JUDGMENT : Abhay Shreeniwas Oka, J. 1. In the present appeal, the appellants will be referred as per their original accused Nos. before the trial Court for the sake of brevity and for preciseness. 2. By the impugned Judgment and Order dated 9th July 2012 passed by the learned Additional Sessions Judge, Kalyan in Sessions Case No. 284/2008, the accused No. 1- Kiran Baderao and accused No. 3- Rohan Deshmukh are convicted under section 302 read with 34 of the Indian Penal Code (for short "IPC") and sentenced to suffer imprisonment for life and to pay fine of Rs.5,000/- each, in default of payment of fine, to further suffer simple imprisonment for three months. By the impugned Judgment and Order, the accused No. 2- Mahendra Deshmukh, accused No. 4- Dashrath Baderao, accused No. 5- Ajay Deshmukh and accused No. 6-Eknath Baderao are convicted for the offences punishable under section 325 read with section 34 of IPC and section 324 read with 34 of IPC and are sentenced to suffer rigorous imprisonment for one year on each count and to pay fine of Rs.1,500/- each, in default of payment of fine, to further suffer simple imprisonment for three months. The Trial Court has directed that the substantive sentences for the offences punishable under sections 325 and 324 of IPC to run concurrently. The said judgment and order dated 9th July 2012 is impugned herein. By the same impugned Judgment and Order, the original accused No. 7- Bhushan Choudhari, accused No. 8- Rafik Shaikh and accused No. 9- Ashok Vishe have been acquitted from the offences punishable under sections 302, 307, 324 read with section 109 of IPC. 3. Heard Ms. Payoshi Roy, learned counsel for the appellants/accused and Mr. Yagnik, learned APP for the State. Perused entire record. 4. The case of the prosecution, in brief, is that, the original accused Nos. 7, 8 and 9 and deceased Yogesh Warghade were Commission Agents in the business of sale and purchase of lands in the vicinity of Murbad Taluka. There was a dispute between the original accused Nos. 7 to 9 and the deceased Yogesh about apportionment of the commission pertaining to the sale of land and therefore, at the instance of the original accused Nos. 7 to 9, it is alleged that the appellants i.e., original accused Nos. There was a dispute between the original accused Nos. 7 to 9 and the deceased Yogesh about apportionment of the commission pertaining to the sale of land and therefore, at the instance of the original accused Nos. 7 to 9, it is alleged that the appellants i.e., original accused Nos. 1 to 6 assaulted deceased-Yogesh on 1st August 2008 between 3.30 to 4.00 pm in the house of Santosh Yashwantrao at village-Gundegaon, Taluka-Murbad by using swords and wooden logs and committed his murder. It is the further case of the prosecution that in the said assault, Harishchandra Warghade (PW 2), Mustaq Shaikh (PW 3), Sunil Warghade (PW 10) also sustained injuries. After completion of investigation, the Police submitted chargesheet in the Court of Judicial Magistrate First Class at Shahapur, district-Thane. 5. As the offence punishable under section 302 of IPC is exclusively triable by the Court of Sessions, the learned Judicial Magistrate committed the said case to the Court of Sessions at Kalyan. After committal of the case, the Trial Court framed charge below Exhibit-66. The said charge was read over and explained to the accused persons in a vernacular language to which they denied. The plea of the accused persons has been recorded by the trial Court below Exhibits-67 to 75. The defence of accused Nos. 1- Kiran Baderao, No. 3- Rohan Deshmukh, No. 5- Ajay Deshmukh and No. 6- Eknath Baderao was of total denial. Their defence was of false implication in the present crime. It was their further defence that it is the villagers of Gundegaon who assaulted the deceased Yogesh and other witnesses on account of assault by the injured witnesses to some of the villagers and that the present accused have nothing to do with the present crime. 6. A perusal of the entire evidence available on record would indicate that Mustaq Shaikh (PW 3) is an independent injured eye witness. Mustaq Shaikh in his testimony has stated that the incident took place on 1st August 2008 between 3 to 4 pm in the eastern direction of the house of Santosh Yashwantrao. On that day, he had been to village Dolkhamb. He received a call from deceased Yogesh stating that they have to go to the house of Santosh for taking meal. Therefore, he went to the house of Santosh. On that day, he had been to village Dolkhamb. He received a call from deceased Yogesh stating that they have to go to the house of Santosh for taking meal. Therefore, he went to the house of Santosh. He has further stated that he, Santosh Yashwantrao, deceased-Yogesh and Sunil Warghade took meals at the house of Santosh. That accused No. 1- Kiran Baderao made enquiry with deceased-Yogesh as to whether Santosh was in the house or not. Yogesh (deceased) told him that Santosh was not in the house. The accused No. 1- Kiran got angry on account of their previous dispute and slapped Yogesh (deceased). The accused No. 1- Kiran also abused deceased-Yogesh. Sunil (PW 10), Santosh Yashwantrao and Ramesh Warghade (PW 1) were in the house at that time. They heard shouts of Harishchandra Warghade (PW 2) who is the brother of deceased-Yogesh, from the backside of the house of Santosh. Therefore, they all went to the backside of house of Santosh Yashwantrao. He has further stated that accused No. 1- Kiran Baderao and accused No. 3- Rohan Deshmukh were having swords in their hands. That accused No. 6- Eknath Baderao, accused No. 5- Ajay Deshmukh and accused No. 4- Dashrath Baderao also came there. Accused No. 1- Kiran Baderao gave blow of sword on deceased Yogesh. The accused No. 3- Rohan Deshmukh also gave another blow of sword on deceased Yogesh. It is alleged that accused No. 2-Mahendra was also having sword and he gave a blow with it on the hand of Harishchandra Warghade (PW 2). He has further stated that he as well as Sunil M. Warghade (PW 10) were also assaulted by wooden rods by accused No. 4- Dashrath Baderao, accused No. 5- Ajay Deshmukh and accused No. 6- Eknath Baderao. That, he and Sunil M. Warghade (PW 10) and Ramesh Warghade (PW 1) ran away on motorbike to their village. He has stated that deceased-Yogesh was assaulted by accused No. 1- Kiran Baderao as Yogesh spoke lie about the presence of Santosh Yashwantrao in his own house. The said witness was cross-examined at length by the defence. That, he and Sunil M. Warghade (PW 10) and Ramesh Warghade (PW 1) ran away on motorbike to their village. He has stated that deceased-Yogesh was assaulted by accused No. 1- Kiran Baderao as Yogesh spoke lie about the presence of Santosh Yashwantrao in his own house. The said witness was cross-examined at length by the defence. In his cross-examination, he has admitted that on the date and time of incident he along with Ramesh Warghade (PW 1), Harishchandra Warghade (PW 2), deceased-Yogesh, Vishnu Thakare, Santosh Yashwantrao and one Mhalase had gathered at the house of Vishnu Thakare as it was no Moon night (Gatari Amavasya). They came to the house of Santosh Yashwantrao after the party at Vishnu Thakare's house was over at about 2.00 pm. He has admitted that, the accused No. 5- Ajay Deshmukh was assaulted by some of the persons from their group at about 2.15 pm. He has further admitted that some of the other accused persons were also assaulted on that day at about 3.00 pm. That the villagers of Gundegaon intervened and rescued them. Thereafter he along with other witnesses went in the house of Santosh Yashwantrao and sat there. He has further admitted that Ramchandra Choudhary and his son Rajesh came there. At that time, the deceased-Yogesh abused Ramchandra Choudhary and thereafter the villagers started to gather there. He has admitted that a mob of about 100 persons had gathered at that time. He has further admitted that the said mob came towards the house of Santosh Yashwantrao at 4.00 pm. by giving abuses and started to assault them including deceased-Yogesh when they came out of the house of Santosh Yashwantrao. Therefore, all the witnesses started to run at different directions. It was about 4.00 pm. when the said assault took place. He has admitted that, therefore, they were not in a position to see who were assaulting deceased-Yogesh. 6. Ramesh Warghade (PW 1), Harishchandra Warghade (PW 2) and Sunil M. Warghade (PW 10) have narrated a different version and have stated that when the said witnesses were taking meals at the house of Santosh Yashwantrao at 3.00 pm, the accused No. 1- Kiran Baderao came there and asked whether Santosh is there or not. At that time, deceased-Yogesh told him that, Santosh is not in the house. At that time, deceased-Yogesh told him that, Santosh is not in the house. However, accused No. 1- Kiran Baderao saw Santosh in the house and, therefore, he abused Yogesh in a filthy language and questioned Yogesh as to why he spoke lie though Santosh was in house. Accused No. 1- Kiran Baderao, therefore, asked Santosh Yashwantrao to come out of house and, therefore, all the witnesses came out of the house. The said witness saw all the accused Nos. 1 to 6 standing outside the house. That, accused No. 1- Kiran Baderao, accused No. 2- Mahendra Deshmukh, accused No. 3-Rohan Deshmukh were holding swords and accused No. 4- Dashrath Baderao, accused No. 5- Ajay Deshmukh and accused No. 6 Eknath Baderao were holding wooden rods in their hands. Accused No. 1- Kiran gave a blow of sword on the neck of Yogesh from the backside and the others rushed towards Ramesh Warghade (PW 1) and Mustaq Shaikh (PW 3). Thereafter Ramesh Warghade (PW 1) and Sunil M. Warghade (PW 10) returned to village Welu on motorcycle. They have stated that the incident of assault on Yogesh took place on account of land transactions. 7. It is to be noted here that Harishchandra Warghade (PW 2) in his testimony has stated that the accused No. 2- Mahendra Deshmukh gave a blow of sword on his right hand and, therefore, he became unconscious. He was not aware as to who took him to the Government Hospital. He regained consciousness on 3rd August 2008 and the Police thereafter recorded his statement on 4th August 2008 in Janjira Hospital. Dr. Vinay Devlalkar (PW 7), in his testimony, has contradicted the testimony of Harishchandra Warghade (PW 2) and has stated that Harishchandra (PW 2) was brought by 4 to 5 persons in a vehicle on 1st August 2008 at about 6.40 pm to the hospital and Harishchandra himself gave history of assault on him by two to four persons. Thus, the version of Harishchandra (PW 2) that he got unconscious after receiving blow of sword and regained consciousness on 3rd August 2008 appears to be not a true version in his testimony. It appears that the said witness is not telling truth and, therefore, the said witness is not a reliable witness. 8. Thus, the version of Harishchandra (PW 2) that he got unconscious after receiving blow of sword and regained consciousness on 3rd August 2008 appears to be not a true version in his testimony. It appears that the said witness is not telling truth and, therefore, the said witness is not a reliable witness. 8. As far as testimony of Sunil M. Warghade (PW 10) is concerned, the same is consistent with the prosecution case but it is contrary to the version narrated by Mustaq Shaikh (PW 3). It is to be noted here that Ramesh Warghade (PW 1), Harishchandra Warghade (PW 2) and Sunil M. Warghade (PW 10) are close relatives of deceased-Yogesh. It is Mustaq Shaikh (PW 3) who is an independent eye witness though he was close friend of deceased-Yogesh. As noted earlier, in the cross-examination of Mustaq Shaikh, vital admissions have been brought on record by the defence which, in our view, really go to the root of the matter. His version is that mob of hundred persons started assaulting them including the deceased. Therefore, he started running away. Mustaq Shaikh (PW 3) has fairly admitted that he did not see the actual assault and he along with other eye witnesses ran away from the scene of offence immediately after the assault started. 9. At this stage, it is important to note that though the entire incident has taken place in or near about house of Santosh Yashwantrao, he has not been examined by the prosecution. Manohar Patil (PW 11) the investigating officer, in his cross-examination, has admitted that, he had recorded statement of Santosh Yashwantrao and had also requested the learned Magistrate to record his statement under section 164 of the Code of Criminal Procedure, 1973. That, accordingly, the learned Magistrate had recorded the statement of Santosh Yashwantrao and witness Vishnu Thakare. According to us, Santosh Yashwantrao was a star witness in the present case in whose house or in the precincts of his house the entire incident took place. According to the prosecution case, he is the said person to whom Yogesh (deceased) tried to shield by telling lie for which accused No. 1- Kiran got angry and assaulted Yogesh. According to us, Santosh Yashwantrao was a star witness in the present case in whose house or in the precincts of his house the entire incident took place. According to the prosecution case, he is the said person to whom Yogesh (deceased) tried to shield by telling lie for which accused No. 1- Kiran got angry and assaulted Yogesh. Non-examination of such important witness, namely, Santosh Yashwantrao by the prosecution creates a serious doubt in the mind of this Court about the veracity of the statements of other eye witnesses, namely, Ramesh Warghade (PW 1), Harishchandra Warghade (PW 2) and Sunil Murlidhar Warghade (PW 10) though the said witnesses are injured eye witnesses. This observation is made in reference to the testimony of Mustaq Shaikh (PW 3) who has deposed a totally different version than the other three eye witnesses who are undoubtedly close relatives of the deceased-Yogesh. There are two different versions available on record. It is the well settled principle of law that a version or circumstance which is beneficial or favourable to the accused needs to be taken into consideration by the Court while appreciating evidence on record. As noted earlier, Mustaq Shaikh (PW 3) is an independent eye witness. His version inspires confidence in the minds of this Court. This witness is wholly reliable and trustworthy. 10. In view of the aforesaid deliberation, we are of the considered view that the appellants are entitled for the benefit of doubt and are, accordingly, given the same. Hence, the following order: ORDER (i) The conviction and sentence of the appellants imposed under the impugned judgment and order dated 9th July 2012 passed by the learned Additional Sessions Judge, Kalyan in Sessions Case No. 284/2008 is hereby quashed and set aside and the appellants are acquitted from the charges framed against them by giving benefit of doubt; (ii) Fine amount, if any, deposited by the appellants be refunded to them after production of an authenticated copy of this order; (iii) The appellants shall be forthwith set at liberty provided they are not required in connection with any other offence; (iv) The appeals are allowed in the aforesaid terms; (v) All concerned to act on an authenticated copy of the operative part of the order.