JUDGMENT D.J. Moharir, J.The appellants here are the original accused Nos. 1 to 5 who were, alongwith seven others tried for commission under sections 147, 148, 307 read with section 149 of I.P.C. as also under section 37(i), (iii) read with section 135 of the Bombay Police Act. While accused Nos. 6 to 12 were all acquitted of the above stated charges as also the charge under 201 of the I.P.C. For the offence under section 307 read with section 149 of I.P.C., each of these appellants/accused Nos. 1 to 5 was sentenced to suffer R.I. For four years and a fine of Rs. 250/- i/d of each to undergo further R.I. for 6 months.For the offence under section 148 of the I.P.C., each of them was sentenced to R.I. for 6 months and no separate sentence was awarded for the offence under section 147 of the I.P.C. The substantive sentence were directed to run concurrently.The five appellants and seven others who were acquitted all came to be prosecuted of the following as case put forth by the prosecution:The accused No. 1 Rajabhau Rasal had an elder brother by name Sudhir.In the year 1980 Sudhir was murdered by Manohar Vir who is the victim of the attempt to commit murder in this case.Manohar Vir was tried by the Session Court at Solapur, for the offence under section 302 of the I.P.C., who apparently came to be convicted under section 304(ii) of the I.P.C. He was sentenced to R.I. for 5 years.The fact that Manohar Vir was lay off lightly for the murder of his brother, was not taken lightly by the accused No. 1 Rajabhau Rasal.The desire to wreck vengence upon him and punish him life for life, to crowd in the mind of the accused No. 1, when Manohar Vir was thus lay off lightly as considered by him.With revenge overwhelming him, he was on the look out to punish Manohar Vir appropriately i.e. by doing his murder also.It was with that object that the accused Nos. 1 to 9 all friends and associates of the accused No. 1, formed an unlawful assembly, armed with deadly weapons.The accused No. 1 and 2 armed with swords, the accused No. 3 with a hockey stick, the accused No. 4 with iron bar, and the accused No. 5 with a hollow iron pipe, started on 9-10-1985 at about 12 noon, looking out for Manohar Vir.They went about in two autorickshaws of which the accused No. 10 and 11 were the drivers.They found Manohar Vir standing infront of the Bhagwat Petrol Pump and on citing him, the two autorickshaws stopped.The accused persons rushed out of the vehicles.The accused No. 1 in the lead armed with the sword, first struck a blow to Manohar on the head.Frightened at the suddenness of this attack on him, Manohar Vir, ran in the direction of the residence of the Police Inspector Atmaram Yadao.At a distance of about 1 k.m.He is a cousin of Manohar Vir.The accused Nos. 1 and 2 riding together in the third autorickshaw, passed by the restaurant of Madhukar Satarkar, while the two other autorickshaws carrying the accused persons sped away towards Latur.Slowing down the autorickshaw briefly, the accused No. 2 delivered a threat to Madhukar Satarkar also saying one is already finished and they will now burn down his hotel also.When Manohar Vir was attacked near the Bhagwat Petrol Pump and ran in the direction of the Police Inspector's bungalow, the accused persons while chasing him, raised shouts "catch him, beat him, kill him".The commotion thus caused a noise and the shoutings fell on the ears of Madan Bobde P.W. 9, who is the maternal uncle of Manohar Vir and an employee of the Municipal Council, Barsi, in the Boiler Department.His house is on the Latur Kurduwadi road in Shivaji Akhada area.At a short distance from where the incident of the attack on Manohar Vir at the Bhagwant Petrol Pump occurred, he, therefore, came out of the house all the while still taking his meal.He went upto the railway line which passes nearby and watched from there.He saw Manohar Vir running into the compound of the Police Inspector's bungalow and then the accused persons in not chased catching up with him, attacking him with swords and other weapons and then leaving him, considering him to be dead and speeding away in the autorickshaws.Like Madan Bobde P.W. 9, the occurrence was eye witnessed by Shivaji Parse P.W. 6 also.However, he had witnessed the entire occurrence starting with first attack on Manohar Vir at the Bhagwat Petrol Pump.He went on foot after the assailants, in the direction of the Police Inspector's bungalow and witnessed the entire incident including the accused persons leaving the place in the autorickshaws.Similarly Vishnu Vidhate P.W. 7, also saw the incident while he was returning to his Radio Repairing Shop, situated opposite the Police Inspector's bungalow, after taking his mid day meal at his house which is on the back side of the Bhagwat Petrol Pump.Madan Bobde, Shivaji Parse and two others by name Appa-Pappa Kandalkar and Bapu Raut then carried the injured and unconscious Manohar Vir to the Municipal Council Jawaharlal Hospital, Barsi.The Medical Officer Dr. Gaekwad P.W. 8, was no duty.He examined Manohar Vir in his unconscious condition, noted the several injuries, all incised wounds on his person and having regard to the critical condition advised that Manohar be taken to the Barsi Maternity and General Co-operative Hospital, where Dr. Hiremath P.W. 1 was the Chief Medical Officer.It was between 12-15 and 12-30 noon that the incident took place and it was by about 1-15 p.m. that Manohar Vir was finally admitted in the hospital of Dr. Hiremath.The Chief Medical Officer noted the critical condition and opined that immediate surgery was necessary.The necessary consent for surgery having been obtained on the case papers of the patient, Manohar Vir was operated upon successfully.The offence was registered against all these accused persons and wireless messages were immediately sent out as the culprit were reported to have sped away in the direction of Latur in autorickshaws.One of the message was also sent to the Pangari Police Station.P.S.I. Dange P.W. 18 having received the message, took steps to apprehend the accused persons.He first went to the village Kuslumb with his staff and learnt that autorickshaws and gone towards Yermala and, therefore, he want to Yermala also but there again he learnt that the rickshaws had gone towards a city of Bid.He requisitioned the services of motor truck for the pursuit.They were apprehended and the autorickshaws also seized and attached and sent to the Pangari Police Station.He further went ahead in search of the other accused persons upto Kunthalgiri and saw one Matador.The driver of the matador informed him that the he had taken some of the accused persons to the village Bhum in the said matador.He went to Bhum also and searched for the accused persons but they could not be traced.At Barsi the town Police Inspector Atmaram Yadao was out of station.He had gone to Pune in connection with the investigation of some other offence.He sent a Yadi to the Special Executive Magistrate for recording the statement of Manohar Vir.However, Manohar Vir apparently regained consciousness only on the 10th October 985 i.e. the next day in the morning.It was only then that his statement was recorded.P.S.I. Patil also drawn a panchanama of the scene of the offence, the spot at the Bhagwant Petrol Pump, and the premises of the Police Inspector's residence.At the spot near the Bhagwat Petrol Pump, he found one single chappal of the left foot and seized it.In the compound of the Police Inspector's bungalow, apart from observing the pool of blood, by the injuries received by Manohar Vir, he also found an iron bar (article No. 10) and the broken sword handle.These were also seized by him.By 10-30 p.m. Police Inspector Yadao, having received wireless message about the present incident, returned to Barsi from Pune.He then took over the investigation.On 10-10-1985 under the orders of Police Inspector Yadao, P.S.I. Patil seized the blood stained articles of clothing on the person of Manohar Vir under the panchanama Exh. 29 at Dr. Hiremath's Hospital (article Nos. 25 to 28).Obviously his object was to enter in the residence of the Police Inspector and seek protection against the accused persons who were after his life.To his misfortune the house was found locked.The accused persons, some of them through the gate of the compound, and some others through the wire fencing rushed at Manohar Vir and blows were struck to him, first by the accused No. 3 Somnath with the hockey stick, whereupon he fell down.He was then struck with the sword on the neck and else where on the body and lay bleeding and became unconscious.With victory thus achieved some one from these group of assailants loudly said, "he is dead, let us go now".So same the accused persons got into the autorickshaws and sped away in the direction of Latur.He also obtained a copy of Manohar Vir's statement recorded by the Special Executive Magistrate and handed over the same to the Police Inspector.Again under the orders of the Police Inspector Yadao, he also carried out the search of the accused Nos. 5, 6, 7 and 8 but nothing incriminating was found.The accused Nos. 1, 2, 3 and 4 were all arrested on 16-10-1985 when they appeared at the Police Station which was after their application dated 12-10-1985 for grant of anticipatory bail was rejected on 15-10-1985 by the Sessions Judge.Police Custody remand of these accused persons had been obtained and during such police custody remand, following a statement duly recorded under section 27, the sword (article No. 7) was also recovered.The autorickshaw which has been used by the accused Nos. 1 to 4 for their escape was also attached and the accused No. 12 Gafar Saudagar as the driver thereof was also arrested.He visited Yermala to record the statement of the witnesses also.When the accused No. 1 was arrested, upon his surrendering himself at the Police Station at 2.45 p.m., he had found that the (accused No. 1) had injuries on the middle finger and the palm of the left hand.He, therefore, sent the accused No. 1 for medical examination and injury report to Dr. Gaekwad at the Municipal Council Jawaharlal Hospital.The chappal which had been found near the Bhagwat Petrol Pump, was found to fit on the left foot of the accused No. 2 Nagnath.During the interrogation all the accused persons, other a second sword, hockey stick and sticks etc. also came to be recovered following the statement of discovery of certain other accused persons.Eventually upon completion of the investigation, the charge-sheet was presented against all the 12 accused persons as stated above.To the charge as framed at Exh. 2, all these 12 accused persons pleaded not guilty and claimed to be tried.Their defence was of a total denial.Denying the truth of every so far as piece of evidence which came to be led against them, they also filed separate written statements to spell out their further defence.On arrival at Barsi, they learnt about this incident of the attack on Manohar Vir and feeling that since the accused No. 1 was the brother of Sudhir, who had been murdered by Manohar Vir, they would be suspected of having taken revenge upon Manohar Vir, and since they also learnt that complaint had been actually accordingly lodged against them, and further that the Police were in search of them, they decided to leave Barsi, using the motorcycle they went upto tourist hotel on the Latur road.They left the motorcycle there with instructions to the proprietor of the hotel that it be returned to Kanta Shalu.They then returned to Barsi, took their clothes in the bag and went to Solapur, where they met the accused Nos. 3 and 4 also.During the period between 12th and 15th October 1985, they submitted that Police Inspector Yadao had actually met them on some occasions.According to them, they had absolutely no concern whatsoever in the incident of the attack on Manohar Vir.No complicity therein could be attributed to them.The accused No. 1 also gave an explanation for the two cut injuries on his left hand, as caused while doing some household work.When they learnt about this incident, of the attack on Manohar Vir, they suspected that the accused No. 1 would be suspected and held responsible.They apprehended that being his friends, they would also come in trouble.Then they proceeded to Solapur deciding to apply for anticipatory bail.They denied like the accused Nos. 1 and 2 that they were still wearing any blood stained articles of clothing when they surrendered at the Police Station Barsi on 16-10-1985 or that such blood stained articles of clothing were attached from their person.Their contention was that on 9-10-1985 Wednesday, was the Bazar day at village Vasi, Taluka Bhoom.Live stock is sold in that market.Because of the severe drought conditions, cattle owners had been selling away their live stock.They had learnt that cows of jearsy breed which yield good milk in quantity were also being sold cheaply.Desiring to purchase that breed of cows, they had, therefore, decided to go to Vasi.They had intended to catch S.T. bus at 12 noon from Barsi.By the time they reached the Bus Station, bus for Vasi had already left.Apprehending that they would thus mis-unattending the cattle market, they engaged two autorickshaws driven by the accused Nos. 10 and 11 and proceeded towards Vasi from Barsi.On the way, between village Yermala and Vasi, their autorickshaws had tried to over take a bus at a road junction.In the attempt to over take, one of the two autorickshaws turned turtle.It was then that the Police Sub-Inspector Patil also came there and apprehended all of them and took them to Barsi.Their plea is that they have, therefore, been falsely implicated only because they were the friends of accused No. 1 Rajabhau Rasal.Even after taking into consideration the criticism levelled against each of these three eye witnesses, he found their evidence cogent and reliable, more particularly the evidence of the witness Vishnu Vidhate P.W. 7 was also found to be that of totally disinterested witness.It was upon such corroboration which the testimony of the victim Manohar Vir, P.W. 10, thus received that the learned Judge found the accused Nos. 1 to 5 has fully and inexplicably implicated.This was apart from the fact that the evidence from two medical witnesses Dr. Gaekwad and Dr. Hiremath also supported the eye witnesses.In his very detailed judgment exhaustively considering all evidence, the learned Judge observed that the first information report Exh. 53 came from Madan Bobde P.W. 9 as himself an eye witness to the incident.He noted that the incident had been witnessed by Shivaji Parse P.W. 6 right from the beginning i.e. when attack on Manohar Vir is started near the Bhagwat Petrol Pump and when thereafter he ran into the compound of the Police Inspector's bungalow, hotly chased by the accused persons.He had that the accused Nos. 1 and 2 had used swords, the accused No. 3 a hockey stick and the accused No. 5 a hollow iron pipe for attacking Manohar Vir, when they caught up with him in the courtyard of the Police Inspector's residence.He also found that there was no person present in the bungalow of the Police Inspector Atmaram Yadao as the latter had gone to Pune for investigational work.He also noted that when Manohar Vir was taken to the Municipal Council Jawaharlal Hospital in the first instance, the Medical Officer Dr. Gaekwad there had immediately sent information to the Police Inspector at Barsi Police Station.It was received there at about 1 p.m. He also noted that Manohar Vir could not be properly treated there and was, therefore, on the advice of Dr. Gaekwad taken to and treated at the Barsi Maternity and General Co-operative Hospital headed by Dr. Hiremath, for appropriate urgent and special treatment.The learned Additional Sessions Judge dealt with the submission of the defence Counsel that the accused persons had come to be charged only a suspicion.The submission being founded on the fact though Manohar Vir's compliant Exh. 53 had come to be lodged only by 2 p.m. or before that, the message to the Pangari Police Station for catching specifically named suspects had already gone at 1.30 p.m. That submission though accepted by him as quite ingenious was not, however, tenable in his own.He also dealt with the submission only to reject it that Manohar Vir must have been quite conscious by the time a decision to operate upon him came to be taken for the reason that the consent to such surgery had been given by Manohar Vir himself.The argument was that even Manohar Vir was in a condition to understand the risk involved in a surgery and could yet give his consent to such surgery, then it was his complaint, that should and ought to have been recorded and not of Madan Bobde P.W. 9, for taking cognizance of offence if any.The evidence pertaining to the statements of discovery under section 27 of the Evidence Act made by the various accused persons, leading to the seizure of several weapon of offence, such as two swords, sticks iron bar and pipe etc. was unworthy to credit no doubt but the fact remained all the same a true one that the report of the Chemical Analyser at Exh. 31 established the presence of human blood of group 'B' on it, that being also the blood group for victim Manohar Vir.He also rejected as entirely artificial the prosecution evidence that the accused Nos. 1 to 4 had appeared at the Barsi Police Station on 16-10-1985 with blood stained articles clothing still on their person, so as to make use of the blood stained conditions of the clothes as providing a clue to the participation of the accused Nos. 1 to 4 in the commission of the offence.He rejected the accused No. 1's explanation as to the injuries on his middle finger and the palm of his left hand.He also noted that the evidence of P.S.I. Dange of the Pangari Police Station read even in the light of the written statements of the accused persons, established that they had been in a guilty flight after the incident.Thus the learned Additional Sessions Judge came to the conclusion upon his detailed assumption of all the prosecution evidence that it unmistakably established the accused Nos. 1 to 5 as the persons who alongwith others also formed an unlawful assembly with the object of seeking revenge upon Manohar Vir for his committing the murder of Sudhir Rasal, indulged in a ferocious and concerted attack upon the defenceless Manohar Vir and had attempted to commit his murder.While against the accused Nos. 6 to 12, the evidence was unsatisfactory, while the participation of the accused Nos. 10, 11 and 12 as the autorickshaw drivers was a very negligible part, unaccompanied by their seeing of any such common object, the complicity of the accused Nos. 6 to 9 was also a fact which had remained far from established.It is, therefore, that the accused Nos. 6 to 12 came to be acquitted and their acquittal has not been, as stated at the bar by the learned Additional Public Prosecutor, challenged either by an appeal against such acquittal.The accused Nos. 1 to 5 had, however, came to be convicted and sentenced as stated above and they have taken exception both to their conviction and the sentences as awarded to them by the learned Additional Sessions Judge.Both the learned Counsel Shri Patil for these appellants and the Additional Public Prosecutor for the State have taken me in almost a minute detail through the entire prosecution evidence.The finding of their guilt under section 147 and 148 as also under section 307 read section 149 of the I.P.C. is challenged by Shri Patil upon a variety of contentions and submissions.These may be briefly emnurated, before considering them in detail as under:Thirdly the evidence of the so called eye witnesses Vishnu Vidhate, Shivaji Parse and Mandan Bobde provided an indication that many persons had gathered infront of the Police Inspector's bungalow when the incident occurred and yet only interested and antagonistic persons had come to be examined as prosecution eye witnesses.These witnesses, it was also pointed out, atleast some of them were relatives of the injured Manohar Vir.It was next submitted that Manohar Vir must have been quite conscious on being taken to Dr. Hiremath's Hospital.The fact that the he gave consent to surgical operation, established that fact.Therefore, the complaint as lodged by Madan Bobde P.W. 9 was of doubtful merit as the first information report for implicating the accused.It was rather upon the suspicion which Madan Bobde must have had that the complaint was founded.It was also contended that the version of Manda Bobde P.W. 9 and Shivaji Parse P.W. 6 as to who reached first near the injured Manohar Vir in the courtyard of the Police Inspector's bungalow must lead to the disbelief of both of them as eye witnesses.It was next submitted that no specific overt act on the part of the accused No. 4 had been proved by any prosecution witness.The evidence as to the statement of discovery made by the accused persons and following such statements the recovery of any things and articles such as weapons was of a concoction.It was also contended that the injury to the middle finger and the palm of the accused No. 1 had been well explained by him but erroneously rejected by the Trial Court and lastly the incident of the murder of Sudhir Rasal having taken place as far back as in the year 1980, Manohar Vir having undergone the sentence of imprisonment thereafter and even a period of about 11/2 years or more having passed after Manohar Vir's release from imprisonment, no proximate cause for the attack on Manohar Vir could be attributed either by Manohar Vir or the other prosecution witnesses.It is upon these contentions the appellants claimed that the erroneous conclusions and findings of their guilt arrived at by the Trial Court, should deserve to be set aside to acquit them.Manohar Vir P.W. 10 as the victim of the murderous attack on him deposed that at about 12 noon on 9-10-1985 he was standing infront of the Bhagwat Petrol Pump when the accused No. 1 Rajabhau Rasal, accused No. 2 Nagnath, No. 3 Somnath and accused No. 4 Chandrakant alongwith four or five others suddenly came in two autorickshaws.The accused No. 1 armed with a sword struck him on the head from his front side, causing a bleeding injury.Manohar Vir stated that with this first blow struck with the sword and, therefore, quite terrified, more so because the number of assailants who were against him and remembering that the Police Inspector's bungalow admittedly at only a short distance from the Bhagwat Petrol Pump, he ran in that direction.He wanted to run into the Police Inspector's residence to beseech him from protection.He has specifically stated that at the time when he saw the accused persons first at the spot infront of the bhagwant Petrol Pump, he had seen the accused No. 2 Nagnath also armed with a sword and the others with sticks and iron bars.He ran into the compound of the Inspector's bungalow through the gate and to his consternation as also disappointment found that the bungalow was locked and no one present inside.It is not in the evidence that the Police Inspector Atmaram Yadao's family was residing with him at that time.So far as the Police Inspector Atmaram Yadao P.W. 17 is concerned, his unchallenged and uncontroverted version is that on 9-10-1985 he was at Pune in connection with some investigation and, therefore, away from Barsi.These, therefore, explained so to why Manohar Vir found the bungalow locked.For it is also the evidence of Police Inspector Yadao that it was only when he received a wireless message at Pune about the present incident, that he decided to return to Barsi immediately and accordingly caught the bus to reach to Barsi by 10.30 p.m. This part of the version of Manohar Vir is thus duly corroborated.He states that the accused persons eventually caught up with him and attacked him and the accused No. 2 struck him with the sword on the head while others dealt blows with sticks and iron bars.He thereupon fell unconscious and did not know what happened.It was only on the next day in the morning that the found himself in Dr. Hiremath's Hospital.It was then on 10-10-1985 that his statement came to be recorded by the Special Executive Magistrate.I find that a reference to what this statement was, has come to be made by the learned Additional Sessions Judge, in his judgment.Specifically he appears to have omitted to have mentioned the accused No. 2 Nagnath as dealt any blow to him on the head as such.He stated that he was frightened no doubt but denied the suggestion that on account of that terrified condition as such, he could not see and remember as to who his assailants were or that he had named the accused-assailants upon any tuloring by Madan Bobde.There appears no reason to doubt the prosecution evidence that Manohar Vir's statement was first recorded only by the Special Executive Magistrate and this was on 10-10-1985 by which time Madan Bobde's complaint Exh. 53 has already been recorded a day before and secondly there is so evidence to indicate that prior to the Special Executive Magistrate's recording Manohar Vir's statement under section 164 Cr.P.C. there had been any contact or conversation between Manohar Vir and Madan Bobde, That suggestion was, therefore, quite futile one. "Shivaji Parse P.W. 6 is an eye witness.He also admits that Manohar Vir had been convicted for the murder of Sudhir Rasal.Thus accused Nos. 1 to 3 and 5 also admit that Shivaji Parse knows them.He stated that at about 12 noon while going on his bicycle, he saw Manohar Vir near the Bhagwat Petrol Pump and the accused Nos. 1 to 2 armed with swords, accused No. 3 with a hockey stick and accused No. 5 with a iron pipe.There were five more persons with them who were also, according to him armed only with sticks though.What is to be noted here is, therefore, be significant absence of mentioning the name and presence of the accused No. 4 Chandrakant.At no stage of his evidence further also, Shivaji Parse would appear to speak about the presence of accused No. 4 Chandrakant.Shivaji Parse states that near the Bhagwat Petrol Pump he saw the accused No. 1 striking Manohar Vir on the head with a sword and the latter then starting running away in the direction of the Police Inspector's bungalow and entering the compound.He also saw the assailants then pursuing him.He saw the accused Nos. 1 to 3 entering the compound through the fencing.According to Madan Bobde P.W. 9 these person had entered, however, through the gate.He saw the first blow in the courtyard being delivered by the accused No. 3 with his hockey stick whereupon Manohar Vir fell down and saw the attack by the accused No. 1 and 2 with their swords and by the accused No. 5 with an iron pipe.When they apparently realised that Manohar Vir had become motionless, they left and escaped in two autorickshaws towards the Latur Road.It was after the assailants fled that he himself, Madan Bobde, Bapu Raut and Appapappa Kandalkar went near Manohar Vir and took him to the Municipal Council Jawaharlal Hospital and thereafter to the Hospital of Dr. Hiremath.Now reflecting to the contention that Manohar Vir if attacked from the front with a sword in the hands of the accused No. 1, could not have received the blow on the back side of his head, it is again asserted by this witness also that the sword blow by the accused No. 1 near the Bhagwat Petrol Pump had landed on the back side of Manohar Vir's head, which is confirmed by the injury certificate and case papers at Exh. 57 of Dr. Gaekwad and Exh. 33 of Dr. Hiremath.The hockey stick blow on Manohar Vir, while he was facing the bungalow of the Police Inspector, in the courtyard, was also given by him from his back side, had fallen down and had not thereafter got up again.While Shivaji Parse stated that it was he who had first reached near Manohar Vir, madan Shivaji Parse had asserted as such, that it was he who reached near Manohar Vir and that Shivaji Parse had come after him.According to Madan Bobde he had watched the incident near the passing from the bungalow of the Inspector, Shivaji Parse had followed these assailants upto the gate and had seen the incident from there and both Madan Bobde and Shivaji Parse had gone near the fallen Manohar Vir almost at the same time.The greater criticism of Shivaji Parse's is, however, that he must be considered to be a enemical witness.While he denied any knowledge of the fact that his brother Bhima alongwith Madan Bobde P.W. 9 was facing prosecution for an assault on the accused No. 4 Chandrakant, Madan Bobde has quite clearly admitted that fact.He stated that Shivaji Parse's brother Bhima was a co-accused in that criminal case alongwith him and certain other persons.Now the argument that Shivaji Parse cannot be relied upon as a disinterested witness for the reason that his brother Bhima under prosecution for an assault on the accused No. 4 Chandrakant becomes entirely hollow, when as observed earlier, Shivaji Parse has not implicated the accused No. 4 at all.Otherwise it is as observed by the learned Additional Sessions Judge, a case of Shivaji Parse became quite natural a witness, Madan Bobde P. W. 9 is employed with the Boiler Department with the Municipal Council Barsi.The incident occurred on Wednesday which was a working day.It is, therefore, contended in the first instance that in the absence of any specific evidence that he was on leave on that day he would have to be accepted as being on duty and, therefore, could not also have been present at his house to hear about the commotion and then to witness this incident.Madan's evidence that he had been to his house for taking meal which has rightly observed by the trial Court is the usual meals time when one may be during working hours also taken a short recess for meal.His house is on the Latur Kurduwadi road at the Shivaji Akhada area.The said road is to the west of that road on which the bungalow of the Police Inspector abuts and his house is just adjoining to this road and the railway line.His house is a part of City Survey No. 3805 which is comprised of as many as 50 house including his own.He had heard the shouting from the side of the bungalow which comes to be on the back side of his house.He was taking his meal and had, therefore, immediately got up and went near the railway line to stand there and saw the incident happened.All of them entered through the gate.He did not mention accused No. 6 though the latter has been implicated in the first information report, Exh. 53 which he had given.Manohar Vir had falled down and accused No. 1 and 2 had then struck him with their swords, the other with a stick, bars and iron pipes to hit him.Manohar Vir had bled very profusely.The accused had then all left fleeting from the spot.It was then that he went near Manohar Vir.Bapu Raut and Appa Kandalkar also came there and then Manohar Vir to the Municipal Hospital, Dr. Gaekwad had advised taking him to the Dr. Hiremath's hospital and that was also done.That report was quite correct and stands to corroborate him substantially and it is also to be noted that as between this F.I.R. and the testimony given in the Court, no variance whatsoever has been pointed out.As noted earlier Madan has admitted that though an assault on accused No. 4 Chandrakant may be relevant so far as the complicity of the accused No. 4 is concerned, but not others also.The suggestion made to Madan Bobde was that Wednesday being a working day, he was at his place of work, that 'somebody' had met him there to inform him of the incident and that he had then gone to the scene of offence.This suggestion was flatly denied by the witness.F.I.R. Exh. 53 of Madan Bobde mentions that he is a maternal uncle of Manohar Vir.However, it has not been suggested with reference to this relationship, anywhere during his cross-examination that it is for the reason of this relationship that he is falsely implicating the accused persons.Madan Bobde it will thus be seen, is the only witness so far who implicates all the five appellants here as present and participated in the attack on Manohar Vir himself does not mention the accused No. 5 whom he yet knows.His Radio Repairing shop is situated opposite the S.T. Bus Stop.His residence is behind Bhagwat Petrol Pump.The Police Inspector's bunglow is on the Solapur road facing the east while his radio repairing shop on the same road faces the west.He says that he had been to his house for his mid day meal and was on way back to his shop at about 12.30 noon when he heard the shouts and cries of Raja, "catch him, kill him" and saw Manohar Vir running towards the bungalow of Police Inspector.Accused Nos. 1 and 2 were armed with the swords, accused No. 3 with hockey stick, accused No. 5 with iron pipe and while others had sticks.Accused Nos. 1 to 3 were the first ones to enter the compound of the Police Inspector's bungalow.The accused No 3 wielded Manohar Vir on the head with a hockey stick from the back side whereupon he fell down and the others then attacked him with their swords, iron pipes.When Manohar Vir become motionless bleeding profusely, they said "he is dead, let us go".They had then left in the autorickshaws.However, the witness on cross-examination had stated that he had made the note on some piece of paper in which the names of the assailants and the particular weapons wieded by them were mentioned.He stated that he had referred to this note when his statement was recorded during the investigation.He has admitted that he had not handed over this note to the Investigating Officer.The Investigating Officer himself does not appear to have questioned on this part of Vishnu's statement.If anything this much only be construed as being embellishment on the part of the witness, a display of over enthusiasm in the matter but o more.For it is admitted by all the accused persons that and also stated so at the bar by their learned Counsel for the appellants that this witness harbours no enmity against them and they have no axe to grind against him.In the circumstances, it is rightly observed by the learned Additional Sessions Judge that Vishnu of all the witnesses is the most disinterested and independent witness, who duly corroborates the victim and also established the fact as to who were the assailants when after Manohar Vir fell down under the hockey stick blow of accused No. 3, the assailants in the attack.Thus from the oral evidence, that of the victim, Manohar himself and the eye witnesses Shivaji Parse P.W. 6, Vishnu Vidhate P.W. 7 and Madan Bobde P.W. 9, the accused Nos. 1 to 3 must be found to have been definitely and fully implicated as the assailants not so however, the accused Nos. 4 and 5 inasmuch as accused No. 4 is not mentioned by the complainant himself as even present when he first saw the group of assailants near the Bhagwat Petrol Pump or hereafter.Then again Shivaji Parse P.W. 6 has also mentioned that the hockey stick was wielded by accused No. 5 though according to P.W. 7 Vishnu Vidhate it was accused No. 3 Somnath who had wielded the hockey stick.Thus any specific over act by the accused No. 4 is not proved and the participation on the part of the accused No. 5 as such comes into doubt with the omission to implicate him on the part of the victim himself.There is more in the medical evidence which in my opinion brings into doubt any participation on the part of the accused Nos. 4 and 5 as such.Dr. Gaekwad who was the first one to examine the injured Manohar Vir only hurriedly has mentioned all only for injuries in the nature of wounds which further appeared to him to be incised in nature.It was Dr. Hiremath at the Barsi Maternity and General Co-operative Hospital, who dealt with a patient to the point of performing surgery also.Dr. Hiremath P.W. 1 found as many as 12 injuries on the body of Manohar Vir.of these each of the injuries as Sr. No. 1 to 11 was incised wound and only the injury No. 12 was a superficial abrassion on the right big toe.If the use of any such sharp edged weapon as a sword is attributed only to the accused Nos. 1 and 2 and if the injury No. 12 is only in the nature of abrassion on the right big toe of the right foot, then evidence of all these witnesses including the victim Manohar Vir about the use of an iron pipe by the accused No. 5 and stick by the accused No. 4 Chandrakant must come into doubt.For hitting either with an iron pipe or a stick, would certainly not cause injuries of a incised nature.The use of these weapons would at best cause contusion or swelling on the body.It might further at best cause injuries in the nature of laceration, particularly if an iron pipes were used with roughened ends.But no such injury was observed by Dr. Hiremath also and that is what in my opinion, brings into doubt the story about any overt act as such on the part of these accused.It has to be conceded by the learned Additional Public Prosecutor that consistently with the evidence that accused No. 4 wielding a stick and accused No. 5 wielding an iron pipe no injury correspondently can be said to have been caused to Manohar Vir.This is as seen therefore, frequently brings the case of conviction of these two appellants into some doubt to the benefit of which they would have to be found entitled.As per the prosecution evidence about the seizure of blood stained articles on the person of the accused Nos. 1 to 3 or the accused No. 4 for that matter, is concerned, one must concur with the learned Judge of the trial Court that this evidence of such nature that the tending of it would be only at the peril of acceptance of even that prosecution evidence which would be otherwise considered genuine, truthful and reliable.One could not be deal more on this aspect of the evidence.It is, however, also pointed out by the learned Additional Public Prosecutor that the evidence of absconding on the part of these accused persons must deserve due consideration.In support plea of alibi no evidence was raised.It is their case that on 11-10-1985 they went to Barsi from Solapur.That means they were at Barsi on 9th and 10th of October 1985 and quite for some time on the 11th also.If their contention is that they have come to be implicated only on the suspicion that accused No. 1 was wanted to take revenge for the murder of his brother Sudhir, committed by Manohar Vir or for the reason that the accused No. 2 was accused No. 1's friend, then, it was quite open to them immediately approach the Police and establish their plea of alibi.They did not do so.They proceeded to Solapur for anticipatory bail, obviously to avoid arrest.It is difficult to appreciate their contention that their names have been taken only on suspicion, to falsely Implicate them.It is almost a well settled law that a injured person would not falsely implicate others instead of the real culprit.That apart Manohar Vir's testimony corroborated by Shivaji Parse, Vishnu Vidhate and Madan Bobde.The accused Nos. 3 and 4 have offered an explanation which like the learned Judge of the trial Court, 1 must also consider entirely unsatisfactory.They did learn about the attack on Manohar Vir in the evening that day and also that the assailants had then fled and disappeared.It is their say that accused No. 1 Rajabhau Rasal was their friend and as Manohar Vir committed the murder of Rajabhau's brother Sudhir, they suspected that they would be involved in the crime alongwith him.They got wind of the likehood of being so implicated by general talk amongst the members of the public.Therefore, they say that they remained hiding in their houses till 11-10-1985 and then went to Solapur to apply for anticipatory bail.The reasons for not considering the offences brought home to the accused No. 4 Chandrakant apart so far as the accused No. 3 is concerned, this explanation is entirely unsatisfactory.The incriminating testimony of circumstantial importance against the accused Nos. 1 to 3 also comes from two other witnesses Nagesh P.W. 11 and Madhukar Satarkar P.W. 12 Madhukar Satarkar is the owner of the Sital Restaurant on the Barsi-Latur road about a Kilometer away from the town proper.He is a cousin of Manohar Vir and knows all the accused.It is his evidence and that of Nagesh P.W. 11 that on 9-10-1985 at about 12-30 noon both of them were sitting in the open space in front of the restaurant taking tea.The Barsi Latur road adjoins this open space in front of the restaurant.Nagesh P.W. 11 has stated that at that time authorickshaws were halted near the restaurant and the accused No. 2 Nagnath had delivered a threat to Madhujar Satarkar P.W. 2 that his hotel would be set on fire.Accused No. 2 had delivered this threat while sitting in the authorickshaw.The accused No. 2 had said 'we have finished with one and we return to burn his hotel'.The first two authorickshaws, he stated that gone towards Latur in high speed and it was the third authorickshaw which came about 5 minutes later which had slowed down near him and the accused No. 2 sitting in it had given threats to him.This evidence of a guilty flight on the part of the accused Nos. 1 to 3, apart threats delivered by them, has been, however, disbelieved by the learned Judge of the Trial Court by observing that Madhukar Satarkar had thereafter remained complacent, he had not reported the threats to the police, when he went back to then town and came to know about the incident, he had gone to hiremath Hospital to see the injured Manohar Vir.He admitted that he disclosed this only to the Police Inspector when his statement was recorded that night.The silence about the guilty flight of the assailants of Manohar Vir in three authorickshaws and the threats given by accused No. 3, the learned Judge of the Trial Court observed so feeling enough to doubt the story given by this witness.In my opinion, however, when Madhukar Satarkar, is considered as one of the persons who was related to Manohar Vir, and had some connection with the murder of Sudhir, then the deliverance of such threat is not entirely improbable.The evidence that accused No. 3 remarked that one person had already been done away that becomes relevant when one appreciates that according to Vishnu Vidhate P.W. 7, the assailants after belabouring Manohar Vir in the courtyard of the Police Inspector's bungalow had remarked "he is dead" and had then gone away.It was on their way, fleeing from Barsi towards Latur that Madhukar Satarkar's restaurant is located and such an utterance by the accused No. 3 revelling in victory over the attack on Manohar Vir, prompts such an utterance.As noted earlier one of the contentions advanced in regard to the identification of the accused as the assailants, made by P.W. 10 Manohar Vir, victim, was that the suddenness of the appearances of the assailants, the suddenness of the sword blow delivered to him and the terror created thereby in his mind would all attribute to his being oblivious of the identity of the assailants.This contention is unacceptable because the incident occurred in broad day light, the assailants were all persons quire well known to Manohar Vir, and thirdly he must be assumed to have reminding away all the time by his doing murder of Sudhir Rasal, he had created a life long enemy in the accused No. 1 Rajabhau Rasal and his friends.The next argument was that the prosecution had chosen only interested witnesses as to give evidence against the accused.I have already dealt with this later aspect namely that Shivaji Parse has still not implicated accused No. 4 even considering the relationship between Manohar Vir and Madan Bobde the account as given by him, and subjected to close cross-examination stands substantially unshaken.What is of the highest importance is that there is atleast one witness who is totally disinterested and independently namely Vishnu Vidhate P.W. 7, notwithstanding that the embellishment which he has at one time admitted.The contention that Manohar Vir must have been conscious or must have regained consciousness upon being taken to Dr. Hiremath's Hospital is founded on the endorsement on the case papers of the said hospital.The endorsement is "I am prepared, on my responsibility to get my patient operated upon.In this respect I have no objection for such operation under any kind of An-aesthesia."Now it will be appreciated that Madan Bobde P.W. 9 must also to be found to have lodged his complaint very promptly, without loosing any time in deliberation and premediation (as to whom to implicate) because it is also stated by Dr. Hiremath that Madan bobde was not present at the time when he first examined Manohar Vir Madan Bobde had, immediately after reaching Manohar Vir to the Dr. Hiremath's hospital with the assistance of others, gone to the Police and lodged this complaint to implicate these appellants.Therefore, the plea the first information report.Apart from that the evidence shows that one of the tow swords on which as per the report Exh. 31 of the Chemical Analyser, human blood stains of Group B were found, was found to have dishandled in a broken condition and it is, therefore, more than probable that even in that broken condition the sword had been tried to be used by the accused No. 1 and, therefore, these injuries had been caused to him.The broken handle separated from the blade of the sword was found at the spot by the P.S.I. Patil, and seized and even on this handle the blood of Group B which is the blood group of Manohar Vir had been detected.Even alternatively, it has to be appreciated that Manohar Vir has stated that he had made some attempt to struggle with his assailants when he was attacked with the sword and it is that attempt that accused No. 1 could have sustained these injuries.For all these reasons, therefore, it must be held that so far as the accused Nos. 1 to 3 are concerned, they being members of an unlawful assembly which indulged in rioting and their attack on Manohar Vir was clearly with the intention of committing his murder, is more than well established.The very number of the incised injuries, as many as 11, all over the body bears testimony to such intention on their part.Having regard to the context of Manohar Vir being a person who was convicted and sentenced for causing the death of accused No. 1's brother Sudhir Rasal and the dissatisfaction experienced by the accused No. 1 at Manohar Vir's being lay off lightly and, therefore, his desire on his own to revengefully further punish Manohar Vir's a probably adequate sentence of imprisonment to him as also to the accused Nos. 1 to 3 who participated in the attack alongwith him, is in my opinion unavoidable in the interest of justice.Having regard to this and all other circumstances, the sentence would have to be modified as follows :The appeal so far as the appellants Nos. 4 and 5 are concerned, is hereby allowed.Their conviction for the offence under section 147, 148, 307 read with section 149 of the I.P.C. is hereby set aside and they shall stand acquitted of the said charge.Accordingly their bail bonds shall also stand cancelled.The appeal so far as the accused Nos. 1 to 3 are concerned, is hereby partly allowed.Their conviction for the offence under section 147, 148 and 307 read with section 149 of the I.P.C. is upheld and confirmed.The sentence of R.i.for four years awarded to each of them is, however, reduced to two years R.I. and the fine of Rs. 250/- imposed upon each of them is increased to Rs. 1000/-.The appellants have been on bail during the period of this appeal.They shall now surrender to their bail.At the request of their Counsel, they are granted one month's time to so surrender to their bail.The appeal is disposed of accordingly.

Cited provisions: Section 149 in The Indian Penal Code; Section 307 in The Indian Penal Code; Section 304 in The Indian Penal Code; Section 148 in The Indian Penal Code; Section 302 in The Indian Penal Code; Section 147 in The Indian Penal Code