D. G. DESHPANDE, J.:- This matter was on board on 21st November, 2005. Nobody appeared for the appellant on that date. We, therefore, heard the learned APP Mr. Shitole for the State and we orally declared our final order acquitting accused No.2 and maintaining conviction of accused No.1. Immediately, thereafter, Advocate Mr. K. S. Patil, appeared and he said that he had filed vakalatnama for accused No.1, but his name was not shown on board, therefore, he could not remain present, but since he is present he should be heard in the matter. He contended that even though the order is declared by the court, it is not typed and no reasons are given. Therefore in the interest of justice, we heard Advocate Mr. Patil for the accused No.1 and learned APP Mr. Shitole again. 2. Though this appeal is jointly filed by both the accused, this appeal challenges order of conviction of both the accused/appellants under Section 302 r/w. 34 of the Indian Penal Code passed by the Additional Sessions Judge, Greater Bombay by which they were sentenced to suffer imprisonment for life. 3. The prosecution case is as under:- Deceased Pochayya was residing in Room No.37, Sphurti Chawl, near Shiv Mandir, Aadarsha Nagar, Behram Baug, Jogeshwari (W). This room was in possession of complainant Prabha, her mother Anusaya and her father Jagu Patel. There was a partition of 7 feet height. Deceased Pochayya was residing as a tenant in half portion and was paying rent to the complainant and, the complainant was residing in the remaining half portion. Deceased Pochayya was unmarried. He was working in Lokhandwala Complex as servant. Three of his friends including the present accused were also staying with him. 4. On 8-7-97 the complainant, her mother and father had their dinner in the evening and they went to bed at about 11.00 p.m. The complainant Prabha heard the screaming from the other side of the room. She, therefore, stood on a stool and saw that accused No.2 was pressing the mouth of the deceased Pochayya and accused No.1 was dealing blows of knife on the chest and abdomen of deceased Pochayya. Thereafter, she woke up her mother and father and told them about the incident. Both the mother Anusaya and complainant Prabha went to the adjoining room beyond partition. By that time many persons were gathered. Thereafter, she woke up her mother and father and told them about the incident. Both the mother Anusaya and complainant Prabha went to the adjoining room beyond partition. By that time many persons were gathered. They were sprinkling water on the face of Pochayya and they also saw the injuries on his person. Then complainant's mother Anusaya asked Pochayya about the injuries and, then Pochayya told her that accused No.1 stabbed him with knife. Pochayya was removed to Cooper Hospital and complainant Prabha alongwith her mother Anusaya went to the police station. Her statement was recorded. Offence was registered under Section 307 of the Indian Penal Code. The police went to the spot. Prepared a panchanama. Took charge of clothes stained with blood. Pochayya died on the same night. Thereafter inquest panchanama was made. The clothes from his body were recovered. Accused No.2 was arrested on 9-7-97. His clothes were seized. Accused No.1 was also arrested on that day. Thereafter investigation was continued. At the instance of accused No.1 weapon and clothes were recovered. They were packed, labelled and sealed. Post-mortem of the body of deceased Pochayya was conducted. The doctor opined the cause of death as "haemorrhagic shock because of multiple injuries and death is unnatural". The statements of the witnesses were recorded. All the muddemal was sent to the C.A. and then charge-sheet was filed. 5. The prosecution has examined seven witnesses. The defence of the accused was of total denial and after considering the case, the trial Court convicted both the accused as stated above. Hence this appeal. 6. Advocate Mr. Patil for the accused contended that evidence of two eye-witnesses is contradictory and it does not inspire confidence at all. He also contended that the evidence of recovery of weapon at the instance of accused No.1 was also strongly challenged by him and, therefore, according to him, there is no evidence to connect accused No.1, and, the accused No.1 is entitled to acquittal. 7. In view of these submissions, it is necessary to see the evidence of P.Ws.1 and 2 and other evidence. P.W.1-Prabha Jagu Patel is a young girl of about 18 years of age. She was bound to know deceased Pochayya because he was living there. She has stated that on 8-7-97 all the members of her family were in the house. In view of these submissions, it is necessary to see the evidence of P.Ws.1 and 2 and other evidence. P.W.1-Prabha Jagu Patel is a young girl of about 18 years of age. She was bound to know deceased Pochayya because he was living there. She has stated that on 8-7-97 all the members of her family were in the house. At about 11.00-11.30 p.m. while she was about to sleep, she heard shouts from the rented room. She, therefore, peeped through the partition wall by standing on a stool and noticed that accused No.2 had pressed mouth of Pochayya and accused No.1 was assaulting him by knife on his chest, abdomen and legs. She then went to the said room and found that there were some other persons. They were sprinkling water on Pochayya's face. Deceased Pochayya was shouting that Shankar assaulted him on his stomach by knife. Then injured was taken to the hospital and both the accused were in the room at that time. Then this witness Prabha went to the police station alongwith her mother and lodged a report. She identified the accused and also the knife - Art.1. She also identified the clothes of the deceased and the accused as Articles 2, 3,4,5,6 and 7. 8. Then there is evidence of P.W.2 Anusaya Jagu Patel - the mother of P.W.1. She has stated that on that night, they had their dinner and they went to sleep at about 10 to 10.30 p.m. She heard cry from the room of Pochayya and thereafter she alongwith her daughter Prabha went to see to the room of Pochayya. They saw that people had gathered in the room and Pochayya was lying on the ground. Pochayya told her that Jadya Shankar stabbed him on his abdomen. 9. This is the evidence of both these witnesses in their examination. Advocate Mr. Patil for the accused, therefore, contended that both the witnesses are at variance on material particulars. He also stated that no panchanama of the house of the complainant was prepared in order to find out whether there was any stool or not with them. He further stated that P.W.-2 Anusaya, in any case, is not an eye-witness to the incident. She has not seen accused No.1 assaulting deceased Pochayya. He also stated that no panchanama of the house of the complainant was prepared in order to find out whether there was any stool or not with them. He further stated that P.W.-2 Anusaya, in any case, is not an eye-witness to the incident. She has not seen accused No.1 assaulting deceased Pochayya. He also drew our attention to the so called admission of P.W.1 Prabha that she was not knowing the names of the accused at the time of incident and that she learnt their names after the incident. 10. Admittedly, P.W.2 Anusaya is not an eye-witness. But the evidence of both these witnesses is most natural. The post-mortem report shows that there were three injuries on the person of deceased Pochayya. One was "Obliquely placed incised penetrating injury in the epigastric north region; 2nd was, Obliquely placed incised penetrating injury in the left hypochondriac region; and, 3rd was Transversely placed incised penetrating injury in the midline of abdomen, 6 cms. below umbilical". The post-mortem report, therefore, supports the story of P.W.1 having witnessed the incident. It may be that the police did not draw the panchanama of house of the complainant to verify whether there was a stool or not. But the stool is a most common article in the household and merely because panchanama is not there, it cannot be held that there was no stool in the house of the complainant. The most important aspect of the matter is that the FIR is lodged very promptly without any delay whatsoever. It is lodged around mid-night 00.30 hours, when the assault took place at about 11.30 p.m. A young 18 years old girl had shown courage to go to the police station at that time and lodge a detailed report of this incident without any interest either in the deceased or in the accused. This F.I.R. can be used for corroboration. There also, all the details have been given by her as to how she saw the incident. She also states about the statement made by deceased Pochayya to her mother that Accused No.1 - Shankar assaulted him with knife. Nowhere in her cross-examination any motive is attributed to her nor any enmity is shown with the accused nor any liaison or closeness to the deceased. 11. It is true that in her cross-examination she has stated that she was not knowing the names of the accused. Nowhere in her cross-examination any motive is attributed to her nor any enmity is shown with the accused nor any liaison or closeness to the deceased. 11. It is true that in her cross-examination she has stated that she was not knowing the names of the accused. But that has to be taken as a mistake on her part looking to her age of 18 years at the time of recording of evidence. The incident had occurred in 1997. The evidence is recorded in 2000. Therefore on the date of incident she may be about 15-16 years of old. The names of both the accused are there specifically mentioned in the F.I.R. Her evidence is most natural, prompt and without any bias and prejudice. 12. So far as evidence of P.W.2 is concerned, she is a mother of P.W.1. She has stated that she was knowing both the accused and has stated about the incident as narrated above. She is not the eye-witness to the incident but she immediately went to the room of deceased Pochayya. He was found to have injuries on his person. Deceased Pochayya told her that he has been assaulted by accused No.1 with knife. A suggestion put to her in the cross-examination is that neither she, nor her daughter went to the room where deceased Pochayya was assaulted. Even though we do not want to say anything about the manner in which the cross-examination is conducted, but a suggestion, which can be termed as funny, is given to this witness P.W.2 on behalf of the accused that deceased Pochayya was in love with her daughter Prabha and he wanted to marry with Prabha. But she (PW-2) refused and, therefore, in anger he committed suicide by inflicting stab injury on his abdomen. This defence is liable to be rejected outright and even that was not pressed by Advocate Mr. Patil. 13. Mr. Patil for the accused No.1 also contended that the evidence of first informant, her mother and father is inconsistent on material aspects. However, we do not find any such thing on record. P.W.1 Prabha alone claims to be an eye-witness of having seen the incident from the above wooden partition by standing on a stool. Her mother is not claimed to be an eyewitness. However, we do not find any such thing on record. P.W.1 Prabha alone claims to be an eye-witness of having seen the incident from the above wooden partition by standing on a stool. Her mother is not claimed to be an eyewitness. She went in the room of deceased Pochayya after hearing cry and, deceased Pochayya narrated her that accused Shankar has stabbed him. It is true that P.W.1 Prabha went to the room of deceased Pochayya alongwith her mother, but the mother does not say anything in that regard. But that in itself cannot create any doubt about the evidence of P.W.1. Omission by one witness to tell about the presence of other, in particular, does not create any doubt about the presence of P.W.1 as stated above. She was residing in adjoining room divided by wooden partition. She has no grudge to bear against the accused. She has taken no time to lodge the report to the police and shown courage to do so. Her evidence and the evidence of mother about the incident is supported by the evidence of P.W.4-Dr. Manik Sangale who performed the post-mortem as per which there were in all three major injuries on the stomach of the deceased. But in technical or medical terms the injuries are; 1st injury was on the epigastric north region; 2nd was on the left hypochondriac region and, 3rd was in the midline of abdomen, 6 cms. below umbilical. All these injuries were ante-mortem and were sufficient to cause death. 14. Apart from this, there is evidence of recovery of weapon at the instance of accused No.1. Memorandum of panchanama is at Exhibit-22A. Accused No.1 made a voluntery statement that he will lead the police to the place where he had hidden the knife and the clothes which he was wearing at the time of incident. Accordingly the police party was led to Sunflower Building where there was a Asoka tree and accused Shankar took out a plastic bag from a height of 4 ft. and from that bag a loongi, a shirt with blood stains and a 16 cm. in length button knife were seized: This recovery at the instance of the accused corroborates the testimony of the important prosecution witness i.e. P.W.1. 15. and from that bag a loongi, a shirt with blood stains and a 16 cm. in length button knife were seized: This recovery at the instance of the accused corroborates the testimony of the important prosecution witness i.e. P.W.1. 15. All the seized articles were sent to the C.A. C.A. report is there on record at Exhibit-24 wherein the knife is shown at Item No.12. Results of analysis show that Exhibit12 I.e. the knife is stained with blood on the blade and handle and, the blood which was found on the knife is human blood of “B” group. The clothes recovered from the accused No.1 were also having blood stains. The blood stains are human having group of “B”. The clothes of the deceased also reveal blood group of “B”. 16. All this evidence directly connect the accused No.1 with the murder of deceased Pochayya. However, so far as accused No.2 is concerned, no role is attributed to him and the testimony of P.W.1 that she saw accused No.2 holding the hands and pressing the mouth, does not get any corroboration from any other independent witness. Nothing is recovered from him. There is no other evidence against him showing his involvement. No motive is attributed to him. And, therefore, he is required to be given benefit of doubt. As a result, we pass the following order :- ORDER Appeal is partly allowed. Conviction of accused No.2 Anjayya Bhumayya KatnapalJi under Section 302 r/w. 34 of the Indian Penal Code is set aside. He is acquitted. Conviction of accused No.1 Shankar Rajling Raskonda under Section 302 of the Indian Penal Code is maintained so also his sentence. Bail bond of accused No.2 stands cancelled.