JUDGMENT :- D.D. Sinha, J. Heard Shri Daga, learned Counsel for the appellant, and Shri Jichkar, learned Additional Public Prosecutor for the respondent. 2) Being aggrieved by the judgment and order dated 18.12.2003 passed by the Additional Sessions Judge, Chandrapur in Sessions Case No.85/1998 whereby appellant was convicted for the offence punishable under Section 302 of Indian Penal Code and sentenced to suffer imprisonment for life and to pay fine of Rs.500/-and in default of payment of fine, to suffer rigorous imprisonment for one month, the appellant has preferred this criminal appeal. 3) The prosecution case, in nutshell, is as follows: On 10/10/1997 Udhao (PW 1), who had a restaurant/dhaba at Sasti Colliery, opened his restaurant at about 9.45 P.M. There were customers in his restaurant, who were taking meal. At that time, a young man wearing a white coloured full-pant and blue jersi arrived at the hotel. He was armed with a kukri/dagger. No sooner he came to dhaba, without speaking a word, he started assaulting Anand Sangi by means of kukri and caused injuries on the left portion of neck of Anand. Anand fell down on the ground and was bleeding profusely. The said incident was witnessed by one Police Constable Tulshiram (PW 5), who was at the pan shop situated near the dhaba. The Police Constable tried to catch hold of the young man. However, before he could do that, accused ran away from the spot. Anand died on the spot. 4) Udhao (PW 1) went to the outpost of Sasti Police Station and lodged oral report, which was forwarded to Police Station, Rajura where an offence punishable under Section 302 of Indian Penal Code came to be registered against an unknown person. Police went to the spot, drew spot panchanama and inquest panchanama and seized the sheath of kukri, which was lying on the spot of incident. The clothes worn by deceased Anand were also seized. The dead body of Anand was forwarded to the Rural Hospital, Rajura for post mortem examination. The accused was arrested on the next day. His clothes were stained with blood. The blood sample of the accused was taken. The accused while in the custody made a discovery statement and kukri was seized by the Police at the instance of accused. The statements of other witnesses were also recorded. The accused was arrested on the next day. His clothes were stained with blood. The blood sample of the accused was taken. The accused while in the custody made a discovery statement and kukri was seized by the Police at the instance of accused. The statements of other witnesses were also recorded. Identification parade was held wherein appellant was identified as the perpetrator of the crime. The seized articles were forwarded to the Chemical Analyser for analysis. On completion of investigation, charge-sheet was filed against the appellant. The charge for the offence punishable under Section 302 of Indian Penal Code was framed and read over to the appellant. The appellant pleaded not guilty and claimed to be tried. The defence of the appellant was of denial. 5) Shri Daga, learned Counsel for the appellant, submitted that the first information report was lodged by Udhao (PW 1), who had not seen the person, who assaulted deceased Anand. It was contended that this witness lodged the first information report only after seeing Anand, who was lying at the spot in an injured condition. It was submitted that so far as this witness is concerned, he not being an eye witness, his testimony does not improve the case of the prosecution. 6) Learned Counsel Shri Daga further argued that PW 2 Ramavatar was examined as panch on the spot panchanama, PW 3 Baba Beg was examined as a panch on the memorandum of discovery statement and discovery of kukri and PW 4 Pandurang was another panch examined by the prosecution in order to prove seizure of clothes, pair of shoes of deceased Anand, etc. It was submitted that all these panch witnesses did not support the prosecution and nothing has come in their cross-examination, which would improve the prosecution case and, therefore, testimonies of these witnesses are of no help to the prosecution for proving the charge of murder against the appellant. 7) Shri Daga, learned Counsel for the appellant, further submitted that PW 5 Tulshiram was examined by the prosecution as an eye witness to the incident. It was submitted that in the cross-examination, there are material omissions brought out by the defence, which create doubt about truthfulness of the testimony of this witness. 7) Shri Daga, learned Counsel for the appellant, further submitted that PW 5 Tulshiram was examined by the prosecution as an eye witness to the incident. It was submitted that in the cross-examination, there are material omissions brought out by the defence, which create doubt about truthfulness of the testimony of this witness. It was further contended that though prosecution examined PW 10 Ayodhya as an eye witness to the incident, however, he did not support the prosecution and, therefore, permission to cross-examine this witness was granted by the trial Court in favour of the prosecution. However, nothing tangible has come in the cross-examination of this witness and, therefore, prosecution cannot derive any advantage from the testimony of this witness. 8) Shri Daga, learned Counsel submitted that PW 9 Ramesh, who was examined as panch witness to prove memorandum of discovery statement as well as discovery of weapon of offence, also failed to support the prosecution in the Court and, therefore, his testimony is of no consequence to the prosecution or defence. It was contended that so far as identification parade is concerned, the trial Court rightly discarded the said piece of evidence and, therefore, except the evidence of PW 8 Dr. Shesh, Medical Officer, who conducted post mortem examination, other evidence adduced by the prosecution is wholly inadequate to bring home the guilt of the appellant for the offence of murder and, therefore, the impugned judgment of conviction is not sustainable in law. 9) Shri Jichkar, learned Additional Public Prosecutor for the respondent, submitted that evidence of PW 5 Tulshiram is consistent with the material particulars of the prosecution case. The omissions in his Police statement brought out in the cross-examination of this witness are not of material nature and, therefore, testimony of this witness cannot be discarded on the basis of such omissions. It was contended that the evidence of this witness is completely corroborated by the medical evidence and, therefore, the trial Court was justified in accepting the said evidence and convicting the appellant for the offence of murder. 10) We have considered the rival contentions of the learned Counsel for the parties and carefully scrutinized the prosecution evidence. It was contended that the evidence of this witness is completely corroborated by the medical evidence and, therefore, the trial Court was justified in accepting the said evidence and convicting the appellant for the offence of murder. 10) We have considered the rival contentions of the learned Counsel for the parties and carefully scrutinized the prosecution evidence. In the instant case, PW 2 Ramavatar, PW 3 Baba Beg and PW 4 Pandurang did not support the prosecution in the Court and in their cross-examination nothing worthwhile was brought by the prosecution and, therefore, their evidence does not improve the case of the prosecution. Similarly, PW 9 Ramesh, another panch witness examined by the prosecution to prove memorandum of discovery statement and discovery of weapon under Section 27 of Evidence Act also failed to support the prosecution and in cross-examination of this witness, nothing tangible has come. Hence, his testimony is also of no help to the prosecution. PW 10 Ayodhya though was examined by the prosecution as an eye witness to the incident, however, he also did not support the prosecution and in the cross-examination of this witness, the prosecution could not bring out any material to derive any advantage of the testimony of this witness. The trial Court has discarded the identification parade conducted by the prosecution and the reasons given by the trial Court for rejecting the identification parade conducted by the prosecution, in our view, are proper. Taking into consideration all these aspects, the case of the prosecution rests on the testimony of PW 5 Tulshiram, who was examined by the prosecution as an eye witness to the incident and, therefore, it is necessary to carefully scrutinize the evidence of this witness. 11) PW 5 Tulshiram in his examination-in-chief has stated that on the day of incident, at about 8.15 p.m. he went to the hotel/dhaba run by PW 1 Udhao for taking dinner. As soon as he finished his dinner, appellant and one Ayodhya Dawa came to the dhaba. Both of them sat on the cot, which was kept outside the hotel. This witness has stated that after finishing his dinner, he went to the pan shop, which was located nearby and from there, he saw that Ayodhya Dawa caught hold of hands of deceased Anand and was trying to help him to get up from the cot. Both of them sat on the cot, which was kept outside the hotel. This witness has stated that after finishing his dinner, he went to the pan shop, which was located nearby and from there, he saw that Ayodhya Dawa caught hold of hands of deceased Anand and was trying to help him to get up from the cot. In the meantime, the appellant, who was present there, assaulted deceased Anand with kukri. Deceased Anand sustained injuries and fell down on the ground. The appellant ran away from the spot. According to this witness, he had seen the incident in the light of petromax lamp. It is pertinent to note that apart from the omissions, which are brought out by the defence in the cross-examination of this witness, this witness claimed that he had identified the appellant in the identification parade held by the Executive Magistrate. However, the trial Court discarded the evidence of PW 6 Balkrushna, Executive Magistrate itself so far as identification parade is concerned since the procedure adopted by the Executive Magistrate while holding identification parade was not proper and in our view, rightly so. PW 5 Tulshiram has also not specifically identified the appellant in the Court. On the other hand, in the cross-examination of this witness, it has come that this witness could see only one person at the spot of incident and, therefore, it creates serious doubt whether he had seen the appellant or other person Ayodhya Dawa, who was accompanying the appellant. Re-appreciation of evidence of PW 5 Tulshiram creates serious doubt about genuineness of his evidence and in absence of identification of the appellant, it is unsafe to place reliance on the testimony of this witness. 12) Similarly, PW 1 Udhao, who lodged the first information report, has stated in his evidence that he did not see who assaulted deceased Anand and was told that the person, who assaulted deceased Anand, had run away from the spot. This witness has also stated in the examination-in-chief that since it was darkness at the relevant time, he did not see the person, who had inflicted injuries on deceased Anand. It is, therefore, evident that testimony of this witness does not improve the case of the prosecution. Similar is the situation in respect of evidence of PW 10 Ayodhya, who was declared hostile and his cross-examination by the prosecution failed to yield tangible result. It is, therefore, evident that testimony of this witness does not improve the case of the prosecution. Similar is the situation in respect of evidence of PW 10 Ayodhya, who was declared hostile and his cross-examination by the prosecution failed to yield tangible result. 13) In column no.17 of the post mortem report, following injuries noticed on the dead body of Anand, are mentioned: “One deep incised wound (partially chopped) on the nape of neck at the level of C-2 of length 21½ cm extending upto and border of sternomastoid muscle on Lt. and up to just behind post border of sternomastoid muscle on right. From out border of sternomastoid muscle Lt. front of neck upto post border of sternomastoid muscle Rt. has been spared and by there structure only the neck is slightly attached to the trunk. Depth is about 7¼ cm. width ranging according to change in position of neck. When neck kept in normal position width is about 3½ cm. Wound is horizontal in direction with slightly oblige. The wound as somewhat spindle shape, Gaping with well defined smooth margin. Lower margin in slightly contused. Spurting (blood stains) present on face, scalp hair, upper examination. Ant and post aspect of upper chest. Clothes are blood stained. Clean cut injuries of skin, subcutaneous tissue, muscles, jugular veins on Lt. side of neck, carotid arteries on both sides of neck, vertebral arterier of both sides of neck with transaction of spinal cord by cutting through the whole thickness between C2-C3 vertebral present. Extravasation of blood in surrounding tissue present.” The Doctor opined that probable cause of death was due to major blood vessels of neck leading to haemorrhagic shock along with transaction of spinal cord. The medical evidence is always a corroborative piece of evidence and, therefore, the same on its own is inadequate to fasten criminal liability on the appellant for causing murder of Anand in the absence of any other trustworthy and reliable evidence. It is no doubt true that if the panch witnesses turn hostile and if other trustworthy and cogent evidence is available, then seizure of clothes, memorandum statement, etc. can be proved by the Investigating Officer. However, when the prosecution evidence in totality is not convincing and reliable, in such situation, it will be unsafe to follow the said course. It is no doubt true that if the panch witnesses turn hostile and if other trustworthy and cogent evidence is available, then seizure of clothes, memorandum statement, etc. can be proved by the Investigating Officer. However, when the prosecution evidence in totality is not convincing and reliable, in such situation, it will be unsafe to follow the said course. In the instant case, the evidence adduced by the prosecution is unreliable and, therefore, the conviction awarded by the trial Court to the appellant for the offence of murder under Section 302 of Indian Penal Code, in our view, cannot be sustained. 14) For the reasons stated hereinabove, the impugned judgment and order dated 18.12.2003 passed by the trial Court is set aside. The appellant/accused be released from the prison, if not required in any other criminal case. The criminal appeal is thus allowed.