JUDGMENT - BRAHME P.S., J.:---The appellants Abdul Shahim Abdul Bashir and Abdul Rahman Abdul Bashir along with their father Abdul Bashir Sheikh Roshan, were tried before Additional Sessions Judge, Achalpur in Sessions Case No. 100/1996 for committing murder of one Abdul Kalam Abdul Rashid in furtherance of their common intention. The learned Sessions Judge, vide judgment and order dated 12th February, 1998, convicted the appellants of the offence under section 302 read with section 34 of the Indian Penal Code and sentenced them to suffer imprisonment for life and fine of Rs. 3,000/-, in default, to undergo further R.I. for one year. The third accused Abdul Bashir Sheikh Roshan, however, came to be acquitted. The order of conviction and sentence is under challenge in this appeal. 2.The prosecution case, in brief, is that victim Abdul Kalam and the appellants are the residents of village Ghatladki, which comes within the jurisdiction of Police Station, Chandur Bazar. The incident, which gave rise to this prosecution against the appellants, took place on 1st July, 1996 in village Ghatladki. Both the appellants are real brothers and sons of third accused Abdul Bashir. At the time, when the incident took place, deceased Abdul Kalam was passing towards the market for buying tea powder. When he was near the house of Jalil Patel and Nazir Moulana, the appellant Abdul Shahim accosted him and there was a verbal altercations between them. At that time, when the altercations were going on, the accused Abdul Bashir arrived on the spot and, at once, dealt a blow with stick, he was armed with, on the shoulder of Abdul Kalam. Due to which, the latter fell down in the drain along the street. The appellant Abdul Shahim, who was present there, at once took out knife from his pocket and stabbed Abdul Kalam thirsting a blow in the chest region. The appellant Abdul Rahman also rushed there and assaulted Abdul Kalam with a dagger (suri), inflicting a blow below his arm pit. In the same incident, the victim Abdul Kalam received third blow with the knife which landed on his back side and he collapsed on the ground. The appellants and their father Abdul Bashir then ran away from the spot. Abdul Rashid Sheikh Rahim (P.W. 13), father of victim Abdul Kalam, who was in the market, heard commotion and learnt that his son Abdul Kalam was assaulted. The appellants and their father Abdul Bashir then ran away from the spot. Abdul Rashid Sheikh Rahim (P.W. 13), father of victim Abdul Kalam, who was in the market, heard commotion and learnt that his son Abdul Kalam was assaulted. He rushed the place of occurrence and saw his son lying on the ground in injured condition. He carried him straight to the Police Station, Chandur Bazar and lodged a report on the basis of which offence was registered. The Police Officer referred the injured Abdul Kalam to the hospital at Chandur Bazar for treatment, but before any medical aid could be given, Abdul Kalam had succumbed to the injuries. P.S.I. Patil (P.W. 14) was in-charge of Chandur Bazar Police Station and who later on took up investigation in the matter, on being informed of the offence registered in respect of death of Abdul Kalam, rushed to Chandur Bazar and went to the hospital. The dead body of Abdul Kalam was sent to the Medical Officer for postmortem. P.S.I. Patil then returned to village Ghatladki and on his way, accused Abdul Bashir and Abdul Shahim came to be apprehended and were sent to the Police Station. In the course of investigation, the clothes on the person of appellant Abdul Shahim were seized as the same were stained with blood. The weapons of assault, namely, knife and dagger came to be seized in pursuance of the statement made by the appellant Abdul Shahim being recovered at his instance. When these weapons were found and seized, it was noticed that the weapons were stained with blood. All the articles seized including the clothes of deceased were sent to chemical analyser for analysis. After completing investigation, the appellants were sent up for trial before the Additional Sessions Judge, Achalpur. At the trial, the appellants denied the charge, pleaded not guilty and claimed to be tried. The prosecution examined in all 14 witnesses including Sheikh Akram (P.W. 1), Halima Bano (P.W. 2), Sheikh Mehboob (P.W. 3), Raksana Bano (P.W. 5), Mohammad Rafiq Abdul Aziz (P.W. 6), who claimed to be the eye-witnesses to the incident and Abdul Rashid (P.W. 13), father of deceased Abdul Kalam, Dr. Deshmukh (P.W. 8) who performed autopsy on the dead body of Abdul Kalam and Rahul Patil (P.W. 14), P.S.I. attached to the Chandur Bazar Police Station, who carried out investigation in the matter. Deshmukh (P.W. 8) who performed autopsy on the dead body of Abdul Kalam and Rahul Patil (P.W. 14), P.S.I. attached to the Chandur Bazar Police Station, who carried out investigation in the matter. After the evidence for the prosecution was over, the statements of the appellants came to be recorded under section 313 of Cri.P.C. The defence of appellant Abdul Shahim was that Abdul Kalam and his father Abdul Rashid assaulted him at the time and place of the occurrence and in that assault he sustained injuries with the weapons in the hands of deceased Abdul Kalam and his father Abdul Rashid. It is also suggested by the defence that the deceased Abdul Kalam sustained injuries as in that scuffle his father moved his hand. The learned Additional Sessions Judge, Achalpur accepting the evidence of prosecution witnesses who claimed to be eye-witnesses to the incident, so also medical evidence which lends assurance to the ocular version of the eye-witnesses, came to the conclusion that the victim Abdul Kalam was done to death by the appellants on account of the injuries inflicted with the weapons, they were armed with and as such the appellants were found guilty for murder of Abdul Kalam. Consequently, the appellants came to be convicted and accordingly sentenced as stated earlier. 3.The learned Counsel Shri Daga, appearing for the appellants, while challenging the order of conviction and sentence, submitted with vehemence that the trial Court committed an error in accepting the evidence of witnesses as all the witnesses, who claimed to be eye-witnesses are interested witnesses, being closely and distantly related to the deceased and there are material discrepancies in the evidence of these witnesses and the evidence is contradictory to the medical evidence on record and their evidence suffers from material infirmities on account of omissions and contradictions. The learned Counsel also pointed out that the appellant Abdul Shahim has sustained serious injuries on his person and the prosecution has failed to explain those injuries. This itself is sufficient to discard the claim of the witnesses and the evidence of the eye-witnesses, in this background, cannot be accepted. In this background, the learned Counsel submitted that the prosecution has failed to establish the prosecution case and, therefore, the appellants cannot be found guilty for the offence of murder. This itself is sufficient to discard the claim of the witnesses and the evidence of the eye-witnesses, in this background, cannot be accepted. In this background, the learned Counsel submitted that the prosecution has failed to establish the prosecution case and, therefore, the appellants cannot be found guilty for the offence of murder. The learned Counsel pointed out from the record that the fact that appellant Abdul Shahim sustained injuries has been duly established. However, the witnesses when denied the claim that the appellant Abdul Shahim sustained injuries or came to be assaulted, their evidence is absolutely unworthy of credit. So when their evidence is discarded, there is nothing for the prosecution to establish that the appellants committed murder of deceased Abdul Kalam. He, therefore, urged that the appeal be allowed and the conviction and sentence passed against the appellants be set aside and the appellants be acquitted. 4.Shri Jichkar, learned Additional Public Prosecutor supported the judgment of conviction and sentence passed by the trial Court. He pointed out that the injuries which appellant Abdul Shahim sustained were of minor nature and nothing has been elicited that he sustained injuries in the course of the incident that took place. He placed reliance on decision of the Apex Court in (Takhaji Hiraji v. Thakere Kubersingh Chamansingh and others)1, reported in 2001(5) Bom.C.R. (S.C.)835, to substantiate the submissions that prosecution on failure to explain injuries sustained by accused, by itself not fatal to the prosecution case. He also placed relianced on decision of (Kashiram and others v. State of M.P.)2, reported in 2002(1) S.C.C. 71 , wherein again the Apex Court has laid down that non-explanation of the injuries sustained by the accused, by the prosecution, by itself, is not sufficient to discard the prosecution case outrightly. Learned A.P.P., further submitted that the contradictions and omissions brought out in the evidence of the witnesses are insignificant and there is no reason to discard the consistent version of the prosecution witnesses, who claimed to be the eye-witnesses to the incident, when their evidence, consistent and natural gains corroboration by the medical evidence. The learned A.P.P., pointed out that the presence of the victim as well as the appellants at the time and place when the incident took place and the fact that the victim sustained injuries has not been denied by the defence. The learned A.P.P., pointed out that the presence of the victim as well as the appellants at the time and place when the incident took place and the fact that the victim sustained injuries has not been denied by the defence. Therefore, mere non-explanation of the injuries sustained by the appellant Abdul Shahim, is not sufficient to outweight the consistent, cogent and truthful version of eye-witnesses as to the occurrence and assault on deceased Abdul Kalam by the appellants. He, therefore, urged that the appeal merits no consideration and as such the same should be dismissed. 5.Before we assess the prosecution evidence, particularly that of witnesses who claimed to be eye-witnesses to the incident, in the light of the criticisms made by the Counsel for the appellants, we would consider medical evidence, which, according to us, undisputedly establishes that the victim Abdul Kalam died homicidal death. Dr. Deshmukh (P.W. 8) performed autopsy on the dead body of Abdul Kalam. At the time of postmortem examination, he found following external injuries which he has mentioned in column No. 17 of the post-mortem report (Exhibit 56). (i) An incised wound on the right side of the chest in the epigastric region horizontally placed and it was of the size of 3 ½" x 1" x 4" cavity deep. (ii) An incised wound on the left infra axillary region 6" below axilla horizontally placed and was of the size of 1 ½" x ½" x 4 ½" cavity deep. (iii) An incised wound on the back below left infra scapular angle horizontally placed 1" x ½" x 4". 6.On internal examination, he found that the left lung punctured at the lower lobe laterally and the punctured injury was ¾" x ½" x 2". Both the chambers of the heart were found empty. On internal examination of the abdominal region, he found it distended slightly and there was blood in abdominal cavity. The liver was found punctured and the punctured wound of the liver was corresponding to external Injury No. 2. He found that both, the internal as well as external injuries, were ante mortem. The cause of death, in his opinion, was shock due to injuries to vital organs, namely, lungs and liver. The liver was found punctured and the punctured wound of the liver was corresponding to external Injury No. 2. He found that both, the internal as well as external injuries, were ante mortem. The cause of death, in his opinion, was shock due to injuries to vital organs, namely, lungs and liver. Since the injuries were ante mortem, the same can be definitely related to the time of occurrence and to the incident that has been narrated by the witnesses giving ocular account of the incident. The Medical Officer, Dr. Deshmukh has also categorically stated that the punctured wounds to liver and lung are responsible for causing death of the person and Injury No. 2 as described in column No. 17 of the post-mortem report (Exhibit 56), is also individually sufficient to cause death of the person. In his opinion, the said Injury No. 1 was possible because of a big size knife called Suri (Article 14) and injury Nos. 2 and 3 as described in column No. 17 of the postmortem report (Exhibit 56) are possible by means of knife (Article 16). His opinion was sought by the Investigating Officer and accordingly he has given his opinion in writing vide Exhibit 57 that the injuries found on the body of deceased are possible by means of these weapons. Therefore, this medical evidence clinchingly goes to show that the deceased Abdul Kalam succumbed to the injuries which came to be caused in the course of incident that took place when blows were inflicted with these weapons. 7.The fact that deceased Abdul Kalam sustained injuries at the time and place when the incident occurred is not disputed by the defence. We have stated so emphatically having regard to this suggestion to the prosecution witness Halima Bano (P.W. 2) by the defence. It was suggested to her by the defence in her cross-examination that her husband and her father-in-law, namely, Abdul Rashid armed with knife and dagger, went to assault accused Abdul Shahim and when accused Abdul Shahim caught hold her husband Abdul Kalam and tried to evade the blow, her husband Abdul Kalam accidentally suffered injury. It was further suggested that during the scuffle between her husband accused Abdul Shahim, her husband received an injury of the dagger that was in the hands of her father-in-law, Abdul Rashid. The witness Halima Bano has stoutly denied the suggestion. It was further suggested that during the scuffle between her husband accused Abdul Shahim, her husband received an injury of the dagger that was in the hands of her father-in-law, Abdul Rashid. The witness Halima Bano has stoutly denied the suggestion. However, in her examination-in-chief, she has categorically stated that accused Abdul Shahim and Abdul Rahman assaulted her husband with a knife and the dagger and due to that her husband suffered bleeding injuries. The import of the suggestions certainly goes to show that deceased Abdul Kalam sustained injuries at the time and place and that too, as a result of inflicting blows with the weapons namely the knife and the dagger. Therefore, it is in this context, we have said that the defence has not disputed the fact that deceased Abdul Kalam sustained injuries as a result of blows inflicted with the weapons in question. It is a matter of record that both the weapons have been referred to chemical analyser as when the weapons were seized the Investigating Officer found blood on them. It is further the matter of record that as per the report of chemical analyser, human blood was detected on these weapons. All these factors lay assurance to the medical evidence that the death of victim Abdul Kalam was on account of the injuries sustained by him at the time of the incident on account of assault on him with the weapons. 8.We now consider the ocular evidence of witnesses who claimed to have witnessed the incident. The witness Sheikh Akaram (P.W. 1) has stated that while he and witness Sheikh Mehboob (P.W. 3), were near the house of one Nazir, they saw that the appellant Abdul Shahim and deceased Abdul Kalam being engaged in exchange of words and accused Abdul Bashir arrived there and fell Abdul Kalam in the mud and dealt a blow with stick on his shoulder and at that time the appellant Abdul Shahim took out knife and dealt a blow with it in the abdomen of Abdul Kalam on right side and due to that Abdul Kalam fell down on the road side drainage and that time the appellant Abdul Rahman came there armed with a dagger and dealt a blow with it in the chest below left arm pit. He has stated that he tried to intervene and to rescue Abdul Kalam, but he was threatened. He has stated that he tried to intervene and to rescue Abdul Kalam, but he was threatened. This evidence of witness Sheikh Akaram remained undisturbed on material points though he was subjected to searching cross-examination by the defence. 9.The learned Counsel for the appellants pointed out that this is an evidence which according to him bring out infirmity in his testimony. But, having regard to the other evidence and the material brought to cross-examination of this witness, we do not find that the infirmities brought out in his evidence are sufficient to make his testimony doubtful. 10.Incidentlly, we also consider the evidence of witness Sheikh Mehboob (P.W. 3) who happened to be with witness Sheikh Akaram (P.W. 2) at the time when the incident took place. He has categorically stated in his evidence that the appellant Abdul Shahim and deceased Abdul Kalam were engaged in exchange of words and Abdul Bashir came there with a stick and dealt a blow with it on the shoulder of Abdul Kalam and Abdul Kalam fell in the mud then Abdul Shahim took out knife and dealt a blow with it and that time Sheikh Akaram rushed to hold Abdul Shahim, but he had released him forthwith as Abdul Shahim threatened to kill him and then Abdul Shahim caught hold Abdul Kalam, dealt a blow with knife on his chest below the arm pit and at that time Abdul Raham came there and dealt a blow with a big knife on the right side of chest of Abdul Kalam. This version of witness Sheikh Mehboob fully corroborates the version of witness Sheikh Akarm. As stated earlier, this witness also was subjected to test of cross-examination by the defence. But, his evidence remained undisturbed in spite of there being some omissions and contradictions brought in his evidence by the defence. After close scrutiny of his evidence, we have found that the omissions and contradictions which are brought out in his testimony are very insignificant and his evidence as a whole inspires confidence and lends corroboration to the evidence of witness Sheikh Akram. 11.Then we consider the evidence of witness Raksana Bano (P.W. 5). After close scrutiny of his evidence, we have found that the omissions and contradictions which are brought out in his testimony are very insignificant and his evidence as a whole inspires confidence and lends corroboration to the evidence of witness Sheikh Akram. 11.Then we consider the evidence of witness Raksana Bano (P.W. 5). This witness has stated that when she came out of her house and was standing by the side, she saw accused Abdul Bashir giving a blow with stick on the shoulder of Abdul Kalam because of which the latter fell down in the road side drainage and there was exchange of words with Abdul Shahim and then Abdul Shahim took out knife and assaulted Abdul Kalam. The witness has specifically stated that witness Sheikh Akaram who was there had caught hold accused Abdul Shahim so as to prevent him from further assaulting deceased Abdul Kalam, but he had to release appellant Abdul Shahim as the latter had threatened and then the appellant Abdul Shahim dealt a blow on the person of Abdul Kalam on the left side of the chest and appellant Rahman assaulted by means of big size of knife giving a blow in his abdomen. This witness was cross-examined by the defence. But, what we find that on material particulars evidence of this witness remained undisturbed. In fact, there was no cross-examination on material points so far as this witness is concerned. The presence of this witness at the place of occurrence was natural as the witness is residing in the same lane which fact has not be disputed by the defence. There is a reason to accept the evidence of this witness. Nothing has been brought in cross-examination of this witness as to the reason by this witness to give evidence against the appellant. Therefore, the evidence of this witness inspires confidence and this evidence corroborates the version of witnesses Sheikh Akram and Sheikh Mehboob. 12.Accepting the evidence of witnesses Sheikh Akram, Sheikh Mehboob and Raksana Bano, it is clinchingly established that the victim Abdul Kalam came to be assaulted by the appellants with the weapons they were armed with and Abdul Kalam suffered injuries of which he died. 13.Much has been made by the defence of the injuries found on the person of appellant Abdul Shahim. 13.Much has been made by the defence of the injuries found on the person of appellant Abdul Shahim. It is true that as per the injury certificate (Exhibit 88), the appellant Abdul Shahim has sustained two injuries as described in the certificate (Exhibit 88). The Injury No. 1 was an incised wound of 3 cm. x ½ cm. on left forearm ventrally lower ear oblique while the second injury was of two linear abrasion of 4 cm. in length on left mid forearm ventrally oblique. The defence has not brought in the evidence that appellant Abdul Shahim sustained these injuries at the time of the incident and that too, at the hands of either Abdul Rashid or deceased Abdul Kalam. At least no suggestions has been given by the defence to the prosecution witnesses, who claimed to be eye-witnesses to the incident except witness No. 1. The appellant Abdul Shahim himself did not go to the doctor nor made any report to the Police Sstation regarding assault on him and having sustained injuries in that assault. As the evidence of Investigating Officer P.S.I. Patil stands, appellant Abdul Shahim and his father Abdul Bashir met him on his way to village Ghatladki where he found that appellant Abdul Shahim was having injuries on his person and, therefore, he was referred to the Medical Officer for examination. It is also a matter of record that the appellant was examined at 7.30 p.m. on 1st of July, 1996, the day on which he was arrested. He was arrested at 5.00 p.m. on 1st July, 1996. There is nothing in the evidence at least solicited by the defence that either deceased Abdul Kalam or his father Abdul Rashid was armed with weapon. Therefore, it is very difficult to accept the submission of learned Counsel for the appellants that the appellant Abdul Shahim sustained injuries at the time of occurrence. That apart, the injuries which he sustained are ex facie, minor and superfluous. Therefore, non-explanation of the injuries by the prosecution on the person of appellant Abdul Shahim, is not fatal to the claim of prosecution witness regarding the incident of assault on victim Abdul Kalam by the appellants. 14.The Apex Court in Takhaji Hiraji v. Thakore Kubersing Chamansing and others (cited supra) has explained as to the effect of non-explanation of the injures sustained by the accused person. 14.The Apex Court in Takhaji Hiraji v. Thakore Kubersing Chamansing and others (cited supra) has explained as to the effect of non-explanation of the injures sustained by the accused person. The Apex Court has observed:- "It cannot be held as a matter of law or invariably a rule that whenever the accused sustained an injury in the same occurrence, the prosecution is obliged to explain the injury and on the failure of the prosecution to do so the prosecution case should be disbelieved. Before non-explanation of the injuries on the persons of the accused persons by the prosecution witnesses may affect the prosecution case, the Court has to be satisfied of the existence of two conditions: (i) that the injury on the person of the accused was of a serious nature; and (ii) that such injuries must have been caused at the time of the occurrence in question. Non-explanation of injuries assumes greater significance when the evidence consists of interested or partisan witnesses or where the defence gives a version which competes in probability with that of the prosecution. Where the evidence is clear, cogent and creditworthy and where the Court can distinguish the truth from falsehood the mere fact that the injuries on the side of the accused persons are not explained by the prosecution cannot be itself be a sole basis to reject the testimony of the prosecution witnesses and consequently the whole of the prosecution case." 15.In a later decision Kashiram and others v. State of M.P. (cited supra), the Apex Court has observed, referring to the earlier decision reported in Takhaji Hiraji v. Thakore Kubersing Chamansing reported in 2001(6) S.C.C. 145 , held that merely on the ground that the prosecution witnesses have not explained the injuries on the accused, the evidence of prosecution witnesses ought not to be rejected outrightly. It is also observed that the Court ought to make an effort at searching out the truth on the material available on record with a view to find out how much of the prosecution case was proved beyond reasonable doubt and was worthy of being accepted as truthful and the approach of rejecting prosecution case in its entirety for non-explanation of the injuries sustained by the accused persons, is erroneous. 16.Having regard to the above referred decisions of the Apex Court, the case before hand stands on better footing in the sense as observed earlier. 16.Having regard to the above referred decisions of the Apex Court, the case before hand stands on better footing in the sense as observed earlier. In the case before hand, it is not established that the accused Abdul Shahim sustained injuries in the course of incident and further the injuries he sustained are found to be minor and superfluous. Therefore, non-explanation of the injuries on his person by the prosecution does not at all render the prosecution case unworthy of credit. It is on the other hand, the prosecution evidence and particularly of the witness Sheikh Akram, Sheikh Mehboob and Raksana Bano is cogent, consistent and inspiring confidence. In addition to that medical evidence lends assurance to the ocular testimony of these witnesses to establish beyond shadow of doubt that the appellants Abdul Shahim and Abdul Rahman have assaulted victim Abdul Kalam with the weapons at the time and place and as a result of the injuries sustained by him in that assault, he has died. Therefore, in our assessment, the prosecution has clinchingly established that the appellants have committed murder of Abdul Kalam. The trial Court has rightly appreciated the evidence and come to the conclusion that the appellants were the persons, who committed the murder of Abdul Kalam. 17.In the result, we do not find any merit and substance in this appeal. The appeal is dismissed. Appeal dismissed. -----