ORAL JUDGMENT ( Per D.D.Sinha, J) : 1. Heard Mr. R.M.Daga, Adv. for the Appellants and Mr.T.A.Mirza, Additional Public Prosecutor for the Respondent- State. 2. This criminal appeal is directed against the judgment dt. 21.8.2002 delivered by the 3rd Ad-hoc Additional Sessions Judge, Nagpur whereby the appellants are convicted for the offence punishable u/s. 302 read with Section 34 of the Indian Penal Code and are sentenced to suffer rigorous imprisonment for life and are also directed to pay fine of Rs. 500/- each. In default of payment of fine, the appellants are directed to undergo additional sentence of fifteen days each. 3. The case of the prosecution in nutshell is as follows : Appellant no.1 Namdeo Sonekar is son of the appellant no.2 Dayaram Sonekar and both the appellants were resident of village Rohana. Complainant Babybai Gaikwad (PW 1) at the relevant time was also residing at village Rohana and was neighbour of the appellants. Deceased Suresh was husband of complainant Babybai. It is alleged by the prosecution that Suresh gave hand loan of Rs.2,000/- to the accused for the purpose of carrying out agricultural operations and despite of repeated demands, the appellant/accused failed to refund the said amount. It is the case of the prosecution that, on the day of incident i.e. on 30.5.2000, complainant Babybai along with her neighbour had gone to attend dinner at the house of Kusum Taiwade at about 7.00 P.M. At about 8.00 P.M., the complainant has seen both the accused, who were present at the house of Kusum Taiwade and had also come for the dinner. At about 8.00 P.M., mother-in-law of appellant Namdeo namely Kaushalyabai visited the house of Kusum Taiwade and informed both the appellants that a quarrel between appellant Namdeo's wife Durgabai and deceased Suresh was going on at the place of incident. Both the appellants and Kaushalyabai left the house of Kusum Taiwade and started going towards the house of Kaushalyabai. Dinesh son of complainant Babybai heard the conversation between Kaushalyabai and appellants. Leelabai Gaikwad (PW 4) and Pralhad Gaikwad (PW 5), who were also present at the house of Kusum Taiwade, have noticed that the appellants left the house of Kusum Taiwade along with Kaushalyabai. Dinesh son of complainant Babybai heard the conversation between Kaushalyabai and appellants. Leelabai Gaikwad (PW 4) and Pralhad Gaikwad (PW 5), who were also present at the house of Kusum Taiwade, have noticed that the appellants left the house of Kusum Taiwade along with Kaushalyabai. It is the case of prosecution that Dinesh Gaikwad (PW-8), Leelabai Gaikwad (PW 4), Pralhad Gaikwad (PW-5), Babybai (PW 1) all left the house of Kusum Taiwade and started going towards the house of Kaushalyabai and while they were on their way, it was noticed by them that appellant Namdeo caused injury by Iron road and appellant Dayaram inflicted injury by axe on the person of deceased Suresh in front of their house. Deceased Suresh sustained injury on his head and blood was oozing out of the injury. Appellant Namdeo ran away from the Criminal Appeal No.573 of 2002 5 spot towards Police Station whereas appellant Dayaram went to his house. 4. Deceased Suresh was carried in a bullockcart to village Jalalkheda. However, he died on the way to the hospital. Complainant Babybai (P.W. 1) lodged report against the appellants on the same day i.e. on 30.5.2000. Crime was registered against the appellants for the offence punishable u/s. 302 read with Section 34 of the Indian Penal Code. First Information Report was lodged by complainant Babybai within three hours of occurrence of the incident. 5. In the instant case, prosecution has examined as many as sixteen witnesses; out of which, complainant Babybai (PW 1), Milind (PW 3), Leelabai (PW 4), Pralhad (PW 5) and Dinesh (PW- 8) are examined by the prosecution as eye witnesses to the incident and therefore, their evidence is material to bring home the guilt of the appellants. Similarly, Ramkrusha Kadu (PW 9) and Criminal Appeal No.573 of 2002 6 Rajendra Shankapure (PW 10) are the panch witnesses on memorandum of appellant nos. 1 and 2 respectively. However, both have not supported the prosecution. Sanjay (PW- 12) and Nandkishor (PW 13) have also turned hostile to the prosecution case. Other important evidence is that of Dr. Ravindra Ande (PW 14). In the instant case, the defence has also examined three defence witnesses namely Durga Sonekar (DW 1), Kaushalyabai Barve (DW 2) and Pralhad Narnaware (DW 3). 6. However, both have not supported the prosecution. Sanjay (PW- 12) and Nandkishor (PW 13) have also turned hostile to the prosecution case. Other important evidence is that of Dr. Ravindra Ande (PW 14). In the instant case, the defence has also examined three defence witnesses namely Durga Sonekar (DW 1), Kaushalyabai Barve (DW 2) and Pralhad Narnaware (DW 3). 6. In order to consider complicity of the appellants in the crime in question and whether the prosecution succeeded in bringing home guilt of the appellants, it is necessary to scrutinize the direct evidence of eye witnesses before we consider the other corroborative piece of evidence adduced by the prosecution. 7. Mr. R.M.Daga, learned counsel for the appellants has contended that, in the instant case, though the prosecution has examined five eye witnesses to the incident, however, their Criminal Appeal No.573 of 2002 7 testimonies are not only full of material omissions and contradictions, but also create serious doubt about presence of these witnesses at the scene of offence at the time of incident of alleged assault by the appellants. It is further contended that so far as complainant Babybai (PW 1) is concerned, in her examinationin- chief, she has specifically stated that her sons Dinesh and Milind came on the spot after her husband fell on the ground and became unconscious. She has further stated in her examination-in-chief itself that Leelabai and Pralhad thereafter came on the spot and helped her to put the injured in the bullockcart. Counsel for the appellants has further contended that it has come in the crossexamination of these witnesses that, on the day of incident, she has visited a hospital at Katol in the morning on the day of incident and after she returned from Katol, she went to the house of Kusum Taiwade, where dinner was arranged as a part of celebration of marriage. It is contended that the complainant in her cross-examination has admitted that when she was returning back from the house of Kusum Taiwade, she noticed that her Criminal Appeal No.573 of 2002 8 husband who had already fallen down on ground and had sustained injuries on his nose and back and was breathing with great difficulty. She has also admitted that Leelabai (PW 4 ) and Lalita left the house of Kusum Taiwade along with her. She has also admitted that Leelabai (PW 4 ) and Lalita left the house of Kusum Taiwade along with her. Mr.R.M.Daga, learned counsel for the appellants further contended that the above referred admissions in the crossexamination completely shatters the case of prosecution disclosed by the complainant Babybai in respect of material particulars of prosecution case mentioned by her in her First Information Report as well as in her substantive evidence. It is further contended that the testimony of this witness renders her own presence as well as presence of other prosecution witnesses including eye witnesses such as Dinesh, Milind, Leelabai and Pralhad on the spot of incident doubtful. It is contended that the evidence of complainant Babybai apart from being inconsistent with the prosecution case is also unreliable and does not inspire confidence. 8. So far as evidence of Milind (PW 3), the another eye Criminal Appeal No.573 of 2002 9 witness is concerned, it is contended that this witness in his examination-in-chief itself has stated that, on the day of incident at about 7.30 P.M., he was at the house of one Raju and heard noise coming from the direction of his own house and therefore, this witness rushed towards his own house and saw that his father deceased Suresh had fallen down on the ground and was in a semi-conscious condition. Appellants Namdeo and Dayaram were present there and after seeing him, appellant Namdeo went to the Police Station and appellant Dayaram started going towards his own house. This witness has stated in his examination-in-chief that Namdeo held an iron road and appellant Dayaram was armed with an axe. It is further contended that, in the examination-in-chief, this witness has further stated that prosecution witnesses Dinesh, Pralhad and Leelabai also came on the spot of incident. Mr.R.M.Daga, learned counsel for the appellants has then contended that, on the basis of examination-in-chief itself of this witness, it is evident that he was not an eye witness to the incident of assault. It has come in the examination of this witness that, at Criminal Appeal No.573 of 2002 10 the time of incident, there was darkness. The counsel for the appellants has submitted that there is a material omission brought out by the defence in his testimony. It has come in the examination of this witness that, at Criminal Appeal No.573 of 2002 10 the time of incident, there was darkness. The counsel for the appellants has submitted that there is a material omission brought out by the defence in his testimony. This witness has stated in his cross-examination that though he had stated before the police that appellants Namdeo and Dayaram were present at the place of incident and after seeing this witness both of them ran away from the spot, however, he cannot assign any reason why these facts are not mentioned by the police in his police statement. It is further contended that, by virtue of this omission, even presence of the appellants at the scene of offence is doubtful and therefore, the evidence of this witness should not have been relied upon by the trial Court. 9. Mr. Daga, learned counsel for the Appellants has contended that, so far as testimony of Leelabai (PW 4) is concerned, she has admitted in her cross-examination that when she was returning from the house of Kusum Taiwade, deceased Suresh had already fallen down and was in unconscious condition. Criminal Appeal No.573 of 2002 11 This witness in her cross-examination has specifically stated that mother-in-law of appellant Namdeo came to the house of Kusum Taiwade at 7.30 P.M. Appellants Namdeo and Dayaram along with mother-in-law of appellant Namdeo thereafter left the house of Kusum Taiwade . At that time, this witness was having her dinner. She has further stated in her cross-examination that the incident in question has taken place ten minutes after the appellants Namdeo and Dayaram left the house of Kusum Taiwade. Mr. Daga, learned counsel has, therefore, contended that the above referred admission in Leelabai's (PW 4) cross-examination creates serious doubt about her presence at the time of alleged assault by the appellant and therefore, her testimony is untrustworthy and liable to be rejected. 10. Learned counsel for the appellants has further argued that witness Pralhad (PW 5) in his cross-examination itself has stated that, on the date of incident, his mother Leelabai and his wife went to the house of Kusum Taiwade for dinner and since he Criminal Appeal No.573 of 2002 12 was not well, he remained at his house. 10. Learned counsel for the appellants has further argued that witness Pralhad (PW 5) in his cross-examination itself has stated that, on the date of incident, his mother Leelabai and his wife went to the house of Kusum Taiwade for dinner and since he Criminal Appeal No.573 of 2002 12 was not well, he remained at his house. At about 7.00 P.M. he heard noise and therefore, came out of his house and saw that appellants Namdeo and Dayaram were assaulting deceased Suresh. appellant Namdeo had iron rod and Dayaram had an axe. Counsel for the appellants has further contended that, in the crossexamination of this witness, he has admitted that, on the day of incident and at the relevant time, he was sick and was having fever and was unable to even get up from the bed. This witness has further admitted in the cross-examination that, after hearing the noise, he came out of his house and saw that deceased Suresh had already fallen down and was in unconscious condition. It is contended that, looking to the cross-examination of this witness, it is clear that he has not witnessed the incident of assault and the prosecution case disclosed by him in his evidence is not only doubtful, but the same also cannot be believed. 11. Mr. Daga, learned counsel for the appellants has submitted that presence of Dinesh (PW 8) on the spot, who is Criminal Appeal No.573 of 2002 13 examined as an eye witness to the incident, is doubtful in view of the testimony of complainant Babybai (PW 1) and therefore, this witness also cannot be treated to be an eye witness to the incident in question. Similarly, the chronology of events disclosed by this witness about the prosecution case in his examination-in-chief itself render presence of complainant Babybai (PW 1) as well as his brother Milind doubtful. This witness in his examination-inchief itself has stated that, at the time of incident, his father was standing on the road and asked appellant Namdeo to return his Rs.2000/-. Thereupon, appellant Namdeo said what money. Appellants Namdeo and Dayaram thereafter went inside their house and they came armed with Salakh and axe respectively and started assaulting his father Suresh. This witness has further stated in his examination-in-chief that he was watching the incident from some distance. Thereupon, appellant Namdeo said what money. Appellants Namdeo and Dayaram thereafter went inside their house and they came armed with Salakh and axe respectively and started assaulting his father Suresh. This witness has further stated in his examination-in-chief that he was watching the incident from some distance. He has further specifically stated in the examination-in-chief that it is thereafter, his brother and mother came on the spot and it is thereafter, the appellants ran away from the spot. It is, therefore, contended that the evidence of Criminal Appeal No.573 of 2002 14 this witness is inconsistent with the prosecution case disclosed by the complainant Babybai and creates serious doubt about genuineness of the version of this witness and therefore, no reliance can be placed on the testimony of such witness, which is unreliable and inconsistent with the prosecution case. 12. Mr.Daga, learned counsel for the appellants has contended that, so far as the medical evidence is concerned, Dr.Ravindra (PW 14) has opined that death of Kisan was caused due to intra-cerebral haemorrhage (extra-dural haematoma) over occipital bone. However, in the cross-examination, the doctor has admitted that except injury nos.1 and 2, other injuries such as injury nos. 3, 4 and 5 were simple injuries. it is contended that medical evidence is a corroborative piece of evidence. However, in the instant case, if the evidence of eye witnesses itself is doubtful and unreliable, the medical evidence will not further the case of prosecution in order to bring home guilt of the accused for the offence charged. Criminal Appeal No.573 of 2002 15 13. Learned Counsel for the appellants has contended that so far discovery of weapons of offence from the appellants is concerned, the same cannot be believed since both the panch witnesses i.e. Ramkrushna (PW 9) and Rajendra (PW 10) have not supported the prosecution. For the similar reasons, even seizure of blood stained clothes and finding of blood on the weapons by itself would not connect the appellants with the crime in question since the panch witnesses have turned hostile. Mr. Daga, learned counsel for the appellants, therefore, contended that the entire prosecution evidence is inadequate to bring home the guilt of the appellants and therefore, the findings of conviction recorded by the trial Court are unsustainable in law and liable to be set aside. 14. Mr. Mr. Daga, learned counsel for the appellants, therefore, contended that the entire prosecution evidence is inadequate to bring home the guilt of the appellants and therefore, the findings of conviction recorded by the trial Court are unsustainable in law and liable to be set aside. 14. Mr. T.A.Mirza, Additional Public Prosecutor, on the other hand, has contended that the evidence of eye witnesses is not only consistent with the material particulars of the prosecution case, but the same is also corroborated by the medical evidence. It Criminal Appeal No.573 of 2002 16 is contended that complainant Babybai (PW 1) lodged complaint within few hours from the time of occurrence, wherein she has specifically stated names of the appellants as well as the weapons used by them. It is submitted that her ocular testimony is consistent with the prosecution case disclosed by her in the First Information Report, Babybai being a most natural witness and her evidence being cogent, and is also corroborated by evidence of other eye witnesses as well as medical evidence, the findings of conviction are sustainable in law. 15. So far as the evidence of Leelabai (PW 4) is concerned, there are no material contradictions or omissions in her testimony and her evidence is straight-forward and consistent with the prosecution case as well as lends corroboration to the testimony of the complainant. Similarly, so far as the evidence of prosecution witness Dinesh (PW 8)is concerned, he is also an eye witness to the incident and his evidence is completely consistent with the material particulars of the prosecution case disclosed by the Criminal Appeal No.573 of 2002 17 complainant in the First Information Report and it also corroborates the testimony of the complainant Babybai as well as Leelabai. The Additional Public Prosecutor has further contended that the testimonies of complainant Babybai, witness Leelabai and Dinesh are consistent with the prosecution case and therefore, inspire confidence. Similarly, all these witnesses have not only mentioned about presence of the appellants on the scene of offence, but have also specifically stated about the weapons with which the appellants were armed with and the role played by them in the assault including inflicting of injuries on the person of deceased Suresh. It is contended that the medical evidence of witness Dr. Ravindra completely corroborates the testimony of these witnesses. The Post Mortem examination was conducted by Dr. It is contended that the medical evidence of witness Dr. Ravindra completely corroborates the testimony of these witnesses. The Post Mortem examination was conducted by Dr. Ravindra on the dead body of the deceased and he has found the following external injuries : 1. Chop wound of 4 x 4 x ½ cm middle of nose. Length 3 cm, Depth 4 cm, breadth ½ cm, Margin shard. Criminal Appeal No.573 of 2002 18 2. Edes shows bruishing with destruction of underlying tissues and organs. Age . about 12 to 14 hrs. Cause : Blow by heavy cutting weapon with sharp splitting edge. Nature : Dangerous injury. Structures destroyed are : Nasal Septum, maxillary sinus vomer and roof of middle caranial fossa. 3. Contused and lacerated wound of 5 x 1/2x1/2 cm. over back of scalp (Occipital bone) Length : 5 cm. Depth : ½ cm. Breadth : ½ cm. Age - about 12 to 14 hrs. Cause : Hard and blunt object. Nature : Dangerous injury. 4. Contusion of 7 x2 cm over left side of back (oblique) Length - 7 cm. Breadth - 2 cm. Age - about 12 to 14 hrs. Object : Hard and blunt object. 5. Contused lacerated wound of size 2 x 1/2cm. over upper eyelid. Length 2 cm. Depth : ½ cm deep. Age - about 12 to 14 hrs. Object : Hard and blunt object. Nature : grievous injury. 6. Contused lacerated wound of size 4 x ¼ cm. deep below lower lid of right eye. Length - 4 cm. Deep - ¼ cm. Criminal Appeal No.573 of 2002 19 Age about 12 to 14 hrs. Object : Hard and blunt object. Nature : grievous injury. 16. On internal examination, the doctor has noticed hairline fracture over occipital bone (back of scalp) CLW of 5x1/2x1/2 cm over occipital bone. Injuries were dangerous. It is submitted that Dr. Ravindra has opined that the deceased died due to intracerebral haemorrhage (extradural haematoma) over occipital bone. It is contended that, after examining the weapons of offence, the doctor has opined that the injuries noticed on the back of the skull as well as over upper eye lid of right eye and lower eye lid of right eye; contugen on the back were possible by hard and blunt object like iron rod. It is contended that, after examining the weapons of offence, the doctor has opined that the injuries noticed on the back of the skull as well as over upper eye lid of right eye and lower eye lid of right eye; contugen on the back were possible by hard and blunt object like iron rod. Similarly, the doctor has also opined that the injuries caused to the deceased are possible by Article 5 .Axe.. It is contended that the injury nos. 1 and 2 were sufficient in the ordinary course of nature to cause death of deceased Suresh. The Additional Public Prosecutor, therefore, contended that, in the instant case, the medical evidence corroborates the testimony of eye witnesses and therefore, the trial Court was justified in holding that the prosecution has succeeded in proving the charge of murder against the appellants beyond all reasonable doubts and therefore, the finding of conviction recorded by the trial Court against the appellants for the offence punishable u/s. 302 with the aid of Section 34 of the Indian Penal Code is sustainable in law. 17. The Additional Public Prosecutor further states that the other circumstantial evidence available on record is also clinching and lends corroboration to the evidence of eye witnesses. It is contended that, in the instant case, there is a discovery u/s. 27 of the Evidence Act of iron rod by appellant Namdeo and axe by the appellant Dayaram. It is contended that there was human blood detected on both of these weapons. It is submitted that though the panch witnesses examined to prove merorandum of the appellants as well as discovery panchanama have turned hostile, however, the discovery u/s. 27 has been proved by the Investigating Officer Mahesh Patil (PW 15). The evidence of Police Officer effecting recovery cannot said to have been vitiated for the reason that the panch witnesses supporting the evidence have turned hostile. 18. The Additional Public Prosecutor further contended that, in the instant case, clothes of appellant Namdeo i.e. Full Pant (Art.12) and Full Shirt (Art. 13) were seized. Blood detected on the full pant was human blood, whereas blood detected on the full shirt was human blood of .B. group. The blood group of deceased was also .B.. 18. The Additional Public Prosecutor further contended that, in the instant case, clothes of appellant Namdeo i.e. Full Pant (Art.12) and Full Shirt (Art. 13) were seized. Blood detected on the full pant was human blood, whereas blood detected on the full shirt was human blood of .B. group. The blood group of deceased was also .B.. It is, therefore, contended that this is a clinching circumstance which connects the appellants with the crime in question and this piece of circumstantial evidence cannot be discarded merely because the panch witnesses failed to support the prosecution case in the Court, since these facts have been proved by the testimony of the Investigating Officer. 19. The Additional Public Prosecutor further contended that, so far as the evidence of Milind (PW 3) is concerned, even if it is presumed that he had not witnessed the incident of assault, however this witness reached the place of incident almost immediately after the incident of assault and saw appellants Namdeo and Dayaram armed with iron rod and axe respectively and after seeing them, ran away from the spot and therefore, the evidence of this witness also lends sufficient corroboration to the prosecution case. Similarly, the testimony of Pralhad (PW 5) also cannot be said to be untrustworthy or doubtful. 20. We have given our anxious thoughts to the various contentions canvassed by the respective counsel and also carefully scrutinized the prosecution evidence. 21. The prosecution case is based on the direct evidence of eye witnesses and therefore, scrutiny of testimonies of these witnesses coupled with the medical evidence and other circumstantial evidence is necessary in order to find out whether the prosecution has succeeded in proving the charge of murder against the appellant beyond all reasonable doubts. 22. Complainant Babybai lodged the First Information Report on 30.5.2000 in which she has stated that her husband deceased Suresh had given Rs. 2000/- as a loan to appellant Namdeo for carrying out agricultural operations about four years back. Deceased Suresh asked appellant Namdeo to return his money on a couple of occasions before the day of incident. 22. Complainant Babybai lodged the First Information Report on 30.5.2000 in which she has stated that her husband deceased Suresh had given Rs. 2000/- as a loan to appellant Namdeo for carrying out agricultural operations about four years back. Deceased Suresh asked appellant Namdeo to return his money on a couple of occasions before the day of incident. However, the said appellant did not pay any heed to the request made by deceased Suresh for return of the amount; on the contrary, he said to Suresh why and for what he should pay money to him and that there was nothing in writing to show that he owed money to him. The complainant in the report has further stated that, at about 8 0' clock when she was on her way to her own house, she saw that appellant Namdeo was assaulting her husband Suresh on the road, in front of her own house, with an axe and inflicted injury on the nose, face and head of her husband. She has also stated that appellant Dayaram also assaulted deceased Suresh with an iron rod on his back, chest and head. On account of assault on her husband, he fell down on the ground. She has also stated in the report that her son Dinesh Gaikwad, Leelabai and Bandu have also seen the incident. Her another son Milind also came on the spot of incident after taking meals from the house where the marriage celebration were going on. 23. Scrutiny of testimony of this witness (complainant Babybai) would show that, in her examination-in-chief, she has stated that her husband has given Rs. 2,000/- to appellant Namdeo as a hand loan for agricultural purposes. Appellant Namdeo did not return the same, though demanded by her husband deceased Suresh. This witness has further stated in her examination-in-chief that, on the day of incident, she had gone to hospital at Katol and her husband Suresh went to collect plastic bags and scrap which were lying scattered in the village and outside. This witness has stated that she returned from Katol at about 7.00 P.M. and saw that appellant Namdeo was assaulting her husband by iron rod and appellant Dayaram was assaulting deceased Suresh by means of axe. Suresh fell down and became unconscious and thereafter, her sons Dinesh and Milind came on the spot. This witness has stated that she returned from Katol at about 7.00 P.M. and saw that appellant Namdeo was assaulting her husband by iron rod and appellant Dayaram was assaulting deceased Suresh by means of axe. Suresh fell down and became unconscious and thereafter, her sons Dinesh and Milind came on the spot. In the cross-examination, she has admitted that, on the day of incident, she had gone to hospital at Katol and after she returned from Katol, she went for dinner at the house of one Kusum Taiwade and it did not happen that she has seen the assault when she was coming from Katol to her village Rohna at about 8.00 P.M. Similarly, in the cross-examination, the complainant has admitted that when she was returning back from the house of Kusum Taiwade, she noticed that her husband had already fallen down and had sustained injuries on his nose, back and was finding it extremely difficult to breath. She has also admitted in the cross-examination that witness Leelabai came with her from the house of Kusum Taiwade. 24. Specific admissions in the cross-examination of the witness referred to hereinabove create a serious doubt about presence of this witness at the time of incident. On the other hand, she has admitted in her cross-examination that, after she came back from Katol, she went straight to the house of Kusum Taiwade for dinner and did not see any assault on her husband - deceased Suresh on way to the house of Kusum Taywade. Her further admission in the cross-examination that when she left the house of Kusum Taiwade and was returning back to her own house, she saw her husband already fallen down and had sustained injury on his nose and back completely rules out her presence at the time of assault and renders her ocular testimony completely untrustworthy. The admission given by the complainant in her cross-examination, in our considered view, totally shatters the prosecution case disclosed by her in the First Information Report as well as in her examination-in-chief and falsifies her version in the Court. If presence of the witness at the time of assault is ruled out then the description of the assault given by her is nothing but a falsehood and therefore, the testimony of such witness is liable to be discarded being wholly unreliable and completely false. 25. If presence of the witness at the time of assault is ruled out then the description of the assault given by her is nothing but a falsehood and therefore, the testimony of such witness is liable to be discarded being wholly unreliable and completely false. 25. In the instant case, the evidence of other eye witness namely Dinesh (PW 8), who is son of the complainant, needs to be considered in the backdrop of the specific statement made by his mother complainant Babybai in her examination-in-chief. As we have observed hereinabove, the complainant in her examinationin- chief has specifically stated that her son Dinesh came on the spot of incident after her husband fell down and became unconscious. It is, therefore, evident that, as per the testimony of complainant, her son was not present on the spot at the time of factual assault alleged to have been committed by the appellants on deceased Suresh. While scrutinising the evidence of witness Dinesh, we find that he has given altogether different version of the sequence of events which had taken place prior and after the alleged incident of assault. According to this witness, at about 5.00 P.M. he and his mother complainant Babybai went to the house of Kusum Taiwade for dinner. Appellants Namdeo and Dayaram were also present at the house of Kusum Taiwade. It has come in the examination-in-chief of this witness that, while all of them were at the house of Kusum Taiwade, mother-in-law of appellant Namdeo came there and told him that some quarrel was going on with the father of this witness (Suresh). Appellant Namdeo and Dayaram thereafter left the house of Kusum Taiwade and while they were on their way, father of this witness deceased Suresh asked appellant Namdeo to return Rs.2,000/-. However, appellant Namdeo told deceased Suresh what money he was referring to. This witness further stated in his examination-in-chief that appellants Namdeo and Dayaram thereafter went inside their house and had brought iron rod and axe respectively. Both of them thereafter started assaulting his father Suresh. He tried to obstruct. However, appellant Namdeo tried to assault this witness also by iron rod. This witness has specifically stated in his examination-in-chief that it is thereafter his brother (Milind) and mother (complainant Babybai) came on the spot and after seeing them, the appellants ran away from the spot. Both of them thereafter started assaulting his father Suresh. He tried to obstruct. However, appellant Namdeo tried to assault this witness also by iron rod. This witness has specifically stated in his examination-in-chief that it is thereafter his brother (Milind) and mother (complainant Babybai) came on the spot and after seeing them, the appellants ran away from the spot. The prosecution case disclosed by this witness in the examination-in-chief apart from completely inconsistent with the material particulars of the prosecution case, the same is also at variance with the ocular testimony of the complainant, rendering it untrustworthy. The prosecution case disclosed by this witness in his examination-inchief itself being completely at variance with that of the case of complainant Babybai, creates serious doubt about authenticity of the prosecution case disclosed by this witness. The evidence of complainant Babybai (PW 1) creates serious doubt about presence of this witness Dinesh at the time of assault and the evidence adduced by this witness Dinesh creates serious doubt about presence of complainant on the spot at the time of assault. Over all re-appreciation of evidence of these two so-called eye witnesses, in our view, would show that their evidence is completely unreliable and full of falsities. Similarly, there are some contradictions and omissions brought out by the defence in the cross-examination of this witness which further renders testimonies of these witnesses unacceptable. 26. Leelabai (PW 4) though in her examination-in-chief has stated that she has seen appellants Namdeo and Dayaram assaulting deceased Suresh by iron rod and axe, however, her admission in the cross-examination creates serious doubt about her presence at the time of factual assault alleged to have been committed by the appellants. This witness has admitted in her cross-examination that, while she was taking her dinner at the house of Kusum Taiwade, appellants Namdeo and Dayaram left the house of Kusum Taiwade and this witness and complainant Babybai left the house of Kusum Taiwade after the appellants left and on their way, saw that deceased Suresh had fallen down on the ground and was in unconscious condition. The above referred admission in the cross-examination of this witness leaves no room for doubt that neither this witness nor the complainant was present on the spot at the time of incident of assault. The above referred admission in the cross-examination of this witness leaves no room for doubt that neither this witness nor the complainant was present on the spot at the time of incident of assault. Even otherwise, complainant Babybai (PW 1) in her examination-inchief has already stated that Leelabai Gaikwad (PW 4) came on the spot only after her husband Suresh fell down on the ground and became unconscious. The evidence of Leelabai, in our view, is also wholly unreliable and is also inconsistent with the prosecution case and therefore, liable to be discarded. 27. Scrutiny of evidence of Milind (PW 3) would show that he was not an eye witness to the incident and he reached the spot of the incident after his father fell down and became unconscious. However, he has seen appellant Namdeo armed with an iron rod and Dayaram armed with axe and that they were present on the spot. This witness has also stated in his examination-in-chief that his mother (complainant Babybai), brother Dinesh, witnesses Pralhad and Leelabai came on the spot after he reached the spot of incident. There is material omission brought out by the defence in the cross-examination of this witness. This witness has stated in his cross-examination that he has stated to the police at the time of recording his statement that appellants Namdeo and Dayaram were present on the spot at the relevant time and ran away after seeing him. However, he is unable to assign any reason why said fact is not mentioned by police in his police statement. It is pertinent to note that so far as the evidence of this witness Milind is concerned, it is adduced by the prosecution for proving the presence of appellants on the spot at the time of assault armed with the deadly weapons. However, there is an omission in this regard in his police statement which, in the facts and circumstances of the present case, in our view, is material in nature and falsifies the claim of this witness about presence of the appellants on the spot at the relevant time. His testimony, in our view, is therefore unreliable and liable to be discarded. 28. So far as testimony of other eye witness Pralhad (PW-5) is concerned, he claims to have witnessed the incident of assault on his father by appellant Namdeo with iron rod and Dayaram with axe. His testimony, in our view, is therefore unreliable and liable to be discarded. 28. So far as testimony of other eye witness Pralhad (PW-5) is concerned, he claims to have witnessed the incident of assault on his father by appellant Namdeo with iron rod and Dayaram with axe. However, in the cross-examination, this witness has admitted that he came out of the house after hearing commotion/noise and at that time, deceased Suresh had fallen down unconscious on the ground. The admission of this witness in the cross-examination completely falsifies his claim as an eye witness to the incident and totally destroys the prosecution case disclosed by this witness in his examination-in-chief. Even otherwise, as we have already observed, presence of this witness on the spot at the time of incident is highly doubtful in view of testimony of other eye witnesses, about which we have already recorded our findings. 29. After considering the evidence of above referred material witnesses including the eye witnesses, we are of the considered view that the complainant Babybai (PW 1), Leelabai (PW 4), Pralhad (PW 5) and Dinesh (PW-8) reached the spot of incident after the assault alleged to have been committed by the appellants and therefore, they were not the eye witnesses to the incident of assault and their testimonies, therefore, are highly unreliable and fully of falsehood, apart from being inconsistent with each other as well as in complete variance with the material particulars of the prosecution case disclosed by the complainant in her ocular testimony and therefore, the testimonies of these witnesses cannot be relied on. 30. We want to express that so far as the medical evidence is concerned, it is always a corroborative piece of evidence which only gives description of the nature of injury sustained by the deceased, possibility of causing of such injury by the weapons seized by the prosecution during the investigation and whether these injuries are caused in the manner in which it is alleged by the prosecution as well as to show the cause of death. In the instant case, though Dr. In the instant case, though Dr. Ravindra has noticed as many as five external injuries were sustained by the deceased and also opined that these injuries are possible by iron rod and knife, however, on the basis of this piece of evidence, the author of injury cannot be established unless there is other cogent and reliable evidence available on record. In the instant case, we have already given reasons for discarding the testimonies of the eye witnesses and therefore, it is wholly inadequate to bring home the guilt of the appellants for the offences charged only on the basis of the medical evidence of Dr.Ravindra. 31. It is nodoubt true that in a given case and for adequate reasons, the evidence of the Investigating Officer may be sufficient to prove the fact of discovery made by the accused u/s. 27 of the Indian Evidence Act or seizure of clothes, even though the panch witnesses fail to support the prosecution in the Court on these aspects. However, in the exceptional situation, reliance can be placed on the testimony of the Investigating Officer for the purpose of proving such facts. The case in hand is based on the direct evidence of eye witnesses and since, for the reasons stated hereinabove, the direct evidence has been discarded by us, mere circumstantial evidence, even if it is accepted in such a situation, would be wholly inadequate to bring home guilt of the accused. Even otherwise, in the instant case, so far as discovery u/s. 27 of the Indian Evidence Act by the appellants in respect of weapons as well as seizure of blood stained clothes of the accused is concerned, both the panch witnesses i.e. Ramkrushna (PW 9) and Rajendra (PW 10) have not supported the prosecution and the Additional Public Prosecutor did not succeed in bringing anything Criminal Appeal No.573 of 2002 36 tangible in the cross-examination of these prosecution witnesses and in absence thereof, in our view, the said circumstantial evidence is also liable to be discarded. 32. For the reasons stated hereinabove, in our considered view, prosecution failed to prove and establish the charge of murder against the appellants and therefore, the conviction awarded by the trial Court for the offence punishable u/s. 302 read with Section 34 of the Indian Penal Code is unsustainable in law and is hereby quashed and set aside. 32. For the reasons stated hereinabove, in our considered view, prosecution failed to prove and establish the charge of murder against the appellants and therefore, the conviction awarded by the trial Court for the offence punishable u/s. 302 read with Section 34 of the Indian Penal Code is unsustainable in law and is hereby quashed and set aside. The finding regarding disposal of Muddemal property is hereby confirmed. Both the appellants be released forthwith, if not required in any other criminal case.