may. 30. Pw-2 Ankush testified that while crossing through the brook situated near the field, accused No.1 Madhav Paste, accused No.2 Ramesh Paste, accused No.3 Manoj Paste, accused No.4 Anant Paste and accused No.6 Bhau Paste came running towards them. They were raising shouts as "dhara mara". They were armed with lathis and spears. All of them suddenly started assaulting the witnesses with lathis and spears. It is specifically, testified that accused No.2 Ramesh and accused No.3 Manoj were armed with lathis. They inflicted blows of lathi on the head of deceased Sitaram. Accused No. 1 Madhav inflicted a blow of spear over the head of deceased Sitaram, while accused No.4 Anant inflicted blow of lathi on the back of this witness. Accused No.2 Ramesh inflicted a blow of lathi on the head of PW-1 Ishwar Dalvi. Accused No.3 Manoj gave a blow of lathi on the back of PW-5 Sanjay Dalvi. All the witnesses raised shouts. After hearing the shouts, one Ramu Dalvi and PW-7 Waman Dalvi came to the spot. All the accused ran away. Deceased Sitaram Dalvi was lying unconscious. These witnesses took him to Kolsewadi bus stop. From the said bus stop, they took Sitaram to Rural Hospital, Wada, by a truck. Thereafter, all of them went to the police station and then to the hospital where the Doctor declared Sitaram dead. All the accused ran away. Deceased Sitaram Dalvi was lying unconscious. These witnesses took him to Kolsewadi bus stop. From the said bus stop, they took Sitaram to Rural Hospital, Wada, by a truck. Thereafter, all of them went to the police station and then to the hospital where the Doctor declared Sitaram dead. This is what is the examination-in-chief of PW-2 Ankush Dalvi. 31. The defence has succeeded in rebutting the evidence of this witness to a considerable extent by bringing on record certain material omissions and contradiction which affects the credibility of this witness and ultimately, the prosecution''s story. In his cross-examination, PW-2 Ankush admits that those were 10 to 12 persons who came in a group and attacked them. In fact, there were only six accused arrested by the investigating agency. If there were 10 to 12 accused, who were the rest of the accused/assailants? Whether those were the real authors of the injuries inflicted upon deceased Sitaram resulting into his death. What kind of arms were held by them and what was their intention behind committing the offence of rioting, has not been clarified by the prosecution. PW-2 Ankush, further testified that after the attacked they (prosecution witnesses) did not run away. The fact that after the assault deceased Sitaram fell on the ground and that accused Madhav dealt a blow of spear on his head is proved to be a material omission. 32. Surprisingly, the witness admits that there were no bloodstains over his clothes, when he along with other lifted Sitaram from the spot. This is incredible as deceased Sitaram had sustained severe bleeding injuries over the head. His skull was fractured and obviously, blood must have been oozing, which, ordinarily, could have been noticed on the clothes of those who lifted the deceased and took him to hospital. This circumstance creates a doubt whether this witness was, in fact, present on the spot. He admits that he was not present at the police station when PW-1 Ishwar lodged a report. He belied his own version that deceased Sitaram was taken to the Rural hospital, Wada, in a truck from the bus stop and thereafter, he along with PW-1 Ishwar Dalvi had been to the police station where PW-1 Ishwar Dalvi lodged a report. 33. He belied his own version that deceased Sitaram was taken to the Rural hospital, Wada, in a truck from the bus stop and thereafter, he along with PW-1 Ishwar Dalvi had been to the police station where PW-1 Ishwar Dalvi lodged a report. 33. The cross-examination of PW-2 further reveals that the lathis which were in the hands of accused Ramesh and Manoj are not the one which were produced before the Court. The fact that the accused No.3 Manoj dealt a blow of lathi on the head of deceased Sitaram is proved to be an omission. Even the alleged shouts by the accused as "dhara mara" is also proved to be an omission. The fact that all the witnesses made hue and cry upon which one Ramu Dalvi and PW-7 Waman Dalvi came to the spot, has also been proved to be an omission. This is the witness who also categorically admits that prior to the incident neither there was any quarrel, nor enmity between the accused persons and the injured witnesses including the deceased. He admits that 6 to 7 unknown persons had been to the spot at the time of incident, however, this witness was unable to ascertain as to who were those persons. This aspect makes the prosecution''s story doubtful as to whether it was only the accused before the court or some other 6 to 7 unknown persons, who were responsible for causing the homicidal death to deceased Sitaram or for that matter causing injuries to PW-2 to PW-5. 34. It is pertinent to note and as already stated hereinabove that there was dark in the field, however, it is testified that there was a moon light. It is not clear whether it was a full moon night meaning thereby whether the moon was in opposition to the sun or otherwise. Normally, it is difficult for an ordinary human being to identify persons in such a dark night, unless, those persons were already acquainted with the witnesses. It is not the case of the prosecution that all the accused were acquainted with the prosecution witnesses, in view of the fact that the accused hail from different village. 35. Admittedly, deceased Sitaram Dalvi, the witnesses PW-1 Ishwar, PW-2 Ankush, PW-3 Krishna, PW-4 Krishna Babu and PW-5 Sanjay Dalvi are close relatives. PW-7 Waman Dalvi and Ramu are also distinct relatives of these witnesses. 35. Admittedly, deceased Sitaram Dalvi, the witnesses PW-1 Ishwar, PW-2 Ankush, PW-3 Krishna, PW-4 Krishna Babu and PW-5 Sanjay Dalvi are close relatives. PW-7 Waman Dalvi and Ramu are also distinct relatives of these witnesses. Though, PW2 Ankush denied the suggestion that as the assailants were unknown, and therefore, could not be identified due to darkness, but merely on suspicion their names have been falsely implicated in this case, appears to be probable to some extent. 36. Pw-3 Krishna Devaji Dalvi spoke in tune with PW-2 Ankush to a considerable extent in regard to the incident in question. In his cross-examination, he admits that different kinds of spears are used for fishing. The weapon of offence namely the spear (Article 5) and lathi (Article -8) were identified by this witness during the course of his evidence. In the absence of any specific identifiable mark, how could such articles be identified by the witnesses which were alleged to have been used during the night hours in a dark when there was a melee and an attack by more than 10 persons? This is something which no sane man would believe. The evidence of this witness is full of omissions. Accused Manoj had dealt a blow of lathi on the person of deceased Sitaram is proved to be an omission. Similarly, accused Ramesh had dealt a blow of the spear on the head of deceased Sitaram is also proved to be an omission. So far as assault upon deceased Sitaram by rest of the accused by means of lathis has also been proved to be an omission. 37. In his cross-examination, PW-3 Krishna admits that except their family members, nobody knew that the witnesses had left their homes for fishing. A question springs up as to how the accused persons came to know the sudden plan of the witnesses to go for fishing? There seems to be no reason for the accused persons to receive that information so swiftly, nor in those days there was any mode of quick communication as we have today. It could, at the most, be a mere coincidence. This renders the presence of the accused on the spot at the relevant time doubtful as it has been admitted by the earlier witnesses that there were about 10 to 12 unknown persons whose identity could not be established. 38. It could, at the most, be a mere coincidence. This renders the presence of the accused on the spot at the relevant time doubtful as it has been admitted by the earlier witnesses that there were about 10 to 12 unknown persons whose identity could not be established. 38. Pw-3 Krishna admits that his banyan and underwear were stained with blood while lifting Sitaram, however neither his banyan nor his underwear which were stained with blood were seized by the police, nor he brought the same before the police for the reasons best known to the prosecution. He admits that since there was darkness in the field, they had taken a torch with them. A question comes to our mind as to why the witnesses had been to the said field for fishing in such a dark night and, secondly, if it was not the field of accused persons or of the witnesses, what would be the intention of fishing during the night hours from which an inference can be drawn that the field must have been in possession of some unknown persons, who might have assaulted the witnesses for fishing clandestinely. Normally, fishing is done during day time and not in the darkness of night. This is something unheard of. Evidence of this witness is therefore, cannot be fully relied upon or no implicit reliance can be placed upon his testimony. 39. The evidence of PW-4 Krishna Babu Dalvi is also full of omissions. He too testified that apart from the accused around 7 to 8 other persons came running towards them at the time of incident by shouting "dhara mara" and then mounted assault by means of lathis and spear. PW-4 Krishna could not name or identify those unknown persons, however, he named accused Nos. 1 to 6. According to him, PW-1 Ishwar, PW-2 Ankush and he sustained injuries. Deceased Sitaram was lying in the field as he had sustained severe injuries on his back and head. Interestingly, this witness had also identified the spear and lathi used in the commission of the offence, which may be said to be the same articles used, as already discussed hereinabove. If there were several lathis and spears, how the investigating officer could recover a single spear and a single lathi? There are inconsistencies in the testimonies of the witnesses as regards number of spears and lathis. If there were several lathis and spears, how the investigating officer could recover a single spear and a single lathi? There are inconsistencies in the testimonies of the witnesses as regards number of spears and lathis. Some witnesses testified that accused were armed with spear; whereas this witness testified that accused Mahadu who had a spear in his hand and accused Ramesh held a lathi. These are material inconsistencies which also affects the credibility of this witness. 40. Pw-5 Sanjay Dalvi''s examination-in-chief is substantially similar to that of PW-3 Krishna Devji Dalvi and PW-4 Krishna Babu Dalvi. The only difference in his evidence is that when he witnessed the assault, he frightened and ran away from the spot. He went to the house of his cousin Ramu Dalvi. In sharp contrast to what has been stated by the earlier witness, PW-5 Sanjay Dalvi testified that PW-7 Waman Dalvi and Ramu Dalvi went towards the spot of incident and they brought Sitaram to the house of Ramu. It is, therefore, doubtful as to whether deceased Sitaram was taken to the Rural Hospital, Wada, through the police station or whether he was brought to the house of Ramu first. According to this witness, when Sitaram was brought to Ramu''s house, he was unconscious. From the house of Ramu, deceased Sitaram was taken to Kolsewadi bus stop and from there, he was taken to Wada Hospital. Earlier witnesses have not deposed to about this fact. If, this witness is to be believed as regards carrying deceased Sitaram directly from the spot to the house of Ramu, then, either PW-5 Sanjay is lying or the rest of the witnesses. This is also a material inconsistency in the testimonies of the prosecution witnesses inter se. 41. Pw-6 Deepak Dalvi is the nephew of deceased Sitaram. He is a hearsay witness and therefore, his evidence, per se, would not be of much assistance to the prosecution. It is clarified by him that on the day of incident his uncle Sitaram and others went for fishing, but they did not allow him to accompany them. This witness, therefore, had no occasion to witness the incident. 42. Pw-7 Waman Dalvi was sleeping at his house when he heard some shouts at about 10.30 p.m. and therefore, rushed to the spot along with his brother Ramu. They took a torch with them. This witness, therefore, had no occasion to witness the incident. 42. Pw-7 Waman Dalvi was sleeping at his house when he heard some shouts at about 10.30 p.m. and therefore, rushed to the spot along with his brother Ramu. They took a torch with them. In the field, this witness noticed 5 to 6 persons and therefore, he and his brother Ramu shouted loudly by saying "who is there?" Those persons started running from the spot after hearing the shouts. PW-7 Waman and Ramu chased those persons for a distance of about 150 meters. This witness inquired with those persons standing at the distance of 50 feet away on the top of the hill. This witness could identify them in the torch light. It is difficult to believe that in the torch light during the darkness, how this witness could identify those persons who are at the distance of 50 feet away. It is not clear what kind of torch was used by this witnesses by which they could clearly see the faces of those persons from a distance of about 50 feet. His evidence further reveals that the accused threatened them and therefore, they started returning home. During his cross-examination, PW-7 Waman admits that he could not identify the accused when they started running away from the field. The fact that he along with Ramu chased those persons at a distance of about 150 meters is proved to be an omission. It is quite difficult to accept the versions of these witnesses as truthful, for, if they had the courage to chase those persons, how they would just return meekly by mere threats alleged to have been extended by those persons. 43. Thus, it can be seen that there are material omissions in the testimonies of most of the prosecution witnesses which are also inconsistent on material aspect so as to say, which weapon was held by whom and most importantly there is no acceptable or believable evidence from which it can be said that one of the accused was the author of the lethal blow/s on the person of deceased Sitaram. 44. Pw-6 Deepak Dalvi has some different tale to tell. He too was not allowed to accompany the witnesses, however, according to him, he followed them secretly and noticed the incident by hiding his position. 44. Pw-6 Deepak Dalvi has some different tale to tell. He too was not allowed to accompany the witnesses, however, according to him, he followed them secretly and noticed the incident by hiding his position. When he was cross-examined, the fact that accused raised shouts as "dhara dhara mara mara" is proved to be an omission. He was unable to tell, as to how many blows were inflicted by accused Ramesh on the person of the deceased. Normally, no witness would count the number of blows, yet, the very presence of this witness on the spot is shrouded with doubt in the light of the fact that what made him follow the rest of the witnesses secretly and then to watch the assault? If, he is the close relative of the injured and the deceased who was his uncle, his remaining aloof and a silent spectator despite witnessing a brutal assault, renders his conduct unnatural. He admits that he was not called by the police in the test identification parade for identifying the suspects. His testimony is therefore, not useful to the prosecution in any manner. 45. P.W.9 Ravindra Waman Dalvi acted as a panch witness. According to him, when he was called at the police station on 02.07.1993 at about 10.30 p.m., accused Ramesh Paste was present. Investigating Officer Satpute has testified that in the presence of two panchas accused Ramesh Paste showed his willingness to produce the weapon used in the commission of offence and as per the said disclosure made by accused Ramesh, a memorandum panchnama Exhibit-42 was drawn. Thereafter, accused Ramesh Paste led the police and panchas towards a lake situated in the village Kolshewadi. After entering into the lake water, Ramesh took out a stick which was seized under a panchnama Exhibit-42. In his cross-examination, PW-9 Ravindra has stated that panchnama was drawn at village Kolshewadi. The said stick was a normal stick available in the village. As already stated, there is no special identification mark over the said muddemal stick which alleged to have been produced by accused Ramesh from the lake. Moreover, the stick was found floating in the water and then it was seized under the panchnama, which means it was not concealed or hidden somewhere by the accused which was within his special knowledge and then he discovered the same. Moreover, the stick was found floating in the water and then it was seized under the panchnama, which means it was not concealed or hidden somewhere by the accused which was within his special knowledge and then he discovered the same. The prosecution has not succeeded in establishing any nexus between the said stick or lathi, vis-a-vis, the assault on the person of the deceased or injuries to the witnesses for want of any evidence. The said discovery of fact, therefore, does not fall within ambit of Section 27 of the Indian Evidence Act. Mere discovery of a material object is of no relevancy to the question whether the accused are guilty of the offences charged against them, unless it is connected with the offence. 46. Interestingly, PW-10 Sanjay Dalvi, another panch witness in his cross-examination admits that the accused did not make any disclosure statement before leaving the police station and that no writing was effected at the police station before they left along with the accused. This witness was declared hostile, but the prosecution could not make any dent in his testimony. 47. Pw-11 Prakash Bapu Mahale was also summoned by the police to act as a panch witness to seizure panchnama at the police station in respect of clothes and spear. He testified that the police had obtained his signature over the panchnama. The said panchnama is at Exhibit - 46. 48. As per the evidence of the investigating officer PW-12 Vasant Satpute, the sealed articles were sent for chemical analysis. The report of chemical analysis is at Exhibit-52 which indicates human blood at Exhibit-1 which is earth wrapped in paper. Exhibit- 3 is an iron tumba wrapped in paper, Exhibit- 4 half sleeve open shirt, Exhibit-6 underwear, Exhibit-8 wooden stem, Exhibit-9 another underwear. The CA report reveals that the blood groups are inconclusive. Thus, in the absence of any specific report of the chemical anlyser about the blood noticed on those articles, it is difficult to accept the prosecution''s case that the bloodstained noticed over the incriminating articles, in fact, belonged to the deceased and/or the injured. 49. Most of the prosecution witnesses namely PW-1 to PW-7 made material improvement in their versions and therefore, their evidence cannot be said to be trustworthy. 49. Most of the prosecution witnesses namely PW-1 to PW-7 made material improvement in their versions and therefore, their evidence cannot be said to be trustworthy. The absence of name of accused No.1 Madhav Paste in FIR also creates a reasonable doubt about the very authenticity of the prosecutions case. It is significant in the light of the fact that FIR reveals that there were only 5 accused at the time of incident who alleged to have assaulted the deceased and other prosecution witnesses with lathi. It nowhere reveals that any of the accused was armed with a spear or inflicted injuries by means of a spear over the head of the deceased. 50. The learned Trial Court has, therefore, rightly appreciated and analysed the evidence of the prosecution witnesses by recording the material omissions and contradictions on record. The conclusion arrived at by the Trial Court is legal, proper and correct. The prosecution case is full of doubts and therefore, its benefit would definitely go to the accused. The evidence is quite shaky, so as to say, no witness could utter a single word as regards the identification of those unknown 5 to 6 persons accompanied the accused. 51. Before parting with the Judgment, it would be essential to mention a material fact that the spot panchnama Exhibit-35 indicates description of the field in question bearing Survey No. 40/3 from where bloodstained earth was found and collected. It was the place where the accused alleged to have assaulted the witnesses who were fishing in the brook. All the accused in their statements under Section 313 of Cr.P.C. have stated that they have no concerned at all with the said land bearing survey No. 40/3 known as "Pahuni". They also made it clear that they do not possess any land in the nearby vicinity where the incident took place. Thus, the prosecution has failed to bring home the guilt of the accused beyond all reasonable doubts. The learned Additional Sessions Judge, has, therefore, rightly placed a useful reliance on the judgment of the Hon''ble Supreme Court as stated hereinabove that there may be an element of truth in prosecution story against the accused, but having considered entire evidence and circumstance on record, it seems that story may be true but, there is a long distance to travel between "may be true" and "must be true". The prosecution, unfortunately has failed to travel this distance. 52. A corollary of the aforesaid discussion is that the appeal is devoid of merits. Now, to the order. ORDER I) Appeal is dismissed. II) The order as regards disposal of muddemal property is maintained.