Keshav Manikrao Salgar and Others vs State of Maharashtra

P.V. Hardas, J.—The appellants, original accused No. 1 Keshav, Original accused No. 3 Narayan, original accused No. 4 Ramrao, original accused No. 5 Dnyanoba, original accused No. 6 Dattarao, Original accused No. 7 Kundlik, original accused No. 8 Sangram, who stand convicted for offence punishable u/s 148, 302 read with section 149, 341 read with section 149, 323 read with section 149 and sentenced to S.I. for one year, imprisonment for life and fine of Rs. 100/- in default to undergo further S.I. for six months, in the event of non payment of fine, S.I. for one month and S.I. for one month respectively with a direction that all the substantive sentences would run concurrently, by the First Adhoc Additional Sessions Judge, Parbhani, by judgment dated 20.8.2005, in Sessions Trial No. 180 of 1998, by this appeal challenge the conviction and sentence. Original accused No. 2 Manikrao and Original accused No. 10 Maroti have died, and therefore, the appeal as against them has abated. Such of the facts as are necessary for the decision of this appeal may briefly be stated thus:

� P.W. 9 P.S.I. Mallikarjun Ingale, who was attached to Tadkalas Police Station as a P.S.I. was informed by P.W. 1 Sharda on 9.3.1998 at about 6.30 p.m. that about 10 to 11 persons had obstructed her and her husband deceased Khushal while proceeding on the motorcycle near the farmhouse of Salgar and her husband was assaulted on Tadkalas-Phulkalas Road and was lying there in an injured condition. P.W. 9 P.S.I. Ingale along with police staff went to the scene of the offence with Sharda in a police jeep and noticed Khushal lying in an injured condition. Injured Khushal was taken to the Government hospital at Tadkalas in the police jeep. The Medical Officer at Tadkalas hospital was on leave and therefore a constable was despatched to the residence of the Medical Officer, but the Medical Officer informed the Constable that he would not be able to come as he was on leave. Injured Khushal was thereafter sent to the hospital at Parbhani with one Head Constable and a Constable in a jeep. P.W. 9 P.S.I. Ingale recorded two entries in the station diary in this respect and thereafter went to the General Hospital at Parbhani. By that time injured Khushal had been admitted in the hospital. P.W. 9 P.S.I. Ingale made enquiry with the Medical Officer P.W. 8 Dr. Mokashe regarding the condition of injured Khushal to give his statement. The Medical Officer opined that Khushal was in a fit condition to give his statement and accordingly P.W. 9 P.S.I. Ingale started recording the statement of Khushal. Khushal had stated that while he was proceeding on the motorcycle to Tadkalas for purchasing provisions, about 10 to 11 persons assaulted him near the farmhouse of Salgar on account of dispute of water channel. Khushal had further informed him that Keshav Manik Salgar and 10 others had beaten him and had disclosed the names of all the assailants. Statement of Khushal therefore came to be recorded at Exh. 94. The endorsement of the Medical Officer was also obtained on the dying declaration. The clothes of Khushal which were on his person came to be seized vide seizure memo at Exh. 72 in the presence of P.W. 4 Hanumant. P.W. 9 P.S.I. Ingale returned back to the Police Station and registered offence on the basis of the statement of Khushal at Exh. 94 vide Crime No. 14 of 1998 u/s 307, 147, 148, 149, 341, 323 and 504 of I.P.C. at 11.30 p.m. At about 00.15 a.m. on 10.3.1998 information was received from the Control room that Khushal had succumbed to his injuries and therefore subsequently the offence punishable u/s 302 of the I.P.C. came to be added. Scene of the offence panchanama came to be drawn in the presence of panchas at Exh. 76. From the scene of the offence, blood stained stones, blood mixed soil, a black bead neckless, pieces of bangles of green colour, one wrist watch, two sticks, one pair of Kolhapuri slipper, wooden leg of cot, four stones of different sizes, one motorcycle etc. came to be seized. The accused came to be arrested on 10.3.1998 and the clothes produced by accused Laxman came to be seized in the presence of panchas vide seizure memo at Exh. 80. The clothes of accused Kundlik came to be seized in the presence of panchas vide seizure memo at Exh. 81. During custodial interrogation accused Narayan had expressed his willingness to point out the place where the sickle had been hidden. Accordingly, the memorandum statement of accused Narayan came to be recorded in the presence of panchas. Accused Narayan took the police and the panch and produced a sickle (Katti) which had been hidden in a heap of dried stock of grains. The said sickle came to be seized vide seizure memo at Exh. 83. Seized articles were referred to the Chemical Analyser along with a requisition at Exh. 95. The reports of the Chemical Analyser are at Exh. 96 and 97. Further to the completion of investigation, a charge sheet against the appellants and other accused came to be filed.

On committal of the case to Court of Sessions, trial Court vide Exh. 2-A framed charge against the accused for offence punishable u/s 148, 302 read with section 149, 341 read with section 149, 323 read with section 149 of I.P.C. and Section 135 of the Bombay Police Act. All the accused denied their guilt and claimed to be tried. Prosecution in support of its case examined 11 witnesses. Prosecution relied on the testimony of eye witnesses, namely, P.W. 1 Sharda and P.W. 2 Kishan and the dying declaration at Exh. 94. Trial Court upon appreciation of the evidence found that the prosecution had proved the offence beyond reasonable doubt against the appellants and convicted and sentenced them accordingly.

After death of Khushal, an inquest had been held and a panchanama of the inquest came to be drawn at Exh. 74. Dead body of deceased Khushal had been referred for post mortem examination and the post mortem was conducted by P.W. 3 Dr. Choudhari. P.W. 3 Dr. Choudhari noticed the following external injuries:

Contused lacerated wound over left wrist posteriorly 3 x 3 x 2 Cms. Blood clots present.

Contused lacerated wound right knee anteriorly size 8 x 4 x 1 cms. blood clots present.

Contused lacerated wound over right thigh medial aspect size 5 x 4 x 2 cms., blood clots present.

Contused lacerated wound right leg anteriorly size 2 x 2 x 1 cms. blood clots present.

Contused lacerated wound left leg 3 x 2 x 1 cms. blood clots present.

Contused lacerated wound left leg calf 6x 2 x 1 cms. blood clots present.

Contused lacerated wound left palm thenar aspect 6 x 3 x 2 cms. blood clots present.

He has opined that all these injuries were caused by hard and blunt object and the age of the injuries was within 12 hours. He had also noticed fracture of middle third right humerus, fracture of lower third radius ulna, fracture of lower third of right tibia and fracture of right patella. On internal examination he noticed (i) contusion on scalp right parietal region size 3 x 3 cms. On internal examination of scalp he found meanings contested and subdural of haematoma of 3 x 2 cms. Brain was found congested. He therefore opined that all the injuries were ante-mortem including the internal injuries and further opined that the cause of death was due to subdural haematoma with pulmonary embolism with hemorrhagic shock due to multiple fractures. The post mortem report is at Exh. 70.

Before we advert to the submissions advanced before us by Mr. Bora, learned Counsel appearing on behalf of the appellants in Criminal Appeal No. 622 of 2005 and Mr. Dhorde, learned Counsel appearing on behalf of the appellants in Criminal Appeal No. 59 of 2007, it would be useful to refer to the evidence of the eye witnesses.

� P.W. 1 Sharda, wife of deceased Khushal, states that accused Nos. 1 and 3 are the sons of accused No. 2 while accused Nos. 4, 9 and 10 are the brothers of accused No. 2. Accused No. 5 and 6 are nephews of accused No. 2, while accused No. 8 is the son of accused No. 4. Accused Nos. 7 and 11 are the cousins of accused No. 8. She has further stated that all the accused except accused Nos. 5 and 6 were living separate. In respect of the incident, she states that she was residing at village Tadkalas along with her husband. Her parents-in-law were living separately at Tadkalas, while the brother of Khushal by name Ashok was living at Phulkalas. The distance between Tadkalas and Phulkalas is about 2 to 3 Kms. She further states that Khushal had gone to the field near Phulkalas for irrigating the groundnut crop a day before the incident. When Khushal returned back in the evening he had informed her that accused No. 2 (since deceased) had stopped the water of canal and diverted the water and because of that there was scuffle between accused No. 2 and Khushal. On the day of the incident, i.e. on Monday, she was proceeding along with Khushal on the motorcycle at about 6.30 p.m. towards Phulkalas for bringing household articles. While they were proceeding, in front of the farmhouse of accused No. 2, she saw accused No. 1 standing there. Accused No. 2 obstructed the motorcycle by standing in front of the motorcycle and asked Khushal as to why he had quarrelled yesterday. Accused No. 2 had also said that Khushal was acting a bit smart. Accused No. 1 gave a call to the other persons from the farmhouse and accordingly accused No. 2 to 11 came there armed with sticks, stones, sickle (Katti) and they pushed P.W. 1 Sharda and deceased Khushal from the motorcycle and assaulted Khushal. P.W. 1 Sharda states that she lay prostrate on Khushal in order to prevent assailants from assaulting Khushal but accused No. 1 pulled her aside and dealt fist and kick blows to her. She states that she and Khushal were shouting but the accused pulled Khushal upto the farmhouse of accused No. 2 and started beating Khushal with stones, stick and sickle on his head, legs and hand. She further states that accused No. 10 Maroti, accused No. 7 Kundlik and accused No. 6 Datta were armed with sticks, accused No. 2 Manik, accused No. 8 Sangram and accused No. 6 Datta were holding stones. Accused No. 3 Narayan was holding a sickle while accused No. 9 Laxman was armed with a leg of wooden cot. Accused No. 5 and 9 were beating Khushal with fists and kicks. On hearing their shouts one Shivmurti Shirale, Shivhari Shirale and Ram Kubde came there running. Accused dropped their weapons and fled from the scene of the offence. One auto-rickshaw was seen coming from village Limala and Sharda therefore stopped the auto-rickshaw. In the said auto-rickshaw she alone went to village Tadkalas and informed her father-in-law about the assault on Khushal and by the same auto-rickshaw went to the Police Station and informed the Police about the incident. The police went by jeep to the farmhouse of accused No. 2 and brought Khushal to the hospital at Tadkalas and thereafter to Civil Hospital at Parbhani. She states that statement of Khushal came to be recorded by the police. Khushal succumbed to his injuries at about 12.00 midnight to 12.15 a.m.

In cross-examination she has denied the suggestion that she had filed a complaint against one Tukaram Shirale and Harirao Shirale under the atrocities Act. She has further stated that she does not remember whether accused No. 2 had filed Criminal case u/s 307 of the I.P.C. against her, her father-in-law and her husband''s brothers. She has then stated that accused No. 9 Laxman lives at Parbhani but states that she does not know whether he is serving in the University. Similarly she has stated that she does not know where accused No. 11 Madhav resides. She has further stated that her father-in-law P.W. 7 Jivanji resides at Tadkalas and runs a grocery shop. She has further stated that the farmhouse of the accused is at a distance of 15 ft. from her field. She has admitted that in front of the farmhouse is the State Highway. She has also admitted about the agricultural fields of others adjoining the land of the accused No. 2. She has stated that she does not know the number of cases which were pending against her husband Khushal. She also states that she does not know whether Khushal was served with a notice of externment. She has admitted that sister of deceased Khushal is married to P.W. 5 Dhanyakumar. She has further stated that she does not know if her husband had lodged a report in respect of the incident of scuffle on the previous day. She has then admitted that she had taken her younger son along with her on the day of the incident. She then states that they had stopped on the road as the motorcycle was obstructed by accused Keshav. She then states that all the accused had pulled them down after pushing them from the motorcycle. She states that her younger son had also fallen down but did not sustain any injury. She reiterates that accused No. 1 Keshav had stood in front of the motorcycle and had called the other accused and other accused started beating them. She has admitted that she was not assaulted by any one except accused No. 1 Keshav. She then states that she was held by accused No. 1 Keshav by one hand while he had assaulted her by fists and kick blows and because of the beating she had sustained contused wounds. She has admitted that she had not seen the exact place where the blows of sickle were given to Khushal. She was unable to state the exact number of blows of sickle. She has admitted that the accused had beaten deceased Khushal with stones. She has admitted that she was witnessing the incident from the road but was not paying any attention to the passers-by. She has admitted that her son was crawling on the road and no one had picked him up. She has admitted that the entire incident was over by 6.30 p.m. She then admits that auto-rickshaw had come there soon after the incident was over. She has admitted not to have sent any one for giving message to her brother-in-law Ashok about the incident. She has admitted that they had two servants at the time of the incident who were working in the field. The said servants were at a distance of 40 to 60 ft. and were within the range of hearing the shouts. She has admitted that Rama Kubde came from Tadkalas while Shivmurti and Kishan were watering the groundnut crop and they came running. She admits not to have told those persons about the incident. She also admits not to have informed auto-rickshaw driver about the incident. She admits to have told P.W. 7 Jivanji about the beating to Khushal but admits not to have told him the details of the incident. She has admitted that when she had gone to the Police Station, the P.S.I. was called from his residential quarters and therefore she was waiting in the police station till 7.00 to 7.30 p.m. She admits not to have told the police the entire incident in detail including the names of the accused. She admits to have told the police that 9 to 10 persons had beaten her husband. She admits that she had told the police that family members of Salgar had assaulted her husband. She admits that she had not lodged a complaint at Tadkalas. Her father-in-law also had not lodged any report when he had arrived at the hospital. She admits that P.S.I. was also with them in the police jeep along with two to four constables. She admits not to have told them anything about the incident in the jeep. She states that it took half an hour to reach Parbhani from Tadkalas. She admits that she and her father-in-law were by the side of her husband and were asked to go out when the statement of Khushal was being recorded by the police in the presence of the Medical Officer. She admits that neither she nor her father-in-law Jivanji had a talk with deceased Kishan till his death.

There does not appear to be any serious challenge in the cross-examination to the presence of this witness at the scene of the offence. Though Sharda has been cross-examined at length, nothing has been elicited in the cross-examination to doubt the presence of this witness. At the close of the cross-examination Sharda has emerged unscathed and according to us is worthy of being implicitly relied upon.

P.W. 2 Kishan states that his land is near the land of accused No. 2 Manik. He states that there is a small piece of land between his land and the land of accused No. 2 in which the farmhouse has been constructed. He states that on the day of the incident he was watering the groundnut crop. He heard shouts at about 6.30 p.m. from the farmhouse of accused No. 2 and therefore, he along with Shivmurti, who was also watering his crop in the adjoining land, went to the farmhouse of accused No. 2. He states that 11 members from the family of accused No. 2 were assaulting deceased Khushal. He has identified the accused who were assaulting deceased Khushal. He states that accused Maroti, Kundlik and Datta were holding sticks while accused No. 2 Manik, accused Sangram and accused Rama were armed with stones. Accused Laxman was armed with a wooden leg of cot and accused Narayan was holding a stick. He also states that accused Keshav had held P.W. 1 Sharda aside while all the accused were assaulting deceased Khushal with their respective weapons. He states that on seeing them the accused dropped their weapons and ran away. He then states that he went running to the village and informed Ashok, brother of Khushal and thereafter along with Ashok came back to the farmhouse. He states that he did not see P.W. 1 Sharda at the farmhouse. He also states that Ashok had asked Khushal as to why Khushal had been beaten and Khushal told Ashok that on account of dispute of water canal, Khushal had been assaulted by the accused. He then states that soon thereafter a jeep from Tadkalas Police station came there. P.W. 7 Jivanji was sitting in the jeep. The police had taken deceased Khushal to Tadkalas.

In cross-examination, he has denied the suggestion that P.W. 7 Jivanji and his father are real brothers. He has admitted that the farmhouse of accused No. 2 is adjacent to the farmhouse of one Shivkumar Dorwante and the same is on Tadkalas to Shingnapur, which is a highway, which is used frequently by the people. He has also admitted that people were present on the road with their cattle at the time of the incident. He has also admitted that there are fields of many villagers by the side of the said road. He has further admitted that he and Shivmurti had gone to the scene of the offence together on hearing the shouts. He has admitted that he had seen Rama Kubde coming from the side of Tadkalas and he had not seen any other person. He has stated that the accused were not assaulting P.W. 1 Sharda and Khushal at the same time. He was confronted with portion marked "A" from his statement wherein it was stated that all the 11 accused were assaulting P.W. 1 Sharda and deceased Khushal at the same time he has also admitted that he had not questioned the accused as to why P.W. 1 Sharda was held by them. He has also admitted that P.W. 1 Sharda had not disclosed anything to him. He has stated that he had stated in his statement that Khushal had sustained an injury on his head. He has also admitted that he had not seen as to the exact place where Narayan had inflicted injuries by a sickle. He has admitted that he had not stopped at the house of Ashok. He has admitted that Ashok had also not informed any one in the village about the incident. He has admitted that he had returned back to the scene of the offence within 5 to 10 minutes and then he admits "we did not make any enquiry with Khushal". He has admitted that he had not informed about the incident either to Jivanji or to the police on the day of the incident.

Sharda has not referred to the presence of this witness in her examination-in-chief but in her cross-examination she has referred to the presence of this witness. The cross-examination of this witness does not punch holes in his assertion about the assault on Khushal. The omissions and the contradictions are on peripheral aspect of his evidence and the core of his testimony remains intact.

Prosecution has examined P.W. 7 Jivanji, father of deceased Khushal. Admittedly, P.W. 7 Jivanji is not an eye witness who is a witness who had been informed about the incident by P.W. 1 Sharda. He states that on 8.3.1998 while he was present in his shop deceased Khushal had informed him about accused No. 2 blocking the water canal and about a quarrel between the two of them. Jivanji further states that on the next day wife of Khushal (P.W. 1 Sharda) had informed him that accused No. 2 Manik and 9 to 10 other persons had assaulted Khushal and thereafter she had immediately gone to the Police Station. He states that he closed his shop and he also went to the police station but on the way he noticed a police jeep coming by the road, and therefore, he signaled the jeep by raising his hand. He states that he boarded the jeep and the jeep proceeded towards the scene of the incident. He states that he had seen Khushal lying in a pool of blood in front of the farmhouse of accused. He states that he had asked Khushal about the incident and Khushal had informed him about the incident of assault by accused Nos. 2 to 11. Khushal was thereafter placed in the jeep and was sent to Tadkalas and thereafter Khushal was taken to the General hospital at Parbhani. He states that he had been asked to withdraw when the statement of Khushal was being recorded. He states that Khushal died in the hospital at about 12.00 to 12.15 in the night. In cross-examination he has admitted that the population of Phulkalas is 3000 and he was Sarpanch of Phulkalas for about 10 to 15 years. Deceased accused Manikrao was the Deputy Sarpanch. He states that Khushal was residing separate since about one or two years prior to the incident. He has then admitted that Sharda had filed cases under the Atrocities Act against Haridhar Shirale and Tukaram Shirale and those two persons had been acquitted in the said case. He has denied the suggestion that Sharda had also filed cases against the accused. He has admitted that accused Manikrao had filed a Criminal case against him, Ashok and Sharda u/s 307 of the Indian Penal Code. He states that he had been acquitted in the said case filed by accused Manikrao. He has admitted that he, Khushal and Ashok had received notices of externment. He has admitted that no report was lodged about the incident with the accused on the evening previous to the day of the incident of assault on Khushal. He was confronted with the portion marked "A" in his statement wherein he had stated that Sharda had informed him about the assault while sitting in the auto-rickshaw. He has admitted that Sharda had not requested him to accompany her to the police Station and he has also admitted that he had not volunteered to accompany Sharda to the Police Station. He has admitted that he had not enquired from the police officers whether a report had been lodged by Sharda in respect of the assault on Khushal. He has admitted that Khushal was lying at a distance of 30 to 35 ft. from the road and has also admitted not to have lodged a report with the police. He has admitted that he had stated in his statement that deceased Khushal had been assaulted with the leg of a cot but could not ascribe any reason why the same was not reflected in his statement.

P.W. 7 Jivanji has deposed about the oral dying declaration alleged to have been made by Khushal to him. It is true that the police were also present at the scene of the offence but the police had not deposed to about the oral dying declaration alleged to have been made by Khushal to P.W. 7 Jivanji. Similarly, prosecution has also not examined Ashok to whom Khushal is alleged to have disclosed about the incident. No doubt, the disclosure was made to Ashok in the presence of P.W. 2 Kisan and P.W. 2 Kisan deposes about the same, however, the evidence in respect of the oral dying declaration alleged to have been made in the presence of P.W. 2 Kisan to Ashok and to Jivanji has not been satisfactorily established. Even if the oral dying declarations are left out of consideration, there is overwhelming evidence of P.W. 1 Sharda, P.W. 2 Kisan as eye witness and the dying declaration of Khushal at Exh. 94. Moreover, the seizure of the incriminating articles particularly the pair of chappals, wrist watch etc. belonging to Khushal clearly indicate the assault in front of the farmhouse of the accused. The seizure of these articles to a large extent corroborates the prosecution case. The seizure of these articles also falsifies the defence of the appellants that deceased Khushal was riding his motorcycle in an intoxicated condition in high speed and the motorcycle had skidded resulting in the injuries to Khushal. The defence taken by the accused therefore is a false defence.

P.W. 9 P.S.I. Ingale has stated that Sharda was in the police station for about 5 to 10 minutes and has also admitted that he could have recorded the statement of Khushal during 15 to 20 minutes he was at the scene of the offence. He has admitted that he had not recorded the statement of Sharda either in the hospital or when she was present at the police station. He has admitted that the dying declaration at Exh. 94 is in the handwriting of a Police Constable named Chate to whom he had dictated the same. He has admitted that in the copy of the F.I.R. which was sent to the Magistrate, the word "on head" (after referring to the injury to deceased Khushal) is not stated. He has denied the suggestion that the words "on head" were subsequently added in the dying declaration.

The dying declaration at Exh. 94 states that on 9.3.1998 when Khushal along with his wife was proceeding on the motorcycle to Phulkalas for purchasing provisions for the house, accused Manikrao had obstructed the motorcycle and had questioned him as to why he had quarrelled on the previous evening. Accused Manikrao had called the other accused who were present at the gymnasium. He has named the accused who had come there armed with sticks, stones etc. He then states that the accused had beaten him and his wife from the motorcycle and he had been taken near gymnasium and had been assaulted by sticks, stones and sickle on his hands, legs, back and head. He states that accused Keshav had caught his wife Sharda and had assaulted her by fists and kick blows. The reason for the assault on him is on account of the quarrel between the accused and him on the previous evening in respect of the water canal. As pointed out by us above, on the basis of the statement of Khushal at Exh. 94, an offence vide Crime No. 14 of 1998 came to be registered at 11.30 p.m.

Mr. Bora, learned Counsel appearing on behalf of the appellants in Criminal Appeal No. 622 of 2005 and Mr. Dhorde, learned Counsel appearing on behalf of the appellants in Criminal Appeal No. 59 of 2007 have urged before us that the conduct of P.W. 1 Sharda is most unnatural and therefore, no reliance can be placed on her testimony. It is urged before us that P.W. 1 Sharda had not disclosed the entire incident to P.W. 7 Jivanji and the police officers when she had the opportunity of disclosing the entire incident to them. It is therefore urged that Sharda may not be aware about the assailants and therefore, the names of the appellants/accused had not been disclosed by P.W. 1 Sharda.

The incident of obstructing the motorcycle and assault on Khushal had occurred suddenly. Khushal had been mercilessly assaulted and was lying at the scene of the offence in a pool of blood. We do not notice the conduct of P.W. 1 Sharda to be unnatural. The plight of P.W. 1 Sharda can well be imagined. Her husband Khushal was lying in an injured condition and therefore anxiety of Sharda was to arrange for medical aid at the earliest. Providing medical aid to injured was the foremost consideration which prevailed on Sharda and accordingly she stopped an auto-rickshaw and boarded the same and went and informed her father-in-law P.W. 7 Jivanji. Since she was pressed for time, she had only informed Jivanji about the assault on Khushal by about 10 to 11 persons omitting to give the details of the assault. She immediately rushed to the Police Station and to her utter dismay found that the police officer was not present in the police station but was at his residential quarters. After the arrival of the police officer, a jeep was sent for bringing Khushal. In that distort condition, it is inhuman to expect that P.W. 1 Sharda would narrate the incident to each and every person whom she meets. We also do not find anything unnatural in Sharda not narrating the incident on the way to the hospital at Parbhani. Khushal had been seriously injured and was fighting for his life and in such circumstances, according to us, the conduct of P.W. 1 Sharda in not informing the police or Jivanji about the incident is understandable. Presence of P.W. 1 Sharda is referred to in the dying declaration at Exh. 94. Apart from that the cross-examination of P.W. 1 Sharda does not reveal that any dent had been made in the assertion of P.W. 1 Sharda that she had accompanied her husband Khushal on the motorcycle and that she was present at the time of the incident. Deceased Khushal had been found lying in a pool of blood at a distance of 35 ft. from the road. P.W. 1 Sharda claims to have witnessed the incident from the road i.e. from a distance of 35 ft. We therefore find that the testimony of P.W. 1 Sharda cannot be jettisoned on the ground that her conduct was unnatural at the time of the incident and post incident.

It was then urged by the learned Counsels for the parties that Sharda had admitted in the cross-examination that her own son had accompanied them on the motorcycle and he had also fallen, but the presence of the son is not referred to by Khushal in his dying declaration at Exh. 94. It was also urged before us that there is no evidence in respect of any injuries sustained by the son of Sharda. It is true that Sharda has admitted that her own son had accompanied her on the motorcycle. She has admitted that when she was pushed her son had also fallen on the ground. She has clarified that her son had not sustained any injury and was crawling on the road. Shard was engrossed and understandably do so in attempting to save her husband from assault and in that frame of mind was clearly oblivious to her own son who had fallen on the road and to the passers-by. In front of her eyes her husband Khushal had been mercilessly assaulted by the assailants and in such circumstances, mere omission to refer to the presence of her son in the dying declaration at Exh. 94 would not in any manner cause such a serious doubt on the version of Sharda as to jettison the same.

The learned Counsels appearing on behalf of the appellants have urged before us that deceased Khushal had sustained serious injuries and those injuries are evident on perusal of the Post mortem report at Exh. 70. In such situations, it is urged that it is extremely doubtful if deceased Khushal was in a fit frame of mind to have given the statement. It is also urged that the statement of Khushal was not recorded at the scene of the offence as well as in the jeep but the statement is alleged to have been recorded in the hospital.

� Khushal was examined by P.W. 8 Dr. Rajeshwar Mokashe in the Civil Hospital at Parbhani. He states that he examined Khushal and had permitted the P.S.I. to record the statement of Khushal. He states that he was present during the recording of the statement. He has stated that he had examined Khushal and had certified that Khushal was conscious to give the statement. He has proved his endorsement at Exh. 89. In cross-examination he has admitted that Khushal was admitted in the hospital at 8.55 p.m. He has also admitted that the patient was critical because of multiple injuries and cerebral concussion. He has admitted that a patient can become unconscious if there is injury to brain. He has admitted that he had attempted to record the blood pressure but it was not recordable. He has volunteered that even if blood pressure is not recordable a patient is conscious. He has admitted that pulse was not palpable as the patient was in shock and was in peripheral circulatory failure. He has denied the suggestion that Khushal was unconscious.

The evidence of the Medical Officer and the evidence of P.S.I. P.W. 9 Ingale therefore clearly reveals that Khushal, despite of sustaining serious injuries, was conscious and was in a fit condition to give his statement. It is no doubt true that P.W. 8 Dr. Mokashe has admitted in his cross-examination that injury to brain may result in unconsciousness but this answer is a hypothetical answer. Evidence of P.W. 8 Dr. Mokashe reveals that on his examination he had found Khushal to be conscious and in a fit condition to give his statement. In the light of such evidence and particularly in view of the fact that the appellants have not been able to elicit any answers in the cross-examination to the contrary. It would be extremely hazardous to record a finding that on account of the injury sustained by Khushal he had been rendered unconscious and was not in a condition to speak. Such a finding would be a surmise of the Court while ignoring the admissible evidence. The evidence indicates therefore that Khushal was conscious and was in a condition to give his statement which was accordingly recorded by P.S.I. P.W. 9 Ingale at Exh. 94. Merely because the said statement at Exh. 94 is a slightly lengthy statement that by itself would not lead to an inference that this is a created piece of evidence which has emanated from the minds of the police officers and P.W. 1 Sharda. The anxiety of the police officers obviously was to provide medical aid to Khushal and in that background the police had not recorded the statement of deceased Khushal. In any event, if the police officers had found that Khushal was conscious and was in a condition to give his statement the statement ought to have been recorded immediately instead of waiting for Khushal to be taken to the hospital.

Be that as it may, the fact of the matter is that Khushal was alive and was conscious when his statement at Exh. 94 came to be recorded. Khushal, however, succumbed to his injuries soon thereafter and merely because the statement of Khushal had not been recorded till Khushal was taken to the hospital would not render the statement of Khushal at Exh. 94 as a dubious piece of evidence or "created piece of evidence". Therefore, according to us, prosecution has proved and established by reliable and cogent evidence that Khushal was conscious and was in a condition to give his statement and his statement had in fact been recorded at Exh. 94. Thus, we find that Exh. 94 is a reliable piece of evidence which inspires the confidence of the Court for its acceptance and the reliance therefore placed by the trial Court on Exh. 94 cannot be said to be misplaced on the basis of the evidence adduced.

It was urged before us by the learned Counsel for the appellants that original station diary had not been produced by the Investigating Officer though an order for its production had been passed by the Court. It was therefore urged before us that adverse inference ought to have been drawn against the prosecution for its failure to produce the original station diary. The information conveyed by Sharda regarding assault on deceased Khushal by about 11 persons belonging to Salgar family was recorded in the station diary. Obviously, since the original station diary was not produced, the said extract was not exhibited. The Investigating Officer has not been questioned in the cross-examination either in respect of his failure to produce the original station diary or in respect the authenticity of the said entry. P.W. 1 Sharda on the contrary has been cross-examined and in the cross-examination information given by Sharda to Police and as recorded by the police has been brought on record. The answers given by Shard clearly indicate that she had not communicated the details of the incident including the names of the assailants but had merely stated about Khushal being assaulted by about 11 persons from Salgar family. We have already held that failure of Sharda to inform the details of the incident would not in any manner affect her testimony or the prosecution case against the accused particularly when the anxiety of Sharda was to ensure that a prompt medical aid was provided to her husband Khushal who had been mercilessly assaulted in the incident. The adverse inference at the most could be that Sharda had not informed about the incident and had not named the appellants-accused. In fact, Sharda admitted not to have given the names of the assailants and in such circumstances and in the present case, according to us, failure of the Investigating Officer to produce on record the original station diary would not in any manner affect the veracity of the prosecution case.

It was next urged before us by the learned Counsels appearing on behalf of the appellants that two of the accused have been acquitted and the acquitted accused are original accused Nos. 9 and 11. The reasons for the acquittal of these accused are to be found at para 55 of the judgment. According to the trial Court, Sharda had stated in her cross-examination that accused No. 9 Laxman resides at Parbhani. Trial Court further observed that in the dying declaration presence of accused No. 11 was not referred to. Trial Court further observed that no overact was attributed to accused No. 11. Trial Court in para No. 56 has observed that the dying declaration does not make reference to the presence of P.W. 9 Laxman at the scene of the offence. Trial Court, therefore, recorded a finding that as Laxman was residing at Parbhani and there was no reference to his presence in the dying declaration at Exh. 94, Laxman was entitled to be given the benefit of doubt. In respect of accused No. 11, trial Court recorded a finding that presence of accused No. 11 was not referred to in the dying declaration and also as no overact was attributed to accused No. 11, accused No. 11 was also entitled to be acquitted. A perusal of the dying declaration at Exh. 94 reveals that deceased Khushal had named accused No. 9 Laxman Mhalba Salgar and amongst others had also named "Mahadu Sakharam". The name of accused No. 1 is Madhav Sakharam. Be that as it may, trial Court has acquitted both these accused and the State has chosen not to file any appeal challenging their conviction, and therefore, it would be wholly inappropriate on our part to dwell on the reasons for that acquittal. Merely because some of the accused have been acquitted is no ground to urge before us that the other accused are also entitled to be acquitted. An erroneous or unmerited acquittal of few accused cannot be made the foundation for urging that the other accused are also entitled to be acquitted.

Mr. Dhorde, learned Counsel appearing on behalf of the appellants has relied on the judgment of the Division Bench of this Court in State of Maharashtra Vs. Uttam Karbhari Dhage and another, to urge before us that since the trial Court had acquitted two accused and the integral part of the dying declaration had been found by the Court to be false, the residual part could not be accepted for convicting the other accused. The Division Bench of this Court at para 14 of the judgment had observed thus:

Where an integral part of the dying declaration is false, the residual part cannot be accepted, on the principle that, falsus in uno, falsus in omnibus is not a rule applicable to our country. The rationale behind this is that, unlike ocular evidence, a dying declaration cannot be tested on the anvil of cross-examination. Once the Court is convinced that an integral part of the dying declaration is false in as much as, as accused person has been falsely named therein, the principle that, truth sits on the lips of the dying man on which is founded the rationale of accepting a dying declaration cannot be pressed into service for salvaging the residual portion of the dying declaration. In other words, the same dying declaration cannot be accepted against a co-accused.

� We have already held that the dying declaration at Exh. 94 inspires the confidence of the Court for its acceptance and the recitals in the dying declaration at Exh. 94 stand fully corroborated, though not necessary in law, by the testimony of P.W. 1 Sharda and P.W. 2 Kisan in respect of the assailants responsible for causing injuries to deceased Khushal. In the present case, we find that because of acquittal of two of the accused, the dying declaration is not rendered unacceptable.

Mr. Dhorde, learned Counsel appearing on behalf of the appellants placed reliance on the judgment of the Supreme Court in Basisth Roy and Others Vs. State of Bihar, and Shridhar and Another Vs. State of Madhya Pradesh, to urge before us allegations and therefore the conviction of all the accused is unsustainable in law. The recitals of the dying declaration, evidence of P.W. 1 Sharda, according to us, do not make any vague or omnibus allegation regarding the assault. Specific overacts and specific weapons have been attributed to each of the assailant. The post mortem report clearly corroborates the version of the eye witnesses and the recitals of the dying declaration regarding assault by the appellants on deceased Khushal. We, therefore, do not notice that the allegations against the appellants are either vague or omnibus allegations. Since all the assailants had surrounded deceased Khushal and as Khushal was lying on the ground, it is not expected that P.W. 1 Sharda who was witnessing the incident from a distance of 35 ft. would be able to tell the exact place where each of the accused had inflicted the injuries.

Undisputedly, in the present case Sharda claims to have been assaulted by fists and kick blows by the accused but had not been examined by Medical Officer, and therefore, it is urged before us that it is extremely doubtful if Sharda was present at the scene of the offence. In support of this, Mr. Dhorde, learned Counsel for the appellants has relied on the judgment of the Supreme Court in Gorle S. Naidu Vs. State of A.P. and Others, . The Supreme Court observed that since the eye witness had alleged that he had sustained injuries but was not examined by the Doctor, his evidence and presence at the spot was doubtful. Coupled with this the Supreme Court had found that there was delay in lodging the F.I.R. which was not explained and the calling of the dog squad by the police indicated that names of the assailants were not known. In the present case, no visible injuries are alleged to have been sustained by P.W. 1 Sharda. P.W. 1 Sharda only claims that accused had assaulted her by fists and kick blows. The recitals in the dying declaration at Exh. 94 corroborates the version of Sharda that she was assaulted by fists and kick blows only. In such circumstances, failure of the prosecution to adduce any evidence in respect of the injury sustained by P.W. 1 Sharda would not necessarily lead to an inference that Sharda was not present at the scene of the offence. There is nothing in the cross-examination which would render presence of Sharda at the scene of the offence doubtful. Presence of Sharda is referred to in the dying declaration and her presence at the scene of the offence cannot be rendered doubtful.

Reliance is also placed by Mr. Dhorde, learned Counsel for the appellants on the judgment of the Supreme Court in Manoj @ Bhau and Others Vs. State of Maharashtra, and particularly findings recorded by the Supreme Court at para 6 of the judgment. In the aforesaid judgment, the Supreme Court had found that the evidence in respect of the overact of accused No. 1 was fully established but in respect of the other accused, namely, accused Nos. 2 and 3, the Supreme Court found that the offence was not proved against those accused beyond reasonable doubt. The Court found that accepting bald, vague and general statements that all the accused surrounded and had assaulted while ascribing positive role to different accused, in respect of accused No. 2 and 3 there was no whisper either by P.W. 1 or P.W. 8 in their earlier statements about accused Nos. 2 and 3 being armed with stick and cycle chain. The Supreme Court therefore in the facts of that case found it unsafe to convict the accused. In the present case, the dying declaration as well as the substantive evidence of P.W. 1 Sharda and P.W. 2 Kisan clearly ascribes the weapons in the hands of the accused as well as the precise overacts. The ratio laid down in the aforesaid judgment therefore according to us would not be applicable to the facts of the present case.

It was then urged by Mr. Dhorde, learned Counsel for the appellants that no attempt had been made by the Investigating Officer to summon a Magistrate for recording the dying declaration. In support of this, reliance is placed on the judgment of the Supreme Court in Cherlopalli Cheliminabi Saheb and Another Vs. State of A.P., , The Public Prosecutor, H.C. of Andhra Pradesh Vs. Pothula Narsimha Rao, and Munnu Raja and Another Vs. The State of Madhya Pradesh, . In the said judgments, the Supreme Court found that the conviction based solely on the dying declaration recorded by the Police Inspector in hospital was not sustainable as the evidence of Doctor was that deceased at the time of recording the dying declaration was not in serious condition and therefore Magistrate who was residing near the hospital was not called. The deceased had not explained the nature of the attack on him in the dying declaration. There was also correction in regard to the nature of weapons which was used and the thumb impression was taken by use of grease of motorcycle and not ink-pad. The Supreme Court therefore held that the dying declaration was not genuine and could not be relied upon for basing the conviction particularly when all other witnesses have turned hostile. The ratio laid down by the Supreme Court in the aforesaid judgments, in our opinion, is not applicable to the facts of the present case. In the present case deceased Khushal was in a precarious state of health as he had been seriously injured. In fact, Khushal succumbed within few hours of his recording of the dying declaration. In such circumstances, failure of the Investigating Officer to summon a Magistrate for recording of the dying declaration cannot be made the basis for rejecting the otherwise reliable dying declaration at Exh. 94.

It was then next urged before us by the learned Counsel for the appellants that the police constable Mr. Chate who had scribed the dying declaration at the dictation of P.W. 9 P.S.I. Ingale has not been examined by the prosecution and therefore, the dying declaration ought to recede in the background. In support of this, reliance is placed on the judgment of the Supreme Court in Govind Narain and another Vs. State of Rajasthan, . The Supreme Court held that the scribe of the document had not been examined or cross-examined and failure of the prosecution to explain cause for non production of the scribe was fatal and the dying declaration was liable to be discarded. In the present case, the dying declaration was made by Khushal to P.W. 9 P.S.I. Ingale who had dictated the dying declaration to his writer constable Mr. Chate. P.W. 9 P.S.I. Ingale has deposed about the contents of the dying declaration which was made by Khushal to him. In that background therefore failure of the prosecution to examine Mr. Chate would not render the dying declaration as inadmissible as the cross-examiner has not been able to make any dent in the recording of the dying declaration which was recorded in the presence of the Medical Officer also.

It was lastly urged before us by the learned Counsel for the appellants that the appellants cannot be convicted with the aid of section 149 of the I.P.C. as there is no evidence to indicate that the common object of the assembly was to commit the murder of deceased Khushal. The facts of the present case reveal that deceased Khushal had been obstructed while he was proceeding to Phulkalas along with his wife. The accused had called the other accused and all the accused had come to the scene of the offence variously armed with sticks, sickle, stones etc. All the accused had assaulted deceased mercilessly. Deceased had sustained injuries which were sufficient in ordinary course of nature to cause death and in fact deceased had died on account of the injuries. Deceased Khushal had been assaulted on account of the incident of quarrel between the accused and the deceased on the day previous to the incident. All the accused had shared the common object and the common object only would be to kill deceased Khushal. In any event, likelihood of death of Khushal could be attributed to each member of the unlawful assembly that if deceased was assaulted, as he indeed was in that merciless injured manner, deceased was likely to succumb to his death. Therefore, according to us, there is no ground for interfering with the conviction of the appellants with the aid of section 149 of the I.P.C.

After giving our anxious consideration to the submissions advanced before us by the learned Counsel for the parties, according to us, there is no merit in the appeals and both the appeal deserve to be dismissed. Accordingly, Criminal Appeal No. 622 of 2005 and Criminal Appeal No. 59 of 2007 are dismissed confirming the conviction and sentence of the appellants. Since appellant Ramrao Mhalba Salgar-original accused No. 4 and Sangram Ramrao Salgar original accused No. 8 are on bail, they are granted 10 weeks time to surrender to their bail. Their bail bonds stand cancelled.