JUDGMENT A.B. Palkar, J.- These two appeals are against the judgment in Sessions Case No. 74 of 1989 passed by the Additional Sessions Judge, Gadchiroli. Appellant Doma in Criminal Appeal No. 395 of 1993 was accused No.1 in the said Sessions Case who has been convicted for the offence punishable under Section 302 of the Indian Penal Code and has been sentenced to suffer imprisonment for life and to pay a fine of Rs. 5,000/- in default to suffer further rigorous imprisonment for six months. Being aggrieved by the said judgment of conviction and sentence, accused Doma has preferred Criminal Appeal No. 395 of 1993. The other accused in the Sessions Case have been acquitted and the State has filed Criminal Appeal No.4 75 of 1993 against the acquittal of accused Nos. 2 to 5 who are respondents 1 to 4 in the said appeal. It is necessary to make it clear at this stage that the accused Doma has been convicted for committing murder of Khushal Bambole whereas all accused were charged for committing murder of Khushal Bambole and Baburao Bambole after forming unlawful assembly, being armed with deadly weapons and having common object of committing murder of Khushal. The learned Additional Sessions Judge held that accused Doma committed murder of deceased Khushal and convicted him, as aforesaid. 2. The prosecution case in brief is that all accused are residents of village Injewari, Tehsil Armori, District Gadchiroli. Their house is situated near a temple of “Dutta" The accused belongs to sect, “Mahanubhav Panth". It was their usual practice to perform Pooja of the Deity in the temple of Dutta. Complainant Manohar (PW 7) is son of de-ceased Khushal. On 07-1-1987, when Manohar was at a Pan Shop, he was informed by Eknath Ramteke, Baburao Motghare and Shamrao Khandkure that Indubai w/o Doma Bambole (accused No.2) practises with-craft. Manohar, therefore, went to the temple and saw Indubai sitting there. All other accused had encircled her. On seeing Manohar, accused Indubai said to him that it was because of him and his father that she had to become a witch. Manohar hereupon said that he was not aware of anything about the witchcraft. Indubai asked him to keep his hand on the idol of deity and to tell the truth which Manohar did and repeated that he was not aware of anything about the practice of witch act. Manohar hereupon said that he was not aware of anything about the witchcraft. Indubai asked him to keep his hand on the idol of deity and to tell the truth which Manohar did and repeated that he was not aware of anything about the practice of witch act. Thereupon accused started beating Manohar, Indubai dealt a blow of Khadao (wooden slippers used by priests in the temple). In the meantime, Khushal, father of Manohar reached there. On seeing him. Indubai said that he was carrying lemon in his underwear pocket and book of black magic. She also said that Khushal was knowing witchcraft and he was responsible for spoiling the entire atmosphere in the family. She then instigated other accused and asked them to catch hold of Khushal and Khushal was caught hold and beaten by the accused. Accused No.1 Doma dealt a blow with axe on the head of Khushal and Indubai dealt a blow with Khadao. Other accused gave fists blows to deceased Khushal and caught him by waist. Khushal received bleeding injuries; collapsed on the spot and died. Manohar (PW 7) lodged report at Police Station. After the accused went to their house, deceased Baburao, father of accused No.1 Doma, asked the accused as to what had happened and thereupon accused Doma dealt him blows with iron-bar and stick blows as a result of which Baburao died. 3. After registering the offence on the complaint of Manohar investigation was taken up by police and in the course of investigation, as usual, panchanamas were drawn the dead bodies were sent for post-mortem after inquest. Reports of post-mortem were obtained. The clothes and other articles from accused were seized, statement of accused No.1 leading to recovery of axe was recorded and in pursuance thereof, weapon was recovered from the place where it was hidden and after the investigation was over, charge-sheet was filed and the learned Magistrate committed the case to the Court of Sessions. 4. All the accused having denied the guilt contended in their defence that inside the temple, there was quarrel between deceased Baburao and deceased Khushal in which Khushal dealt blows with axe to Baburao and Baburao dealt him blows by means of stone. Khushal collapsed on the spot whereas Baburao was taken to his house which is admittedly very close to the temple and he died there. 5. Khushal collapsed on the spot whereas Baburao was taken to his house which is admittedly very close to the temple and he died there. 5. Prosecution examined ten witnesses in support of its case. However none of the police officers including the Investigating Officer were examined. Accused examined two witnesses in support of their defence and after scrutiny of entire evidence placed before him, the learned Sessions Judge passed the aforesaid impugned order. 6. The case of-prosecution mainly depends on the evidence of eye-witnesses. However, P.W. 1 Nilabai, P.W. 2 Parwatibai and P.W. 3 Shamrao did not support the prosecution and were declared hostile. The case, therefore, rests entirely on the evidence of remaining two eye witnesses viz. P.W. 7 Manohar s/o Khushal Bambole and P.W. 8 Eknath Mahagu Ramteke and the medical evidence. Discovery of axe was also not proved as the witness to the Panchanama did not support the prosecution case and the Police Officer who has drawn that Panchanama, is not examined. It is therefore necessary to scrutinise minutely the evidence of eye-witnesses relying mainly on which the Additional Sessions Judge convicted the appellant Doma. P.W. 7 Manohar stated that on that evening after he returned from college, he was sitting inside his house. Eknath Ramteke, Baburao Motghare. Shamrao Khandkure were at the Pan Shop and they told him that Indubai w/o Doma is a witch and, therefore he went to the temple. In the temple he saw Indubai sitting in the middle and other accused having encircled her. Indubai called him and told that because of him and his father. She had become witch on which he replied that he was not aware .of anything of the sort and she then asked him to keep his hand on the idol of deity (Dutta) and on keeping his hand accordingly he reiterated that he was not knowing anything. Thereupon the accused started beating him. Indubai had beaten him by Khadao and in the meantime his father deceased Khushal came there. Indubai then charged .his father of having concealed lemon in his underwear pocket alongwith a book of black magic and also said that his father having the knowledge of black magic had spoiled the atmosphere in the house and instigated the other accused to catch hold of his father and beat him. The other accused then pulled him inside the temple. The other accused then pulled him inside the temple. Deceased Khushal being the patient of Asthama, he was breathing with difficulty to which Indubai said that he was doing some experiment whereupon Doma dealt axe blow on the head of his father and Indubai dealt blow with Khadao. Other accused caught him by waist and dealt first blows whereupon Khushal collapsed on the ground with bleeding injury. He deposed that because of blow given by Indubai with Khadao, two teeth of his father fell down. He then immediately rushed to the Police Patil and informed him about the incident. He also went to Armori Police Station and gave report. He was examined by the Medical Officer and on the next day of the incident, he came to know that accused had also killed Baburao. This incident narrated by P.W. 7 Manohar does not find place in the written report lodged by him with the Police. It is a brief report he stated that on 7-1-1987 at 4.00 'O' clock the accused named in the complaint which included deceased Baburao also committed murder of his father Khushal; when his father had gone to temple. According to the report the accused persons rushed on his father and delivered a blow on his head as a result of which he died. Nothing further is even remotely indicated in the report and a perusal of the original report shows that the word “stone” obviously appears to have been added afterwards as the same appears to be in different writing and different ink. To bring on record this contradiction, he was confronted with the report. He had to admit that in the report he did not mention any details and gave a short report in which there is no mention that accused No.1 dealt an axe blow and accused No.2 Indubai dealt blows with Khadao to his father. He had also not mentioned in this report that his father was- caught by waist by other accused. He also admitted that when he and his father were assaulted and especially when his father was dealt blow of axe, he did not shout and tried to explain that his hands were trembling. It is not possible to accept such an explanation. According to him, although, there were more than 10-12 persons including 5-6 males, none intervened. He denied that quarrel started in between his father and Baburao. It is not possible to accept such an explanation. According to him, although, there were more than 10-12 persons including 5-6 males, none intervened. He denied that quarrel started in between his father and Baburao. Although he -stated that Baburao dealt blow with stone to his father, we have already pointed out that the word “stone” is obviously inserted in the report afterwards. His evidence clearly shows that he has not seen the incident because even if he intended to give briefest possible report it is not possible to accept that he would forget to mention in his report that his father was dealt blow with axe by accused Doma and blows of Khadao by Doma's wife Indubai. 7. P.W. 8 Eknath Ramteke had a different story to tell and after stating that accused asked Manohar to keep his hand on the idol and to say that his father was knowing black magic and Manohar denied, he stated further that accused Indubai wanted to show her power and she asked the witness (Eknath) that she could even kill his son whereupon Eknath told her that he had only one son and she could use her power. He further stated that the accused were not allowing Manohar (P.W. 7) to come out. It is not stated even by Manohar that after some time Khushal came to the temple alongwith one Bhagabai and asked his son as to why he had come there whereupon Indubai asked other accused as to why they are not seeing enemy on which deceased Baburao caught collar of deceased Khushal and pulled him; accused No. 1 dealt blow with an axe on the head of deceased Khushal and accused No.2 dealt blows with Khadao to deceased Khushal while other accused were giving first blows whereupon Manohar left the place. His evidence apart from being contrary to that of Manohar (P.W.7), clearly shows that he has added so many things. Manohar never stated that Indubai said to Eknath that she would show her power and kill his son whereupon Eknath replied that she could use her power. In fact, Manohar (P.W. 7) does not refer even to the presence of Eknath, much-less to any conversation that took place between him and Indubai. In cross-examination this witness (Eknath) admitted that Baburao pulled Khushal and Khushal fell down on the platform. In fact, Manohar (P.W. 7) does not refer even to the presence of Eknath, much-less to any conversation that took place between him and Indubai. In cross-examination this witness (Eknath) admitted that Baburao pulled Khushal and Khushal fell down on the platform. Apart from this totally contradictory evidence of the two eye-witnesses, the material aspect is that P.W. 8 Eknath has, in clear terms, admitted that there was a scuffle between Baburao and Khushal which admission supports defence of the accused. Discovery of the axe from the Chhapri was not proved by the Witness as the witness to Panchanama was declared hostile. Having disbelieved the evidence of discovery, the learned Additional Sessions Judge accepted the evidence relating to recovery of weapon from possession of accused and used the same as a piece of corroborating evidence. 8. Apart from this, it appears from the prosecution case made out in the charge sheet that after the report of Manohar (P.W. 7) lodged on 7-1-1987, another report was given by P.W. 2 Kisan Hart Bambode. He was also cited as a witness for the prosecution, but the prosecution chose not to examine him. He was examined by the accused as a defence witness. Even then no attempt was made to get his report lodged on 8-1-1987 proved by showing the same to him and rather surprisingly, this unproved and un-exhibited document was used by the learned Additional Sessions Judge as a piece of evidence and the learned Judge referred not only to the fact of such a report having been lodged but also to the contents thereof which, in our view, is clearly impermissible. 9. Apart from this evidence, the evidence of P.W.6 Arjun Ganpat Ramteke creates further doubt in the entire prosecution case. He also claims to be eye-witness to the incident. His version is that he had gone to temple with one Kawadu and he saw Khushal having an injury on chest and lower side of his jaw and teeth broken and from there he went to the house of accused and told accused Doma as to what had happened and also said that whatever he had done, was not proper. However, he does not say as to who told him about the incident because his claim is that he had gone afterwards when he saw Khushal in an injured condition. However, he does not say as to who told him about the incident because his claim is that he had gone afterwards when he saw Khushal in an injured condition. He stated that accused Doma had caught hold of Baburao Bambole by handkerchief around his neck and gave him blows with Kati (a sharp iron instrument used for cutting bamboos) and that accused Dhanpal had also dealt blows on the face of Baburao Bambole with "Khasrachi Aaree (a wooden stick having steel nail on one side), which is not the story disclosed by other two witnesses anywhere. This evidence has rightly been rejected by the learned Additional Sessions Judge as none of the accused is found to have dealt any blows to deceased Baburao. None is, therefore, convicted for any act resulting in any injury caused to Baburao. 10. The post-mortem notes of Baburao show that there were as many as nineteen injuries on his person and according to the Medical Officer may be caused due to trauma by hard, blunt and some sharp pointed objects. Deceased Khushal was found to have about eighteen injuries which, according to the doctor, may be caused due to trauma by hard and blunt objects and some injuries may be caused by hard and sharp pointed objects. Deceased died due to haemorrhagic shock due to the multiple fatal injuries to the skull and also the rupture of the spleen. The medical evidence is, therefore, not in consonance with the eye witness account of the incident and, therefore, from the medical evidence, it is not possible to hold that the prosecution case is corroborated by the same and if at all, the medical evidence is taken into consideration, it becomes obvious that what the eye witnesses stated, is not home out by the medical evidence and on the contrary, contradicted by the same. 11. Thus, the evidence of the two eye-witnesses is contrary to the First Information Report lodged by P.W. 7 Manohar. It is most unlikely that Manohar (P.W. 7) would forget to state in the F.I.R. that his father was dealt blows with axe by accused Doma, if in fact, he had seen the incident. On the contrary, according to the defence version, there was quarrel between Khushal and Baburao wherein both of them assaulted each other, Khushal received injuries by axe blows and Baburao received injuries by stone. On the contrary, according to the defence version, there was quarrel between Khushal and Baburao wherein both of them assaulted each other, Khushal received injuries by axe blows and Baburao received injuries by stone. This appears probable from the aforesaid evidence and is fully corroborated by the evidence of the two defence witnesses, one of whom viz. Kisan Hari (D.W. 2) was cited as a prosecution witness in the charge sheet, but was not examined. D.W. 1 Bhaurao Motghare has stated that when he went alongwith Manohar and three other persons to the temple, deceased Khushal came there alongwith Bhagabai and he had an axe with him. According to this witness, deceased Khushal started abusing Manohar (P.W.7) and so they came back. His evidence is not at all shaken in cross-examination. D.W. 2 Kisan who is shown as a witness in the charge sheet, has fully supported the case of accused which version of the witness was not tried to be contradicted with his earlier version in his report dated 8-1-1987 for the obvious reason that the prosecution case would have become weak and the prosecution has attempted to seek corroboration from the earlier report of the incident. 12. Apart from this, none of the police officers especially the investigating Officer was examined when so, many witnesses had turned hostile and when the report of Kisan was on record and was relied upon by the prosecution. C.A. report of the weapons seized, is also on record and in the fact of such contradictory evidence, the learned Additional Sessions Judge was in error in accepting the prosecution case to the extent that assault on deceased Khushal by accused Doma by means of axe was proved beyond all doubts and the conviction of the accused Doma is, therefore clearly unsustainable. 13. The above discussion would also clearly show that so far as involvement of the other co-accused is concerned, there is absolutely no evidence and so far as their case is concerned the learned Trial Judge has rightly acquitted them of the charge. 14. In the result we find that the conviction of appellant Doma will have to be set-aside and he deserves to be acquitted whereas the State appeal against acquittal of the co-accused must fail. 15. Therefore Criminal Appeal No. 475 of 1993 is dismissed. Criminal Appeal No. 395 of 1993 is allowed. 14. In the result we find that the conviction of appellant Doma will have to be set-aside and he deserves to be acquitted whereas the State appeal against acquittal of the co-accused must fail. 15. Therefore Criminal Appeal No. 475 of 1993 is dismissed. Criminal Appeal No. 395 of 1993 is allowed. Conviction of the appellant for the offence punishable under Section 302 of the Indian Penal Code and the consequent sentence imposed upon him is set-aside. The appellant is acquitted of the said charge. The appellant is in jail. He be released forthwith if not required in any other case. Appeal No. 395 allowed. Other appeal dismissed.