JUDGMENT :- R.G. Ketkar, J. 1. Criminal Appeal No.1257 of 2003 is preferred by the original Accused No. 2 Nitin Laxman Pansare and Criminal Appeal No.1433 of 2003 is preferred by original Accused No.1 Raju Suresh Chavan. These two appeals are directed against the judgment and order dated October 3, 2003 passed by the learned II Ad-hoc District Judge, Pune in Sessions Case No.113 of 2002. 2. The Appellants were prosecuted for the offences punishable u/s. 302, 307 and 324 read with section 34 Indian Penal Code (for short IPC). The appellants were convicted of the offences punishable u/s.302, 307 and 324 IPC and were sentenced to suffer imprisonment for life only u/s.302 read with section 34 IPC. Each of them was ordered to pay fine of Rs.1000/. Learned Sessions Judge did not separately award sentence to the appellants for the offences punishable u/s.307 and 324 read with section 34 IPC as they were sentenced to suffer imprisonment for life u/s.302 IPC. Learned Sessions Judge also gave benefit of set off equivalent to the period of their detention in jail to the appellants. 3. It is the case of the prosecution that at about 10.15 p.m. in the night of November 15, 2001 the complainant PW2 Prashant Bhagwat alongwith his uncle Suresh Bhagwat were proceeding towards his house on motorcycle. When they reached near streamlet, Accused No.1 Raju Suresh Chavan called them and asked them to stop their motorcycle. PW-2 Prashant and his uncle Suresh were frightened and they fell down from the motorcycle. Immediately thereafter Accused No.1 Raju Chavan and Accused No.2 Nitin Laxman Pansare rushed at them. Both were armed with swords. Both the accused gave sword blows on the head, face, hands and back of Suresh Bhagwat. PW2 Prashant intervened and requested the accused not to beat his uncle, whereupon Accused No.1 Raju Suresh Chavan gave sword blow on right hand of PW-2 Prashant. In the incident his uncle Suresh sustained grievous inujuries and fell down on the spot. After assaulting PW-2 Prashant Bhagwat and Suresh Bhagwat both the accused left the spot. Both the injured were taken to Talegaon General Hospital and were admitted. 4. After getting information about the hospitalisation of PW2 Prashant and Suresh, officers attached to Talegaon Police Station rushed to Talegaon General Hospital and recorded the statement of PW2 Prashant, which was treated as First Information Report (for short FIR). Both the injured were taken to Talegaon General Hospital and were admitted. 4. After getting information about the hospitalisation of PW2 Prashant and Suresh, officers attached to Talegaon Police Station rushed to Talegaon General Hospital and recorded the statement of PW2 Prashant, which was treated as First Information Report (for short FIR). On the basis of this, Talegaon Police Station registered Criminal Case No.120 of 2001 against the accused at about 00.35 hours on November 16, 2001. The investigation was handed over to PW-11 Assistant Police Inspector Mr.Mohan Jadhav. He went to Talegaon General Hospital. He found that injured Suresh was not in a position to speak. He accordingly verified the correctness of the complaint given by injured PW-2 Prashant. On next day i.e. on November 17, 2001, the Investigating Officer visited the spot of incident and prepared the panchanama of scene of offence. During this time, the Investigating Officer collected the blood mixed earth and plain earth from the spot of incident. The motorcycle lying on the spot was also seized. The clothes of the injured persons viz. PW2 Prashant and Suresh were seized under Panchnama at Exhibit 32 in the presence of panchas. The necessary photographs of the scene of offence through private photographer were also taken. The investigating officer recorded the statements of as many as 10 witnesses on that date itself. As the condition of injured Suresh became critical he was shifted to Lokmanya Hospital at Pimpri. Though the Investigating Officer repeatedly visited the Lokmanya Hospital where the injured Suresh was shifted, he found that the injured Suresh was not in a position to speak. To that effect he obtained the requisite certificates from the medical officer about the physical condition of injured Suresh. In the meantime, search of the accused was going on and on November 21, 2001, both the accused were arrested. On their arrest blood stained clothes on their persons were seized under panchanama dated November 21, 2001 at Exhibit 30. 5. At the instance of Accused No.1 Raju Chavan, the investigating officer recovered motorcycle from “Tikona Killa” on December 21, 2001. The recovery panchanama to that effect was made on November 22, 2001 at Exhibit 32. At the instance of Accused No.1 Raju Chavan, the Investigating Officer recovered two swords on November 24, 2001 and the seizure memo of swords dated November 24, 2001 was made, which is at Exhibit 34. The recovery panchanama to that effect was made on November 22, 2001 at Exhibit 32. At the instance of Accused No.1 Raju Chavan, the Investigating Officer recovered two swords on November 24, 2001 and the seizure memo of swords dated November 24, 2001 was made, which is at Exhibit 34. On December 26, 2001, injured Suresh was shifted to Rubi Hospital. During this period also the injured Suresh was unable to speak. On January 2, 2002 clothes of the injured, clothes of the accused, seized weapons, and earth collected from the spot of incident were forwarded to the Chemical Analyser for examination and report. Injured Suresh eventually succumbed to injuries on January 2, 2002. Thereafter section 302 IPC was added. The investigation was given to PSI Shri.Dhumal as API Shri.Jadhav was transferred. On completion of investigation, the chargesheet against the accused was forwarded to the court of learned J.M.F.C.Vadvaon Maval. The learned J.M.F.C.Vadgaon Maval committed the case to the Court of Sessions, Pune for trial. 6. The charge against the accused was framed at Exhibit 5 and particulars of charge were read over and explained to the accused. Both the accused pleaded not guilty to the charge and their defence was of total denial. According to them they were falsely implicated in the case. In his statement u/s.313 of the Code of Criminal Procedure, 1973 (for short Cr.P.C), accused No.1 Raju Chavan submitted that there were quarrels between the brother of the deceased Suresh and one Balu Chavan and therefore, merely on suspicion they were implicated in the matter. 7. In support of the prosecution case, in all 12 witnesses were examined to prove and establish the allegations and charges levelled against the accused. In the present case, there is direct evidence i.e. evidence of the complainant, eyewitness PW-2 Prashant Bhagwat, who also received injuries during the incident On the point of motive, the prosecution has relied upon the evidence of PW-3 Shantaram Bhagwat (who is the brother of the deceased Suresh and the uncle of PW-2 Prashant), and PW-10 Deepak Shinde. As per the prosecution case, PW-3 Shantaram Bhagwat and deceased Suresh were looking after the business of Hotel “Prashant Beer Bar”. On November 9, 2001 Accused No.1 Raju Suresh Chavan and one Raju Datta Chavan came to their Hotel. As per the prosecution case, PW-3 Shantaram Bhagwat and deceased Suresh were looking after the business of Hotel “Prashant Beer Bar”. On November 9, 2001 Accused No.1 Raju Suresh Chavan and one Raju Datta Chavan came to their Hotel. Since the PW-3 Shantaram Bhagwat and deceased Suresh Bhagwat refused to serve drinks to them there were quarrels between them and on account of this incident deceased Suresh had given a complaint against Accused No.1 Raju Suresh Chavan and one Raju Datta Chavan at Talegaon Police Station which is entered in the relevant extract of NC Register being NC No.675 of 2001 dated November 9, 2001. This fact was placed on record by the prosecution alongwith pursis at Exhibit 68, on which the learned defence counsel in the Sessions Court made an endorsement to the effect that “may be exhibited and read in evidence without formal proof”. 8. The prosecution has also led medical evidence i.e.evidence of (i) PW-5 Dr.Rahul Mandhare, Medical Officer attached to Lokmanya Hospital, Nigdi, (ii) PW-6 Dr.Prashant D.Suryavanshi, Medical officer in Forensic Department attached to Sassoon Hospital, who conducted post mortem of deceased Suresh, (iii) PW-9 Dr. Ganpat Gandhi, resident doctor attached to Talegaon General Hospital, who attended PW-2 Prashant and deceased Suresh when they were brought at Talegaon General Hospital at about 10.30p.m.on November 15, 2001. The prosecution has also examined PW-4 Shri.Sanjay Vavhal as panch witness and PW-7 Shri.Sandip D.Kashid and PW-8 Shri.Rajesh C.Jagnade, whose help PW-2 Prashant sought immediately after the incident. The prosecution also led evidence of PW-11 Shri.Mohan Tulshiram Jadhav, Assistant Police Inspector attached to Talegaon Dabhade Police Station and PW-12 Shahaji R.Athavale, Police Head Constable attached to Talegaon Dabhade Police Station, who recorded complaint of PW-2 Prashant Bhagwat, which was treated as FIR at Exhibit 22. 9. PW-2 Prashant deposed at Exhibit 21 to the effect that at about 10.00 p.m., in the night of November 15, 2001 he went on motorcycle to the permit room to bring back his uncle Suresh Bhagwat at home. At that time deceased Suresh and PW-3 Shantaram Bhagwat were about to close the hotel. He took uncle Suresh Bhagwat on motorcycle and was returning home. While they were crossing streamlet adjoining the Baudha locality of Indori, Accused No.1 Raju Suresh Chavan gave call and asked to stop the motorcycle. At that time deceased Suresh and PW-3 Shantaram Bhagwat were about to close the hotel. He took uncle Suresh Bhagwat on motorcycle and was returning home. While they were crossing streamlet adjoining the Baudha locality of Indori, Accused No.1 Raju Suresh Chavan gave call and asked to stop the motorcycle. When they saw both the accused were coming towards them, they got frightened and fell down from the motorcycle. Both the accused were armed with swords. On reaching near them, accused started giving sword blows on the person of Suresh. PW-2 Prashant intervened and requested both the accused not to assault his uncle. Accused No.1 Raju Chavan tried to give blow of sword on PW-2 Prashant’s head, but he obstructed the said blow with his right hand and eventually sustained injury on the right hand. Due to blows on head of Suresh, he sustained grievous injuries and fell down on the spot. After assaulting PW-2 Prashant and his uncle Suresh, both the accused left the spot. PW-2 Prashant tried to seek help from the people residing in Baudha locality, but nobody came forward. He went to the house of PW-7 Sandip Kashid and informed him that his uncle sustained injuries. Thereafter PW-7 Sandeep Kashid contacted PW-8 Rakesh C.Jagnade to arrange for his Sumo for taking Suresh to the hospital. At that time, his brother Pankaj and cousin Datta Kardile were also with him. PW-7 Sandip Kashid, PW-8 Rakesh Jagnade, his brother Pankaj and cousin Datta Kardile took PW-2 Prashant and his uncle Suresh to the Talegaon General Hospital. Immediately after sometime, PW-12 Shahaji Ramchandra Athavale, Police Head Constable of Talegaon Dabhade Police Station alongwith other police constable came there and recorded the statement of PW-2 Prashant in the presence of PW-9 Dr.Ganpat Gandhi. 10. PW-12 Athavale enquired with PW-9 Dr.Ganpat Gandhi as to which patient is able to give statement, whereupon PW-9 Dr.Gandhi informed that PW-2 Prashant was conscious and oriented and was in a position to give statement. PW-12 Athavale recorded statement of PW-2 Prashant in the presence of Dr.Gandhi. After recording statement of PW-2 Prashant his signature was obtained by PW-12 Athavale. PW-12 Athavale also put his signature. PW-9 Dr.Gandhi made endorsement below the statement of PW-2 Prashant about his physical and mental condition at the time of recording of statement. Below the said endorsement, PW-9 put his signature. After recording statement of PW-2 Prashant his signature was obtained by PW-12 Athavale. PW-12 Athavale also put his signature. PW-9 Dr.Gandhi made endorsement below the statement of PW-2 Prashant about his physical and mental condition at the time of recording of statement. Below the said endorsement, PW-9 put his signature. PW-9 Dr.Gandhi certified that PW-2 Prashant was alert and conscious while giving the said statement. 11. PW-2 Prashant further deposed that his uncle Suresh was admitted to Lokmanya Hospital, Nigdi on December 26, 2001. From Lokmanya Hospital Suresh was shifted to Rubi Hospital as at Lokmanya Hospital his condition became critical. Ultimately Suresh succummed to injuries on January 2, 2002. PW2 Prashant identified Article No.8 as trouser and Article No.9 as shirt of Accused No.2 Nitin Pansare. He also identified Article 10 & 11 being the shirt and trouser respectively of Accused No.1 Raju Chavan, Article Nos.12 & 13 being swords used by the accused persons. It has also come in the evidence of PW-2 Prashant that near the spot of incident there was street light, as also that the lights of his motorcycle and motorcycle of the accused were on. 12. In the cross-examination of PW-2 Prashant he admitted that while recording his complaint police enquired with him as to how he saw the assailants. He admitted that at the time of giving complaint he had not informed the police that there was tubelight pole at the spot of incident or that lights of his motorcycle or the motorcycle of the accused were on. He denied that after the incident the persons gathered at the spot took them to the hospital. He also admitted that he did not inform the police that after the accused left the spot, he tried to seek help from Baudha locality and nobody came forward. He also admitted that he did not inform police of going to the house of PW-7 Sandip Kashid, who in turn contacted PW-8 Rakesh Jagnade and his brother who took them to the Talegaon General Hospital in a jeep of PW-8 Rakesh Jagnade. He reiterated that after hearing the call given by accused Raju Chavan he saw accused approaching towards them and they got frightened. On account of this, they fell down from the motorcycle. He reiterated that after hearing the call given by accused Raju Chavan he saw accused approaching towards them and they got frightened. On account of this, they fell down from the motorcycle. PW-2 Prashant further admitted that while giving complaint he did not inform the police that accused Raju Chavan tried to give blow with sword on his head and he obstructed the said blow with his right hand. He denied the suggestion that before going to hospital they had gone to the police station. He also denied the suggestion that they first approached the police and informed them about the incident, whereupon the police sent them to the hospital with a requisition letter. PW-2 Prashant asserted that he approached PW-7 Sandip Kashid who enquired with him about the incident as also the assailants. PW-8 Rakesh Jagnade, his brother Pankaj also enquired with him about the incident. On their enquiry, PW-2 Prashant told them that Suresh was lying near the streamlet in an injured condition. PW-7 Sandip Kashid, one Datta Kardile and PW-8 Rakesh Jagnade took them to the hospital. He denied the suggestion that he was deposing falsely to the effect that he has seen the incident in the light of tubelight and .motorcycle lights. Lastly he admitted that at the time of giving complaint, he did not inform police that the land of accused Raju Chavan is adjacent to their land and both the accused regularly used to visit their permit room. 13. PW-3 Shantaram Bhagwat was examined at Exh.23. He narrated the previous incident that took place on November 9, 2001 when he and Suresh refused to serve drinks to accused Raju Suresh Chavan and one Raju Datta Chavan. On account of refusal to serve the drinks, quarrel took place. Due to this incident, Suresh had given complaint against Raju Suresh Chavan and Raju Datta Chavan at Talegaon Police Station. In so far as incident of November 15, 2001 is concerned, he deposed that he reached the spot of incident after about half an hour. He saw several persons there, who informed about the assault on Suresh and PW2 Prashant by accused persons with swords and also about shifting of Suresh and PW-2 Prashant to Talegaon General Hospital. Immediately thereafter he went to the hospital. He found very many injuries on the person of Suresh and he was lying unconscious. He saw several persons there, who informed about the assault on Suresh and PW2 Prashant by accused persons with swords and also about shifting of Suresh and PW-2 Prashant to Talegaon General Hospital. Immediately thereafter he went to the hospital. He found very many injuries on the person of Suresh and he was lying unconscious. He also noticed injuries on the hand of PW-2 Prashant. He enquired with PW-2 Prashant about the incident, who informed the assault made by the accused persons on them near Baudha locality with swords. He also came to know about the recording of statement of PW-2 Prashant by police. As per the medical advice on the very day, they shifted Suresh to Lokmanya Hospital at Nigdi. Throughout the hospitalisatiion, the condition of Suresh was critical. He was not able to speak. In the cross-examination, he stated that when he reached the hospital, police were present outside the hospital and were making enquiry about the incident. His statement was recorded at about 7.00 a.m. on November 16, 2001. His statement was recorded by police at the spot of incident. During that time he admitted that he did not disclose about the existence of street light pole near the spot of incident. He also did not disclose to anyone about the information he gathered from the persons in the mob or the information furnished by PW-2 Prashant till his statement was recorded by the police. In the hospital, he enquired with PW-2 Prashant about the weapons of assault and he was disclosed the weapons used in the commission of offence. He also asserted that throughout the hospitalisation of Suresh he was with him. He denied the suggestion that while treatment on Suresh was going on at Lokmanya Hospital he gained consciousness and recovered within two days and his statement was also recorded by police. He categorically stated that from his admission at Talegaon General Hospital on November 15, 2001 till his death at Rubi Hospital, Pune on January 2, 2002 Suresh never regained consciousness. He denied the suggestion that PW-2 Prashant had lodged complaint about the incident with Talegaon Dabhade Police Station. He was confronted with his statement recorded by the police whereupon he admitted that the portion marked “A” from his statement was not stated by him before the police. He denied the suggestion that PW-2 Prashant had lodged complaint about the incident with Talegaon Dabhade Police Station. He was confronted with his statement recorded by the police whereupon he admitted that the portion marked “A” from his statement was not stated by him before the police. In the statement recorded by the police he did not disclose that the statement of PW-2 Prashant was recorded in the hospital. He denied suggestion that PW-2 Prashant never disclosed to him about the assault on him and deceased Suresh by the accused persons. 14. The prosecution also examined PW-4 Sanjay Radhakrishna Vavhal at Exhibit 28, who acted as panch witness to (i) spot panchanama dated November 16, 2001 at Exh.29, (ii) seizure of clothes of the injured Prashant and deceased Suresh also arrest panchanama dated November 21, 2001 at Exh.30, (iii) Recovery panchanama dated November 22, 2001 at Exh.31 of seizure of motorcycle (iv) Recovery panchanama dated November 22, 2001 at Exh.32 of seizure of motorcycle bearing Registration No.MH-14-A-304, (v) Recovery of weapons at the instance of accused and panchnama to that effect at Exh.34 dated November 24, 2001. In the cross-examination, he denied suggestion that he is deposing false about the giving of statement of accused Raju Chavan on November 22 and November 24, 2001. 15. The prosecution also examined PW-5 Dr.Rahul Mandhare at Exh.36. At the relevant time he was working as Medical Officer in Lokmanya Hospital, Nigdi. He deposed that the Suresh was referred to their hospital from Bhausaheb Sardesai Hospital at Talegaon. On admission of Suresh, he examined him and he noticed three major injuries on his person. According to him the injuries were at occipital region, left temporal region, on left eye and that the Suresh was heavily bleeding from the injury at occipital region. Patient Suresh was unconscious and his blood pressure was practically shut down. The relatives of Suresh gave history of assault by unknown persons may be by swords. During that period, Suresh had undergone three operations. PW-5 categorically stated that throughout the period of his admission, Suresh was unable to speak; initially he was unconscious and subsequently he was subconscious. He has referred to (i) Certificate dated November 16, 2001 at Exh.37, (ii) Certificate dated November 18, 2001 at Exh.38 and (iii) Certificate dated November 19, 2001 at Exh.39 issued by Dr.Joshi. He has duly proved these certificates. He has referred to (i) Certificate dated November 16, 2001 at Exh.37, (ii) Certificate dated November 18, 2001 at Exh.38 and (iii) Certificate dated November 19, 2001 at Exh.39 issued by Dr.Joshi. He has duly proved these certificates. He was also shown certificate .dated November 27, 2001 at Exh.40 issued by Dr.Modak and the certificate dated November 27, 2001 at Exh.41 issued by Dr.Bhosale. He has duly proved those certificates. He has produced xerox copies of the case papers of Suresh which were exhibited as Exh.42. PW-5 stated that both the head injuries on the person of Suresh were of serious nature and were sufficient to cause death, if early treatment was not provided. He issued injury certificate of Suresh which was marked as Exh.43. He was shown Articles 13 and 14 viz. Swords and he stated that the injuries on the person of the Suresh were possible due to swords. In the cross examination, he admitted that the discharge of Suresh was taken against the medical advice and that at the time of giving history, it was stated that the weapons used were not known. He further deposed to the effect that well oriented means the patient is responding to the commands. He examined Suresh on November 16, 2001 after every 30 to 60 minutes, and at the time when he examined Suresh at 3.15 a.m. he found Suresh conscious and well oriented. He was giving response to the verbal commands. He admitted that in case papers nowhere it was stated that after 3.15 a.m.on November 16, 2001 till his discharge on December 26, 2001 Suresh was not in a position to talk. In the case papers it was mentioned that the patient was conscious, oriented and responding to the verbal commands. He further stated that after admission of Suresh on November 16, 2001 he informed Talegaon Police Station and from the date of his admission on November 16, 2001 till the date of his discharge on November 26, 2001, police attached to the Talegaon Police Station approached the hospital from time to time. 16. The prosecution also examined PW-6 Dr.Prashant Damodar Suryavanshi at Exh.44. He performed post mortem on the dead body of Suresh. He noticed in all 11 anti mortem injuries on the person of the Suresh and noted all these injuries in column No.17 of Post Mortem Report by affixing a separate paper. 16. The prosecution also examined PW-6 Dr.Prashant Damodar Suryavanshi at Exh.44. He performed post mortem on the dead body of Suresh. He noticed in all 11 anti mortem injuries on the person of the Suresh and noted all these injuries in column No.17 of Post Mortem Report by affixing a separate paper. During post mortem he also noticed corresponding internal injuries and noted them in column No.19 of the Post Mortem Report. External injuries at Sr.Nos.1 to 4 and the corresponding internal injuries at Sr.Nos.3 to 6 were vital and sufficient to cause death in ordinary course of nature. The post mortem report is at Exh.45 wherein the probable cause of death is mentioned as complications following head injury. The post mortem report is duly proved by PW-6 Dr.Survavanshi. 17. The prosecution also examined PW-7 Sandip Kashid at Exh.47. In the examination in chief he admitted the occurrence of incident that took place at about 10.30 to 11 p.m. on November 15, 2001. He was at his home. PW-2 Prashant came to his house and told him that he wanted to take his uncle Suresh to the hospital. He noticed that PW-2 was in a frightened condition and there was blood on his one hand. He gave call to PW8 Rakesh Jagnade and asked him to bring his sumo jeep. He told PW-8 Rakesh Jagnade that uncle of PW-2 Prashant was required to be taken to hospital. When he went to the residence of PW-8 Rakesh Jagnade his brother Pankaj and one Datta Kardile were present. Thereafter PW-7 Sandip Kashid, Pankaj, Datta Kardile, PW-2 Prashant alongwith PW-8 Rakesh Jagnade went to the spot where Suresh was lying. They found that Suresh was lying unconscious at the spot with injuries on his person. They took Suresh to Talegaon General Hospital. PW-7 however proceeded to state that he did not enquire with PW-2 Prashant anything about the incident. While proceeding to Talegaon General Hospital, PW-2 Prashant told them that someone assaulted his uncle. He however, admitted that on the next date of incident the police made enquiry with him and recorded his statement. He asserted that on his query with PW-2 Prashant he did not disclose that accused Raju Chavan and Nitin Pansare assaulted him and his uncle Suresh by using swords while they were proceeding from the Baudh locality on motorcycle. He however, admitted that on the next date of incident the police made enquiry with him and recorded his statement. He asserted that on his query with PW-2 Prashant he did not disclose that accused Raju Chavan and Nitin Pansare assaulted him and his uncle Suresh by using swords while they were proceeding from the Baudh locality on motorcycle. The prosecution sought permission to cross-examine and on being permitted, learned APP cross-examined PW-7 Sandip Kashid. In the cross-examination PW-7 Sandip Kashid admitted that both the accused are his relatives and also the natives of village Indori. He admitted that when PW-2 Prashant came to his house, he enquired with him as to what happened. He however denied that at that time PW-2 Prashant told him that accused assaulted him and his uncle Suresh with swords while they were passing the Baudha locality. He was confronted with the statement recorded by the police. He denied that the contents in the portion marked “A” were stated by him before the police. According to him he never made the statement to that effect. He however could not assign any reason as to how the contents in the portion marked “A” were appearing in his police statement. In the cross-examination on behalf of the accused, he stated that the spot of incident is at the distance of 100 to 200 meters from his house, and there was no electricity near the spot of incident. After reaching the spot, he had seen Suresh in the light of jeep. 18. It is well settled that evidence of a hostile witness need not be discarded in toto. The prosecution can always rely upon it to the extent to which it is useful. At this jucture suffice it to note that PW-7 Sandip Kashid admitted the incident. He also admitted PW-2 Prashant coming to his house, as also PW-7 Sandip Kashid contacting PW-8 Rakesh Jagnade. He further admitted that he alongwith Pankaj, Datta Kardile and PW-8 Rakesh Jagnade went to the spot and found that Suresh was lying unconscious with the injuries on his person. They took Suresh to Talegaon General Hospital. It is wholly unnatural that PW-7 Sandip Kashid will not enquire with the PW-2 Prashant anything about the incident and that PW-2 Prashant would tell him that “someone” assaulted his uncle. They took Suresh to Talegaon General Hospital. It is wholly unnatural that PW-7 Sandip Kashid will not enquire with the PW-2 Prashant anything about the incident and that PW-2 Prashant would tell him that “someone” assaulted his uncle. This is more so when PW-2 Prashant knew accused very well as they frequently visited their permit room. The answer given by PW-7 Sandip Kashid is that it did not happen that on his query with PW-2 Prashant he disclosed to him that accused Raju Chavan and Nitin Pansare assaulted him and his uncle Suresh with swords. When he was confronted with the portion marked “A” appearing in his police statement, he could not assign any reason as to why that portion was appearing in his police statement. PW-7 Sandip Kashid also admitted that both the accused are his relatives and are also the relatives of village Indori. That appears to be the reason why PW-7 Sandip Kashid totally feigned ignorance about Prashant telling them about the names of the accused. 19. PW-8 Rakesh Jagnade was examined at Exh.48, who also admitted the occurance of incident of November 15, 2001 and taking PW-2 Prashant and his uncle Suresh in his Sumo Jeep alongwith his brother Pankaj and cousin Datta Kardile and PW-7 Sandip Kashid. He further deposed that PW-7 Sandip Kashid came to his residence for arranging sumo jeep for taking Suresh to hospital. PW-8 alongwith his brother Pankaj, cousin Datta Kardile, PW-7 Sandip Kashid and PW-2 Prashant went to the spot of incident and after reaching the said spot, in the light of the jeep they saw Suresh lying at the spot. They then took Suresh to Talegaon General Hospital. He further added that at that time, neither PW-2 Prashant nor PW-7 Sandip Kashid told anything about the incident. His statement was recorded by police on November 16, 2001. He further deposed that it did not happen that PW-7 Sandip Kashid when came to him, informed that the accused Raju Chavan and Nitin Pansare assaulted PW-2 Prashant and his uncle Suresh near baudha locality. The prosecution sought permission to cross-examine PW-8. In the cross-examination on behalf of the prosecution, he admitted that both the accused were of his acquaintance and were also residents of Indori. The prosecution sought permission to cross-examine PW-8. In the cross-examination on behalf of the prosecution, he admitted that both the accused were of his acquaintance and were also residents of Indori. He denied that PW-7 Sandip Kadhid told him that accused assaulted PW-2 Prashant and his uncle Suresh with swords, and accordingly, he stated so before the police. He was confronted with the portion marked “A” in his police station. He replied that he never stated so before the police. However he could not assign any reason as to why the said portion marked as “A” appeared in his statement. He also denied that at that time he made enquiry with PW-2 Prashant and that during the enquiry PW-2 Prashant informed him about the earlier incident of November 9, 2001 and on account of that incident the accused persons assaulted PW-2 Prashant and his uncle Suresh. He was also confronted with the portion marked “B” from his police statement. His response was, he never stated so before the police. He further admitted that at the side of streamlet, Indori Grampanchayat errected electric pole with street light. He however went on to depose further that he did not know whether at the relevant time electric lights near the spot of incident were on. The evidence of that witness establishes that the incident in question did take place. 20. PW-9 Dr.Ganpat Gandhi was examined at Exh.49. He examined PW-2 Prashant and noticed two injuries on his person. Injury No.1 was incised wound of dorsum of right hand of the size of 3 cm x 3.1 cm. The nature of the said injury was simple and might have been caused by a sharp object. Injury No.2 was incised wound (cut injury) over extensor tendons of right index, right middle fingure, and right ring fingure. Injury No.2 was grievous nature and was caused by a sharp object. Accordingly, PW-9 issued injury certificate in his handwriting which bore his signature. The said injury certificate is at Exh.51. The prosecution has also established the contents of the said injury certificate at Exh.51. PW-9 Dr.Ganpat Gandhi examined Suresh and noticed in all six injuries on his person. He opined that all the incise injuries must have been caused by a sharp object. Six injuries were noted thus; (i) Incised wound with fracture zygoma on left side of face. Its size was 7x3x3 cms. PW-9 Dr.Ganpat Gandhi examined Suresh and noticed in all six injuries on his person. He opined that all the incise injuries must have been caused by a sharp object. Six injuries were noted thus; (i) Incised wound with fracture zygoma on left side of face. Its size was 7x3x3 cms. (ii) Multiple incised wounds with underlying fracture skull on left parieto occipatal region. Its size was 5x2x2 cms. (iii) Incised wound with cartilage incised on left pinna (of ear).Its size was 3 x 1 x ½ cms. (iv) Incised wound on left cheek of the size 3 x 1 x 1 cms. (v) Incised wound on right zygoma of the size 3 x 1 x 1 cms. (vi) Incised wound on base of right thumb of the size 4 x ½ ½ cms. 21. Injury Nos.1 and 2 were grievous in nature while remaining were injuries of simple nature. Accordingly he issued injury certificate at Exh.52. He had duly proved the contents of the said injury certificate. He opined that the Injury Nos.1 and 2 on the person of Suresh were on the vital part and were sufficient to cause death in the ordinary course of nature. Injuries mentioned in these certificates were possible by weapons like swords. He was shown articles 13 and 14 viz. Swords and he stated that the injuries mentioned in Exh.51 and 52 were possible by these articles. In the cross-examination conducted on behalf of the accused, he admitted that in admission papers he did not mention that the history was given by the persons who brought the patient to the hospital. He also admitted that it was not mentioned in the case papers that the patient was brought by the relatives or other persons. In Injury certificate at Exh.51 he admitted that it was specifically indicated that the PW-2 Prashant came at the hospital on his own. As the patient was oriented and conscious he indicated in the certificate that he came on his own though accompanied by 4/5 persons. 22. PW-1 Mohan Tulshiram Jadhav, working as Assistant Police Inspector attached to Talegaon Dabhade Police Station was examined at Exh.56 and he deposed that the crime bearing No.120 of 2001 was registered at Talegaon Police Station at about 00.35 a.m. on November 16, 2001 on the complaint made by PW-2 Prashant. He met PW-2 Prashant and Suresh at Talegaon General Hospital. PW-1 Mohan Tulshiram Jadhav, working as Assistant Police Inspector attached to Talegaon Dabhade Police Station was examined at Exh.56 and he deposed that the crime bearing No.120 of 2001 was registered at Talegaon Police Station at about 00.35 a.m. on November 16, 2001 on the complaint made by PW-2 Prashant. He met PW-2 Prashant and Suresh at Talegaon General Hospital. He made enquiries with PW-2 Prashant about the incident and verified the correctness of the complaint at Exh.22 made by him. He categorically stated that injured Suresh was not in a position to speak and therefore, they could not get any information from him. He addressed a letter to the Medical Officer of Talegaon General Hospital and requested for injury certificates of injured Prashant and Suresh. That letter is at Exh.57. On November 16, 2001 in the morning he visited the spot of incident in the presence of panchas and prepared spot panchanama. The motorcycle of Hero Honda make bearing Registration No.MH-14-W-746 was found lying at the spot of incident. The motorcycle, blood mixed earth, plain earth were taken from the spot of incident under panchanama at Exh.29. He also deposed that on the very day, clothes of injured Prashant and Suresh produced by witness Chandrakant were seized in the presence of panchas under the panchanama at Exh.30. It was signed by him, as well as panchas. On that day, he recorded statements of 10 witnesses, among them were PW-7 Sandip Kashid, PW-8 Rakesh Jagnade. He further stated that he recorded their statements correctly as per their narration. He maintained that the portion marked “A” from the police statement of PW-7 Sandip Kashid was narrated before him by PW-7 Sandip Kashid when he recorded his statement. He further stated that the statement of PW-7 Sandip Kashid recorded by him bore his signature. Similar evidence was given by him in respect of PW-8 Rakesh Jagnade. He further deposed that on November 16, 2001 injured Suresh was shifted to Lokmanya Hospital at Pimpri. He visited the said hospital and tried to make enquiries with Suresh, however at that time also Suresh was not in a position to speak. On November 17, 2001 he tried to search the accused, but, they were not found. On that day he recorded statements of three more witnesses. 23. On November 19, 2001 he again visited the Lokmanya Hospital, Pimpri. On November 17, 2001 he tried to search the accused, but, they were not found. On that day he recorded statements of three more witnesses. 23. On November 19, 2001 he again visited the Lokmanya Hospital, Pimpri. At that time also injured Suresh was not in a position to speak. He was shown certificate at Exh.29 about the physical condition of Suresh. On November 21, 2001 he arrested both the accused and panchanama of their arrest was prepared at Exh.30. He deposed that the arrest panchanamas bore his signatures. Thus the prosecution has proved the contents of Exh.30. During interrogation with Accused No.1 Raju Chavan on November 22, 2001 he gave a statement in presence of panchas and had shown readiness to show the motorcycle kept at “Tikona Killa”. Accused led the investigating team towards the Tikona Killa and showed the motorcycle bearing No.MH-14-A-304 which was seized in the presence of panchas under panchanama. 24. PW-11 also deposed that the accused led the investigating team to the place where swords were kept and they produced two swords from that place. He prepared seizure panchanama of swords at Exh.34. He further deposed that the seizure panchanama was prepared in the presence of panchas. On November 27, 2001 he visited Lokmanya Hospital, but at that time also, injured Suresh was not in a position to give statement. On December 2, 2001 and December 17, 2001 he again visited the Lokmanya Hospital, but injured Suresh was not able to speak. On December 24, 2001 he recorded statement of two more witnesses. On December 26, 2001 Suresh was shifted to Rubi Hospital. Therefore he immediately visited the Rubi Hospital, but that time also Suresh was not able to speak. He was cross-examined by the accused. He stated that whether at the time of incident the lights at the place of incident were on or not was one of the important circumstances to be investigated. He however had not enquired in writing either with the Grampanchayat or with MSEB in that respect. He also did not remember on what date he made oral enquiry with Gramsevak. He admitted that he had not taken entry in his case diary about the oral enquiry with Gramsevak. He further deposed that during investigation when the complaint was handed over to him, word “andharat” was already scored. 25. PW-12 Athavale, Police Constable attached to Talegaon Police Station was examined. He admitted that he had not taken entry in his case diary about the oral enquiry with Gramsevak. He further deposed that during investigation when the complaint was handed over to him, word “andharat” was already scored. 25. PW-12 Athavale, Police Constable attached to Talegaon Police Station was examined. He deposed that he was on duty on November 15, 2001. In the night at about 11 to 11.30 p.m., he received phone call from the Medical Officer of Talegaon General Hospital that two persons in injured state were admitted at their hospital. On receipt of said phone call, he gave charge of station diary to one of his colleagues and went to the hospital. After reaching there he found that injured PW-2 Prashant and Suresh were admitted there. He noticed that injured Suresh was unconscious. The Medical Officer certified that PW-2 Prashant was alert and conscious and he recorded complaint of PW-2 Prashant. He further deposed that the complaint bore signature of PW-2 Prashant and also his signature. On the complaint endorsement was made by the Medical Officer of the hospital. PW-2 made signature on the complaint after the contents were read over to him and the correctness thereof was accepted by him. After recording the complaint he returned to the police station and registered crime bearing No.120 of 2001. Because of transfer of Investigating Officer Mr.Jadhav, chargesheet was forwarded in court by PSI Shri.Dhumal. He identified signature of Mr.Dhumal on the chargesheet at Exh.1. 26. In the cross-examination he stated that as and when PSO leaves police station, entry to that effect with reasons of leaving police station is required to be noted in the station diary. When API Mr.Jadhav left police station, entry about it was not taken at the station diary. When he returned to police station after recording complaint, API Mr.Jadhav was not at the police station. Information received on phone from the Medical Officer of the hospital was certainly of cognizable offence. Immediately on receipt of information on phone, he took entry in the station diary. He further deposed that he returned to the police station on November 16, 2001 at about 00.15 hours. Within five minutes thereafter API Mr.Jadhav came to the police station. After arrival of API Mr.Jadhav to the police station he narrated him about the complaint and at 00.35 hours crime was registered. He further deposed that he returned to the police station on November 16, 2001 at about 00.15 hours. Within five minutes thereafter API Mr.Jadhav came to the police station. After arrival of API Mr.Jadhav to the police station he narrated him about the complaint and at 00.35 hours crime was registered. In a serious offence crime has to be registered immediately. He further deposed that in this matter he felt it necessary to have discussion with superior about the registration of crime and therefore he gave telephonic message to API Mr.Jadhav and on his arrival after discussion with him he registered the crime. He admitted that in a serious cognizable offence when complaint is received, there is no necessity to discuss about it with a senior officer for registration. While taking down the complaint from PW-2 Prashant he put the questions to him and recorded his answers as complaint. The word “andharat” in the complaint at Exh.22 was scored by him. He further deposed that while taking complaint from PW-2 Prashant he asked the question as to how did he witness the incident and the answer given by PW-2 Prashant was noted in the complaint. He took entry in the FIR registered in his own handwriting. He was confronted with the copy of FIR at Exh.63. He deposed that the handwritten contents therein were in handwriting of his colleague Mr.Gaikwad, police Naik. However, it bore his signature. The contents in Exh.63 were dictated by him and in that it is mentioned that the information was received from PW-2 Prashant at about 10.45 p.m. on November 15, 2001. He further deposed that it was not because of the word “Andharat” appearing in the complaint, he felt it necessary to have discussion with API Mr.Jadhav. He admitted that after scoring the word “andharat” neither he nor the medical officer in whose presence the statement was recorded, made initials. He denied the suggestion that injured PW-2 Prashant and Suresh were referred to Talegaon General Hospital with requisition letter. He further denied that the complaint at Exh.22 was falsely prepared afterwards. 27. He admitted that after scoring the word “andharat” neither he nor the medical officer in whose presence the statement was recorded, made initials. He denied the suggestion that injured PW-2 Prashant and Suresh were referred to Talegaon General Hospital with requisition letter. He further denied that the complaint at Exh.22 was falsely prepared afterwards. 27. The learned Sessions Judge by his judgment and order dated October 3, 2003 convicted Accused Nos.1 and 2 for the offences punishable u/s.302, 307 and 324 IPC and sentenced them to suffer imprisonment for life only u/s.302 read with section 34 IPC and each of them were ordered to pay fine of Rs.1000/-. 28. In support of these appeals, Shri.Rajendra Shirodkar, learned Counsel for the appellants submitted that the evidence of PW-2 Prashant is wholly unreliable. His evidence is full of omissions and contradictions on major aspects of the matter and consequently does not inspire confidence. He invited our attention to the following circumstances to discard the testimony of PW-2 Prashant. (a) According to him, he saw the alleged incident and the assailants in the light of electric pole at the scene of offence as well as in the lights of motorcycle of accused and his own motor cycle. (b) He said that at the time of recording of his complaint, police asked him about the source of light and as to how he had seen the assailants. However he did not tell the police at the time of recording of his statement that he saw the assailants in the tubelight pole as well as in the light of Motorcycle. This was brought as an omission by the defence which is of an important nature. (c) According to this witness, accused Raju attempted to give a blow with sword on his head but he obstructed the said blow with his right hand and in that process, he sustained an injury on his right hand. However, in his cross examination he admitted that this fact has not been stated by him before the police at the time of his statement. The defence has established this omission. (d) According to this witness, after the assailants ran away, he tried to seek help from the people from the locality. However, nobody came for help. Then he went to the house of PW-7 Sandip Kashid and informed him about the incident. The defence has established this omission. (d) According to this witness, after the assailants ran away, he tried to seek help from the people from the locality. However, nobody came for help. Then he went to the house of PW-7 Sandip Kashid and informed him about the incident. However, in his cross examination, he has admitted that he had not told the police that after the incident, he tried to seek help from the people from the locality and thereafter, he went to the house of PW-7 and informed him about the incident. Thus, PW-7 and PW-8 were introduced by him for the first time in his evidence before the court. (e) According to PW-2, he and his uncle Suresh were taken to Talegaon General Hospital where they were admitted. Immediately, police came there and his statement was recorded as FIR, which is at Exhibit 22. (f) In his cross-examination, he denied the suggestion by defence that before going to Talegaon Hospital, he had gone to Talegaon Dabhade police station and had lodged a complaint. (g) In the evidence of PW-11, Mr.Jadhav, the Investigating Officer, it has come that a copy of FIR was forwarded to court. He also stated that a printed column is provided in FIR about the date and time at which the information is received at the police station. He was shown a copy of the FIR forwarded to court in this case. It bore the signature of H.C.Athavale, PW 12 which is at Exhibit 63. It revealed that the information in this case was received from PW-2 Prashant at police station at 10.45 p.m. on November 15, 2001. (h) If this is to be accepted, then the version given by PW-2 to the effect that from the scene of offence, they went to the hospital and there, his statement was recorded as FIR is false. Thus, Exhibit 22 which is claimed by prosecution as FIR is subsequent in point of time than Exhibit 63, which shows that information was received at the police station from Prashant at about 10.45 p.m. Thus, the prosecution has suppressed this document Exhibit 63. Thus, Exhibit 22 which is claimed by prosecution as FIR is subsequent in point of time than Exhibit 63, which shows that information was received at the police station from Prashant at about 10.45 p.m. Thus, the prosecution has suppressed this document Exhibit 63. This fact is also confirmed by PW 12 H.C.Athavale that the information was received from Prashant at about 10.45 p.m. (i) So far as version of PW-2 Prashant in his evidence before the court to the effect that after the assault, he went to the house of PW-7 Kashid and thereafter, with the help of PW-7 and PW-8 he and his uncle were removed to the hospital has been brought as omission as the said fact has not been stated by PW-2 in his statement before the police. On the contrary, before the police, he had said that people from the locality removed them to hospital. (j) In so far as seeing the assailants and the source of light is concerned, PW-2 in his statement before the police had stated that he had seen the incident in “Dark”. However. Both PW-11 and PW-12 had admitted that the word “Andharat” has been scored off in the FIR. This means that PW-2 Prashant had told the police that he had seen the incident in “Andharat”. 29. We are not impressed by the submissions made on behalf of the appellants that the circumstances high lighted by the appellants in respect of the evidence of PW-2 Prashant are of such a nature to discard his testimony altogether. It is not disputed that PW-2 Prashant and Suresh were returning home on motorcycle on November 15, 2001 at about 10.30 p.m. The light of their motorcycle was on. PW-2 Prashant categorically stated that even the accused came on their motorcycle and the light of their motorcycle was on. It is required to be borne in mind that PW-2 Prashant knew the accused as they were regularly visiting their permit room. Assuming that the street lights were not on, nonetheless having regard to the acquaintance of PW-2 Prashant with the accused, we are satisfied that he identified the assailants. This is more so when one of the accused assaulted PW-2 Prashant. Assuming that the street lights were not on, nonetheless having regard to the acquaintance of PW-2 Prashant with the accused, we are satisfied that he identified the assailants. This is more so when one of the accused assaulted PW-2 Prashant. In view of this we also do not find that any dent is made in the story of the prosecution on account of scoring of the word “Andharat” in the FIR at Exh.22. 30. Similarly, the omissions referred to by the appellants to the effect that PW-2 Prashant admitted in his cross-examination that he had not told the police that after the incident, he went to the house of PW-7 Sandip Kashid and informed him about the incident, is of no significance. This is because PW-7 Sandip Kashid and PW-8 Rakesh Jagnade admitted occurrence of incident. They further admitted that PW-2 Prashant came to the house of PW-7 Sandip Kashid and PW-7 Sandip Kashid in turn contacted PW-8 Rakesh Jagnade to arrange for the Sumo jeep. PW-7 Sandip Kashid and PW-8 Rakesh Jagnade alongwith Pankaj and Datta Kardile went to the spot of incident and saw injured Suresh. All these persons went to the hospital. In view of this, there is no merit in the submission that PW-7 Sandip Kashid and PW-8 Rakesh Jagnade were introduced by PW-2 Prashant in his evidence for the first time before the Court. We are also not impressed by the submissions that there was omission on the part of PW-2 Prashant while giving the complaint to the effect that accused Raju attempted to give blow with sword on his head and as he obstructed the blow with his right hand he received a blow. The fact of the matter is that PW-2 Prashant received injuries on right hand on account of sword blow given by accused Raju and the injury certificate at Exh.51 to that effect issued by PW-9 Dr.Gandhi substantiates this aspect. Attempt was made on behalf of the appellants to contend that the FIR at Exh.22 is a got up document in the sense that PW-2 Prashant and Suresh first went to Talegaon Dabhade police station and not to the Talegaon General Hospital. At that time FIR was recorded wherein it was disclosed that they were assaulted by unknown persons. Thereafter on the basis of requisition letter issued by Talegaon police they went to Talegaon General Hospital. At that time FIR was recorded wherein it was disclosed that they were assaulted by unknown persons. Thereafter on the basis of requisition letter issued by Talegaon police they went to Talegaon General Hospital. According to the appellants Exh.22 is recorded subsequent in point of time to Exh.63. Exh. 63 should be treated as FIR and if it is treated as such, the purported FIR at Exh.22 is a false document. It is not possible to accept this submission From the .material on record it is abundantly clear that immediately after assault PW-2 Prashant and Suresh were first taken to hospital. On this aspect the testimony of PW-7 Sandip Kashid and PW-8 Rakesh Jagnade assumes importance. Even it is not suggested to them that PW-7 Sandip Kashid and PW-8 Rakesh Jagnade took PW-2 Prashant and Suresh first to the police station and thereafter they went to the hospital. On this aspect the evidence of PW-2 Prashant, PW-9 Dr.Gandhi and PW-11 API Mr.Jadhav is relevant. The consistent story is deposed by all these witnesses to the effect that immediately after the assault, they were taken to the hospital. While treatment was being given to PW-2 Prashant and Suresh, PW-9 Dr.Gandhi gave a phone call to Talegaon Dabhade Police Station and thereafter FIR was recorded at Exh.22 which bore the signature of PW-2 Prashant, PW-11 API Mr.Jadhav as also PW-9 Dr.Gandhi. We have no reason to disbelieve the testimony of PW-9 Dr.Gandhi in that regard. 31. We are also not impressed by the submissions made on behalf of the appellants that in his statement PW-2 Prashant did not tell the police that he went to the house of PW-7 Sandip Kashid and thereafter with the help of PW-7 Sandip Kashid and PW-8 Rakesh Jagnade he and his uncle Suresh were taken to the hospital. This omission looses significance in the light of testimony of PW-7 Sandip Kashid and PW-8 Rakesh Jagnade on this aspect. We are therefore of the considered opinion that the testimony of PW-2 Prashant deserves credence and acceptance. 32. Mr.Shirodkar, learned counsel for the appellants criticised the evidence of PW-3 Shantaram Bhagwat at Exh.23. He submitted that even though PW-3 Shantaram Bhagwat knew the names of assailants, in the medical papers of the hospital at Nigdi at the time of admission of PW-2 Prashant and his uncle Suresh, the names of assailants were mentioned as unknown. 32. Mr.Shirodkar, learned counsel for the appellants criticised the evidence of PW-3 Shantaram Bhagwat at Exh.23. He submitted that even though PW-3 Shantaram Bhagwat knew the names of assailants, in the medical papers of the hospital at Nigdi at the time of admission of PW-2 Prashant and his uncle Suresh, the names of assailants were mentioned as unknown. So also in those papers, weapons used were also mentioned as unknown. It is submitted that if at all PW-3 Shantaram Bhagwat claims to have gathered information of the assailants from PW-2 Prashant, surely he would have disclosed the names of the assailants to the Doctor and the entry to that effect would have been made in the case papers. Mr.Shirodkar, learned counsel for the appellants therefore submitted that the evidence of PW-3 Shantaram does not inspire confidence. This evidence is also not consistent with the evidence of PW-2 Prashant. We are not impressed by this submission made by learned counsel for the appellants. The sequence of events would indicate that after the assault was made on PW-2 Prashant and Suresh they were taken to the hospital by PW-7 Sandip Kashid and PW-8 Rakesh Jagnade alongwith others. After half an hour PW-3 Shantaram arrived at the spot of incident. It is at this juncture people from that locality informed him about the assault on PW-2 Prashant and Suresh and that they were taken to the hospital. It is significant to note that as per the evidence of PW-9 Dr.Gandhi, immediately after the arrival of PW-2 Prashant and Suresh, within 10 minutes the police arrived at the hospital. It is thereafter that the complaint of PW-2 Prashant was recorded which is at Exh.22 wherein the names of accused are mentioned as assailants. We are of the considered opinion that there is no contradiction between the evidence of PW-2 Prashant and PW-3 Shantaram. On the other hand, evidence of PW-3 Shantaram establishes motive behind the commission of the crime. After his arrival in the hospital PW-2 Prashant told him about the incident and also the assault made by the accused. PW-3 Shantaram arrived in the hospital after the complaint of PW-2 Prashant was recorded by the police. This is also evident from the testimony of PW-3. We are therefore not impressed by the submission made by the learned counsel for the appellants that the testimony of PW-3 does not inspire confidence. 33. PW-3 Shantaram arrived in the hospital after the complaint of PW-2 Prashant was recorded by the police. This is also evident from the testimony of PW-3. We are therefore not impressed by the submission made by the learned counsel for the appellants that the testimony of PW-3 does not inspire confidence. 33. Mr.Shirodkar further criticised that the evidence of discoveries and recoveries is sought to be proved through the evidence of PW-4 Shri.Sanjay Vavhal. It is submitted that all panchanamas were drawn at different places and at different times and PW-4 is used as pancha by the police. On this count alone, the evidence of panch witness PW-4 be discarded. On the point of recoveries of weapons it is submitted that the said weapons have been recovered from the open place accessible to all. We are not impressed by either of these submissions. In the first place, it is true that PW-4 Mr.Vavhal is the panch witness of various panchanamas and the panchanamas were drawn on different dates. That, however, does not mean that he was disqualified to act as pancha. Secondly, the weapons were recovered at the instance of accused Raju Chavan from the shrubs near the streamlet. It therefore cannot be said that the weapons were recovered from the open place accessible to all. It was within the knowledge of accused Raju Chavan where the weapons were kept after the commission of offence. The learned Sessions Judge, has considered this aspect in paragraph No.16 of the impugned judgment and he has held that the prosecution has satisfactorily proved various panchanamas through the evidence of PW-4 and also through the evidence of Investigating Officer. We do not find any reason to take a different view in the matter. In so far as recoveries of the clothes of the appellants are concerned, the same were recovered after five days of incident. It is most unlikely that the accused persons would wear same clothes on their persons for five days after the commission of offence. In support of this submission, Mr.Shirodkar relied upon the judgment of the Apex Court in the case of Khalil Khan V/s.State of Madhya Pradesh – (2003) 11 SCC 19 . In that case, the prosecution relied upon the recovery of blood stained knife and blood stained clothes of the accused. In support of this submission, Mr.Shirodkar relied upon the judgment of the Apex Court in the case of Khalil Khan V/s.State of Madhya Pradesh – (2003) 11 SCC 19 . In that case, the prosecution relied upon the recovery of blood stained knife and blood stained clothes of the accused. One of the prosecution witnesses who had witnessed the recovery specifically stated that those articles were found at the police station and the same were recovered from there and not at the instance of the appellants. On the recovery part, the Apex Court noticed that one of the witnesses to the recovery did not support the prosecution case. The incident in question in that case took place on April 6, 1986 and the accused were arrested on April 11, 1986 nearly after four days. The Apex Court observed in paragraph No.7 that it is extremely difficult to believe that the person who is involved in such a serious crime like murder would still be wearing clothes which were blood stained even four days after the murder, which fact is opposed to normal human conduct and in that background, the evidence of hostile witness that the recoveries were made at the police station assumed importance. In that case, prosecution witness did not support the prosecution on the aspect of recovery and also to the extent that recovery was made at the instance of the appellants. In our opinion, the judgment of the Apex Court in Khalil Khan (supra) is not applicable to the facts obtaining in the present case. In any case even if circumstance of recovery of blood stained clothes of the accused after six days is kept out of consideration there is sufficient other evidence on record which conclusively establishes the guilt of the accused. 34. Mr.Shirodkar, learned counsel for the appellants submitted that the blood of the appellants was not sent to the Chemical Analyser for analysis and consequently the blood groups of the appellants were not known. He further submitted that even if the blood of the appellants is found on the weapons it is of no consequence as it was not known as to what were the blood groups of the appellants. In view of this, even the circumstantial evidence does not enhance the case of the prosecution further. He further submitted that even if the blood of the appellants is found on the weapons it is of no consequence as it was not known as to what were the blood groups of the appellants. In view of this, even the circumstantial evidence does not enhance the case of the prosecution further. He relied upon the judgment of the Apex Court in the case of Subhash Chand V/s.State of Rajasthan, (2002) 1 SCC 702 ). We are not impressed by this submission as in the instant case there is direct evidence in the shape of eye witness PW-2 Prashant. Mr.Shirodkar also submitted that the alleged assault took place on November 15, 2001 and Suresh died on January 2, 2002, however, the police did not record the dying declaration. Reliance was placed upon the testimony of PW-5 Dr.Mandhare who deposed that the medical papers indicated that Suresh was conscious, well oriented and alert. We have already discussed about the physical condition of the Suresh in detail. It has come in evidence that Suresh was not in a position to speak. He was operated thrice during that period. The medical certificates at Exh.37 to 39 clearly indicate the physical and mental condition of Suresh. Evidence of PW-5 Dr.Mandhare is clear on this aspect. When he deposed that well oriented means the person is in a position to obey verbal commands. This does not necessarily mean that the patient is also in a position to speak. On the other hand there is positive evidence led by the prosecution to the effect that Suresh was in a critical condition and was not able to speak. 35. Considering the aforesaid facts, in our opinion, the learned Sessions Judge rightly held that the prosecution has proved its case against the appellants beyond reasonable doubt. The learned Sessions Judge, in our opinion was justified in convicting the appellants and sentencing them to suffer imprisonment for life u/s.302 read with section 34 IPC. There is no merit in these appeals. Hence, both appeals stand dismissed.