JUDGMENT: 1. A serious incident of desperate attack on husband - Sanjay, his wife namely- Sunita and her mother - Nirmalabai, took place on 28th March 1988 at village Paoni, District : Bhandara at about 6.00 p.m. Husband - Sanjay was attacked by a gun, deceased Sunita and her mother Nirmalabai were attacked by knife. Prosecution alleged that, it was the respondent who had caused this desperate attack. In the trial, bearing Sessions Trial No.44/1988 Additional Sessions Judge, Bhandara acquitted the respondent by judgment dated 25.1.1990, of the charges levelled against the respondent for the offences punishable under section 302, 307, 324 of the Indian Penal Code and section 3/25 and 27 of the Arms Act. The appellant - State challenges the said judgment of acquittal. 2. Prosecution case in brief is that - the respondent and deceased - Sunita had love affair in their school time at Paoni. However, later on, their marriage did not take place as she married with Sanjay - P.W. 8. It is alleged that before the said marriage, respondent had met with Sanjay and told him about his love with deceased Sunita. It is also alleged that he threatened P.W. - Sanjay not to marry with her. P.W.8 Sanjay took the respondent to his brother - P.W. 7 Manik. It is further alleged that P.W.-8 Sanjay, told respondent that as the 'Sakshagandha' Ceremony had taken place, he was going to marry with deceased Sunita. It is further alleged that respondent had told P.W.7 Manik not to perform marriage of P.W.8 Sanjay with deceased Sunita. He also threatened of dire consequences, if the marriage takes place. Thereafter, the marriage between the deceased Sunita and P.W. 8- Sanjay took place on 12.2.1988 at Nagpur. P.W.-8 Sanjay was residing at Nagpur. On the day prior to the incident, P.W. 8- Sanjay and his wife - deceased Sunita had come to Paoni for extending invitation for the marriage of his niece to his mother-in-law Nirmalabai [since deceased.. P.W.8 Sanjay had stayed with his mother-in-law. On the date of incident at about 3.00 p.m., P.W. 4 - Archana - niece of deceased Sunita had been to the house of P.W. 6 Sadashio - grandfather of deceased - Sunita. Then Nirmala, Deceased -Sunita, P.W.4 Archana, P.W. 16 Rupesh her nephew, P.W.8 Sanjay went towards the bridge of Vainganga river for a walk. On the date of incident at about 3.00 p.m., P.W. 4 - Archana - niece of deceased Sunita had been to the house of P.W. 6 Sadashio - grandfather of deceased - Sunita. Then Nirmala, Deceased -Sunita, P.W.4 Archana, P.W. 16 Rupesh her nephew, P.W.8 Sanjay went towards the bridge of Vainganga river for a walk. Thereafter, at about 6.00 p.m. they started returning to the house. It is alleged that at about 5.30 - 5.45 p.m. respondent along with his friend P.W.5- Rajesh were going on motorcycle towards Vainganga river bridge. At that time on seeing these P.W.s respondent told P.W. 5 Rajesh .SALI SUNITA YEVDHA PREM ASUN AAJ EKDA SUDHA MAZYAKADE PAHILE NAHI.. It is alleged that on that day accused - Mahesh had kept a gun and a bag with P.W. 2 Laxmibai. On enquiry, he told P.W. 2 Laxmibai and her Neighbour P.W.3 Bilkish Begum that, he was to go for hunting. Thereafter, accused/ respondent along with P.W. 5 Rajesh returned & they went to their house. However, respondent returned back with a gun and he fired one shot from backside of P.W.- Sanjay. Sanjay suffered injury, he fell down and shouted .ARE BAPRE.. Thereafter, deceased Sunita and Nirmalabai held P.W. Sanjay. At that time respondent came and assaulted deceased Sunita with knife. She suffered several injuries. She was tried to be saved by Nirmalabai. However, respondent gave knife blows to her also. Thereafter, respondent left that place. P.W. 1 Prakash, on hearing shouts came there, he allegedly noticed respondent with a gun and knife in his hands. Later on P.W. 1 Prakash took Sanjay, then injured Sunita and Nirmalabai to the Hospital in Rickshaws. They were admitted there. All this had happened between 6.00 to 7.00 p.m. At about 7.15 p.m. (deceased) Sunita expired. Medical Officer - P.W. 10 Fegadkar then sent memo to the Police Station, Paoni regarding admission of these persons. P.W.8 Sanjay and Nirmalabai were transferred to Medical College, Nagpur at about 7.45 p.m. On the same day. P.W. 1 Prakash lodged report to Paoni Police Station orally at about 7.30 p.m. It was reduced in writing. The said report being at Exhibit 28. First Information Report being at Exhibit 29. The offence under section 302, 307, of the I.P.C. was registered bearing crime no.34/1988 by P.W. 18 P.S.I. Dhimole. P.W. 1 Prakash lodged report to Paoni Police Station orally at about 7.30 p.m. It was reduced in writing. The said report being at Exhibit 28. First Information Report being at Exhibit 29. The offence under section 302, 307, of the I.P.C. was registered bearing crime no.34/1988 by P.W. 18 P.S.I. Dhimole. He started investigation by trying to get the dying declarations recorded, which he could not; as at that time Executive Magistrate was not immediately available. He conducted inquest on the dead body of deceased Sunita and did certain things in the investigation. He arrested respondent at about 7.30 p.m. on the same day. It is alleged that respondent made memorandum statement to discover gun and knife which was kept at his house in presence of Panchas namely P.W. 9 Vithoba Khobragade who incidentally is a Legal Practitioner and P.W. 13 - Harihar Barsagade. They were also present at the time of arrest of the respondent. During the investigation, postmortem on the dead body of the deceased Sunita was conducted by P.W. 10 Dr. Fegadkar, his relevant report is at Exhibit 62. The relevant injury certificates of deceased Sunita, P.W. Sanjay and Nirmalabai -are at Exhibit 54, 55 and 56. There was seizure of gun and knife also as per Exhibit 43. In Medical College Hospital at Nagpur the pellets from the person of the P.W.8 Sanjay were recovered. It is necessary to mention that P.W. 18 - P.I. Dhimole had also taken sample of nails of the respondent during the investigation in presence of the Panchas, the same were sent to Chemical Analyser for report. Chemical Analyser's report is at Exhibit 99 to 102. Report of Ballistic Expert is at Exhibit 101. After due investigation P.S.I. Dhimole submitted charge sheet in the court of Chief Judicial Magistrate, Bhandara. 3. Learned Chief Judicial Magistrate committed this case to the court of Sessions, Bhandara as the offences were exclusively triable by the court of sessions. 4. Learned Additional Sessions Judge, during the trial framed charge against respondent for the offences under section 302, 307, 324 of the I.P.C as well as for the offence under section 25 & 27 of the Arms Act. The same was explained to the respondent, he pleaded not guilty. 5. The defence of the respondent as it appears from his statement under section 313 of Cr.P.C. is that P.Ws. The same was explained to the respondent, he pleaded not guilty. 5. The defence of the respondent as it appears from his statement under section 313 of Cr.P.C. is that P.Ws. are on old inimical terms with him. On the date of incident at about 5.00 to 5.30 in the evening he and P.W. 5 Rajesh had gone on motorcycle towards river for a walk. Thereafter, they went to a small hill in the vicinity, they stayed there for about 1½ hour. They kept motorcycle near one hotel, they had a tea there and when they were on the small hill, they heard noise of blasting the cracker. Thereafter, they returned to their houses and after they returned, when respondent came to his house, people had told that murder had taken place. According to him, he was arrested on suspicion on account of old quarrel. 6. Learned Trial Judge, by his elaborate judgment, impugned in this appeal, held that the incident had taken place, in which, deceased Sunita had suffered injuries which are mentioned in the medical certificate - Exhibit 54 and later on in P.M. Notes Exhibit 62; P.W.8 Sanjay had also suffered injuries as mentioned in exhibit 55 and Nirmalabai had suffered injuries as stated in Exhibit 56. He however held that Respondent was not proved to be the author of these injuries. So he delivered the impugned judgment acquitting the accused. 7. It is necessary to have a brief look over the injuries suffered by them. Exhibit 54, the injury certificate of deceased shows as many as 9 injuries thus: 1. Incised wound 3 c.m. x 1 c.m. over left forehead. 2. Incised wound 3 c.m. x 1 c.m. interscapular region to right side. 3. Incised wound / stab 1 c.m. x ½ c.m. over posterior side of neck in midline area. 4. Incised wound 3 c.m. over Matacarpophalangeal joint of right hand. 5. Incised wound 2 c.m. x 1 c.m. over middle finger of right hand. 6. Incised wound 1 c.m. x 1 c.m. Metacarpophalangeal joint of right middle finger. 7. Incised wound over scalp 3 c.m. x 1 c.m. behind right ear. 8. Incised wound 3 c.m. x 1 c.m. over occipital region of skull 9. Incised wound 5 c.m. x 1 c.m. over mid parietal region. Her autopsy vide Exhibit 62 shows following internal injuries on her person: 1. 7. Incised wound over scalp 3 c.m. x 1 c.m. behind right ear. 8. Incised wound 3 c.m. x 1 c.m. over occipital region of skull 9. Incised wound 5 c.m. x 1 c.m. over mid parietal region. Her autopsy vide Exhibit 62 shows following internal injuries on her person: 1. Pleura-perporating injury 1 c.m. x 1 c.m. upto apex of left lung. 2. Left lung: 2 c.m. x ½ c.m. injury to the apex of left lung. Plenty blood collection was seen in left thoracic cavity. Her death as per medical opinion is caused due to shock due to hemorrhage. Injuries found on the person of P.W. Sanjay as mentioned in Exhibit 55 are thus: 1. Incised wound / stab over abdomen 3 c.m. x 4 c.m. in left Hypochondrium. 2. Fire arm injuries 9 in number on left size back at renal angle level to upper iliac crest. 3. Firearm injuries over buttocks. Two injuries were on right buttock and one injury was on left buttock and size of each injury was 1 c.m. x 1 c.m. edges of all the said injuries were inverted. Black right all around the injuries wound of exit seen. Nirmalabai had suffered injuries as mentioned in Exhibit 56, which are thus: 1) Incised wound / stab over left scapular region 2.5 c.m. x 1 c.m. bleeding was present. 2) Incised wound 7 c.m. x 1 c.m. over face right side lateral to lateral angle of eye. 3) Incised wound 2.5 c.m. x 1 c.m. over right hand above little finger. 4) Incised wound right elbow joint 2 .5 c.m. x 1 c.m. Movements frees. 8. It is rather not disputed that deceased Sunita had died of homicidal death due to aforementioned injuries. It is also not seriously in dispute that the evidence of Dr. Fegadkar is not worth challenging and the injuries found on the person of P.W. 8 Sanjay and said Nirmalabai were found as they are mentioned and, therefore, the learned Trial Judge has held these facts to have been proved by the prosecution. Therefore, it goes without adding anything further that the offence of causing murder of deceased Sunita had taken place. Offence by causing injuries to P.W. 8 Sanjay by arms had taken place & offence of causing injuries by Sharp weapon to Nirmalabai had taken place. Therefore, it goes without adding anything further that the offence of causing murder of deceased Sunita had taken place. Offence by causing injuries to P.W. 8 Sanjay by arms had taken place & offence of causing injuries by Sharp weapon to Nirmalabai had taken place. Therefore, if the gun had no licence, the offence under section 25 and 28 of the Arms Act has also been established. 9. The question is whether the respondent was author of these injuries caused to these persons and whether it is established so by evidence adduced by the prosecution on record. 10. Learned counsel for the appellant - Mrs. A.R. Taywade, has submitted that the evidence of injured witness - P.W.8 Sanjay as is corroborated from the evidence of Dr. Fegadkar i.e. medical evidence, has to be accepted and conviction of the respondent has to be ordered. She also contended that, evidence of P.W. 1 -complainant Prakash Deshkar, P.W.4 Archana, P.W. 16 Rupesh also supports the case of the prosecution. Although, P.W. 2 Laxmibai and P.W.3 Bilkish Begum and P.W. 5 Rajesh, P.W. 15 Nilkanth have turned hostile to the prosecution, their evidence to some extent supports the prosecution and their evidence in part has to be relied upon in the circumstances of the case. She has also referred the evidence of P.W. 9 Vithoba Khobragade and P.W. 13 Harihar Barsagade to show that at the time of arrest of the respondent, he had blood stained clothes on his person and at the time of investigation he had made memorandum statement to discover the said gun and knife used for the offence. According to her the clippings of the nails of the respondent has also been established and as it contains blood stains, she submitted that prosecution has sufficiently established that it was the respondent who had committed this offence. She has also referred to evidence of P.W. 18 - P.S.I. Dhimole who conducted investigation, saying that the cross examination of this witness does not show that he has any grudge against the respondent to implicate him falsely. Further she has referred to the evidence of P.W. 17 -Special Judicial Magistrate P.V. Shesh, who recorded statements of P.W. 13 Nilkanth, P.W. 2 Laxmibai, P.W.4 Archana, P.W.16 Rupesh, as the statements of witnesses under section 164 of Criminal Procedure Code. Further she has referred to the evidence of P.W. 17 -Special Judicial Magistrate P.V. Shesh, who recorded statements of P.W. 13 Nilkanth, P.W. 2 Laxmibai, P.W.4 Archana, P.W.16 Rupesh, as the statements of witnesses under section 164 of Criminal Procedure Code. Besides this, she has taken us through the evidence of P.W.8 Sanjay and P.W. 7 Manik his brother to contend that the same establishes the threats given by the respondent to P.W.8 Sanjay of dire consequences, if he marries with deceased Sunita. She has also referred to the evidence of P.W. 11 Dr. V. V. Wase who had allegedly sent the packets of pellets extracted from the body of P.W. Sanjay and the evidence of P.W. 12 R.P. Malewar who had prepared the map of spot of incident. 11. She has relied on the observations of the Apex Court in (2005)7 Supreme Court Cases 408 [State of Punjab ..vs.. Hakam Singh. to contend that the appreciation of testimony of rustic villagers has to be done taking into consideration that, they have rural background and they cannot give any accurate photographic version of the incident and therefore, their evidence should be appreciated with some concessions. 12. As against this the learned counsel for the respondent - Shri Joshi, by taking us through the judgment of the learned Trial Judge, has contended that the P.W. Sanjay did not disclose in the evidence anything about the injury caused to him which is noticed by the Medical Officer i.e. stab injury. He further contended that statements of main eye witnesses were recorded late. He has also raised a contention that in this case there is no explanation as to why ballistic expert was not examined. So also the Medical Officer who had taken out pallets or its remains from the body of Sanjay. According to him, full truth has not come before court and genesis of occurrence has been suppressed. He has also, raised a contention that whole of the prosecution story does not inspire confidence and the P.W. 5 Rajesh has supported the defence to considerable extent. Further, according to him, the time recorded in various documents in this case, do cast doubts on prosecution case. He has particularly referred to the time of registration of First Information Report i.e. 7.30 p.m., arrest time of respondent i.e. 7.30 p.m., memos issued for recording dying declarations and some other documents. Further, according to him, the time recorded in various documents in this case, do cast doubts on prosecution case. He has particularly referred to the time of registration of First Information Report i.e. 7.30 p.m., arrest time of respondent i.e. 7.30 p.m., memos issued for recording dying declarations and some other documents. Further he has also referred to the reasons recorded by the learned Trial Court that the prosecution did not explain the injury on the person of the accused. He has therefore, contended that the prosecution evidence is riddled with contradictions, unexplained discrepancies in the recording of timing between various documents and also the fact that statements of witnesses were recorded late and the fact that the statements of the relevant witnesses were not recorded immediately after the incident at Paoni Hospital including statement of P.W.8 Sanjay and Nirmala which would have been in the shape of dying declaration at the relevant time. Therefore, he has mainly contended that the genesis of the occurrence has not been established by the prosecution, so also the accused is not proved to be the author of the fatal injuries caused on the deceased Sunita and the injuries on Sanjay and Nirmalabai. It is also contended by him that the prosecution case is inherently improbable as the respondent can not have a gun in one hand and a knife in other to cause injuries as alleged by the prosecution, much less by holding hair of Sunita as averred by some of the witnesses. According to him prosecution case is not established beyond reasonable doubts and therefore, there is grey area and as mere suspicion cannot take place of proof, the prosecution case can not be held to have been established beyond reasonable doubts and therefore, the judgment of the learned Trial Judge is correct. 13. He has also supported the reasons recorded by the learned Trial Judge that the prosecution witnesses are relatives and only interested witnesses and no witness who would have seen the incident has been examined and therefore, the prosecution case is untrustworthy. 14. Learned counsel for the respondent has referred to judgments reported in: 2005(9) Supreme Court Cases Page 584 [Ayodhya Singh ..vs.. State of Bihar and others. 14. Learned counsel for the respondent has referred to judgments reported in: 2005(9) Supreme Court Cases Page 584 [Ayodhya Singh ..vs.. State of Bihar and others. wherein the Apex Court has observed: .It is well settled that if on the same evidence two views are reasonably possible, where the court below takes a view in favour of the accused, the appellate court will not set aside the order of acquittal unless it finds the findings to be perverse, highly unreasonable, based on no evidence on record or made in ignorance of relevant evidence on record or for other such reasons.. (2004)9 Supreme Court Cases 310 [State of U.P. ..vs.. Ram Bahadur Singh and others. wherein it was held that, when there is plausible view of the Trial Judge, and the prosecution case naturally creates suspicion, the judgment of acquittal should not be interfered with & (2005) 12 Supreme Court Cases 461 [Peerappa and others ..vs.. State of Karnataka., wherein the Apex Court has observed in paragraph 13 thus: .13- On an anxious consideration of the contentions in the light of the evidence on record and the findings of the trial court, we are of the view that the High Court ought not to have interfered with the order of acquittal, in this regard, we may recall the observations made by R.C. Lahoti, J [as His Lordship then was., speaking for a three -Judge Bench in Kashiram ..vs.. State of M.P.. It was observed thus: (SCC P 71) .Though the High Court while hearing an appeal against acquittal has powers as wide and comprehensive as in an appeal against a conviction and while exercising its appellate jurisdiction the High Court can reappraise the evidence, arrive at findings at variance with those recorded by the trial court in its order of acquittal and arrive at its own findings, yet, the salutary principle which would guide the High Court is - if two views are reasonably possible, one supporting the acquittal and the other recording a conviction, the High Court would not interfere merely because it feels that sitting as a trial court its view would have been one of recording a conviction. It follows as a necessary corollary that it is obligatory on the High Court while reversing an order of acquittal to consider and discuss each of the reasons given by the trial court to acquit the accused and then to dislodge those reasons. Failure to discharge this obligation constitutes a serious infirmity in the judgment of the High Court.. He has also relied on the latest judgment (unreported case)- Chandrappa & others ..vs.. State of Karnataka in Appeal (Cri) 853/2006, in which the Apex Court has observed after referring to the many cases on the subject thus: .From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded; (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of facts and of law; (3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds, 'very strong circumstances', 'distorted conclusions' 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize' the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court o review the evidence and to come to its own conclusion, (4) An appellate Court however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court. According to him, as two views are possible, and as the judgment of the learned Trial Judge is not perverse or unreasonable, the appellate court/this court considering such judgment, can not reach to the finding of the guilt of the accused. 15. With the above law in mind, the judgment of the learned trial Judge has to be appreciated and scrutinized in this appeal. 16. The main question as to whether the core evidence of eye witnesses examined in this case can be accepted, if yes, to what extent? 17. Before proceeding further, it needs to be mentioned that Nirmalabai had expired during the pendency of the trial, therefore, she was not examined. The evidence of P.W. 8 Sanjay who is injured in the incident is available on record, so also the evidence of eyewitness P.W.4 Archana and P.W. 16 Rupesh. Besides this, evidence of P.W. 1 Prakash who had lodged the report and P.W.15 Nilkanth who is also alleged eye witness is an important evidence available on record. Further evidence of P.W. 6 Sadashio to whom P.W.4 Archana and P.W. 16 Rupesh had gone to tell about the incident and who had came to the spot is on record. Apart from this the close scrutiny of the evidence of P.W. 8 Sanjay and P.W. 7 Manik on the point of motive and P.W. 9 Advocate Khobragade and P.W. 14 Harihar Barsagade and P.W. 18 P.S. I. Dhimole on the point of arrest panchnama of the respondent, seizure of the clothes of the respondent and also taking of his nail clippings has to be considered in depth. It is needless to mention that though P.W. 2 Laxmibai and P.W.3 Bilkish Begum have turned hostile to the prosecution their evidence also needs to be seen. 18. As already stated above, the substratum of occurrence of incident as alleged by the prosecution is not disputed, moreover it is supported by the medical evidence on record and therefore, as already pointed out above question would be whether accused is proved to be responsible for the same. 19. 18. As already stated above, the substratum of occurrence of incident as alleged by the prosecution is not disputed, moreover it is supported by the medical evidence on record and therefore, as already pointed out above question would be whether accused is proved to be responsible for the same. 19. P.W. 8 Sanjay in his evidence, has stated that he heard noise of fire of gun and he received gun shot injury on the left side of his back and he had seen accused behind at that time, there was gun in hand of accused and accused had kept gun below and he rushed with knife towards them and he had given blows of knife to deceased Sunita and deceased Nirmala and thereafter people had gathered and accused had run away. Thus, he clearly implicates respondent. Similar is the case of P.W. 4 Archana and P.W.16 Rupesh. P.W. 1 Prakash Deshkar who has lodged report as per Exhibit 28, has stated that on hearing shouts .WACHWA WACHWA., he went to the spot, he had seen Sunita lying on the road in front of house of Ganeshe Tahsildar and she was shouting .WACHWA WACHWA. and at some distance of one or two feet from Sunita her mother Nirmala was also lying, besides her one man was also lying he was speaking .GOLYA KADHA GOLYA KADHA.. He however, in evidence did not accept that he had seen the respondent with knife and gun. In cross examination by learned A.P.P. he has stated that he had not stated before police that accused Mahesh was standing nearby and he kept gun in between his two legs and he had caught knife with both hands and was closing the said knife and at that time he had told people .arrest him arrest him.. He denied to have made statement in the report, portion marked 'A'. He however, could not assign any reason why police did record in his statement thus. 20. P.S. I. Dhimole (P.W. 18) deposed, that the portion marked in his statement is correctly recorded. In cross examination by defence nothing substantial was shown that, he had any reason to depose false. However, fact remains that in report, it is recorded that he had seen accused with gun and knife though before the court he disowned the same. 20. P.S. I. Dhimole (P.W. 18) deposed, that the portion marked in his statement is correctly recorded. In cross examination by defence nothing substantial was shown that, he had any reason to depose false. However, fact remains that in report, it is recorded that he had seen accused with gun and knife though before the court he disowned the same. We have already observed that there is no reason pointed out by the defence as to why P.S.I. Dhimole should depose false against respondent. 21. As stated above, P.W. 2 Laxmibai and P.W. 3 Bilkish Begum have turned hostile to the prosecution. They were also contradicted with the portion marked 'A' of their statement which do implicate the accused - respondent as an assailant. The portion 'A' is stated to be correctly recorded by P.S.I. Dhimole. 22. P.W. 6 Sadashio who happens to be the grandfather of deceased Sunita has stated that at the relevant time Rupesh and Archana had come and they had told that while returning from the river they had heard noise of blasting cracker and these persons had suffered injuries and the accused Mahesh had given knife blows on the head of deceased Sunita and Nirmala. 23. P.W. 15 - Nilkanth had stated about hearing noise of blasting of crackers. He however, turned hostile to the prosecution. He denied the incident in cross examination by the learned P.P. However, he could not explain why portion incriminating the accused were recorded during the statements in the investigation including one before the Special Judicial Magistrate Shri Shesh. 24. This will show that there is no substantial reason to disbelieve the main prosecution witnesses including the injured one. 25. The learned Trial Judge has disbelieved them on the ground that they are close relatives and also interested witnesses, besides they being untrustworthy for other reasons i.e. the persons who could not have seen the incident and also on the ground that no other independent witnesses have been examined, perhaps they would have been available, as the people had gathered there and because some of the important witnesses have turned hostile. 26. As regards independent witnesses being available, suffice it to say that, at the relevant time no doubt some independent witnesses would have been available, but question here would be whether these witnesses are liable to be disbelieved only because the other witnesses are not examined. 26. As regards independent witnesses being available, suffice it to say that, at the relevant time no doubt some independent witnesses would have been available, but question here would be whether these witnesses are liable to be disbelieved only because the other witnesses are not examined. As already stated above, the occurrence of the incident is not in serious dispute. Besides this, P.W. 1 Prakash Deshkar who does not seem to be an interested witness, has clearly supported the prosecution case though he denied the material statements which he had made before the Investigating Officer and also before the Special Judicial Magistrate P.W. - Shesh. 27. It is well known that in such cases many a times independent witnesses do not come forward to depose in favour of the prosecution. There may be many reasons for the same. When such incident had occurred, it is the imperative duty of the court to find out whether the accused brought before the court, is necessarily a person who has caused these injuries. 28. It goes without saying that merely because the witnesses examined by the prosecution are relatives - witnesses, that fact by itself will not be sufficient to discard the evidence of the prosecution witnesses. Only rule of caution is that, the evidence has to be reliable evidence which has to be accepted after deep & thorough scrutiny. 29. The incident happened between 6.00 to 7.00 p.m. The First Information Report was recorded at 7.30 p.m. The evidence of Dr. Fegadkar also shows that the victims were taken to the hospital immediately after the incident and he had sent his reports to the P.S. immediately, thereafter. 30. Leaned counsel for the respondent has contended that, the statement of Nirmalabai and Sanjay, as they were in serious condition, at that time, in the form of Dying Declaration are not recorded. Had it been so, they might have told the real genesis of the occurrence. Further according to him, the statement of deceased Sunita is also not recorded, so also the statements of the possible eye witnesses to the incident are not recorded. As such evidence of these eye witness is far from acceptance. 31. It is true that statement of deceased Sunita was not recorded. But the fact remains that she was unable to state anything at the relevant time. As such evidence of these eye witness is far from acceptance. 31. It is true that statement of deceased Sunita was not recorded. But the fact remains that she was unable to state anything at the relevant time. As regards non-recording of the statements of Sanjay and the said Nirmalabai, suffice it to say that the explanation is offered by P.W. 18 - P.S.I. Dhimole in this behalf that he had tried to get their statements recorded, however, they were shifted to Nagpur, and as Tahsildar did not come in time, their statements were not recorded, the same is not unacceptable. Even if it is assumed for a moment that their statements are not recorded at the relevant time, their testimonies can not be disbelieved on that count. Considering the circumstances of the case and particularly the evidence of P.W. 1 Prakash Deshkar and P.W.10 Dr. Fegadkar. Therefore, merely because their statements are not recorded, at the relevant time, they can not be said to be untrustworthy. 32. Learned counsel for the respondent further submitted that the evidence of P.W.4 Archana is liable to be discarded inasmuch as she and Rupesh had been first to the house of Sadashio and it required about 10 - 15 minutes. It is also submitted by him that as Sadashio was not found they had gone to the house of one Ganpat Nimbaji where he was sitting and there they narrated the incident. So there was considerable lapse of time. He, therefore, submitted that, they can be said to be unreliable witnesses. 33. In cross examination no doubt P.W. 4 Archana has stated that 10 minutes are required for going to the house of Sadashio from the spot by walking and about 10 minutes are required for reaching to the house of Ganpat Nimbaji, this time factor can not be considered as damaging as they are rustic villagers. 10 minutes told by them does not mean exact 10 minutes or more than that. Considering the fact that the place of incident is a small village, the distance may not assume much importance, thereby making the evidence of these witnesses liable to be discarded on this count only. The evidence of P.W.6 Sadashio is also, therefore, acceptable. 34. 10 minutes told by them does not mean exact 10 minutes or more than that. Considering the fact that the place of incident is a small village, the distance may not assume much importance, thereby making the evidence of these witnesses liable to be discarded on this count only. The evidence of P.W.6 Sadashio is also, therefore, acceptable. 34. It is also pointed out that there are some discrepancies, contradictions and omissions in their evidence and submitted that they are planted witnesses and they being relatives and interested witnesses; they are not trustworthy. 35. It is sufficient to say in this behalf that, in view of (2005) 7 SCC 408 [State of U.P. ..vs.. Hakam Singh. this fact by itself will not discredit these witnesses. There are no omissions on material aspects of the case and implication of the respondent as an assailant, in the evidence of material witnesses. 36. It is further necessary to note that no sufficient reason except the alleged previous non-cordial relations has been alleged, by the defence for contending that these are concocted witnesses. In fact except allegations, there is no proof or evidence adduced by the defence in this behalf. The evidence of these eyewitness have a ring of truth on material particulars of prosecution case. 37. As regards the motive, for commission of the offence, P.W. 7 Manik and P.W. 8 Sanjay have deposed about the same. It is, though surprisingly not stated in the defence version that there was no such love affair between the deceased and respondent. Respondent only stated that this incident was false. He should have led some evidence to that effect, as there was specific allegation by the side of the prosecution that there was love affair between the deceased -Sunita and respondent. This is not to draw any adverse inference against the defence, but only to state that he has not led such evidence making us to discard the theory of alleged assault on the victims due to marriage between P.W.8 Sanjay and deceased Sunita i.e. failure of love affair between deceased Sunita and the respondent. 38. As regards the delay in recording the statements of the main witnesses, suffice it to say that there is no such delay by which any doubt can be cast on their evidence. 38. As regards the delay in recording the statements of the main witnesses, suffice it to say that there is no such delay by which any doubt can be cast on their evidence. The only thing which can be said is that, as the victims needed immediate treatment and further deceased -Sunita had died immediately after the incident, the possibility of these witnesses being busy or otherwise being in grief, can not be overruled. In such circumstances, delay in recording their statements will not assume 25 much importance, if otherwise their testimony is found to be corroborated by the other material on record. 39. As already stated above, the evidence of Dr. Fegadkar who had examined victims and conducted autopsy on the dead body of Sunita clearly shows that incident was serious. It is true that no other witnesses, except the relations have supported prosecution case fully; fact remains that P.W.1 Prakash had lodged report to the police station immediately after the incident naming the respondent for having the instruments of offences, though in evidence that part he had denied. The fact also remains that the witnesses - Nilkanth, though has turned hostile to the prosecution, had stated that he had been to the hospital with people and in cross examination he has stated that, the portion marked 'A' which are recored by the Special Judicial Magistrate, in his statement under section 164 of Cr.P.C. is not correct and he did not assign any reason as to why the Police or the Special Judicial Magistrate should record his statement falsely. In our considered opinion, therefore, the testimony of P.W.8 Sanjay, P.W. 4 Archana and P.W.16 Rupesh is not liable to be discarded wholly. 40. At this stage, it is necessary to refer to the defence of the respondent. According to him, he and P.W.5 Rajesh had gone to the small hill at the relevant time and they returned late i.e. after the incident, because he specifically submitted that when they returned to home they learnt that there was murder and also beating. He has specifically pleaded that due to old enmity P.W.s told his name and Police had arrested him on suspicion. P.W. 5 Rajesh has turned hostile to the prosecution. He has specifically pleaded that due to old enmity P.W.s told his name and Police had arrested him on suspicion. P.W. 5 Rajesh has turned hostile to the prosecution. However, in his evidence he has stated that when they had gone on motorcycle, on the date of incident at about 5.30 p.m. towards river, after ½ hour they returned back to the house and accused - Mahesh had gone towards his house from his house and thereafter accused did not meet him. He had also stated that he along with Ulhas i.e. elder brother of the respondent had gone for walking. In cross examination, he denied the incriminating statements to have been made by him to the Police. He has, however, stated that accused - Mahesh is his neighbour and he is also his friend. In cross examination, he has stated that he and accused had gone on motorcycle at about 5.30 to 6.00 in the evening and they returned at about 7.30 p.m. back, after reaching at house, he along with Ulhas had gone to hill at about 7.45 to 7.50 p.m. according to his version. It is impossible for us to believe that when such incident had occurred in village like Paoni and if accused - respondent was arrested at about 7.30 p.m., this witness would have quietly gone along with brother of the accused & would have gone for a walk. It is obvious that he is hiding truth. Therefore, his version can not be treated as corroborating the defence version lending any support to the defence case as such. 41. Another aspect of this case which can not be missed is the fact of seizure of the clothes of the respondent- accused. In this behalf, the evidence of P.W. 9 - Khobragade legal practitioner shows that accused was arrested in police station as per Panchanama - Exhibit 41. P.W. 13 - Harihar also states to the same effect. So also P.S.I. Dhimole. Learned counsel for the respondent has submitted that there is discrepancy in the time and at 7.30 p.m. the respondent can not be in the police station and these witnesses being stock witnesses, have to be disbelieved. No doubt P.W. 9 Khobragade has not deposed to the same extent as per Panchanama but, he can not be said to be liar. So also P.W. 13 - Harihar. No doubt P.W. 9 Khobragade has not deposed to the same extent as per Panchanama but, he can not be said to be liar. So also P.W. 13 - Harihar. In fact there is document on record of arrest Panchnama of the relevant time, P.S.I. Dhimole deposed about the same. It is not pointed out by the defence as to why all these three persons came together to implicate the respondent falsely. 42. Learned counsel for the respondent has contended that P.W. 13 Harihar is habitual Panch witness and he has taken us through cross examination in which he has asserted that during the period 1978 to 1981 he had given evidence as Panch in court in 5-6 cases and that he resides in front of the police colony. In our opinion, simply on that count his evidence can not be disbelieved. No doubt, he has admitted that till 1981 he was working as Panch on behalf of Police, but fact remains that his evidence was recorded some time in 1989. It is difficult to believe that simply because of his admission that till 1981 he was acting as police Panch, he is still acting as police Panch and signing the Panchnamas blindly. We have already pointed out that P.W. 9 Khobragade is legal practitioner and nothing is pointed out by the defence to show as to what was the reason for him to depose false against the respondent. Therefore, it has to be held that arrest Panchnama of the accused has been properly proved. 43. Therefore, the contents of the arrest Panchnama would be material for this case. Arrest Panchnama which is at Exhibit 41 shows that accused Mahesh had sky colour white check manila and brown catechu coloured full pant and shirt was having blood stains at various places. It also mentions that he had a cut injury on his right little finger and blood was coming out. This Panchnama is of about 7.30 p.m. i.e. immediately after the incident. In such circumstances, it was for the defence to explain the blood stains on the clothes of the respondent. We have already pointed out above that these witnesses have no reason to depose against respondent falsely and therefore, this assumes importance. This positively incriminates Respondent. Apart from this, vide Panchnama Exhibit 45 which is signed by Panch Khobragade, also assumes importance. We have already pointed out above that these witnesses have no reason to depose against respondent falsely and therefore, this assumes importance. This positively incriminates Respondent. Apart from this, vide Panchnama Exhibit 45 which is signed by Panch Khobragade, also assumes importance. It is regarding the nail clippings of the respondent. No doubt this witness has stated that in his presence samples of the nail of the accused were not taken. But fact remains that he has signed Exhibit 45. Further P.S.I. Dhimole had deposed about this. There is no sufficient reason to discard this version. 44. In this context, therefore, it is necessary to see Chemical Analyser's Report. Chemical Analyser's report at Exhibit 100 shows that the articles in shirt of the respondent was having human blood stains, so also his pant. Besides this, even nail clippings had human blood. In our opinion, when such was the incriminating circumstance, it was for the respondent to explain it cogently. No doubt he has no burden to discharge in this behalf and prosecution has to establish its case. The fact remains that this evidence to the effect that his clothes were having blood stains so also nail clippings, clearly singles out respondent as an assailant. 45. As regards the evidence of Panchas, regarding recovery of gun and knife, there is evidence of Panch Khobragade and Harihar Barsagade. It is true that P.W.9 Khobragade deposed that the respondent did not tell anything before the police. Fact remains that he had stated that police had taken from accused gun so also knife. 46. Learned counsel for the respondent has drawn our attention to the discrepancy in their evidence regarding the place of recovery of the articles and knife. In our opinion, it is of little importance considering the fact that it was seized immediately after the incident. The said recovery appears to be of about 9.40 to 10.30 on 28.3.1988. It is impossible to hold that the prosecution witnesses or the police would have planted these articles, so as to make a show of discovery of articles by the respondent. Even assuming that those were articles which were seized from the house of the respondent or from the vicinity of the said house, that becomes incriminating circumstances to the respondent, even in absence of the memorandum statement. Even assuming that those were articles which were seized from the house of the respondent or from the vicinity of the said house, that becomes incriminating circumstances to the respondent, even in absence of the memorandum statement. It is needless to state that this knife was having human blood stains vide Chemical Analyser's Report in this behalf. 47. We are not giving much importance to the recovery of gun or production of pellets in this case as the relevant witnesses are not examined. It is quite disturbing that even when the case of the prosecution was that P.W. Sanjay had suffered fire arm injury no sufficient steps were taken to prove factum of taking out the pellets from the body of Sanjay and comparing the same with the shots through the gun, which was seized. But that aspect, will not cast doubts on the prosecution case, so as to dislodge the same. 48. It is the contention of the learned counsel for the respondent that P.W.8 Sanjay did not state about the stab injury. True that he has missed to state about the same, but again merely because he did not state about the same, considering the contents of charge framed against respondent that fact by itself will not be sufficient to hold P.W. Sanjay is deposing false just to implicate respondent. It is pertinent to note that the relatives of the victim are the last persons to spare the real culprits. In the present case, the report was lodged immediately. The witnesses consistently named the respondent as an assailant. There is no sufficient reason to point out that they are so desperate to leave real culprit and implicate respondent immediately after the incident. Further, there is some material on record which respondent did not explain which ought to have been explained. All these facts do not make us to believe that all these witnesses are concocted and planted witnesses just to implicate the respondent. 49. In this regard, in support of the above view, the observations of the Apex court in AIR 2006 SC 3098 [Santosh Kumar ..vs.. State of M.P. need to be noted: .Though P.W.-1 was declared as hostile, his evidence is not to be treated as effaced from record and can be relied upon in part. In Sat Paul ..vs.. 49. In this regard, in support of the above view, the observations of the Apex court in AIR 2006 SC 3098 [Santosh Kumar ..vs.. State of M.P. need to be noted: .Though P.W.-1 was declared as hostile, his evidence is not to be treated as effaced from record and can be relied upon in part. In Sat Paul ..vs.. Delhi Administration, AIR 1976 SC 294 after referring to several decisions on the point, it was held: .Even in a criminal prosecution when a witness is crossexamined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands throughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be credit worthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as mater of prudence, discard his evidence in toto.. In Gura Singh ..vs.. State of Rajasthan, AIR 2001 SC 330 it was held: .It is misconceived notion that merely because a witness is declared hostile his entire evidence should be excluded or rendered unworthy of consideration. In a criminal trial where a prosecution witness is cross-examined and contradicted with the leave of the Court by the party calling him for evidence cannot, as a matter of general rule, be treated as washed off the record altogether. It is for the Court of the fact to consider in each case whether as a result of such cross-examination and contradiction the witness stands discredited or can still be believed in regard to any part of his testimony. In appropriate cases the Court can rely upon the part of testimony of such witness if that part of the deposition is found to be credit worthy.. In appropriate cases the Court can rely upon the part of testimony of such witness if that part of the deposition is found to be credit worthy.. In (2005) 13 Supreme Court Cases 323 [Trilokinath and others ..vs.. State of U.P.. it has been observed thus: .29 -It may be true that there appear to be some contradictions in his evidence as regards carrying of Laxmi Shankar on his back inasmuch as in the cross-examination he had stated that Ram Shankar carried Laxmi Shankar on his back, but that by itself may not be a ground to discard his evidence in totality. 30- .Falsus in uno, falsus in omnibus. is not a rule of evidence in a criminal trial and it is the duty of the court to disengage the truth from falsehood, to sift the grain from the chaff.. 31-The said first information report was lodged without any delay whatsoever; particularly having regard to the fact that after the incident the injured persons were required to be looked after and the distance of the police station from the place of occurrence was about three kilometers. In this case evidence of P.Ws. was not to be discarded merely because of certain contradictions and discrepancies. (2005)13 Supreme Court Cases 353 [ Haji Khan ..vs.. State of U.P.., wherein the Apex Court has observed thus: .- - - - -We do not see any merit in the argument of the appellant that he has been falsely implicated, as he was caught near the place of incident, along with a country-made pistol.- - -. .- - - The High Court has agreed that he is not a wholly truthful witness but so far as his statement of identifying the assailant is concerned, it does inspire confidence. The High Court's acceptance of part of the evidence and discarding the unreliable part is in accordance with law and is in tune with the established practice followed by the courts while appreciating the evidence of the witnesses. The Sessions Court has committed an error in discarding his evidence wholly---.. 50. Therefore, though the whole of evidence of the above eye witnesses may not be fully acceptable; core part thereof considering seriousness of the nature of the offence has to be considered acceptable for the right decision. 51. We feel, it is the duty of the Court to sift the grains from chaff. 50. Therefore, though the whole of evidence of the above eye witnesses may not be fully acceptable; core part thereof considering seriousness of the nature of the offence has to be considered acceptable for the right decision. 51. We feel, it is the duty of the Court to sift the grains from chaff. We will be failing, if we do not consider the prosecution evidence, so also the defence of the respondent vis-a-vis material on record, in proper perspective. 52. In the present case as already stated above, the occurrence of incident is proved. The respondent has not offered sufficient explanation for the blood on his clothes and nail clipping. He was arrested immediately after the incident, there is nothing on record to show that it is possible that the witnesses would spare the real culprit and book this respondent for these assaults; falsely. There is motive for the respondent to commit an offence, particularly against deceased - Sunita, with malice towards P.W. Sanjay - her husband as well as her mother and therefore, in our opinion simply because there are some discrepancies here and there in the evidence, some evidence has not been adduced by the prosecution, though might have been available, some aspects remained to be explained, that would not detain us from taking proper view of the matter. It is obvious that the witnesses are the rustic villagers they had rural background and therefore, their testimony has to be appreciated from rational angle. They are not expected to give any accurate and mathematical version of the incident. As such we have to find out the evidence that can be considered for arriving at proper conclusion, in fact court owes that duty. 53. The learned Trial Judge has considered non-explanation of injury on the person of respondent as a circumstance against prosecution. In our considered opinion, this is wrong and totally unreasonable inference. Prosecution considering nature of injury did not owe any explanation, on the contrary, it was for respondent to explain, as it pointed out implication of respondent in incident. Case of prosecution is not inherently improbable as contended by learned counsel for respondent. 54. When evidence of eye-witnesses is acceptable, the evidence in the nature of seizure of incriminating weapons, assumes back seat and accused can certainly be convicted on the basis of acceptable evidence even excluding that evidence from consideration. Case of prosecution is not inherently improbable as contended by learned counsel for respondent. 54. When evidence of eye-witnesses is acceptable, the evidence in the nature of seizure of incriminating weapons, assumes back seat and accused can certainly be convicted on the basis of acceptable evidence even excluding that evidence from consideration. The Trial Court did not consider this aspect and also did not give appropriate weightage of the fact of arrest of accused immediately after incident and with blood stained clothes on his person without proper explanation. He lost himself in other area of inferences, that there is inconsistency between ocular and medical evidence; it was necessary for prosecution to explain injuries on the person of accused; it was impossible to believe that there was nobody on spot, the discrepancy in the evidence of Panchas - P.W. Vithoba Khobragade and P.W. Harihar lead to doubt regarding arrest of accused with blood stained clothes and seizure of incriminating articles and came to patently wrong conclusion. This is not a case of .suspicion only. against the respondent. This Court can not allow to permeate injustice even to victims and to destroy fabric of rule of law. In this view of matter; authorities cited by learned counsel for respondent are not attracted. Principles laid down in JT 2007 (1) SC 239 Rajkumar Prasad ... vs... State of Bihar fortify our view. 55. We have already pointed out that the said Nirmalabai is dead. Her injuries though sought to be proved through P.W. Dr. Fegadkar, there is no evidence on record, as to till when she was hospitalized and what was the nature of treatment of her injuries. Therefore, the respondent is held not be liable for that charge. 56. As regards the injuries on P.W. Sanjay he deposed about the injuries caused by arms. No doubt gun is seized in this case, but it is not established that some pellets were recovered from the body of P.W. Sanjay and they were corresponding to the shots fired by the said gun. The concerned Medical Officer from Medical College, Nagpur is not examined. In this behalf we propose to accord benefit of doubt to the respondent as regards assault on P.W. Sanjay. Consequently, respondent cannot be held guilty of the offence under the Arms Act also. 57. The concerned Medical Officer from Medical College, Nagpur is not examined. In this behalf we propose to accord benefit of doubt to the respondent as regards assault on P.W. Sanjay. Consequently, respondent cannot be held guilty of the offence under the Arms Act also. 57. However, as regards injuries caused on the person of deceased, sufficient it to say that they were fatal, they were sufficient to cause death, in fact she had suffered death immediately after the incident and respondent was responsible for the same. There can not be any other person, at least such probability is not established to show that there could be such other person who could have caused such injuries to her and would have ran away from the spot, so as to provide opportunity to these P.Ws. to implicate this respondent falsely. 58. In these circumstances, it has to be held that the judgment of the learned Trial Judge is perverse, & not taking proper view of the matter. It is liable to be set aside. Respondent is, therefore, held guilty for the offence punishable under section 302 of the Indian Penal Code. 59. We have heard the learned counsel for Respondent on the point of sentence. Learned counsel for the respondent has submitted that the matter is pending since 1990, the incident is of 1988, further as the respondent, P.W. Sanjay are well settled in the life therefore, there may not be any harsh view of the matter. We do consider this aspect, however, once finding of guilt is recorded for offence punishable under section 302, minimum possible punishment will be imprisonment for life. The sentence of fine, of course would be at the lesser side. 60. In sequel the appeal is partly allowed. The Judgment of the learned Trial Judge in Sessions Trial no.44/88 is hereby partly set aside. Respondent is found guilty and is convicted for the offence under section 302 I.P.C. and he is sentenced to suffer imprisonment for life and to pay fine of Rs.1000/-, in default to suffer further R.I. for six months. 61. Respondent shall be entitled for the set off for under trial detention according to the Rules. 62. Respondent to surrender to serve out the sentence forthwith within four weeks.