Judgment D. D. SINHA, J. :. Heard Mr. Riyaz Khan. Adv. for the appellant no.1. Mr. N. A. Badar, Adv. and Mrs. Kalsi, Adv. for the appellant no.2 and Mr. S. Y. Deopujari, Additional Public Prosecutor for the Respondent-State in Criminal Appeal No.338 of 2005 and Mr. S. Y. Deopujari, Additional Public Prosecutor for the Appellant-State and Mr. N.A. Badar. Adv. and Mrs. U. K. Kalsi, Adv. for the Respondent in Criminal Appeal No.463 of 2005 filed by the State against the order of acquittal passed by the trial Court whereby the Original accused no.3 Sikendra @ Sikandar s/o. Chokhoba Shambarkar came to be acquitted. 2. In the instant case, appellants Sunil s/o. Chokhoba Shambarkar and Purshottam s/o. Chokhoba Shambarkar in Criminal Appeal No.338 of 2005 along with the other, co-accused Sikandar and Chokhoba were prosecuted for the offence punishable u/s. 302 r/w. Section 34 of the Indian Penal Code. However, the trial Court has convicted appellants Sunil and Purshottam for the offence punishable u/s.302 r/w. Section 34 of the Indian Penal Code and sentenced them to suffer imprisonment for life and to pay a fine of Rs.1,000/- each. In default of payment of fine, they were directed to undergo rigorous imprisonment for three months each. 3. The trial Court by the Impugned judgment and order acquitted Original accused no.3 Sikandar and Original Accused no.4 Chokhoba for the offence punishable u/s.302 r/w.34 of the Indian Penal Code. However, the State has preferred appeal against acquittal of Original accused no.3 Sikandar only. 4. Since both the Criminal Appeals arc against the common judgment and order dt.30-4-2005 passed by the 2nd Ad-hoc Additional Sessions Judge, Wardha in Criminal Trial No.44 of 2004, both the Criminal Appeals are heard together and disposed of by the common judgment. 5. The circumstances which have given rise to the prosecution of appellants Sunil and Purshottam as well as Sikandar are as follows: On 28-1-2004, at about 5.00 p.m. complainant Amar Lahuji Shambharkar (PW3) was present at the Bus stop of village Karanjl (Kali) along with deceased Milind. When they were coming back on a motor cycle from the field of deceased Milind and when they reached near the field of Dilip Deshmukh, which was in front of Pipal tree, it was 6.00 p.m. Appellants Sunil Purshottam and Sikandar were present near the field of Dilip Deshmukh. When they were coming back on a motor cycle from the field of deceased Milind and when they reached near the field of Dilip Deshmukh, which was in front of Pipal tree, it was 6.00 p.m. Appellants Sunil Purshottam and Sikandar were present near the field of Dilip Deshmukh. It is the prosecution case that when the motor cycle on which deceased Milind and complainant Amar came near the field of Dilip Deshmukh, appellant Sunil gave a blow by axe on the neck of deceased Milind, with the result both of them fell down from the motor cycle. It is the case of prosecution that after deceased Milind and witness Amar fell down on the ground, appellants Purshottam and Sikandar and other co-accused Chokhoba started assaulting deceased Milind by means of an axe, stick and kicks and fists blows. Due to the said assault, Milind sustained serious injuries. The accused also wanted to beat witness Amar. However, before they could assault him, he fled away from the place of occurrence and went to the house of Anil Shambarkar and informed him about the incident. 6. It is the case of prosecution that after Amar (PW-3) and Raju (PW-4) along with other villagers went to the spot of occurrence and found dead body of Milind. Amar went to the Police Station, Sevagram and lodged oral report (Exh.55) and on the basis thereof. Crime no.23 of 2004 came to be registered against all the accused for the offence punishable u/s.302 r/w. 34 of the Indian Penal Code vide Exh.56. 7. Salauddin Samsuddin Sayyad (PW-9) (Investigating Officer) went to the spot and conducted spot panchanama (Exh.25) and seizure panchanama (Exh.26). He further conducted inquest panchanarna (Exh.27) and recorded statements of witnesses. Dead body of Milind was sent to hospital for autopsy. Dr. Nishat Abdul Jabbar Sheikh (PW-7) has conducted Post-Mortem examination and found nine external ante-mortem injuries on the person of the deceased. Similarly, on internal examination he found that deceased had sustained injuries on head, skull and brain. As per the opinion of doctor, the cause of death was due to haemorrhage and shock due to injuries to vital organ like brain as a result of head injury. The clothes of the accused were seized vide seizure memos Exh.71 to 74. Similarly, on internal examination he found that deceased had sustained injuries on head, skull and brain. As per the opinion of doctor, the cause of death was due to haemorrhage and shock due to injuries to vital organ like brain as a result of head injury. The clothes of the accused were seized vide seizure memos Exh.71 to 74. It is the case of prosecution that on 30-3-2004 confessional statement of accused Sunil (Exh.33) was recorded and thereafter, an axe was seized vide Exh.34 on the same day. Confessional statement of accused Purshottam (Exh.35) was recorded and another axe came to be seized vide Exh.36. 8. On 3-2-2004 complainant Amar was examined by Dr. Gang3dhar Hiwrale (PW5). On examination, the doctor found that Amar had sustained four injuries caused by hard and blunt object. On 3-3-2004 accused Sikandar also gave a confessional statement. Pursuant to that, a stick came to be seized from his house vide Exh.76. The Judicial Magistrate. Wardha was requested to record the statements of witnesses. On 11-2-2004 and on 13-2-2004, the Investigating Officer requested Tahsildar, Wardha to draw sketch map of the place of incident, which is Exh.81. The bundle of clothes and blood samples of deceased Milind came to be seized from the Police Constable Ami Raut. On 16-2-2004 weapons which were seized were sent to Dr. Nishat Sheikh (PW-7) for examination and for obtaining his opinion. Doctor examined two axes and stick and found that the injuries mentioned in Column nos.17, 18 and 19 of his post-mortem notes are possible by the weapons of this type. The seized property was forwarded to Chemical Analyser for analysis. On completion of investigation, the Investigating Officer filed charge-sheet against the appellants Sunil, Purshottam, Sikandar and one another co-accused for the offence punishable u/s.302 read with Section 34 of the Indian Penal Code. Charge was framed against these accused. Same was read over and explained to them to which they pleaded not guilty and claimed to be tried. Defence of the accused was of total denial. 9. Mr. Riyaz Khan, Adv. for the appellant no. 1 has submitted that, in the instant case, prosecution has examined Amar (PW-3) (complainant) as well as Raju (PW-4) as eyewitnesses to the incident and therefore, sustainability of conviction of appellants Sunil and Purshottam depends upon the nature of evidence adduced by these witnesses. 9. Mr. Riyaz Khan, Adv. for the appellant no. 1 has submitted that, in the instant case, prosecution has examined Amar (PW-3) (complainant) as well as Raju (PW-4) as eyewitnesses to the incident and therefore, sustainability of conviction of appellants Sunil and Purshottam depends upon the nature of evidence adduced by these witnesses. It is submitted that the evidence of both these eyewitnesses is totally doubtful and untrustworthy. It is contended that Amar (PW-3) in his evidence has claimed that, on 28-1-2004, he lodged oral report in the Police Station, which is at Exh.55. This witness has stated in his examination-in-chief that printed First Information Report also bears his signature which is Exh.56. Counsel for the appellants have contended that there is nothing on record to show that at what point of time Exh.55 was recorded by the police. Similarly, Exh.56 which is printed First Information Report shows that date of Incident was 28-1-2004 and the time of incident was between 17.00 hrs. to 18.00 hrs. The Printed First Information Report shows that the information about the incident was received by the Police Station at 19.40 hours on 28-1-2004. The printed First Information Report further shows that the information about the incident was received by the Police Station on telephone. 10. Counsel for the appellants further contended that the evidence of Rameshwar Damodhar Amnerkar (PW-6) (ASI) shows that on 28-1-2004 he was attached to Police Station, Sevagram and was in-charge of Station diary. It is submitted that this witness has stated in his examination-in-chief that witness Amar lodged oral report and he Scribed it as per his say. However, he has failed to mention the number of exhibit which is treated to be the First Information Report by prosecution in the present case. It is further submitted by the learned counsel for the appellants that Rameshwar (PW-6) has further stated in his evidence that he registered the offence vide crime no.23 of 2004, u/s.302 r/w. section 34 of the Indian Penal Code against the accused persons as well as recorded Printed First Information Report, however, contents of the Printed First Information Rep0l1 are otherwise. It is contended that Rameshwar (PW-6) in his cross-examination has admitted that entry no.46 of 2004 was in respect of the information received on telephone. He has also admitted in the cross-examination that no time is mentioned in respect of the information received vide report (Exh.55). It is contended that Rameshwar (PW-6) in his cross-examination has admitted that entry no.46 of 2004 was in respect of the information received on telephone. He has also admitted in the cross-examination that no time is mentioned in respect of the information received vide report (Exh.55). This witness has also admitted in the cross-examination that, on 28-1-2004, he was not referred Amar (PW-3) to the hospital for examination. Counsel for the appellants has submitted that Salauddin (PW -9) (Investigating Officer) in the cross-examination has admitted that, on 28-1-2004, ASI Rameshwar (PW-6) was in-charge of Station diary. He has also admitted that, if any message is received in respect of crime on telephone, it is necessary to take entry of the same in the Station diary. It is contended that the investigating officer specifically stated in his cross-examination that the information about murder of Milind was received by the Police Station on telephone and he has personally gone through the said message including sana entry. The investigating officer also admitted in the cross-examination that he has not filed copy of the Station diary entry wherein the telephonic message received by the Police Station at 19.40 hours on 28-1-2004 is alleged to have been recorded. Rameshwar (PW-9) has further admitted that he cannot state the name of the informant. 11. Counsel for the appellants vehemently argued that, in the instant case, the crime was registered against the accused on the basis of the telephonic message received by the Police Station on 28-1-2004, at 19.40 hours and investigation of the crime was set in motion; however, prosecution has not deliberately produced the document on which the telephonic message was recorded i.e. Sana entry (Exh.46 of 2004) and suppressed this material piece of evidence from the Court, which creates serious doubt not only in respect of the manner in which the investigation was conducted by the Investigating Officer as well as other Police Officers connected with the investigation in the crime in question, but it also created serious doubt about authenticity of the entire prosecution case. It is further contended that though Rameshwar (PW-6) (ASI) claimed that Exh.55 is recorded as per the oral report lodged by Amar (PW-3), however, this witness has conveniently not mentioned the time of recording of Exh.55. It is further contended that though Rameshwar (PW-6) (ASI) claimed that Exh.55 is recorded as per the oral report lodged by Amar (PW-3), however, this witness has conveniently not mentioned the time of recording of Exh.55. Even otherwise, this claim of the prosecution is falsified by the recitals in Exh.56 i.e. printed First Information Report which says that the same was recorded on the basis of telephone message. It is, therefore contended that the testimony of Amar (PW-3) is untrustworthy. 12. Counsel for the appellants further contended that, the claim of Amar (PW-3) that he sustained injuries due to fall on ground from the motor cycle at the time of occurrence, which is corroborated by the evidence of Dr. Gangadhar (PW -5), is also doubtful. It is submitted that Salauddin (PW-9) (Investigating Officer) in the cross-examination has stated that till 3-2-2004, he had not found any injuries on the person of Amar (PW-3) nor Amar had disclosed about the same to him. Dr. Gangadhar (PW-5) examined Amar on 3-22004. It is submitted that if the Investigating Officer did not see any injuries on the person of Amar on the day of incident i.e. 28-1-2004 nor Amar (PW-3) disclosed to him about the injuries, how the injuries which were noticed by Dr. Gangadhar (PW-5) on 3-2-2004 on the person of Amar were sustained by him. Hence, it can be said that the injuries were not sustained by Amar on the day of occurrence, but they may have been sustained by him at a later point of time. 13. Counsel for the appellants further contended that though Amar (PW -3) has denied the suggestion that he demanded Rs.1.00,000/ - from the accused, however. Ravi (DW-1) (Police Constable) falsifies this claim of Amar (PW-3). It is submitted that the evidence of Ravi (DW-1) shows that, at the relevant time he was working as a Police Constable in District Prison, Wardha. He has also stated that if any person comes to jail to visit any prisoner the name of such person, relationship with the prisoner and address of the visitor is required to be recorded in the register, which is also required to be signed by such visitor. The said register is known as "Bhetiche register" (Visitors' register). It is submitted that Ravi (DW-1) in his examination-in-chief has further stated that on 28-1-2004 he was on duty in the jail. The said register is known as "Bhetiche register" (Visitors' register). It is submitted that Ravi (DW-1) in his examination-in-chief has further stated that on 28-1-2004 he was on duty in the jail. On that day, Amar (PW-3) had come to jail to visit the appellant Sunil Chokhoba Sambharkar. The entry in the Bhetiche register shows that Amar is the cousin brother of appellant Sunil Shambharkar. He has identified Amar (PW-3) who was present in the Court on the day the evidence of Ravi was recorded. It is submitted that Police Constable Ravi in his examination-in-chief has further stated that, in his presence, Amar (PW-3) had a talk with appellant Sunil about the case. Amar told appellant Sunil that he lodged false report and demanded Rs.1,00,000/- for changing his version. It is contended that the evidence of this witness, so far as it relates to visit of Arnar (PW-3) to prison, meeting of Amar with appellant Sunil in Jail and demand of Rs.1,00.000/- made by Amar has not been shattered in the cross-examination and therefore the evidence of this witness needs to be accepted. Counsel for the appellants submitted that in view of evidence of Ravi (DW1), the entire testimony or Amar (PW-3) is rendered untrustworthy. 14. Counsel for the appellants further contended that, so far as the evidence of Raju (PW-41 (another eye-witness) is concerned. it is also untrustworthy and cannot be relied upon. It is submitted that Saluddin (PW-9) Investigating Officer has admitted in his evidence that Ralu (PW-4) met him on the day of incident i.e. on 28-1-2004, however, his police statement, for the first time was recorded by the Investigating Officer on 30-1-2004. It is contended that there is no explanation given by the Investigating Officer in his evidence regarding the delay caused in recording the statement of this witness. It is submitted that is Raju (PW-4) was the eyewitness of the incident and the Investigating Officer met him on the day of incident, why he did not tell the Investigating Officer about the incident on 28-1-2004 itself. Similarly, the Investigating Officer has also not recorded his statement on the same day. It is contended that the police statement of this witness is an after-thought and the unexplained delay caused in recording the statement by the investigating officer is fatal to prosecution in the present case. Similarly, the Investigating Officer has also not recorded his statement on the same day. It is contended that the police statement of this witness is an after-thought and the unexplained delay caused in recording the statement by the investigating officer is fatal to prosecution in the present case. It is further contended that there are material omissions and contradictions in the testimony of this witness. The counsel for the appellants, therefore, submitted that the testimony of Raju (PW-4) is also not free from doubts and the same is, therefore, untrustworthy. 15. Counsel for the appellants further contended that Sheshrao (PW-8) is a panch witness examined by prosecution to prove seizure of clothes of accused vide Exh. Nos.71 to 74. This witness in the cross-examination has admitted that all the clothes were in the bundle of khaki colour. There was a lakh seal affixed on it and he had not opened the seal to inspect the clothes. It is. Therefore, contended that admission of this witness in the cross-examination demonstrates that clothes of Sunil alleged to have been seized vide Exh. 71, seizure of clothes of Chokoba Vide Exh.72. seizure of clothes of appellant Purshottam vide Exh.73 and seizure of clothes of co-accused Sikandar was not effected in the presence of this witness and therefore, the same cannot be relied on. 16. It is contended that if the evidence in respect of seizure of clothes of the appellants itself is doubtful, in that case the report of the Chemical Analyses regarding finding of blood on the said clothes loses its relevance. 17. Counsel for the appellants further contended that the medical evidence of Dr. Nishat (PW-7), who performed post-mortem examination on the deceased though shows that deceased Milind had sustained multiple incise wounds and injuries mentioned in column nos.17. 18 and 19 were sufficient in the ordinary course of nature to cause death of Milind, however, the said evidence on its own is inadequate to bring home the guilt of the appellants for the offence of murder. It is therefore, contended that the evidence adduced by the prosecution being unreliable and untrustworthy, the conviction awarded by the trial Court cannot be sustained in law and is liable to be set aside. 18. Mr. S.Y. Deopujan, Additional Public Prosecutor has supported the finding of conviction recorded by the trial Court against the appellants Sunil and Pursholtam. It is therefore, contended that the evidence adduced by the prosecution being unreliable and untrustworthy, the conviction awarded by the trial Court cannot be sustained in law and is liable to be set aside. 18. Mr. S.Y. Deopujan, Additional Public Prosecutor has supported the finding of conviction recorded by the trial Court against the appellants Sunil and Pursholtam. It is contended that the testimonies of witnesses Amar (PW-3) and Raju (PW-4) are not only consistent with the material particulars of the prosecution case, but are also cogent and trustworthy. It is further contended that the evidence of Amar (PW-3) clearly shows that on the day of incident, at the relevant time, he and the deceased were coming back from the field of deceased on the motor cycle. Amar (PW-3) was a pillion rider. When their motor cycle came near the field of one Dilip Deshmukh, appellant Sunil gave a blow by an axe on the neck of Milind and due to the said assault, both of them fell down on the ground. Learned Additional Public prosecutor rurther contended that Amar (PW-3) has further disclosed in his testimony that after they fell down, Appellant Purshottam started assaulting Milind by an axe. This witness has further disclosed in his testimony that the appellants wanted to assault him, however, they could do that as this witness ran away from the spot of occurrence and went to the house of Anil Sambharkar and narrated the incident to him. The Additional Public Prosecutor has submitted that this witness immediately thereafter went to the Police Station and lodged oral report which was reduced in writing by Rameshwar (PW-6) (ASI) which is Exh.55. It is contended that the First Information Report was lodged by Amar (PW-3) almost immediately after the assault in question wherein witness Amar has not only mentioned the names of the appellants as assailants, but also mentioned regarding the manner in which the assault was committed by the appellants and the weapons used in the assault. It is contended that the testimony of Umesh Borghate (PW-2) is consistent with the material particulars of the prosecution case disclosed by this witness in the First Information Report and therefore, the testimony of this witness is trustworthy. In absence of material omissions and contradictions, the evidence of Amar (PW-3) is rendered reliable and trustworthy. It is contended that the testimony of Umesh Borghate (PW-2) is consistent with the material particulars of the prosecution case disclosed by this witness in the First Information Report and therefore, the testimony of this witness is trustworthy. In absence of material omissions and contradictions, the evidence of Amar (PW-3) is rendered reliable and trustworthy. It is submitted that Amar (PW3) denied the suggestion given by defence that he visited the prison to meet accused Sunil. This witness also denied the another suggestion that he demanded Rs.1,00,000/- from the accused and therefore, the defence cannot make much capital of this denial in view of evidence of Ravi (DW -1). 19. Learned Additional Public Prosecutor further contended that the evidence of Raju (PW-4) another eye-witness is also consistent with the testimony of Amar (PW3). Raju (PWA) has stated in his evidence that, on the day of incident and at the relevant time, he was returning back to his village and on the way, he saw that appellants Sunil and Purshottam along with the other co-accused were beating Milind by means of axe and stick as well as by kicks and fists blows. This witness has stated that on seeing the assault he got frightened and ran away from the spot and went to the house of deceased Milind Shambharkar where Amar (PW-3) and Anil Shambharkar were present. This witness further stated that he told Anil that his brother Milind was assaulted by four accused and Milind had sustained injuries to his neck, head etc. The Additional Public Prosecutor has contended that though there are some omissions and contradictions brought by the defence in the cross-examination of this witness in respect of his Police statement, however, those arc not material ones. Similarly, the nominal delay in recording the statement of this witness by the investigating officer does not affect credibility of the testimony of this witness. 20. Mr. Deopujari, Additional Public Prosecutor has contended that the evidence of both these witnesses has been completely corroborated by the medical evidence of Dr. Nishat Sheikh (PW-7), who has noticed multiple incise wounds on the person of deceased and also opined that such injuries can be caused by the weapons like axe, stick or by kicks and fists blows. 20. Mr. Deopujari, Additional Public Prosecutor has contended that the evidence of both these witnesses has been completely corroborated by the medical evidence of Dr. Nishat Sheikh (PW-7), who has noticed multiple incise wounds on the person of deceased and also opined that such injuries can be caused by the weapons like axe, stick or by kicks and fists blows. It is, therefore, contended that prosecution has succeeded in bringing home the guilt of the appellants Sunil and Purshottam for the offence of murder of Milind beyond all reasonable doubts. The Additional Public Prosecutor has further contended that non-filing of document i.e. entry no.46 on record as well as the minor discrepancies in respect of time of recording of First Information Report (Exh.55) and printed First Information Report (Exh.56) does not render the prosecution case either doubtful or untrustworthy. 21. The Additional Public Prosecutor further contended that, in the instant case, there is discovery of axes made from appellant Sunil as well as appellant Purshottam u/s.27 of the Evidence Act and as per the Chemical Analyser's report, there was human blood detected on these axes, Similarly, the Chemical Analyser's report also shows that the clothes of appellants Sunil as well as Purshottam were stained with human blood. It is contended that these are additional circumstances brought on record by prosecution which corroborate the direct evidence of eye-witnesses. Mr. Deopujari, learned Additional Public Prosecutor, therefore, contended that the conviction awarded by the trial Court to the appellants Sunil and Purshottam is just and proper and is sustainable in law. 22. Mr. Deopujari, Additional Public Prosecutor has submitted that the State has preferred Criminal appeal against the order of acquittal passed by the trial Court in respect of co-accused Sikandar. It is contended that the evidence of Amar (PW-3) and Raju (PW-4) demonstrate that, at the relevant time, appellant Sikandar was armed with stick and he assaulted deceased Milind with the same. It is further submitted that the testimonies of both these eyewitnesses in this regard is also corroborated by the medical evidence as well as discovery of stick by Sikandar coupled with the Chemical Analyser's report, which shows that the clothes of respondent Sikandar were stained with human blood. It is further submitted that the testimonies of both these eyewitnesses in this regard is also corroborated by the medical evidence as well as discovery of stick by Sikandar coupled with the Chemical Analyser's report, which shows that the clothes of respondent Sikandar were stained with human blood. It is contended that presence of respondent/accused Sikandar along with accused Sunil and Purshottam on the spot at the relevant time, possession of stick and commission of assault by means of said stick on the person of deceased Milind, demonstrate that respondent/accused Sikaodar shared common intention of causing murder of deceased Milind with appellants Sunil and Purshottam. Since the trial Court has already accepted the prosecution case for awarding conviction to the appellants Sunil and Purshottam, there is no justification to discard the part of evidence adduced by the prosecution pertaining to respondent/accused Sikandar. It is submitted that if the testimonies of the eye-witnesses, which arc corroborated by the medical evidence and the other circumstances brought on record, have been accepted by the trial Court so far as it relates to accused Sunil and Purshottam, in that case the trial Court has erred in rejecting the part of testimonies of these witnesses so far as it relates to complicity of the respondent/accused Sikandar in the crime in question. 23. Mr. N. A. Badar, learned counsel for the respondent/accused Sikaodar has submitted that Mr. Riyaz Khan, learned counsel for the appellant Sunil, while arguing his case, has already demonstrated to this Court that the evidence of these two eye-witnesses is unreliable and untrustworthy. Similarly, the lapses committed by the Investigating Officer in respect of recording of First Information Report, non-production of copy of entry no.46 on record as well as futile nature of seizure of clothes and discovery of weapons is also shown to the Court. Mr. Badar, Adv. submitted that he adopts the said argument canvassed by the learned counsel for the appellant Sunil and contended that the trial Court was justified in acquitting the respondent/accused Sikandar. 24. We have given our anxious thoughts to the various contentions canvassed by the respective counsel and carefully scrutinized the prosecution case. It is rightly argued by the counsel for the appellants that the case of prosecution is primarily based on the testimonies of two eye-witnesses namely Amar (PW-3) and Raju (PW-4). 24. We have given our anxious thoughts to the various contentions canvassed by the respective counsel and carefully scrutinized the prosecution case. It is rightly argued by the counsel for the appellants that the case of prosecution is primarily based on the testimonies of two eye-witnesses namely Amar (PW-3) and Raju (PW-4). It is, therefore, necessary to carefully evaluate their evidence in order to find out as to whether the same is truthful and reliable. 25. In the Instant case, though it is alleged by prosecution that the First Information Report (Fxh.55) was lodged by Amar (PW-3), however, whether prosecution has established this fact or not will have to be seen from the evidence of Rameshwar (PW-6) (ASI), and Salauddin (PW-9) (investigating officer). 26. The evidence of Amar (PW-3) discloses that, on 28-1-2004 (date of Incident), he lodged report in the Police Station, which is Exh.55. This witness further claimed that he has also signed printed FIR (Exh.56). However, the testimony of Rameshwar (PW-6) shows that he was attached to Police Station, Sevagram and was in-charge of Station diary. He has also stated that Amar came to the Police Station and lodged oral report. It was reduced into writing by him as per his version, which bears signature of this witness as well as complainant Amar. Witness Rameshwar has further stated that thereafter 'he registered the offence vide Crime no.23 of 2004, u/s.302 read with Section 34 of the Indian Penal Code against the accused persons as well as printed First Information Report (Exh.56). Careful scrutiny of cross-examination of Rameshwar (PW -6) shows that he had admitted that there is no reference regarding oral report lodged by complainant Amar in the First Information Report. He has also admitted that if information about crime is received, it is necessary to enter the same in the station diary. The information vide Entry No.46 of 2004 was recorded on the basis of the information received on telephone. 27. Salauddin (PW-9) (investigating officer) in his cross-examination has admitted that the information regarding murder of deceased Milind was received by the Police Station on telephone and he had gone through the said message personally and had also seen Sana number given to the said entry, but he had not filed these documents in the Court. 27. Salauddin (PW-9) (investigating officer) in his cross-examination has admitted that the information regarding murder of deceased Milind was received by the Police Station on telephone and he had gone through the said message personally and had also seen Sana number given to the said entry, but he had not filed these documents in the Court. Salauddin (PW-9) further admitted in the cross-examination that the telephone message was received by the Police Station at 19.40 hours on 21-1-2004, however, he was unable to tell the name of the informant. Witness Salauddin (PW-9) further admitted that within five minutes after receipt of such message the offence came to be registered; he received the case diary at 20.45 hours and he left the Police Station within 10 minutes thereafter. Salauddin (PW-9) admitted in the cross-examination that he had not taken any entry regarding these things and was unable to state the Sana number. Similarly, the evidence of Rameshwar (PW-6) further shows that no time was mentioned either in the case diary or anywhere to show that at what point of time oral report (Exh.55) was lodged by complainant Amar (PW-3), though he has admitted in the cross-examination that the information mentioned in Entry No.46 of 2004 was on the basis of the message received on telephone by the Police Station. At this stage, it is also necessary to consider the evidence of Dr. Gangadhar (PW-5), who had examined complainant Amar on 3-2-2004 i.e. after five days of the incident and issued injury certificate (Exh.60) coupled with the evidence of Police Officer. Rameshwar (PW-6) has admitted in his cross-examination that, on 28-1-2004, he has not referred complainant Amar to doctor for his medical examination. The evidence of Dr. Gangadhar shows that he has examined complainant Amar on 3-2-2004 and found following injuries: 1. Swelling over right knee. 2. Healed abrasion over right thigh. 3. Healed abrasion above right knee. 4. Healed abrasion below right knee. 28. Considering the nature of evidence adduced by prosecution of complainant Amar (PW-3), Dr. Gangadhar (PW-5), Rameshwar (PW-6) and Salauddin (PW-9) (investigating officer), it creates serious doubt about the conduct of the complainant in lodging the oral report of the incident in the Police Station as alleged by him. Healed abrasion above right knee. 4. Healed abrasion below right knee. 28. Considering the nature of evidence adduced by prosecution of complainant Amar (PW-3), Dr. Gangadhar (PW-5), Rameshwar (PW-6) and Salauddin (PW-9) (investigating officer), it creates serious doubt about the conduct of the complainant in lodging the oral report of the incident in the Police Station as alleged by him. It also creates doubt whether Exh.55, which is treated to be the First Information Report, was in fact reduced in writing on the basis of the oral report lodged by Amar (PW-3). Similarly, as per the recitals in the printed First Information Report, it is evident that the information about the incident disclosed in the printed FIR (Exh.56) was received by the Police Station on telephone. The Investigating Officer Salauddin (PW -9) has also admitted in his cross-examination that the information about the crime was received by the Police Station on telephone and it is thereafter the crime came to be registered. Rameshwar (PW-6) has admitted in the cross-examination that the information mentioned in Entry No.46 of 2004 was on the basis of the information received on telephone. However, neither Rameshwar (PW-6) nor Salauddin (PW-9) (Investigating Officer) has placed this document (Entry No.46) on record and in absence thereof, the controversy about the First Information Report alleged to have been lodged by Amar (PW -3) creates serious doubt about authenticity of the prosecution case. In the instant case, though the police officer have admitted that they are duty bound to write down the information in the station diary about the cognizable offence received on telephone, however, in the instant case, though they admit that the information about the incident in question was received by police station on phone, however for the reasons best known to them, they have suppressed this material evidence from the Court. Which has rendered the prosecution case doubtful from the very beginning of the investigation itself. 29. We are unable to appreciate as to why Rameshwar (PW-6) has failed to refer Amar (PW-3) to any doctor for medical examination, though he met him on the day of incident i.e. 28-1-2004 itself and if he had suffered the injuries described in the Certificate (Exh.60) issued by Dr. Gangadhar (PW-5). Amar (PW-3) was examined by Dr. 29. We are unable to appreciate as to why Rameshwar (PW-6) has failed to refer Amar (PW-3) to any doctor for medical examination, though he met him on the day of incident i.e. 28-1-2004 itself and if he had suffered the injuries described in the Certificate (Exh.60) issued by Dr. Gangadhar (PW-5). Amar (PW-3) was examined by Dr. Gangadhar after five days of the incident i.e. on 3-2-2004 and therefore, it creates doubt as to whether the complainant Amar in fact had received injuries due to fall from the motor cycle, as alleged by prosecution in the incident in question and had really lodged the oral report about the incident in the Police Station on 28-1-2004, Similarly, the evidence of Ravi (DW-1) (Police Constable) shows that, on 28-1-2004, Amar (PW-3) went to Jail and met appellant Sunil Chokoba Sambarkar, There is an entry in this regard in visitor's register (Bhetiche register), The evidence of Ravi (DW-1) further shows that he could hear the talk which had taken place between complainant Amar and appellant Sunil, He heard Amar telling appellant Sunil that he had lodged false report and demanded Rs.1,00,000/- for changing his version, It is pertinent to note that the evidence of Ravi (DW-1) relating to visit of Amar to Prison, his meeting with the appellant Sunil and demand of Rs, 1,00,000/- made by him has not been shattered in the cross-examination of this witness. In view of evidence of Ravi (DW-1), the whole conduct of complainant Amar (PW3) is suspicious. In our view, there was no occasion for the complainant to visit the prison to meet accused Sunil against whom, as alleged by prosecution, he had lodged report in the Police Station about the offence, In any case, all these circumstances, in our view, has rendered the prosecution case, right from its inception, doubtful as well as unreliable. Similarly, in the circumstances of the present case, it is very difficult for us to hold that the evidence of complainant Amar (PW-3) is free from doubts. 30. Similarly, in the circumstances of the present case, it is very difficult for us to hold that the evidence of complainant Amar (PW-3) is free from doubts. 30. So far as Raju (PW-4) another eye-witness is concerned, the testimony of Investigating Officer Salauddin (PW-9) shows that though this witness (Raju) met the investigating officer on the day of incident i.e. on 28-1-2004, however, the Investigating officer failed to record his statement on 28-1-2004 and the statement of this witness was recorded for the first time on 30-1-2004, There is no explanation forthcoming from the investigating officer what had prevented him from recording the statement of Raju (PW-4) on the day of incident, particularly because the said witness met him on the day of incident itself, It is no-doubt true that the delay in recording the statement by itself as a rule docs not render the testimony of such witness unreliable or doubtful and It necessarily depends upon the facts and circumstances of each case. If there are legitimate reasons forthcoming from the investigating officer for the delay in recording the statements of witnesses including the eye-witnesses, in such a situation, the delay caused in recording of statements is not fatal. However, in view of the facts and circumstances of the present case, particularly because, no explanation whatsoever is coming from the investigating officer for the delay caused in recording the statement of eye-witness Raju, though he met him on the day of incident. In our view, in the instant case, delay is fatal to prosecution and it also creates serious doubt about the testimony of this witness, which is also not free from material omissions and contradictions. 31. So far as the other circumstances such as discovery of weapons, seizure of blood stained clothes and report of the Chemical Analyser are concerned, the evidence of panch witness Sheshrao (PW-8) does not improve the case of the prosecution regarding seizure of clothes of accused made vide Exhs.71 to 74, since the evidence of this witness shows that the same was not effected in his presence and in absence thereof, it is difficult to accept the evidence of seizure of clothes and consequently, the blood detected on the same does not connect the accused with the crime. It is no-doubt true that Dr. It is no-doubt true that Dr. Nishat (PW-7) performed post-mortem examination on the dead body of deceased and the injuries noticed by him are mentioned in the column nos. 17, 18 and 19 of the Post-Mortem report, however, it is a corroborative piece of evidence and on its own does not establish the author of the injuries. In the instant case, the evidence of two eye-witnesses being not free from doubt coupled with the evidence of Sheshrao (PW-8) which demonstrates that seizure of clothes of the accused was not effected in his presence and therefore, the report of the Chemical Analyser is unable to provide any benefit to the prosecution, merely on the basis of the medical evidence of Dr. Nishat, it is not possible to hold that prosecution has established the charge framed against the appellant Sunil. 32. So far as the evidence against appellant Purshottam is concerned, complainant Amar in his evidence has stated that Purshottam started assaulting deceased Milind by means of an axe only after Milind fell down from the motor cycle. Witness Raju (PW-4) has more or less given the same version. However, in the cross-examination, witness Raju has admitted that he was aware that police were in the village and had visited the spot of occurrence. In the cross-examination, Raju (PW-4) has admitted that there was a facility to make a phone call available in his village and the police out-post was only 6 to 7 kms. away from his village Karanji (Kaji), Raju (PW-4) has admitted that he neither lodged report nor informed the police about the incident. There are material omissions in the testimony of Raju (PW-4) and so far as the evidence of complainant Amar (PW-3) is concerned, we have already observed that the same is not free from doubt. It is pertinent to note that the testimonies of these eye-witnesses have already been disbelieved by the trial Court so far as the original accused no.3 Sikandar and accused no.4 Chokhoba are concerned and, the trial Court, therefore, has acquitted these accused for the offence punishable u/s.302 read with Section 34 of the Indian Penal Code. Looking to the evidence on record, we are of the view that prosecution has failed to bring home the guilt of the appellants for the offence of murder. 33. Looking to the evidence on record, we are of the view that prosecution has failed to bring home the guilt of the appellants for the offence of murder. 33. The State has preferred appeal against acquittal only in respect of co-accused Sikandar and therefore, we have considered whether the evidence adduced by prosecution is sufficient to establish the complicity as well as guilt of co-accused Sikandar who is already acquitted by the trial Court. The evidence of complainant Amar (PW-3) in this regard is scrutinized for this purpose, which shows that accused Sikandar assaulted deceased by means of a stick. However, there is an omission in this regard brought out in the cross-examination of complainant in his police statement. The said omission, in our view, is of material nature and shatters the testimony of witness Amar so far as complicity of co-accused Sikandar in respect of the crime in question is concerned. So far as the evidence of another eye-witness Raju (PW-4) is concerned, we have already discarded his evidence since it is not free from doubt and does not inspire confidence and therefore, for the similar reasons, it needs to be discarded, insofar as the co-accused Sikandar is concerned. 34. For the reasons stated hereinabove, the Criminal Appeal No.338 of 2004 is allowed. Conviction of the appellants for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code is hereby quashed and set aside. Appellants be released if nut required in any other criminal case. The amount of fine if paid, be refunded to the appellants. Criminal Appeal No.463 of 2005 is dismissed.