Criminal Appeal No.1263 of 2002

16th April, 2009

Petitioner Counsel: Mr. S. V. MARWADI,Ms. SUNITA SHARMA
Respondent Counsel: Dr. F. R. SHAIKH

Cases Cited:
Tahsildar Singh Vs. State of Uttar Pradesh, AIR 1959 SC 1012 [Para 13]
Aher Pitha Vajshi Vs. State of Gujarat, AIR 1983 SC 599 [Para 14]
Krishna Pillai Sree Kumar Vs. State of Kerala, AIR 1981 SC 1237 [Para 15]
Hardeep Vs. State of Haryana, 2003 ALL MR (Cri) 139 (S.C.)=JT 2002(6) SC 144 [Para 16]
Tehal Singh Vs. The State of Punjab, Cri. Appeal No.596-DB/1995, Dt.:-23-01-2003 [Para 18]
Sukhan Raut Vs. State of Bihar, 2002 ALL MR (Cri) 743 (S.C.)=(2001)10 SCC 284 [Para 20]
Shivjee Singh Vs. State of Bihar, AIR 2009 SC 417 [Para 20]
Anter Singh Vs. State of Rajasthan, (2004)10 SCC 657 [Para 24]
Shamsher Singh @ Shera Vs. State of Haryana, (2002)7 SCC 536 [Para 25]

JUDGMENT

SWATANTER KUMAR, C.J.:- The case of the prosecution is that PW-1 Basappa Uttapa Bandiwadar lodged a First Information Report (FIR) (Exh.22) with Turbhe Police Station and his statement spells out the prosecution case which the prosecution has attempted to prove to bring home the guilt of all the accused. It was stated by this witness that he was residing with his Aunt prior to the date of occurrence and in fact since 1996 and was working as a Cleaner of any vehicle. Tanaji Maruti Pawar, the deceased was known to him, who used to do some construction contract work. He also knew the accused. He knew their names prior to the incident. On 24th January, 1999, the date of occurrence, which was a Sunday and he had a holiday. During the day he was at home, then went out at about 6.00 p.m. He returned to Indira Nagar at 11.00 p.m. and took meals at Somaya hotel. While he was washing his hands after taking his meals at about 11.05 p.m., Suresh Chavan, the accused, came there and asked him as to where Tanaji Pawar (deceased) was. At that time, Rahul Dandge beat him with a handle of spade on the back. Accused Suresh Chavan was holding gupti in his hand. Therefore, he ran away from there towards the Police near Ambedkar statue. He told the police that an untoward incident was going on in the said hotel. Accused Suresh Chavan and Rahul Dandge had come there with a handle of spade and gupti and Suresh Chavan beat him with handle of spade and he narrated the incident to the police. Thereafter he accompanied the police to the hotel site. The police made inquiry from the boys working in the hotel and asked them where those boys who made the scene have gone. They were told that they had gone towards the site of the nallah. The police were accompanied by Basappa towards the house of the accused persons and on their way they saw accused persons beating Tanaji Pawar (deceased) near his house. Tanaji Pawar was lying in an injured condition and was having stab injuries on his chest which accused Suresh Chavan had caused by assaulting him with gupti and he had seen accused Suresh Chavan assaulting Tanaji. Accused Santosh Behere was holding handle of spade while assaulting Tanaji. Accused Rahul Dandge was holding a sword and accused No.6 Suresh Salvi was holding iron hook while assaulting Tanaji. All the accused ran away on seeing police. The police called boys working in the hotel and took Tanaji Pawar to hospital. According to Basappa, then he was taken to Police chowky where his complaint was recorded and he signed the complaint with these contents. The same was marked at Exhibit 22 and on the basis of his complaint a case under Sections 302, 143, 147, 149, and 324 of the Indian Penal Code (IPC) was registered against the accused. Basappa PW-1 identified the accused Nos.1 to 6 who were present in the Court. He also identified the gupti which accused Suresh Chavan was holding during the incident. However, he could not identify the handle of the spade with which he was assaulted.

2. To prove its case, the prosecution examined 14 witnesses. This primarily included, PW-1 Basappa, PW-2 Rashid Shaikh, PW-8 Jagadish Shetty as eye-witnesses, PW-3-Medical Officer, PW-4 to PW-7 and PW-9, PW-10, panch witnesses to arrest and recovery and the Police Station Officer PW-12, the Investigating Officers PW-11, PW-13 and PW-14 respectively. The statement of PW-1 Basappa, the complainant, gives bird's eye view to the occurrence and commission of crime. This witness was cross-examined at some length wherein he stated that the house of Tanaji Pawar was at a walking distance of 10 minutes from and behind the Hotel "Somaya". He also stated that while lodging a complaint at Exhibit-22, he had informed the police that accused Rahul Dandge beat him with the handle of spade on his back but could not say any reason as to why it was not so recorded in his complaint Exhibit-22. Certain other omissions from his statement were also pointed out to him and were brought on record. In relation to some omissions which were not recorded in Exhibit-22, he took the stand that he had informed the police about the said omissions but cannot say any reason as to why the police did not record the same. This also related to the omission that he had seen the accused persons beating Tanaji Pawar near his house and that accused Rahul Dandge was holding sword and Accused No.6-Suresh Salvi was holding iron hook while assaulting Tanaji.

3. PW-2 - Rashid Lalasaheb Shaikh is stated to be the other eye witness, who knew Tanaji Pawar. He claims that he met Tanaji Pawar at hotel Somaya when he was having his meal and after completing his meal, they were going towards their house. Tanaji Pawar went to his house. When he (PW-2 Rashid) again came near the hotel Somaya and was going towards his house he saw Accused Rajesh Bhavre coming down and at that time accused Rajesh Bhavare gave a blow with handle of spade to him. Rajesh Bhavre asked PW-2 Rashid whether "he treated himself as Dada" and thereafter he saw other accused coming down and thereafter he ran away due to fear. PW-2 Rashid stated that he received injuries due to assault at the hands of Rajesh Bhavre. After PW-2 Rashid ran away on seeing the accused persons, one boy namely Basappa came running and was shouting "Tanya Gaya, Tanya Gaya". PW-2 Rashid and PW-1-Basappa rushed to the house of Tanaji Pawar and saw that Tanaja was lying in a injured condition in front of his house and was taken to the hospital where he subsequently died. In his cross-examination, PW-2 Rashid admitted that Nanda Behre, mother of the accused Behre had then lodged a complaint against them for entering into her house and damaging articles in the house and on lodging the said complaint, a criminal case was registered against them which was pending. This witness also claims that he had mentioned to the police that there was quarrel between Tanaji Pawar and the accused persons on the issue of some amount of money but this was not recorded in Exhibit-22. He admitted that Tanaji was his good friend. He has also made a statement that certain things which he had mentioned to the police were not recorded in the statement but he could not assign any specific reason for the same.

4. PW-8, Jagdish Shetty whose statement was recorded at Exhibit 43, is another material witness to the case of the prosecution. He stated that he was working as a Manager of the Hotel Somayya which was being run by his elder brother. Tanaji Pawar (deceased) and Basappa (PW-1) used to come there to get vadapav or take their meals. According to this witness, Tanaji Pawar came to the hotel on 24th January, 1999 at about 10.30 p.m, took meals and went away towards his house and at that time he was present in the hotel. Thereafter Basappa (PW-1) also came for having dinner. When he was washing his face, all the accused persons present in the trial Court came there. They were holding weapons like swords, chopper, gupti and wooden rod. According to PW-8 Jagadish, accused Santosh was holding wooden rod, accused Suresh Chavan was holding gupti, accused Rajesh Bhavre was holding sword, Daya was holding sword, accused Rajesh Behere was holding chopper and accused Rahul Dandge was holding handle of spade. There were two to three people with them with weapons. Accused Suresh Chavan stated to have placed the gupti at the chest of Basappa (PW-1). The accused persons entered the hotel and assaulted him and hotel boys. According to PW-8, accused Daya Bharve had assaulted him with sword due to which he received a bleeding injury on his hand. Thereafter the accused persons went towards the house of Tanaji. Basappa had ran away from there. After some time, he returned with the police to the hotel. Police asked PW-8 Jagadish where the persons had gone and they were informed by him that they had gone to the house of Tanaji. After some time, Basappa and police brought Tanaji Pawar. At that time, Tanaji was having bleeding injuries. PW-8 Jagadish states that he went to the police station and had shown his injuries to the police. He was sent to hospital and was examined by the Doctor. In the hospital he met Basappa who told him that Tanaji Pawar had been murdered and had died. He duly identified the Articles 5, 10, 13 and 14 which were the weapons which the accused persons were holding when they came to the hotel. This witness also stated that the accused persons used to have meals in the hotel and some time did not pay the bills. His statement was recorded on that very day of incident where after he never met the police except few days prior to the date of hearing when he claimed that he met the police.

5. The investigation of the case was conducted by three different Investigating Officers. First of all, PW-12 Shivaji Laxman Sawant, the Police Officer concerned who took the complaint of Basappa and registered the FIR Exhibit 22, is examined and he stated that investigation of the crime was then handed over to Patil, API. He proved Exhibit 8 Inquest panchanama and stated that two police constables remained permanently attached to the hospital at Vashi for supervising the work of admission of patients whether injured accidentally or otherwise. This witness also stated that there was a note in the hospital record to the effect that Tanaji Patil was brought dead to the hospital. This investigation was thereafter followed by PW-13 API Subhash Rajaram Patil who recorded the statement of persons like Jagdish Shetty, Sangita Pawar, Pundalik Pawar, Dhotre and R. P. Pawar. He then visited the spot of incident and prepared spot panchanama Exhibit 9 which was duly signed by PW-13 as well as the panchas. Thereafter accused Rajesh Behere was arrested on 25th January, 1999. This witness proceeded on sick leave and the investigation was handed over to Sr. P.I. Kawale and he joined his duty on 6th February, 1999 and again took over the investigation of the case. He interrogated accused Rajesh Behere on 7th February, 1999. On his disclosure statement (Exhibit 54), he got recovered the wooden handle Article 14 by panchanama Exhibit 55. On 12th February, 1999 when PW-13 Subhash Patil interrogated accused No.4 Suresh, he gave a statement which led to the recovery of blood stained clothes and the gupti (dagger) which were Articles 12 and 13. The relevant part of statement of PW-13 Subhash Patil reads as under :

"............I accordingly recorded his statement in presence of panchas. Art.A on the record of this case now shown to me is the same memorandum statement bearing signatures of myself and panchas. Contents are correct. It is at Exh.57. Thereafter the accused No.4 Suresh led us to one cave below a stone, which is beyond Ganesh Temple, which is beyond Indira Nagar Zopadpatti, and then he took out some clothes with a dagger wrapped in it. I seized the said dagger and clothes and completed the said panchanama. Art.B on the record of this case now shown to me is the same panchanama bearing signatures of myself and panchas. It is at Exh.58. Art.13 is the same gupti and Art.11 Banian Pant-Art.12 are the same clothes which the accused No.4 Suresh discovered.

4. The articles seized by me were also sent to C.A.'s office. Office copy of the covering letter sent to C.A. Office is at Exh.59 and it bears my signature. P.M. Notes and the certificate of the injured were collected, after I sent a letter dt.15.2.99 to the M.O. Municipal Hospital, Washi. The said injury certificates are filed in this case and the same are at Arts.A to D. I then searched for the absconding accused person. However, they were not found, therefore, I sent charge-sheet against the accused persons who were already arrested on 22.4.99. Exh.1 in S.C. No.440/99 is the same charge-sheet bearing my signature. The other accused were subsequently; arrested by them. All accused persons before the court are the same who have arrested in this crime."

After completing the inquiry and getting the reports of the Forensic Laboratory, he prepared the charge sheet Exhibit 1 and submitted the same to the Court. The investigation during the intervening period was conducted by Maruti Kawale, Sr. Police Inspector at Turbhe Police Station, Navi Mumbai. On 26th January, 1999 he recorded statements of four witnesses and handed over the investigation to Investigating Officer Shri. Patil. Though all these witnesses were subjected to lengthy cross-examination, nothing material could come out except for the omissions stated to have been made in recording of statements of the witnesses which were denied by all the three Investigating Officers. PW-14 Maruti Kawale admitted that Police Constables Ganesh Pol and Jaywant Pagare were also the eye witnesses and they tried to apprehend the assailants at that time.

6. The only medical evidence in the present case is by way of statement of PW-3 Dr. Keru K. More who stated that he was working as Medical Officer at Civil Hospital, Thane in the year 1999 and he had performed the autopsy on the dead body of one Tanaji Pawar from 10 a.m. to 11 a.m. and found the following injuries on the body of the deceased :

"EXTERNAL INJURIES :

1) Incised stab wound on chest right side, para sternally, 1 x 1 cm x cavity deep, vertical.

2) Incised stab wound on chest, left side, 1 x 1 cm x cavity deep. Suptra mandiatry region, oblique.

3) Incised stab injuries, right to xypisturnum, coastal margin, 1 x 1 cm x cavity deep, oblique.

4) Incised stab wound, opistere x region more towards left postal margin, 1 x 1 cm x cavity deep.

5) Incised stab wound, chest, left side infra manditory region, oblique, vertical, 1 x 1 cm x cavity deep.

6) Contused lacerated wound, skull right parietal region, 6 x 2 cm x scalp deep, irregular margin.

7) Contused lacerated wound, on forehead, middle region extending more to right side, 4 x 1 cm x bone deep.

INTERNAL INJURIES :

I) Head

II) Thorax :

a) Walls, ribs, : Stab injury noted as per the cartiledges paper attached with diagramatric presentation.

b) Pleura : Haemorrhagic fluid in noted both plural spaces, about 200 cc each.

d) Right Lung : Incised wound, lower lobe, middle lobe, about 1 x 1 cm..

e) Left Long : Contused, Incised wound noted, lower lobe, lateral lobe.

Abdomen :

a) Walls : Injury noted as per the paper attached and diagramatic presentation.

Stomach and Contents :- Semi digested food material noted."

Besides describing the above injuries on the body of the deceased, the Doctor has given his opinion as follows :

"In my opinion, the cause of death was due to shock due to multiple injuries due to haemothorax. The injury found on the said dead body were ante mortem, and the same were sufficient to cause death in the ordinary course of nature."

7. Witness PW-11 Sharad Nagre was still another Investigating Officer who took over the investigation on 29th January, 1999 and interrogated the accused Santosh Behere. Accused Santosh informed the officer that he had hidden one handle of spade in his house and who in presence of the panchas got the statement recorded at Exhibit 49 in furtherance to which and upon the accused Santosh leading them to the house, made the recovery of the handle of spade Article 10 by panchanama, Exhibit 50. This witness also states that he had followed the procedure for sealing of recovered articles. However, when examined in the Court, the paper seals were not intact.

8. The learned trial Court had framed common charges against all the accused at Exhibit 5 and charged them for offences punishable under Sections 143, 147, 148 and under Sections 302, 506, 323, 324 read with Section 149 of the Indian Penal Code. Once the prosecution evidence was completed, the material prosecution evidence was put to the accused in their statement under Section 313 of the Criminal Procedure Code Exhibits 5-A to 5-F. All the accused denied the occurrence. In relation to a question whether they wanted to lead any evidence in defence or wanted to say anything, all the accused answered the question in the negative. Thus, they opted not to lead any evidence in defence or to give any explanation in relation to the charges framed against them. As already noticed, the learned Trial Court vide its judgment dated 8th October, 2002 recorded a finding that the prosecution had succeeded in proving beyond reasonable doubt, that all the accused formed an unlawful assembly with a common object and intent and caused death of the deceased Tanaji and for this purpose they had gone to Hotel Somaya and after finding out his place of residence, they had assaulted him with various weapons resulting in his death and as such the prosecution proved its case for offences punishable under Sections 143, 147, 148, 149, 302 read with 149 and recorded the finding in the affirmative. After hearing the accused on the quantum of sentence, all the accused Nos.1 to 6 except accused No.7 Rajesh Morsing Bhavre who was absconding, were convicted and awarded different punishments for different offences including life imprisonment and to pay a fine of Rs.1,000/-. The sentence awarded to the accused under different sections were ordered to be run concurrently and in the event of non-payment of fine, they were ordered to undergo rigorous imprisonment. All the six accused were acquitted of the charges under Sections 506(1), 323, 324 read with 149.

9. The legality and correctness of the finding of guilt and awarding of sentence has been challenged in the present Appeal, inter alia, on the ground that :

(a) the Trial Court having recorded the finding that there was no motive for commission of the crime and particularly with reference to the facts and circumstances and evidence on record of the present case, the provisions of Section 149 have been wrongly applied and as such their conviction with the aid of Section 149 is untenable.

(b) All the panchas PW-4 to PW- having resiled from their statements and having denied any recovery or disclosure statements made by the accused in their presence, the prosecution cannot be said to have proved its case beyond all reasonable doubt.

(c) The contradictions and improvements in the statements of the witnesses including those of eye-witnesses clearly show that the accused have been falsely implicated and are entitled to the benefit of doubt.

(d) Non-production of material witnesses without any plausible explanation and the order of acquittal in the judgment of the Trial Court in Case No.87 of 2004 (State Vs. Rajesh Bhavare) clearly cast a doubt on the entire case of the prosecution and this would entitle the accused for the same relief of acquittal.

10. Now we will proceed to discuss the merit or otherwise of these contentions. It will be appropriate to refer to the evidence of the prosecution cumulatively to view the case of the prosecution with some clarity. PW-12, PW-13 and PW-14 are the Investigating Officers who have conducted the investigation of the case at different stages. According to them, PW-1, PW-2 and PW-8 are the eye-witnesses to the occurrence. As per the statement of Basappa PW-1, the accused had come with weapons like gupti, swords, iron hook, wooden rod and other weapons. They had asked him and PW-8 Jagdish as to where Tanaji Pawar was and were informed that he had gone after having his meal at about 11.05 p.m. towards his house. Thereafter accused went towards house of Tanaji and assaulted him with different weapons causing him injuries which proved fatal and Tanaji was declared dead when brought to the hospital. PW-2 (Rashid Shaikh) and PW-8 (Jagadish Shetty) also saw part of the occurrence. The veracity of statement of PW-8 Jagadish was challenged by the learned Counsel appearing for the Appellants on the ground that he was not an eye-witnesses to the incident and, therefore, his entire statement has to be treated as irrelevant. We are not impressed with this submission at all. May be PW-8 Jagdish was not an eye-witness to the actual assault, but was a very material witness who met the accused and who had even been assaulted by accused and who immediately after the occurrence saw Tanaji bleeding. PW-8 Jagadish had met the accused as well as the witnesses in his Hotel Somayya which is quite close to the place of occurrence and house of the deceased. The presence of PW-8 Jagadish near the place of the occurrence is thus material and is quite natural in the normal course of business. We also are not agreeable to the contention of the learned Counsel appearing for the Appellants that the prosecution has attempted to plant witnesses only to falsely implicate the accused. In fact, in the statement of PW-13, the Investigating Officer, it is clearly recorded that one Bharati Pawar, had seen deceased Tanaji being assaulted through the gap of the door but could not identify the assailants and she only heard the screams of Tanaji and rest of the persons had only heard the screams thus attaching some significance to the prosecution case that they have not attempted to bring other witnesses only to implicate the accused. As per statement of witnesses, accused No.1 Rajesh Behere was holding a chopper, while accused No.2 Santosh Behere was carrying wooden handle of spade, accused No.6 Suresh Salvi was carrying iron hook and accused No.3 Rahul Dandge was holding sword. According to PW-1 Basappa, accused Suresh Chavan had assaulted Tanaji Pawar with gupti and Santosh Behere and others had also assaulted him. Gupti and the wooden handle of spade were recovered as articles A and B at the behest of the concerned accused.

11. The medical evidence of PW-3 Dr. More with reference to post-mortem report Exhibit 31 clearly shows that injuries upon the person of the deceased were caused by a dagger or a weapon like gupti and the injuries caused on the chest which punctured the lungs of the deceased proved fatal. Other injuries as per the evidence of expert, PW-3 Dr. More, namely, injuries 1 and 2 are the injuries which caused damage to the vital parts while injuries Nos.6 to 8 were external and could be caused with wooden handle. However, PW-3 Doctor More clearly stated in his evidence that there was not a single injury on the body of the deceased which could be caused by iron hook. The case of the prosecution thus to a great extent is established by the evidence of eye-witnesses, material witnesses and expert witness including the evidence of Investigating Officers. The factum of the death of deceased Tanaji Pawar cannot be disputed. He was attacked, his body bore stab and other injuries and as a result of the fatal injuries caused on the chest puncturing his lungs he died. All the accused have been identified right from pre-occurrence period to appearance in Court. PW-1 Basappa, PW-2 Rashid and PW-8 Jagadish had not only seen them but in fact PW-2 is stated to have been assaulted by accused Suresh Chavan and while PW-8 Jagadish suffered a bleeding injury at the hands of Daya Bharve (Accused No.5) who is stated to be carrying a sword. There is no medical evidence to support the injuries suffered by these two witnesses though according to PW-8 Jagadish, he was even examined and given treatment by the Doctor. The prosecution did not produce the evidence of said Doctor or any record in relation to the injuries caused. But one aspect which needs to be examined is that during the cross-examination, he had denied the suggestion that he was not assaulted by Daya Bharve. Because of non-production of medical evidence, the accused have been acquitted of offences punishable under Sections 323, 324 vis-a-vis PW-1 and PW-8 but that per se does not mean that the Court cannot treat the said statements made by these witnesses as relevant piece of evidence particularly when they are quite in conformity with the case put up by the prosecution leading to the commission of the crime. It is quite difficult for the Court and in fact there exist no material on record to disbelieve these three witnesses whose version is fully supported by the medical evidence and the investigation conducted by three different Investigating Officers.

12. There is some substance in the arguments raised on behalf of the learned Counsel appearing for the Appellants that there are some improvements or omissions or contradictions in the statements of the material witnesses, PW-1 Basappa, PW-2 Rashid, PW-8 Jagadish and that of the Investigating Officers. The Court cannot lose sight of the fact that the occurrence is of 24th January, 1999 while the witnesses were examined in the Court in the year 2002 onwards. According to PW-1, PW-2 and PW-8, they had informed the entire facts to the Investigating Officers and could not provide any reason as to why that information was not part of FIR Exhibit 22 or their statements recorded under Section 161 of the Criminal Procedure Code. There are also some contradictions in the statements of PW-1, PW-2 and PW-8 inasmuch as they are not identical in minute particulars. According to PW-8, Suresh Chavan had placed gupti near the chest of Basappa while he was washing his mouth, while according to Basappa himself, Suresh Chavan had come and asked him the whereabouts of Tanaji Pawar and Rahul Dandge had beat him with a handle of spade. Similarly, there is some variation in the statement of other witnesses, but the Court has to see whether these variations are of material nature and create a doubt in the case of the prosecution or they are variations or contradictions of a very formal nature really not casting any serious prejudice to the accused and not fatal to the case of the prosecution. Similar is the principle with regard to the alleged improvements in the evidence of these material witnesses. Their statements under Section 161 are not exactly identical to their statement in the Court but the substance of their statements continues to be similar and there is no material variation in the description of occurrence, assault, weapons used, place of occurrence and injuries being inflicted on the body of the deceased and resultant death of the deceased. Presence of these accused is duly proved not only by the evidence of eye-witnesses but by the evidence of all the three witnesses, namely, PW-1, PW-2 and PW-8 and even by the statement of PW-14 the Investigating Officer who stated that two Police Constables had tried to apprehend the assailants but they ran away. Of course, these two police witnesses have not been examined by the prosecution in the present case.

13. The principles of criminal jurisprudence governing contradictions and improvements are well settled right from the case of Tahsildar Singh Vs. State of Uttar Pradesh, AIR 1959 SC 1012, where the Supreme Court laid down as follows :

"(25) It is not necessary to multiply cases. The two conflicting views may be briefly stated thus : (i) omissions, unless by necessary implication be deemed to be part of the statement, cannot be used to contradict the statement made in the witness-box; and (ii) they must be in regard to important features of the incident which are expected to be included in the statement made before the police. The first proposition not only carries out the intention of the legislature but is also in accord with the plain meaning of the words used in the section. The second proposition not only stretches the meaning of the word "statement" to a breaking point, but also introduces an uncertain element, namely, ascertainment of what a particular witness would have stated in the circumstances of a particular case and what the police officer should have recorded. When the section says that the statement is to be used to contradict the subsequent version in the witness box, the proposition brings in, by construction, what he would have stated to the police within the meaning of the word "statement". Such a construction is not permissible.

(26) From the foregoing discussion the following propositions emerge : (1) A statement in writing made by a witness before a police officer in the course of investigation can be used only to contradict his statement in the witness box and for no other purpose; (2) statements not reduced to writing by the police officer cannot be used for contradiction; (3) though a particular statement is not expressly recorded, a statement that can be deemed to be part of that expressly recorded can be used for contradiction, not because it is an omission strictly so-called but because it is deemed to form part of the recorded statement; (4) such a fiction is permissible by construction only in the following three cases; (i) when a recital is necessarily implied from the recital or recitals found in the statement: illustration: in the recorded statement before the police the witness states that he saw A stabbing B at a particular point of time, but in the witness box he says that he saw A and C stabbing B at the same point of time; in the statement before the police the word "only" can be implied i.e., the witness saw A only stabbing B; (ii) a negative aspect of a positive recital in a statement : illustration: in the recorded statement before the police the witness says that a dark man stabbed B, but in the witness box he says that a fair man stabbed B; the earlier statement must be deemed to contain the recital not only that the culprit was a dark complexioned man but also that he was not of fair complexion; and (iii) when the statement before the police and that before the Court cannot stand together : illustration: the witness says in the recorded statement before the Police that A after stabbing B ran away by a northern lane, but in the Court he says that immediately after stabbing he ran away towards the southern lane; as he could not have run away immediately after the stabbing i.e., at the same point of time, towards the northern lane as well as towards the southern lane, if one statement is true, the other must necessarily be false."

14. In the case of Aher Pitha Vajshi and others Vs. State of Gujarat, AIR 1983 SC 599, the Supreme Court where the accused was charged under Section 302 read with 34 clearly stated that where undue importance to minor discrepancies and by making a suspicious approach to the evidence of the witnesses by resorting to conjectures was given the High Court in an appeal, after close examination of the entire evidence was perfectly justified in taking the view that assessment made by the Sessions Judge was unreasonable and the evidence of the prosecution witnesses was satisfactory.

15. Similar approach was taken by the Supreme Court even earlier in the case of Krishna Pillai Sree Kumar and another Vs. State of Kerala, AIR 1981 SC 1237, where the Court held as under :

"11. It is no doubt true that the prosecution evidence does suffer from inconsistencies here and discrepancies there but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies, etc., go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of the incongruities obtaining in the evidence. In the latter, however, no such benefit may be available to it. That is a salutary method of appreciation of evidence in criminal cases which does not appear to have been followed by the learned Sessions Judge; and that is the reason why he landed himself into wrong conclusions, as has been pointed out by the High Court."

16. This has been the consistent approach of the Supreme Court and followed by various Courts as laid down in the case of Hardeep Vs. State of Haryana and another, JT 2002(6) SC 144 : [2003 ALL MR (Cri) 139 (S.C.)], where the Court held as under :

"15............. It is true, as observed by the trial court every contradiction or discrepancy may not necessarily be fatal to the prosecution case but it all depends on the facts and circumstances of the case, such discrepancies and contradictions have to be seen in the background of probabilities of the prosecution story and veracity of the prosecution witnesses. In case evidence of prosecution witnesses is above board and unimpeachable and inspires confidence, in that event discrepancies and contradictions here and there may have no value at all................"

17. In light of the above stated principles of law, we are unable to find any merit in the contention of the Appellants that the contradictions, discrepancies or omissions in the statements of these witnesses are of such material nature that they are fatal to the case of the prosecution and would give advantage to the accused of right of acquittal. The evidence of these witnesses is duly supported by circumstantial and expert evidence. Presence of PW-8 at the hotel where he is working as a Manager was natural in the normal course of business and, therefore, can hardly be doubted. None of these witnesses can be stated to be interested witnesses to the extent that they would falsely implicate the accused which is their sole defence.

18. Even otherwise the statement of the witnesses can be severed to the extent it is in consonance with the case of the prosecution and is duly supported and corroborated by the other evidence and can be taken into consideration while the irrelevant part could be ignored by the Court. In the case of Tehal Singh and others Vs. The State of Punjab, Criminal Appeal No.596-DB of 1995, decided on 23rd January, 2003, the Division Bench of the High Court of Punjab and Haryana at Chandigarh held as under :

"It is no rule of evidence that statement of a witness must be relied upon or rejected by the Court below. It is quote possible that part of the statement of the witness may be true in regard to a particular fact and is fully corroborated by other evidence on record while some part of her statement with regard to another fact may not be fully reliable particularly when such two portions are severable and can be looked into and appreciated by the Court in conjunction with the other evidence on record fully and finally. Such principle of severability is not any way an ingenuinity in the field of criminal jurisprudence. The maxim falsus in uno falsus in omnibus is a well accepted maxim for appreciation of evidence even in administration of criminal justice......."

19. Section 149 of the Indian Penal Code contemplates and by deemed fiction of law renders member of unlawful assembly guilty of the offence which is committed by any member of the unlawful assembly in prosecution of the common object of that assembly. The most important aspect of the provisions of Section 149 is that every member of the unlawful assembly knew the act to be likely to be committed in prosecution of that object. In other words, the common object of an unlawful assembly has to be established. This can be established by direct evidence or by circumstantial evidence duly corroborated by evidence of other prosecution witnesses. Section 149 of the Code makes the member of an assembly vicariously liable where it is proved that offence is committed in pursuance to common object of the unlawful assembly which members of unlawful assembly knew to be likely to be committed in prosecution of the object of unlawful assembly. Once it is established that unlawful assembly had common object, it is not necessary that all the persons forming the unlawful assembly must be shown to have committed some overt act for the purposes of acquiring the vicarious liability.

20. A crucial question to be determined is whether assembly is consisting of five or more persons and whether the said persons are aware of facts which render the assembly unlawful for having common object as specified in Section 141 of the I.P.C. It cannot be laid down as a general proposition of law that unless an overtact is proved against the person who is alleged to be member of an unlawful assembly, he can not be held to be liable. The only thing required is that he should have understood that assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The object should be common. Reference in this regard can be made to Sukhan Raut and others Vs. State of Bihar, (2001)10 SCC 284 : [2002 ALL MR (Cri) 743 (S.C.)] and Shivjee Singh and others Vs. State of Bihar, AIR 2009 SC 417.

21. In the present case, there were more than five persons carrying weapons and they are stated to have assaulted PW-1 and PW-8 first to find out where Tanaji was available and not only this, PW-1 Basappa on apprehending the seriousness of the situation and sensing likelihood of happening of an untoward incident even ran to call the police and by the time he came back with the police Tanaji Pawar had been seriously wounded by different weapons. It is obvious that all the accused had come together armed and with the intent to cause death or cause injuries to the deceased which were likely to cause death. He was stabbed repeatedly as there were six stab injuries on the body of the deceased together with other injuries which could be caused by blunt weapons like spade or stick. In these circumstances, though the trial Court has not adverted to these aspects, we see no reason to accept the contention raised on behalf of the accused. We have already noticed and rightly so the trial Court has acquitted the accused of causing hurt and assault to PW-1 and PW-8 for lack of medical evidence as recorded in paragraph 34 of the judgment.

22. In the facts and circumstances of the case and particularly when the deceased was assaulted by 6 accused persons who were carrying different weapons, it is hardly possible to attribute specific role to each of the accused. The mere fact that as per the medical evidence, there was no injury on the body of the deceased which could be caused by iron hook would not entitle the accused to any benefit for getting an order of acquittal. There was a common object and each of the members of the unlawful assembly knew that they are attacking a single individual with different weapons which may cause or at least is likely to cause death of the deceased. Thus, with the aid of Section 149, it may be held that none of the accused can take benefit on the ground of want of evidence showing specific role of each participant.

23. Lot of emphasis is placed by the learned Counsel appearing for the Appellants on the fact that all the panch witnesses to the recovery memos have turned hostile and did not support the case of the prosecution. These witnesses i.e. PW-4 to PW-7 have even denied that the statement of the accused were recorded in their presence. However, the learned trial Court declined to treat this as a sufficient piece of evidence to throw out the case of the prosecution. It noticed that merely because these witnesses have turned hostile by itself would not persuade the Court to disbelieve the fact of recovery of incriminating articles at the instance of the accused. The items recovered particularly the gupti, Article B were duly identified by PW-1 and PW-8 and the Court believed the statement of the Investigating Officer coupled with the statement of the eye-witnesses. Though the reports of the forensic laboratory had been brought on file, they are not proved. In relation to Exhibit 2 sealed parcel, where seal was found to be intact, the conclusion was that Exhibits 1 and 2 are of blood group "A". Similar reports were made with regard to gupti, wooden log, clothes of the deceased and the accused. However, despite these reports on being Court file, they were not exhibited not being proved.

24. In every case it cannot be stated as a principle of law that wherever the panch witness to recovery turns hostile or do not support the case of the prosecution, the Court will have no option but to reject the factum of recovery of the article itself in its entirety. It will always depend on the facts and circumstances of a given case. PW-4 Gulab stated that police had taken his signatures which are on the memorandum of statement at Article A and on panchanama at Article B though he disputed that the accused had made any statements in his presence. Statement of the Investigating Officer that articles recovered were sent for forensic laboratory and their production in Court does not leave much doubt that recovery was made by the Investigating Officer in accordance with law. In fact, in the case of Anter Singh Vs. State of Rajasthan, (2004)10 SCC 657, the Supreme Court held as under :

"10. We shall first deal with the plea as to whether evidence relating to recovery is acceptable when non-official witnesses did not support the recovery and made departure from the statements made during investigation. In Modan Singh Vs. State of Rajasthan, (1978)4 SCC 435, it was observed that where the evidence of the investigating officer who recovered the material objects is convincing, the evidence as to recovery need not be rejected on the ground that seizure witnesses did not support the prosecution version. Similar view was taken in Mohd. Aslam Vs. State of Maharashtra, (2001)9 SCC 362. It was held that even if panch witnesses turn hostile, which happens very often in criminal cases, the evidence of the person who effected the recovery would not stand vitiated. ...."

25. Non-examination of two Police Constables and non-production of some other witnesses by itself would not be fatal to the case of the prosecution inasmuch as they would either have repeated same facts and which would have been unnecessary in the facts and circumstances of the case. Certainly, it was expected of the Investigating Officer to give due explanation for non-examination of these witnesses which he failed. But non-performance of this obligation by the prosecutor or the Investigating Officer cannot place the case of the accused at such an advantageous stage that the case of the prosecution must fail. Reference in this regard can be made to the judgment of the Supreme Court in the case of Shamsher Singh @ Shera Vs. State of Haryana, (2002)7 SCC 536.

26. Lastly, coming to the judgment of the Sessions Court in Case No.87 of 2004, when the charge-sheet in the present case was filed, three accused, namely, Rahesh Bhavare, Daya Bhaware and Suresh Salvi were absconding. During the progress of the case, others appeared except Rajesh Bharve. In the separate trial of accused Rajesh Bhavare, viz. Sessions Case No.87/04, the two Police Constables were examined and they stated that because of the darkness they could not see and identify Rajesh Bharve and primarily on that statement accused Rajesh Bhavre was acquitted. This judgment of the trial Court has not been assailed by the State before the High Court as such we do not find it necessary to discuss the merit or otherwise of this case. The fact of the acquittal of one of the accused in an independent trial would not affect present case which is the result of separate trial. In the present case, upon due appreciation of evidence and by well reasoned judgment, the trial Court has held them guilty of the offence vis-a-vis the deceased and acquitted them for offences under sections 323, 324, 506(1) regarding PW-1-Basappa and PW-8-Jagadish. We find no infirmity in the judgment of the trial Court for the reasons stated therein and more particularly for the above discussion. We see no reason to accept the Appeals preferred by the Appellants.

27. In view of the above, this Appeal is dismissed.

Appeal dismissed.