JUDGMENT - PATEL J.N., J.:---By this appeal, the appellants have challenged the judgment and order dated 5-8-1997 passed by the Additional Sessions Judge, Greater Mumbai in Sessions Case No. 625/1994, under which the appellants (original accused Nos. 1 to 3) came to be convicted for having committed offence punishable under section 302 r.w. 34 of I.P.C. and they were sentenced to suffer imprisonment for life. These appellants-accused were tried alongwith one Mangesh Dharmaji Koli (original accused No. 4) and they were also charged for having committed offences under sections 120-B, 506 r.w. 34 of I.P.C.. The learned Trial Court found that the prosecution has failed to prove its case against Mangesh Koli (original accused No. 4) and acquitted him of all charges, as a result the appellants accused also came to be acquitted of the offences punishable under section 120-B, 506 r/w. 34 of I.P.C.. 2. In nutshell, it is the prosecution case that the appellants-accused alongwith Mangesh conspired to commit murder of one Vasant Umbare who was in love with Parvati Mudliyar, the aunt of Mangesh (mother's sister) who wanted to marry him. This was strongly opposed by Mangesh. There was an attempt on the part of family members of Vasant Umbare and that of Parvati Mudliyar for reconciliation so that the marriage could be performed as they were in love each other since last few years but it failed. The parties at the relevant time were residing at hutment area popularly known as Sundarnagri. Colobawadi near Lala Nigam Road, Colaba, Mumbai. 3. According to the prosecution, on the day of the incident i.e. on 24-11-1993 between 7.20 a.m. to 7.45 a.m. the victim Vasant Tukaram Umbare was assaulted in front of Ashok Tailoring Shop by the appellants accused who were armed with sharp edged weapons because of which he suffered multiple injuries which were severely bleeding and the victim fell down in the shop of Ashok Tailoring shop. The attention of the witness Suresh Dhakne (P.W. 3), was drawn to the incident as one young girl Gayatri, daughter of Bhagwan who was playing on the road noticed the assault and raised alarm by shouting that Vasant was being assaulted. The attention of the witness Suresh Dhakne (P.W. 3), was drawn to the incident as one young girl Gayatri, daughter of Bhagwan who was playing on the road noticed the assault and raised alarm by shouting that Vasant was being assaulted. When Suresh Dhakne came out of the hut on hearing shouts he saw the appellants accused armed with sharp edged weapons like gupti, knife and chopper stained with blood and they ran away from the place of incident by calling Mangesh to run away from the spot as the work is completed and that is how all the assailants alongwith Mangesh ran away from the spot. Suresh Dhakne (P.W. 3) alongwith Bhagwan Mudliyar rushed to the Colaba Police Station where they informed the police about the assault on Vasant Umbare. Pursuant to which, the police wireless mobile van reached the spot and the injured was lifted and was taken in the police van to St. George Hospital where he was declared dead. P.S.I. Shambahadur Singh lodged First Information Report. On the basis of his report Colaba Police Station registered Crime No. 406/96 against unknown persons for having committed murder of Vasant Tukaram Umbare for having committed offence under section 302 r.w. 34 of I.P.C.. 4. It is the case of the prosecution that the police returned to the spot of occurrence and made enquiries and came to know the name of the deceased as Vasant Tukaram Umbare who has been assaulted by unknown persons. During the course of investigation the police has recorded the statements of witnesses, prepared spot panchanama and inquest panchanama of the deceased, recovered the alleged deadly weapons which were used for assaulting victim and seized the articles from the spot and sent to Chemical Analyzer. Dead body of the victim was sent for post-mortem. On completion of the investigation, the charge-sheet came to be filed in the Court of Metropolitan Magistrate who committed the case to the Court of Sessions for trial. 5. After conclusion of trial, the trial Court found that the prosecution has proved his case against the appellants (original accused Nos. 1 to 3) and convicted and sentenced them to suffer imprisonment for life. 6. Mr. Ponda, the learned Counsel appearing for the appellants accused submitted that this is a case which is based on the sole testimony of P.W. 3 Suresh Dhakne. Mr. 1 to 3) and convicted and sentenced them to suffer imprisonment for life. 6. Mr. Ponda, the learned Counsel appearing for the appellants accused submitted that this is a case which is based on the sole testimony of P.W. 3 Suresh Dhakne. Mr. Ponda submitted that this Court will have to assess the evidence of the sole eye-witness in the backdrop that the eye-witness is an interested witness being a near relative of the victim i.e. the cousin of victim. Mr. Ponda submitted that the evidence of this witness suffers from many infirmities which rather points out that this witness was never present on the scene of offence. Mr. Ponda submitted that even if it is accepted that he was the person who was present at the scene of the offence, who has seen the actual incident of assault or even the assailants, then there was no reason for him not to disclose the names of the assailants to Taibai (P.W. 1) grand mother and Daubai (P.W. 2) aunt of witness. 7. Mr. Ponda submitted that this fact is evident from the F.I.R. (Exh. 26) that the assailants of Vasant Umbare were unknown persons. It is submitted that the F.I.R. (Exh. 26) which is brought on record by examining the I.O. clearly goes to show that neither Bhagwan Mudliyar nor Suresh Dhakne (P.W. 3) who according to the prosecution, have witnessed the incident, did not disclose the names of the assailants to P.S.I. Singh who is the complainant in the case and who got the information from Bhagwan Mudliyar. 8. Mr. Ponda submitted that the prosecution has not brought on record the best evidence in the case namely the prosecution failed to examine Gayatri the daughter of Bhagwan Mudliyar, who according to them, had actually witnessed the assault and raised the alarm. Similarly the prosecution failed to examine Bhagwan, the father of Gayatri who is supposed to have gone to Colaba Police Station and informed P.S.I. Singh that the victim has been assaulted by unknown persons as can be seen from the F.I.R. (Exh. 26). 9. Mr. Ponda submitted that Suresh Dhakne (P.W. 3) is a planted witness which also stands established from the fact that his grand mother Taibai (P.W. 1) and Deubai (P.W. 2) do not speak about the presence of Suresh at the scene of offence. 26). 9. Mr. Ponda submitted that Suresh Dhakne (P.W. 3) is a planted witness which also stands established from the fact that his grand mother Taibai (P.W. 1) and Deubai (P.W. 2) do not speak about the presence of Suresh at the scene of offence. Further Suresh did not accompany Bhagwan to Police Station otherwise there was no reason that Bhagwan would have not referred his name in the information given to P.S.I. Singh and P.S.I. Singh also does not refer about Suresh coming alongwith Bhagwan to inform about the incident in his F.I.R. (Exh. 26). It is submitted that Suresh came to the scene of occurrence at a very late stage when the victim was already removed to hospital and therefore, in these facts and circumstances, uncorroborated testimony of the sole witness, has to be discarded. 10. In support of this contention Mr. Ponda has placed reliance on the decision of the Supreme Court rendered in the case of (Ram Pukar Thakur others v. The State of Bihar)1, reported in 1974 Cri.L.J. 335, wherein the Supreme Court has observed that if the prosecution case is based on the evidence of one and only eye-witness and the evidence of only eye-witness suffers from various infirmities and his conduct is not trustworthy, it would be most unsafe to rely on the evidence of such witness in order to arrive at a conclusion. Mr. Ponda has also referred to another case decided by the Supreme Court i.e. (Bhim Singh Rup Singh v. The State of Maharashtra)2, A.I.R. 1974 S.C. 286 in which the evidence of the eye-witness was disbelieved because the prosecution failed to establish that his statement was recorded without any delay. 11. Mr. Ponda has also assailed the evidence of sole eye-witness by referring to the case of (Babuli v. The State of Orissa)3, reported in 1974 Cri.L.J. 510 in which it was held that the witness does not disclose the names of the assailants for about 20 hours. His testimony was held to be not reliable. It is submitted that in case Suresh Dhakne (P.W. 3) had actually seen the incident, there was no reason that he would have not disclosed it to P.W. 1 and P.W. 2. His testimony was held to be not reliable. It is submitted that in case Suresh Dhakne (P.W. 3) had actually seen the incident, there was no reason that he would have not disclosed it to P.W. 1 and P.W. 2. Even leaving aside the fact that he did not report the matter to police, it is submitted that this witness was merely examined by the prosecution in order to implicate the accused persons. 12. Mr. Ponda has also made reference to the two decisions of this Court i.e. in the case of (Ashraff Hussain Shah v. The State of Maharashtra)4, reported in 1996 Cri.L.J. 3147 and in the case of (Jaysing @ Gangawa Mesraj Kharariya another v. The State of Maharashtra)5, reported in 1999(5) Bom.C.R. 322 in order to substantiate his contention as regards the conduct of eye-witness. The evidence if found most unnatural and improbable, then according to Mr. Ponda, it would be most unsafe to rely upon the sole testimony of Suresh (P.W. 3). 13. According to Mr. Ponda as the prosecution case rests on the sole testimony of Suresh (P.W. 3) and his conduct clearly goes to show that it is not trustworthy, it would be most unsafe to come to the conclusion that the appellants are the assailants merely on the basis of his evidence. It is submitted that except this witness, no other witness has been examined by the prosecution to prove their case. Mr. Ponda submitted that by examining Yousuf Abbas Ali Shaikh (P.W. 7) and Dahi Ratan Abib Ahmed (P.W. 9) the persons who have identified the appellant accused No. 1 and Mangesh, does not further the prosecution's case. Mr. Ponda has submitted that the trial Court did not find the evidence of Suresh (P.W. 3), P.W. 7 and P.W. 9 sufficient enough to find the original accused Mangesh guilty and therefore, evidence of these witnesses should not have been relied upon to arrive at a conclusion that the appellants are guilty of having committed offence of murder. 14. Mr. Ponda has submitted that in so far as the P.W. 1 and P.W. 2 are concerned, their evidence also does not support the prosecution case as they are not eye-witnesses nor they have deposed that Suresh (P.W. 3) has disclosed the names of the assailants to them. 15. Mr. 14. Mr. Ponda has submitted that in so far as the P.W. 1 and P.W. 2 are concerned, their evidence also does not support the prosecution case as they are not eye-witnesses nor they have deposed that Suresh (P.W. 3) has disclosed the names of the assailants to them. 15. Mr. Ponda has further submitted that the appellants did not dispute the cause of death of the deceased and the fact that he died due to multiple stab injuries, has not been challenged. Dr. A.G. Shinde who has been examined by the prosecution to show that deceased died homicidal death, has not been crossed examined at all. 16. Mr. Ponda has submitted that though the prosecution has proved that the deceased died homicidal death, they have failed to establish that appellants-accused caused the multiple injuries which resulted in death of deceased. 17. Mr. Ponda has also tried to canvass before us that the prosecution has tried to implicate the appellant-accused including Mangesh who was acquitted by the trial Court, because of strained relations between the family of Mangesh on the one hand and that of Taibai and Deubai on the other on account of love affair between the deceased and Parvati, which was not liked by Mangesh and he opposed their marriage and that this cannot be a sufficient motive to cause death of victim as there is no evidence brought on record that inspite of failure of the meeting between these two families to solemnize the marriage of deceased and Parvati, they were going to be married. 18. Mr. Ponda has also assailed the prosecution case on the ground that the prosecution has not brought before the Court the best evidence which was available to them in not examining Gayatri and Bhagwan and P.S.I. Singh who lodged the F.I.R. and therefore, necessary adverse inference should be drawn against the prosecution and the benefit should go to the appellants-accused. Mr. Ponda has also assailed the prosecution case on the ground that the prosecution has not brought before the Court the best evidence which was available to them in not examining Gayatri and Bhagwan and P.S.I. Singh who lodged the F.I.R. and therefore, necessary adverse inference should be drawn against the prosecution and the benefit should go to the appellants-accused. It is further submitted that in case these witnesses were examined by the prosecution, they would not have supported their case on the aspect of recovery of weapons at the instance of original accused No. 4 Mangesh and further the evidence led by the prosecution also did not establish that the blood stains were found on the various articles seized during the course of investigation which caused death of the deceased, therefore, it is submitted that the evidence led by the prosecution suffers from infirmities and therefore, the appellants- accused deserves to be set at liberty. 19. Smt. Kejriwal the learned A.P.P. submitted that the prosecution has examined all necessary witnesses in support of their case and proved the case against the appellants-accused beyond reasonable doubt. It is submitted that the appellants cannot take benefit of the prosecution for not examining some of the eye-witnesses unless they are able to show that it will cause prejudice to their case. On the other hand the learned A.P.P. points out that Bhagwan is maternal uncle of the accused Mangesh and Gayatri, was his cousin and in all eventuality they would have not supported the prosecution. Therefore, the prosecution was justified in not examining them. In so far as P.S.I. Singh is concerned, it is submitted that the P.S.I. Singh was not available and the prosecution case cannot be vitiated for their non-examination. The learned A.P.P. further submitted that the prosecution by examinating Suresh (P.W. 3) has established that the appellants are the persons who are the real assailants. It is submitted that the incident has occurred in the morning period when all these assailants were present at the scene of the offence which is spoken of by eye-witnesses. The learned A.P.P. further submitted that the prosecution by examinating Suresh (P.W. 3) has established that the appellants are the persons who are the real assailants. It is submitted that the incident has occurred in the morning period when all these assailants were present at the scene of the offence which is spoken of by eye-witnesses. It is further submitted that though eye-witness has not seen the appellants accused actually assaulting the deceased but he came out of his hut on hearing shouts of Gayatri that Vasant was being assaulted and when he appeared on the scene of occurrence the witness says that all the three assailants were armed with deadly weapons standing near the victim who was lying on the ground and he saw them running away. It is further submitted that this is enough to establish that the appellants-accused are responsible for causing multiple stab injuries to the victim Vasant, because of which he fell down and died before he could be rushed to the hospital. 20. The learned A.P.P. has placed reliance on the decision in the case of (Anil Kumar v. The State of Uttar Pradesh)6, reported in 2003(3) S.C.C. 569 in order to counter the statement made by Mr. Ponda that the prosecution has not examined P.S.I. Singh and therefore, adverse inference should be drawn. According to her, in Anil Kumar's case the Supreme Court clearly observed that non-examination of the scribe of the F.I.R. or for that reason if the appellant was not named in the F.I.R. and that if the scribe of F.I.R. who knew the complainant P.W. 1 as well as the appellant, would have been examined by the prosecution, then the appellant would have to prove that he was not present at the time of the incident and since the said scribe was not an eye-witness to the incident and as the prosecution witnesses could not have named the appellant in the F.I.R. as they did not know him prior to the incident, held, on facts, no prejudice is caused to the appellant and no adverse inference could be drawn against the prosecution due to the non-examination of the said scribe. We may observe here that the facts of Anil Kumar's case on which reliance is placed by the learned A.P.P. are totally different from the facts of the case at hand and, therefore, this decision does not help the learned A.P.P. in any manner. 22. Another authority on which reliance has been placed by the learned A.P.P. is a decision of the Supreme Court rendered in the case of (S. Kaur (Smt.) v. Baldev Singh others)7, reported in 1997(11) S.C.C. 292 in which it was held that in case under section 302 r.w. 34 of I.P.C. when the statement related only to the incident of the actual attack by the assailants of the deceased and not to the eye-witnesses thereto, omission in the statement of one of the two eye-witnesses to mention the name of the other as an eye-witness, held, did not amount to contradiction. Even otherwise, such omission could not justify an inference of absence of the other witness. In view of the evidence of eye-witnesses, corroborating each other and also corroborated by promptly lodging F.I.R. and medical evidence, acquittal was set aside and the accused was convicted under section 302 read with section 34 of I.P.C. This authority has been specially cited by the learned A.P.P. to show that it is not necessary that the presence of Suresh (P.W. 3) who is an eye-witness, was required to be stated by other witnesses examined by the prosecution or that Suresh ought to have disclosed them the names of the assailants, particularly when the statement of Suresh has been immediately recorded on the very same day and he has disclosed this fact to the police. 23. The learned A.P.P. has submitted that the evidence of Suresh (P.W. 3) stands corroborated by the medical evidence and other corroborative evidence on record like the spot panchanama, recovery of weapons of assault and its identification by the witnesses from whom the weapons were purchased and got sharpened which shows that the assault was pre-planned. 24. It is submitted by the learned A.P.P. that the appellants have not disputed the fact that Suresh (P.W. 3) was not knowing them. 24. It is submitted by the learned A.P.P. that the appellants have not disputed the fact that Suresh (P.W. 3) was not knowing them. On the other hand this witness has been himself brought up in the same locality and the appellants-accused were well-known to him and he was acquainted with them and, therefore, merely because the witness did not see the actual assault, he cannot be disbelieved on this ground. 25. The learned A.P.P. fairly stated before us that there was no reason why the police did not record the F.I.R. lodged by either Bhagwan or Suresh. As according to the prosecution these two persons have gone to the Police Station to fetch the wireless van so that the injured can be removed to the hospital but P.S.I. Singh took up to himself the responsibility to lodge the report and that too against unknown persons. 26. The learned A.P.P. also brought to our notice that during the pendency of this appeal the appellant-accused No. 1 who was on bail has committed two similar offences of causing grievous hurt and murder within the jurisdiction of L.T. Marg Police Station which are pending for trial. Out of those, in a case for the offence under section 326 I.P.C. he has been acquitted and other case under section 302 r.w. 34 of I.P.C. is pending for trial. 27. Mr. Ponda, the learned Counsel for the applicant strongly objects this statement made by the learned A.P.P. that it is made to prejudice this Court. But the fact cannot be disputed that the appellant-accused No. 1 has abused the bail granted to him and this Court has cancelled his bail. We make it clear that this does not, in any manner, affect consideration of the appeal which is solely on the basis of evidence led by the prosecution in the matter. 28. Smt. Kejriwal, the learned A.P.P. also brought to our notice another fact that the original accused No. 4 Mangesh who was acquitted by the trial Court has been killed in encounter as he had a notorious criminal record and the State has not preferred any appeal against his acquittal and therefore, that by itself does not help the prosecution which has preferred not to file an appeal against his acquittal by the trial Court. The only point arises for our determination is as to whether the prosecution has proved that the appellants have caused multiple stab injuries to Vasant Umbare who died homicidal death. 29. In order to prove their case the prosecution has examined eleven witnesses Taibai (P.W. 1) and Deubai (P.W. 2) on the point of motive who have narrated the incident in their evidence and in the backdrop of the facts which led to the murder of Vasant Umbare. The star witness of the prosecution is Suresh Dhakne (P.W. 3) who is a grand son of Taibai (P.W. 1) and nephew of Deubai (P.W. 2) and two other eye-witnesses i.e. Ashok Tappu Bhai Waghela (P.W. 5) and Prakash Ramchandra Londhe (P.W. 6) have not supported the prosecution. The evidence of the plan maker is not much in dispute and so also of the panch of the spot panchanama Exh. 23. There is no controversy that the victim was assaulted and he was found lying on the spot in a pool of blood and the spot panchanama is at Exh. 23. There is recovery of deadly weapons at the instance of original accused No. 4 Mangesh who has been acquitted in the case, which has been proved by the prosecution by examining Jalinder Krishna Ramane (P.W. 11). In the course of investigation, the police was able to trace out Yusuf Abbas Ali Shaikh (P.W. 7) from whom the weapons were alleged to be purchased and one Dahi Ratan Abib Ahmed (P.W. 9) to whom they were taken for sharpening by the appellant No. 1 and Mangesh. The other important witness is Dr. Ashok Gangaram Shinde (P.W. 8) who conducted the autopsy on the dead body and submitted post-mortem report at Exh. 18. In addition to these witnesses the police has examined Rashid Khan Servarkhan Pathan (P.W. 10), A.P.I. who investigated the case and so also one more Police Officer who was instrumental in lodging the F.I.R. Exh. 26 on the complaint of P.S.I. Singh and P.W. 11. 30. The case of the appellants-accused before the trial Court was that they are not guilty and have been falsely implicated. Let us first examine the evidence of sole eye-witness examined by the prosecution i.e. Suresh Dhakne (P.W. 3) who gave evidence that the deceased Vasant Umbare the son of his mother's sister was residing in Colaba with his mother and grand mother. Let us first examine the evidence of sole eye-witness examined by the prosecution i.e. Suresh Dhakne (P.W. 3) who gave evidence that the deceased Vasant Umbare the son of his mother's sister was residing in Colaba with his mother and grand mother. Taibai (P.W. 1) is the grandmother and Deubai (P.W. 2) is the mother of the deceased Vasant. He was residing in the house of Taibai in Mumbai till 1976. He was intermittently coming to Mumbai. The house of accused No. 4 Mangesh is just opposite the house of Taibai and Deubai. One Parvati Mudliyar is the mother's sister of accused No. 4 Mangesh. The deceased Vasant was in love with Parvati for about four years prior to the incident. The accused Mangesh and his parents did not like the relationship between Vasant and Parvati. According to this witness, on 23-11-1993 he came to Bombay from Nasik on the invitation of deceased Vasant as he was to marry within eight days and therefore, he came to Mumbai and was residing with Taibai (P.W. 1) where he met deceased Vasant, Taibai and Deubai. According to him, the deceased Vasant used to regularly sleep near Saibaba Temple which was near their house. On the relevant day i.e. on 23-11-1993 at 10.00 p.m. the deceased took the meals and thereafter went to sleep near Saibaba Temple. At about 5.20 a.m. on 24-11-1993 this witness got up and came out of the house and sat near the Ashok Tailoring shop which is next to the house of deceased Vasant. At that time Taibai (P.W. 1) was also sitting with him and Deubai had already left the house for Byculla. Taibai (P.W. 1) told him that she was going to wake up deceased Vasant and after waking deceased Vasant. Taibai (P.W. 1) went inside the house. He has further deposed that he knew the person by name Yalamala @ Kalia Naidu and he has identified in the Court that he is the same person accused No. 1 before the Court. According to him, on the date of the incident the accused No. 1 was near the onion and potato shop. He has stated about Prakash Tea Shop which is infront of the house of the deceased Vasant. He has further stated that he also knew the accused No. 2 Ganesh and accused No. 3 Vitthal and he has identified them before the Court. He has stated about Prakash Tea Shop which is infront of the house of the deceased Vasant. He has further stated that he also knew the accused No. 2 Ganesh and accused No. 3 Vitthal and he has identified them before the Court. He further deposed that these two accused were also standing near Tea shop at the time of incident. There was police mobile wireless van in front of the Tea Stall and after taking tea, the police sat in the van and went to the Police Station. At that time this witness noticed that the accused No. 1 Kaliya was playing with Potato and was hitting the potato and was saying that he had scored a goal and the accused Nos. 2 and 3 were sitting on the desk near the tea shop. This witness has further stated that at that time Taibai (P.W. 1) who was running a fruit stall within about 100 ft. away from her house, asked the witness that he should go to house and close the door of the house. Accordingly he went inside the house and closed the door. Suddenly he heard shouts from Gayatri "Bap Re Bap Re Vasant Bhau La marle Suresh Bhau Tumhi Baher Ya". According to this witness. Gayatri is daughter of Bhagwan Mudliyar. This witness came out of the house and saw all the three persons by the side of deceased Vasant. According to him, all these three persons had already assaulted the deceased and they were on their way to make their escape good. All three of them were armed with the weapons. The weapons were sharp edged like gupti, knife or chopper. All the weapons were stained with blood. This witness saw the accused No. 1 Kaliya inflicting the last blow by such weapon on the deceased. While the accused No. 1 Kaliya was running away, he also threatened that he would also assault him and ran from the spot. All the three persons while they were running away, out of them, the accused No. 1 was saying that Mangesh should run away from the spot as the work is completed and that all of them ran away from the spot. By this time, he saw deceased Vasant was lying in a pool of blood. There were number of injuries on his person and the injuries were profusely bleeding. By this time, he saw deceased Vasant was lying in a pool of blood. There were number of injuries on his person and the injuries were profusely bleeding. He was giving calls to the deceased Vasant but he was not responding. This witness has further stated that on hearing the calls given by Gayatri, her father Bhagwan had also come out of his house, and on seeing the condition of the deceased he became very much upset. He was unable to speak. Bhagwan requested this witness to contact the police and to bring the wireless mobile van. Accordingly, he left the spot and Bhagwan also followed him. After some time, he came to the spot in the police wire-less van. The deceased was lifted and was put in the van. He was removed to St. George Hospital. He followed that van by a taxi. Before the deceased could be admitted in the hospital, the doctors had declared him dead. This witness has also deposed to the fact that he knows the appellants accused Nos. 1, 2 and 3 as they were frequently coming to the house of Bhagwan Mudliyar. The accused No. 4 Mangesh and accused Nos. 1, 2 and 3 have good relations and they often used to remain together. Investigating Officer had recorded his statement. The witness was cross examined at length by the defence and brought one omission to the fact that he has not stated to the I.O. that the last blow was inflicted by the accused on the deceased. No material could be brought on record to say that the presence of the witness on the scene of occurrence is doubtful and he has given false evidence. Initially in the course of examination an attempt was made to record his evidence by trying to put up some contradictions by confronting him with his police statement which is in the nature that he fell down in order to escape from the assault of accused No. 1 Kaliya at that time for the first time he came to know that the deceased Vasant was lying in a pool of blood and that he was not in a position to understand what was happening when he fell down in the shop of Ashok Tailoring. But we do not find that this, in any manner, discredit the witness on the point that he was not present on the scene of offence though in his cross-examination, he was emphatic on the point that he had gone to the Police Station with a view to lodge a complaint against the accused. He took three to four minutes for bringing the police van. He saw that the said van was parked by the side of Colaba Police Station. He saw a driver, and the police constables in that van. He has stated that he wanted to take the wireless van for removing the deceased to the hospital. That time he wanted to lodge a complaint against the accused. At this stage the defence has tried to suggest that till that time he did not tell the police personnel present in the van but the persons of police came to spot immediately and saw that the Vasant was seriously injured. At that time, the police enquired with him where the deceased was lying. The police did enquire with him as to how the deceased had sustained the injuries. That time he had informed the police that accused Nos. 1, 2 and 3 had caused those injuries by sword, gupti and chopper. He again told that, at that time, he had told the police that Vasant was cut and he did not tell the names of the accused persons. 31. The learned Counsel appearing for the appellants-accused, has tried to make a capital out of this admission given by the witness in order to demonstrate that he is an eye-witness to the incident though he has not seen the manner in which Vasant was cut or seriously injured as stated above. Otherwise there was no reason for him for not disclosing the names of the appellants to the police until the police enquired about this fact. In the later part of the cross-examination, he did not state that the complaint was recorded on the spot immediately after the incident. He has also deposed that he had been to the hospital and returned back to the spot within about half an hour. He went by taxi and came back by taxi. He met Bhagwan Mudliyar in the hospital. The other witnesses and people from locality came to know that Vasant had expired only after he returned back to the spot. He has also deposed that he had been to the hospital and returned back to the spot within about half an hour. He went by taxi and came back by taxi. He met Bhagwan Mudliyar in the hospital. The other witnesses and people from locality came to know that Vasant had expired only after he returned back to the spot. Taibai (P.W. 1) was present at the spot when the incident occurred. In his further cross-examination, this witness was questioned as to whether he had informed P.W. 1 and P.W. 2 that he had seen the accused Nos. 1, 2 and 3 assaulting the deceased and he has stated that he has informed P.W. 1 and P.W. 2 that he had seen the accused Nos. 1, 2 and 3. He has deposed to the fact that the panchanama of the place of the incident was drawn and thereafter the statements were recorded. 32. The facts which emerges from the evidence of this witness is that at the time of incident this witness was very much present in the house of Taibai (P.W. 1). Before the incident occurred, he was sitting outside and had seen the appellants-accused at the scene of offence i.e. the appellant-accused No. 1 Kaliya in the shop of onion and potato and two others sitting on the desk of Ashok Tailoring shop. He also mentions about the presence of police in the tea stall at the relevant time as they were standing there. This fact is not disputed by the appellants-accused as they were also residing in the same locality and when the witness speaks of their presence at the scene of offence before the incident there is no reason to disbelieve not only this but even Mangesh was the neighbour, who was present there. It is only after Taibai (P.W. 1) woke up Vasant, left the house and asked to him close the door that he went inside. This witness comes out from the hut on hearing the shouts of Gayatri and that he saw that the appellants-accused were standing near Vasant armed with sharp edged weapons like Gupti, knife and chopper with blood stains and Vasant was lying in an injured condition. The only omission which this witness made, was that he saw the appellant-accused No. 1 Kaliya giving the last blow before running away but this by itself, does not make his testimony unworthy. The only omission which this witness made, was that he saw the appellant-accused No. 1 Kaliya giving the last blow before running away but this by itself, does not make his testimony unworthy. It may be that the witness might have improved a bit due to passage of time. But he has not been contradicted to say that he has not seen the appellants-accused standing near the victim who was lying in injured condition, armed with deadly weapons stained with blood and then running away from the spot. There is nothing brought on record to say that this witness would falsely implicate these appellants accused as his presence cannot be disputed at the scene of occurrence both before and immediately after the incident. 33. The learned Counsel for the appellants has tried to canvass before us that the conduct of this witness being un-natural, he cannot be considered as reliable and trustworthy, as in the deposition the witness speaks about his presence at the scene of offence but does not speak that in his presence the incident took place. Further there is nothing on record to show that this witness has gone to the police to lodge a report or to fetch the police wireless van. This is in reference to F.I.R. (Exh. 26) which has been proved by examining the I.O. i.e. Rashid Khan Pathan (P.W. 10) who in his evidence before the Court has stated that at about 8.00 a.m. he had received the message from St. George hospital that an injured person was brought to that hospital. On receipt of that message he alongwith the staff rushed to the hospital. Before leaving the Police Station an entry was made in the station diary. He enacted P.S.I. Singh who was then on the mobile van of Colaba Police Station. He came to know that the said injured had expired before he was admitted in the hospital and that his dead body was kept in the hospital. He had then recorded the statement of Shri Singh which is treated as F.I.R., which has placed before the Court at Exh. 21. Mr. Ponda categorically pointed out that in the F.I.R. it is clearly mentioned in the column of the name and address of the accused, if any as unknown. Further the F.I.R. has been proved and taken on record as Exh. 26. 21. Mr. Ponda categorically pointed out that in the F.I.R. it is clearly mentioned in the column of the name and address of the accused, if any as unknown. Further the F.I.R. has been proved and taken on record as Exh. 26. It can be read for the purpose of corroboration and the F.I.R. in this case, which is lodged by P.S.I. Singh, does not refer to Suresh (P.W. 3) at all. On the other hand P.S.I. Singh in his report which has been treated as F.I.R., has stated that on 24-11-1993 at about 7.20 to 7.45 hours, they were patrolling in mobile van and when they came near the Colaba wadi Police Chowki, one person by name Bhagwan came to them and informed that at Lala Nigam Road in Ashok Tailoring Shop one person is lying in an injured condition. On receiving this information they immediately rushed to the place and saw that one person was lying in a pool of blood in an injured condition. It cannot be overlooked that Suresh (P.W. 3) has deposed in his evidence before the Court that it was Bhagwan who told him to fetch the police van and that Bhagwan also accompanied him. It appears that P.S.I. Singh has not taken cognizance of Suresh at all as the name of Suresh does not find place in the F.I.R.. 34. Mr. Ponda, the learned Counsel for the appellants-accused submitted that the prosecution has failed to examine the P.S.I. Singh and thereby deprived the appellants accused all the opportunities to bring on record that P.W. 3 Suresh never went to the Police Station to fetch the police wireless mobile van. There is no reason why the F.I.R. (Exh. 26) should not be taken into consideration to show that it does not corroborate the eye-witnesses on material particulars i.e. that this witness never went towards Police Station to fetch the wireless mobile van alongwith Bhagwan. Further, even Bhagwan is not examined to corroborate this witness and this is enough to discard the evidence of Suresh (P.W. 3). We would like to mention at this stage that we propose to deal with the conduct of P.S.I. Singh and the investigating machinery after we arrive at finding whether the trial Court was right in holding the appellants accused are guilty or not. We would like to mention at this stage that we propose to deal with the conduct of P.S.I. Singh and the investigating machinery after we arrive at finding whether the trial Court was right in holding the appellants accused are guilty or not. For the reasons we will have to refer to the charge-sheet in the matter so as to reconcile all these irregularities or what we mean to say the manner in which the investigation in the case has been done by the police and particularly P.S.I. Singh. Merely because the police ignores the presence of Suresh it cannot be said that he was not present at the scene of offence at all. One cannot comprehend that the witnesses could have dictated to the police that his name should be recorded in the F.I.R.. It is rather surprising that when P.S.I. Singh was informed of having noticed the incident which was a cognizable offence he does not treat that as an F.I.R. though the report might have been lodged by Bhagwan or Suresh and this is doubtful and appears that F.I.R. was tampered at the very inception and so cannot be a reason to disbelieve Suresh in the matter. 35. Now we come to the evidence of Taibai (P.W. 1) and Deubai (P.W. 2). These two witnesses are mainly examined by the prosecution only to bring on record the motive which led to murder of Vasant. Both these witnesses in their evidence have stated about the love affair between Vasant and Parvati aunt of Mangesh and that Mangesh was unwilling to give Parvati in marriage to Vasant and there was a meeting between two families but Mangesh did not approve of the same and had threatened Vasant with serious consequences i.e. to the extent that he would kill him. This shows that there was a move on the part of deceased Vasant to get married to Parvati which was objected by original accused No. 4 Mangesh and thus Vasant had invited Suresh (P.W. 3) to Mumbai for the said purpose but since the talks had failed, the marriage could not be solemnised. Mr. This shows that there was a move on the part of deceased Vasant to get married to Parvati which was objected by original accused No. 4 Mangesh and thus Vasant had invited Suresh (P.W. 3) to Mumbai for the said purpose but since the talks had failed, the marriage could not be solemnised. Mr. Ponda has submitted that though in cross-examination Suresh speaks of the fact that he has disclosed who were the assailants to Taibai (P.W. 1) and Deubai (P.W. 2) and they did not depose about it before the Court nor they speak about the presence of Suresh at the spot when Mangesh had assaulted. In our opinion, this also does not make evidence of Suresh unreliable. These two witnesses P.W. 1 and P.W. 2 have been examined only to the extent of proving the cause which resulted into brutal murder of Vasant by appellant Nos. 1, 2 and 3. What we find is that these two ladies are not witnesses to the incident but had arrived at the scene of offence only after it took place and when the assailants ran away. It is not expected that the witnesses will mark the presence of each other at the scene of offence it may be so in case of eye-witnesses. In a given case, it can be expected of all of them to say that they were present when the incident occurred, in the facts of the case it was not expected of Taibai and Deubai to say that Suresh was present when the incident took place and that he saw the appellants-accused at the scene of offence. No such corroboration is required in the given facts and circumstances in which the incident has occurred. Therefore, it cannot be said that Suresh has falsely implicated the appellants-accused. We find that the statement of Suresh came to be recorded by the Investigating Officer on the same day after he returned from the hospital and prepared a spot panchanama as deposed and, therefore, it cannot be said that Suresh is not a eye-witness to the incident. The question is as to what extent, evidence of Suresh (P.W. 3) who is the sole eye-witness in the case can be accepted to arrive at conclusion that the appellants accused are the assailants. The question is as to what extent, evidence of Suresh (P.W. 3) who is the sole eye-witness in the case can be accepted to arrive at conclusion that the appellants accused are the assailants. In our opinion, though Suresh (P.W. 3) has not seen the appellants actually assaulting Vasant but he surfaced on the scene when he heard shouts of Gayatri and at the stage when the assault was over and he could see the assailants standing near the deceased who was lying in an injured condition. Not only this he also saw them holding sharp edged weapons stained with blood. He also deposed to the effect that not only these appellants accused Nos. 1, 2 and 3 were on their way to run away but they also called Mangesh to run away from the scene of offence as the work has been done. Thus, in our opinion, it is sufficient to establish that the appellants are the assailants as there were no other persons who could have within that short period arrived at the spot and assaulted the deceased. 36. The evidence of P.W. 3 Suresh clearly establishes the presence of the appellants-accused at the scene of offence as he has seen them near the victim armed with blood stains sharp edged weapons. That the appellants- accused were the persons known to him. His statement came to be immediately recorded by the police and his evidence in the Court has not been disputed nor material omissions or contradictions have been brought on record. This fact is further corroborated by the evidence of Dr. A.G. Shinde who conducted the autopsy on the dead body of deceased Vasant and found following injuries on his person:-- 1) Incised chop wound on the right side skull laterally one cm. away right eye laterally to right side skull 0.5 cm. above right external ear, obligue 9.2 cm. x 0.5 cm. x S.C. 2) Incised chop wound on the nose front midpart, 2.9 cm. x 0.5 cm. with cut underneath bone oblique. 3) Incised wound on the left side neck laterally to back, 0.5 cm. below left mastoid, obligue, 4.0 cm. x 0.5 cm. x M.D.. 4) Incised stab wound on the right side chest front, 11.0 cm. from midline, 2.5 cm. below right collar bone, 9.2 cm. about right nipple obligue 2.0 cm. x 0.5 cm. both angle acute. 3) Incised wound on the left side neck laterally to back, 0.5 cm. below left mastoid, obligue, 4.0 cm. x 0.5 cm. x M.D.. 4) Incised stab wound on the right side chest front, 11.0 cm. from midline, 2.5 cm. below right collar bone, 9.2 cm. about right nipple obligue 2.0 cm. x 0.5 cm. both angle acute. 5) Incised wound on the right side chest, front oblique one cm. below right nipple, 3.0 cm., from midline 9.2 cm. x 0.2 cm. x S.D. 6) Incised stab wound on the left side chest front 4.0 cm. from midline, 2.5 cm. from left nipple, at level of left nipple, obligue 2.0 cm. x 0.5 cm. both angles acute. 7) Incised stab wound on the right side chest laterally, midarmpit line, 4.0 cm. below exilla, 0.5 cm. x 0.5 cm. obligue, both angles acute. 8) Incised stab wound on the left side abdomen front 7.0 cm. from midline, 1.4 cm. below left costal border, obligue 2.0 cm. x 9.5 cm. both angles acute. 9) Incised wound on the right knee laterally to right thigh lower 1/3 laterally, obligue 14.0 cm x 0.5 cm. muscle deep with tailing upwards with 6.2 cm. 10) Incised chop wound on the right lower leg below knee, upper 1/3 laterally, obligue, 8.0 cm. x 0.7 cm., cutright fibula bone underneath total. 11) Incised chop wound on the right lower leg below knee, lower 1/3 front laterally, 10.0 cm. x 0.8 cm. oblique with cut underneath right tibia fibula bone underneath, partial depth 0.5 cm. 12) Incised chop wound on the left lower leg below knee front, 1/3 obligue 8.0 cm. x 0.5 cm with cut underneath left tibia fibula bone partial depth 0.5 cm. 13) Incised wound on the left thigh middle 1/3 front, medially, obligue 7.0 cm x 0.1 cm x S.D. 14) Incised wound on the right shoulder back extend to right side chest back, obligue 14.0 cm. x 0.1 cm x S.D. 15) incised stab wound on the right side chest back 13.0 cm. from midline 11.5 cm below right axila, obligue both angles acute 1.7 cm. x 0.5 cms. 16) Incised chop wound on the right arm lower 1/3 back laterally, near elbow joint, oblique 6.5 cm. x 1.0 cm with cut underneath, right humar bone partial depth 0.5 cm. 17) Incised chop on the right forearm back, upper 1/3 oblique 5.8 cm. from midline 11.5 cm below right axila, obligue both angles acute 1.7 cm. x 0.5 cms. 16) Incised chop wound on the right arm lower 1/3 back laterally, near elbow joint, oblique 6.5 cm. x 1.0 cm with cut underneath, right humar bone partial depth 0.5 cm. 17) Incised chop on the right forearm back, upper 1/3 oblique 5.8 cm. x 1.0 cm with cut underneath right ulna radius bone partial 0.5 cm depth. 18) Incised chop wound on the right forearm lower 1/3 back, medially oblique 5.2 cm. x 1.0 cm with cut underneath right ulna bone partial depth 0.5 cm. 19) Incised wound on the left arm middle 1/3 back, oblique, 4.0 cm x 0.5 cm with skin muscle flap upward 4.0 cm. 20) Incised chop wound on the left arm lower 1/3 back laterally extends to left elbow laterally, oblique 10.0 cm x 1.0 cm with cut left hummerous bone lower 1/3 to left humar lateral malleotus underneath partial depth one cm. 21) Incised chop wound on the left elbow obligue cutting the medial side of ext. inj. No. 20.8.0 cm. x 1.0 cm. with chopped total left ulna bone underneath to left humar bone cut outer table (of depth 0.1 cm. left humar bone). 22) Incised wound on the left forearm back middle 1/3, obligue 2.2 cm. x 0.5 cm x M.D. 23) Incised wound on the left side middle 1/3 back laterally 7.0 cm. x 0.1 cm. x S.D. From the above injuries, it indicates that this was not a job work of one individual and the assailants were more than one looking to the nature of injuries which were so many in numbers. In the opinion of Doctor Shinde, the cause of death was "Haemorhhage and shock due to incised stab wounds associated with multiple incised chop wounds. 37. Mr. Ponda has also submitted before us that as the sole witness on which the prosecution case rests is relative of the victim. The Court has to assess his evidence with necessary care and caution. Mere relationship with the deceased is no ground to discard his testimony if it is otherwise found to be reliable and trustworthy. In the normal course of events the close relation would be the last person to spare the real assailants of his cousin and implicate a false person. 38. Mere relationship with the deceased is no ground to discard his testimony if it is otherwise found to be reliable and trustworthy. In the normal course of events the close relation would be the last person to spare the real assailants of his cousin and implicate a false person. 38. Incidentally the prosecution has been able to recover the weapons by which it is alleged that the deceased was assaulted. We have already observed that we do not attach much importance to this recovery and the evidence of Yusuf Abbas Ali Shaikh (P.W. 7) from whom the weapons were purchased and that of Dahi Ratan Abib Ahmed (P.W. 9) from whom the weapons were got sharpened. But then it cannot be forgotten that at the time of evidence of Dr. Shinde, the prosecution did refer the weapons seized in the case to Dr. Shinde and sought his opinion and Dr. Shinde has expressed that the injuries found on the victim could be caused by such weapons. These weapons were also forwarded to Chemical Analyzer alongwith other articles seized from the spot including the clothes of the deceased and the appellants-accused. The C.A. report (Exh. 42) shows that Exh. 7, 8 and 9 choppers and gupties were found to have stained with human blood and on further analysis. A and B grouping was found inconclusive. All these weapons have been recovered at the instance of original accused No. 4 Mangesh and as he has been acquitted, much importance cannot be attached to this corroborative evidence placed before the Court by the prosecution. 39. Mr. Ponda has also attacked the prosecution case on the ground of non-examination of material witnesses. The learned A.P.P. has tried to explain it that under what circumstances Gayatri and Bhagwan being closely related to one of the accused, were dropped P.S.I. Mr. Singh could not be made available. We do not think that the prosecution has deliberately or unfairly kept back these witnesses, particularly Gayatri and her father Bhagwan but what we find that non-examination of P.S.I. Singh on the other hand throws sufficient light on the whole episode. Singh could not be made available. We do not think that the prosecution has deliberately or unfairly kept back these witnesses, particularly Gayatri and her father Bhagwan but what we find that non-examination of P.S.I. Singh on the other hand throws sufficient light on the whole episode. We may observe that the defective investigation may discredit the prosecution but prosecution evidence may not necessarily be discarded on that ground but in the present case as the evidence is otherwise reliable and trustworthy, there is no reason why the Court should not base its conviction on such evidence and the failure or defective investigation by Investigating Officer will not ipso facto weaken the case of the prosecution. In this case P.S.I. Singh and the officer who recorded his complaint as F.I.R. in our opinion are responsible for damaging the prosecution case right from the time the F.I.R. came to be lodged by him and what we find is the prosecution has not taken sufficient care to summon him and to examine him as witness. It is really disgusting to note that even the Investigating Officer A.P.I. Rashid Khan Pathan, in his evidence before the Court has stated that Shri. Singh has retired and is settled in Uttar Pradesh. He does not know his residential address when he recorded the F.I.R. however, he has identified the same and stated that the contents thereof were reduced as per the direction of P.S.I.. It cannot be forgotten that the P.S.I. Singh is retired Government servant and must be drawing pension. A.P.I. Pathan without making any further enquiry from Bhagwan or Suresh (P.W. 3) proceeded to record F.I.R. of P.S.I. Singh and the negligent officer himself give a lame excuse to meet out the lacunae on his part that whereabouts of P.S.I. Singh are not known. It only indicates that P.S.I. Singh has been deliberately kept aside in order to prevent whole truth from coming to the Court. We may not enter into that arena of conjecture but it cannot be forgotten that Suresh (P.W. 3) has stated before the Court that P.S.I. Singh alongwith his staff were on the spot where incident had occurred. It only indicates that P.S.I. Singh has been deliberately kept aside in order to prevent whole truth from coming to the Court. We may not enter into that arena of conjecture but it cannot be forgotten that Suresh (P.W. 3) has stated before the Court that P.S.I. Singh alongwith his staff were on the spot where incident had occurred. In the police wireless van they took tea at Prakash Tea Stall which is opposite the house of Taibai (P.W. 1) and during the time the police wireless van was there on the spot all these appellants-accused were present and it is only when the police van left the scene of offence, the victim was assaulted by the appellants. In order to satisfy our conscious, we have looked into the charge-sheet and gone through the statement of Bhagwan Mudliyar. In his statement, Bhagwan Mudliyar has given names of assailants and therefore, if Bhagwan Mudliyar was chosen by P.S.I. Singh as the person who has informed and disclosed him that the person is lying in an injured condition which activated the officer to rush to the spot with mobile police van then there was nothing which had prevented P.S.I. Singh to mention the names of assailants in the F.I.R. lodged by him when so enquired by A.P.I. Pathan (P.W. 10). Even he did not take cognizance of the presence of Suresh which appears to be very unnatural. We may refrain from observing that murder of Vasant was stage managed as can be gathered from the aforesaid attending circumstances but our aspersion is not without any basis. Therefore, what we find is the benefit of non-examination of P.S.I. Singh does not make out a case in favour of appellants but rather it is indicative of the fact that P.S.I. Singh suppressed the names of assailants for the reasons best known to him. 40. The learned A.P.P. has tried to reconcile all these irregularities and defects in the investigation but we find that the record speaks for itself and whatever record has come before the trial Court, is sufficient to hold that the appellants are the persons who are responsible for committing the murder of Vasant in furtherance of their common intention. 41. 40. The learned A.P.P. has tried to reconcile all these irregularities and defects in the investigation but we find that the record speaks for itself and whatever record has come before the trial Court, is sufficient to hold that the appellants are the persons who are responsible for committing the murder of Vasant in furtherance of their common intention. 41. In the aforesaid facts and circumstances, we do not find that the trial Court has committed any error or illegality in arriving at a finding that the appellants-accused are guilty of having committed offence under section 302 r/w 34 of I.P.C.. We find no merits in the appeal and the same is dismissed. 42. The appellant No. 1 is already in jail as his bail was cancelled during the pendency of appeal. The appellant Nos. 2 and 3 who are on bail, are directed to surrender before the Court of Sessions, Greater Mumbai. The Court of Sessions would commit them in prison to undergo remaining part of their sentence. Appeal dismissed. -----