JUDGMENT A. H. JOSHI, J. The appellants were accused in Sessions Trial No.22 of 2003. They were charged for offence punishable under Section 302 read with Section 34 of Indian Penal Code, for killing Kishore Hiraman Sakhare of Paras wad a on 2nd February, 2003 at about 4.00 p.m. at village Paraswada, individually or in furtherance of common intention to intentionally or knowingly cause his death. 2. The learned Sessions Judge convicted both the. accused for offence punishable under Section 302 read with Section 34 of Indian Penal Code, and sentenced them to undergo Life Imprisonment and to pay a fine of Rs.2,000/- each. The learned Sessions Judge' further convicted the Accused No.1 for offence punishable under Section 142 of the Bombay Police Act, 1951, and sentenced him to suffer Rigorous Imprisonment for one year and to pay a fine of Rs.5OO/-, in default, to undergo Simple Imprisonment for fifteen days. 3. Heard learned Adv. Mr. R. M. Dage for the appellants and learned APP Mr. V. A. Thakre for the respondent. 4. Prosecution has examined in all thirteen witnesses. PW-2 - Chandan Dashrath Wasnik, PW -4 Dulichand Bisan Hinge, PW -5 Nitesh Parman and Tembhurnikar and PW -11 Haridas Kanhu Tembhurnikar are eyewitnesses. Out of them, PW-2 - Chandan Wasnik and PW-4 - Dulichand Hinge have turned hostile. PW -10 - Laxmanprasad Jwalaprasad Mishra, who is a Panch witness, has also turned hostile. Other witnesses to prove the relevant facts, namely the complainant - PW -1 Jitendra Subharam Bhagat, PW-3 - Indrakumar Sadhuram Kawale and PW -8 - Vilas Manohar Shyamkuwar have also turned hostile. PW -13 - Dr. Kanchan Sushil Rahangdale is a medical witness who has proved the PostMortem Report, injuries and cause of death. PW-G - Dr. Rajendra Dhanjay Tripathi had examined accused persons. Other witnesses are formal. 5. The defence has examined DW 1 - Pralhad Shriram Dongre and DW 2 Nandkishor Kamalkishor Bhelawe in its support. 6. Appeal proceeds on the foundation that in absence of evidence of Panch witnesses. as sole Panch witness, who is examined, has turned hostile and though Investigating Officer has attempted to prove recovery, it has its own limitations, the recovery of weapons, clothes on the person of accused etc., is not proved. 7. 6. Appeal proceeds on the foundation that in absence of evidence of Panch witnesses. as sole Panch witness, who is examined, has turned hostile and though Investigating Officer has attempted to prove recovery, it has its own limitations, the recovery of weapons, clothes on the person of accused etc., is not proved. 7. Considering that two eyewitnesses, namely PW -2 - Chandan Dashrath Wasnik, and PW-4 - Dulichand Bisan Hinge, have turned hostile, the case rests on testimonies of remaining two witnesses, namely PW-5 Nitesh Parmanand Tembhurnikar and PW -11 Haridas Kanhu Tembhurnikar. 8. Learned Adv. Mr. R. M. Daga for the appellants has argued in support of appeal, claiming acquittal, on following points:- [a] Two eye-witnesses, namely PW-5 Nitesh Tembhurnikar and PW-II Haridas Tembhurnikar, on whose testimonies the prosecution stands, are not trustworthy. [b] Since the Memorandum of Recovery is not proved, the weapons of assault are not connected to the death and the accused persons and, therefore, it is not a case where conviction can be ordered. [c] Whenever the recovery is doubtful either for want of signatures of the accused persons on the Recovery Memorandum, or failure to prove the blood group on clothes of accused to be belonging to that of the deceased, it would be unsafe to rely upon such recovery. [d] A statement contained in the crossexamination creates a doubt about presence of PW-II - Haridas Tembhurnikar on the spot. [e] In the statement of PW -11 Haridas Tembhurnikar recorded by police, there are material omissions which are proved from contents of para 5 of deposition of PW -11 - Haridas. 9. To substantiate his contention, learned Adv. Mr. R. M. Daga placed reliance on following judgments:[a] Sattatiya alias Satish Rajanna Kartalla Vs. State of Maharashtra [(2008)3 SCC 2010] : [2008 ALL MR (Cri) 537 (S.C.)], [b] Jackaran Singh Vs. State of Punjab, [ AIR 1995 SC 2345 ], [c] Dnyandeo Dhandiba Jadhav & Ors. Vs. State of Maharashtra, [2009 ALL MR (Cri.) 2931], [d] State of Maharashtra Vs. Ashok Sukhdeo Raut, [2006 ALL MR (Cri.) 1033], [e] Kailas Tukaram Patil & another Vs. State of Maharashtra, [2006 ALL MR (Cri.) 86], and [f] Ramesh Vs. State of Maharashtra, [2005 Law Suit (Bom) 1540]. These judgments are relied upon to substantiate oral arguments noted in foregoing paras. 10. Ashok Sukhdeo Raut, [2006 ALL MR (Cri.) 1033], [e] Kailas Tukaram Patil & another Vs. State of Maharashtra, [2006 ALL MR (Cri.) 86], and [f] Ramesh Vs. State of Maharashtra, [2005 Law Suit (Bom) 1540]. These judgments are relied upon to substantiate oral arguments noted in foregoing paras. 10. Blood spots on the weapons, when they are identified, and on the clothes etc., are ordinarily the direct and relevant circumstances by which the accused persons get connected with offence. Admittedly, since these facts are not proved, the evidence in this regard would get excluded from consideration and the case would solely rests on the oral testimonies of eyewitnesses. 11. The fate of the accused would depend upon whether the eye-witnesses stand to the test of truth. 12. This Court has, therefore, keenly scrutinized the testimonies of PW-5 - Nitesh Tembhurni kar and PW -11 - Haridas Tembhurnikar. 13. The exact text contained in the Examination-in-Chief [Exh.28] of PW-5 Nitesh Tembhurnikar, which is approximately two pages on the point - fact of commission of offence, which narrates the incident, reads as follows:- "1. ...........................................Our labour gang was comprising of 14 members. Deceased Kishore was in our gang. He was present on the site. Incident occurred at about 3 to 3.30 p.m. Accused no. 1 Rajesh and accused no.2 Ranjeet came on the spot. Kishore was sitting in other gang member and smoking bidi. Accused no.1 Rajesh caught hold of shirt collar of Kishore and started assaulting him with spearhead like knife. Kishore caught hold of hand of accused no.1 Rajesh. so, accused no.1 Rajesh asked accused no.2 Ranjeet "Mar Isko." So, accused no.2 Ranjeet assaulted Kishore by knife. Ranjeet gave stab blow on back of Kishore. Kishore fell on the ground since his grip became loose. Kishore sustained injuries to chest, stomach. He had sustained bleeding injuries. Both the accused threatened the labourers not speak against them, else, they will be done to death. Then, both the accused fled away." [Sub-paragraphing is done for convenience of reading Quoted from page nos.39 and 4 of the appeal paper-book]. 14. In so far as PW-ll - Haridas Kanhu Tembhurnikar is concerned. his Exami nation-in-Chief consists of a narration of about one page. Text relevant to the incident reads as follows:- "1. Then, both the accused fled away." [Sub-paragraphing is done for convenience of reading Quoted from page nos.39 and 4 of the appeal paper-book]. 14. In so far as PW-ll - Haridas Kanhu Tembhurnikar is concerned. his Exami nation-in-Chief consists of a narration of about one page. Text relevant to the incident reads as follows:- "1. ..........................................On the date of incident, we started work at 8 a.m. At 12 in the noon, we were relieved for lunch and again at 3 p.m., we resumed work. Pralhad Dongre and deceased Kishore Sakhare excavated the earth and they sat aside, while we other labourers were collecting excavating earth. At the same time, we both the accused came there. Accused no.1 Rajesh caught hold of shirt collar of Kishore. Both the accused then started assaulting Kishore by knife and spearhead. Accused No.1 Rajesh was having spear while accused no.2 Ranjeet was armed with knife. The accused gave 5-6 blows on his back and stomach. Kishore fell on the ground. Accused dealt blow even after Kishore had fallen on the ground. Kishore was crying with pain, however, accused did not spare him. Kishore became unconscious. Accused no. 1 Rajesh threatened us to kill if we happen to state against them. Both the accused then fled away. Kishore died on the spot within half an hour to one hour. ........." [Sub-paragraphing is done for convenience of reading Quoted from page no. 71 and 72 of the appeal paper-book]. 15. In so far as cross-examination of PW-5 - Nitesh Tembhurnikar is concerned, a threadbare scrutiny thereof does not reveal that anything was elicited from cross-examination which could impeach the testimonies of these witnesses. 16. In order to test the worth of the objection to the reliability of PW -11 - Haridas. based on statement of this witness in the crossexamination, this Court has, therefore, to see what is the relevant text. The relevant text appearing in para 3 of his cross-examination due to which presence of PW -11 - Haridas is disputed reads as follows:- "3. ...........................................1 did not go to the spot of occurrence while assault. Witness says that, because of fear of knife, he did not go................." [Quoted from page no.73 of the appeal paper-book. To highlight the relevant and important portion, the same is italicized]. ...........................................1 did not go to the spot of occurrence while assault. Witness says that, because of fear of knife, he did not go................." [Quoted from page no.73 of the appeal paper-book. To highlight the relevant and important portion, the same is italicized]. The statement quoted above leads to creation of doubt about the fact if really PW11 - Haridas has seen the incident. 17. This Court has cross-checked the original testimony from record and the vernacular version therein. It is seen that the said quoted sentence is correctly reproduced in the paper book. However, the translation dictated by the Judge does not necessarily depict the exact version of the witness recorded in vernacular. The vernacular text reads as follows:"4. 18. From perusal of the vernacular text quoted above, it is clear that the words "spot of occurrence" seem to be a "free translation" of the version of the witness, but also exactly what the witness has stated. The statement of witness cannot be read in disjuncture from what he has said earlier. It is seen that in the sentence prior to the sentence relied upon by the defence, this witness has stated that "he was at a distance of 25 to 30 feet from the place of incident. There were shrubs of "Sadasawali" nearby." 19. The cross-examiner probably wanted to elicit that though witness was standing at such a close and proximate location, he was not able to see the incident and, therefore, he had asked some question to which. learned advocate got favourable reply, which reads as follows:"3. ..........It is not true to say that I have not seen the incident. ......" [Quoted from page no.73 of the appeal paper book). 20. It is, therefore, seen that the prosecution case that PW -11 - Haridas has witnessed the incident has remained unshattered. 21. Learned Adv., for the appellants has then relied upon an omission in the statement given to Police by PW-Il - Haridas. proved in his cross-examination. 22. In so far as the aspect of omission is concerned, the reliance is placed by the learned Adv., for the appellant on what is recorded in para 5 of the testimony of PW -11 Haridas, which reads as follows:"5. Police recorded my statement. I had not specifically mentioned number of blows dealt by accused. It was stated that, both accused started assaulting together. Police recorded my statement. I had not specifically mentioned number of blows dealt by accused. It was stated that, both accused started assaulting together. It was also specifically stated that, both the accused dealt blows even after Kishore had fallen down. It was also specifically stated that accused no. I uttered the word that he would kill us (Police statement shows that witness has stated that, accused said that he would see). It was also stated that, Chandan Wasnik and Hitendra Bhagat were present. I cannot assign any reason why above facts are not in specifically written." [Quoted from page nos.73 and 74 of the appeal paper-book]. 23. The entire version contains acceptance of omission in the statement recorded by the police. Moreover, any contradictions were not shown to the witness by confronting him. 24. Now this Court has to see what is the sum effect of testimonies of PW -5 Nitesh Tembhurnikar and PW-il - Haridas Tembhurnikar. 25. It is obvious and clearly seen that the testimony of PW-5 - Nitesh has gone unshattered. 26. The testimony of PW-II-Haridas is sought to be brought under a cloud of doubt by raising a probability as to very presence of this written on the spot of incident. This Court has already discussed the text of testimony on the basis of which the presence of PW -II - Haridas is sought to be challenged. The defence probably wanted to prove that this witness was not available on the spot, and alternatively that he had no occasion to have a view of the incident, suggesting existence of shrubs. However, the inability of the witness to view the incident could not be elicited by the defence from this witness. Upon thorough consideration, this Court has to record that the effort of the defence to create a doubt about presence of this witness has resulted in failure. 27. In so far as aspect of omission is concerned, considering that there is one unshattered eye-witness, the omissions relied upon by the defence are not material. Had there been contradictions, that too material, it would have led to a different result, which cannot be a case in so far as the omissions, which are not material, are concerned. The omissions so relied upon are not of such nature that the same would impeach worthiness of the witness. 28. Had there been contradictions, that too material, it would have led to a different result, which cannot be a case in so far as the omissions, which are not material, are concerned. The omissions so relied upon are not of such nature that the same would impeach worthiness of the witness. 28. In this situation, the case turns out to be one which is based on trustworthy eyewitness. 29. Oral testimony of PW-13 - Dr. Kanchan Rahangdade and Post-mortem Notes indicate as many as sixteen stab and incised injuries, and five internal injuries on vital organs of the body. Heart, intestines, liver all are hurt, or having incised wounds and half litre of blood is seen accumulated in the peritonum. The cause of death is loss of blood due to injuries to vital organs. 30. Failure to prove the Recovery Panchanama is rendered inconsequential, if the nature of injuries are seen and testimonies of eye-witnesses are seen. 31. The presence of accused, assault by them with the weapons brought, narrated by these witnesses are proved, and medical evidence has gone unimpeached. Therefore, the accused hardly have a chance of a different opinion. Recovery of weapons is not proved, but it does not impair proof of facts by ocular evidence. 32. In the result, appeal fails, and is dismissed. Appeal dismissed.