1. Heard Advocate for the appellant and A.P.P. Perused the impugned judgment and record.

2. In all 13 accused persons were charged for various offences under sections 147,148, 307 read with 149, 120B of Indian Penal Code and under section section 135 of the Bombay Police Act. In the course of the incident Dilip Thongre (P.W.11) was assaulted and he suffered severe injuries.

3. Considering the evidence led by the prosecution the learned Sessions Judge convicted accused no.1 for offence punishable under section 307 of IPC and sentenced him to suffer rigorous imprisonment for three years and fine amount of Rs.5,000/- and acquitted all accused including appellant for all other remaining offences.

4. In this appeal against conviction the ground put forward by appellant is summarised as below :-

(a) The reasons due to which the accused nos.2 to 13 are acquitted in relation to all other charges the appellant no.1 as well is entitled for acquittal from all charges including for the offence under section 307 of IPC.

(b) Since the victim who has proved the assault is liable to be believed since that principle of “falsus in uno falsus in omnibus”, is not applicable in India, however, in present case the victim did not restrict to singular lie and rather chose to tell one after other.

(c) Had it been a case of an isolated and singular falsehood in the testimony of P.W.11, said testimony should not be discarded. In fact, major portion of testimony of P.W.11 consists lie or falsehood except the fact that he suffered injuries and that some one amongst the accused has assaulted him which caused the hurt.

(d) The statement of P.W.1 that accused no.1 assaulted may also be regarded as truth, however, the manner in which the scuffel began is totally suppressed by the prosecution in the process of investigation and consequently before the court.

In this manner, the truth is withheld from the court.

(e) The prosecution has suppressed genesis of offence. Once the truth is withheld from the court the benefit of doubt ought to go in favour of the accused and he is entitled for acquittal. Hence the appellant cannot be convicted.

5. P.W.6 has deposed in relation to the incident and learned Judge has referred to version of P.W.6 in paragraph 119 as follows :-

“119. ....... PW 6 Ajinath had stated that he saw accused no.1 Subhash Wagh, accused no.5 Ganpat Mali, accused no.2 Rajendra Ragade, accused no.9 Chandu Ragade, accused no.4 Dhanu Mali, with weapons in their hands and they were assaulting Dilip, he saw swords in the hands of accused no.1 Subhash accuse dno.4 Dhanuj Mali was having in his hand swords and others were having steel rod and flat axe, though he had stated about these accused, before the court, when this statement was recorded he had not stated the names except the accused no.1 and thus in court he had improved his story. The Investigation Officer had also stated that the said witness had not stated the names of accused no.4 Dhanu Mali, the accused no.9 Chandu Ragade and the accused no.2 Rajendra Ragade, also he had not stated that the accused no,.4 Dhanu Mali was having sword in his hand. Thus the said witness had made improvement in respect of material piece of evidence.

(quoted from page 450 of paperbook)

6. P.W.13 is discarded as hearsay witness as seen in paragraph 122 as regards the investigation. The learned Judge has recorded finding in paragraph 126 and even elsewhere which shall suffice to quote paragraph 126 which reads thus :

“126. Under these circumstances, as suggested rightly by the defence counsel, then it becomes a sweet choice of the investigation agency and the said witness to take names of any person as assailant. Hence this evidence of the prosecution regarding disclosure of names of some of the accused by PW 11 Dilip to Ashok does not stand to the test of acceptability.

(quoted from page 452 of paperbook) 7. Perusal of the judgment reveals that the learned Judge has observed in various paragraph