Judgment :- P.B. Majmudar, J. 1. This appeal is directed against the judgment and order of conviction passed by the 1st Adhoc Additional Sessions Judge, Kolhapur, dated 16th October, 2002 in Sessions Case No. 440 of 2001. The learned Judge has convicted the appellant for the offence punishable under Section 302 of the Indian Penal Code (hereinafter “IPC”) for committing murder of one Laxman Chintu Dhanva and sentenced to undergo life imprisonment. The appellant was also directed to pay fine of Rs. 1,000/and in default to suffer rigorous imprisonment for three months. The appellant was also convicted under Section 452 read with 34 of the IPC and sentenced to undergo rigorous imprisonment for five years and also awarded fine of Rs. 1,000/and in default to suffer rigorous imprisonment for three months. Both the sentences were ordered to run concurrently. 2. The aforesaid order of conviction is challenged by the appellant original accused No.1 by way of this appeal. 3. The trial Court framed charge against the appellant as well as against original accused No.2 Amit Dattatraya Patil, at Exh. 2. As per the charge, on 24th October, 2000, at about 20.45 hrs., in the house of the complaint, Smt. Latika Laxman Dhanva, at Laxmi Bhoir chawl, Room No.5, Milind Nagar, Kalyan (West), within the jurisdiction of Mahatma Phule Chowk Police Station, Kalyan, in furtherance of their common intention the accused entered the house of the complainant and unlawfully restrained the complainant and put the complainant into fear of assault and thereby committed an offence punishable under Section 452 read with Section 34 of the IPC. Secondly, the above named accused, during the course of same transaction and in furtherance of their common intention, committed murder by intentionally or knowingly causing the death of the husband of the complainant viz. Laxman Chintu Dhanva by assaulting him by means of gupti on the vital parts of his body and thereby committed an offence punishable under Section 302 read with Section 34 of the IPC. The accused did not plead guilty to the charge framed. 4. The prosecution case is that Complainant Latika Dhanva resides at Laxman Bhoir Chawl in Milind Nagar area at Kalyan (West). The victim Laxman was the husband of the said complainant. The daughters of the complainant viz. Alka and Anita and her sons Arvind and Manoj were residing jointly. The accused did not plead guilty to the charge framed. 4. The prosecution case is that Complainant Latika Dhanva resides at Laxman Bhoir Chawl in Milind Nagar area at Kalyan (West). The victim Laxman was the husband of the said complainant. The daughters of the complainant viz. Alka and Anita and her sons Arvind and Manoj were residing jointly. Deceased Laxman was serving as a Gardner Mukadam in the office of the Kalyan Dombivli Municipal Corporation at Kalyan. At the time of the occurrence, the complainant’s elder daughter Alka, aged about 15 years, was taking education in VIIIth standard in Nutan Vidhyalaya High School at Kalyan. Accused No.1 Shivaji (present appellant) was residing in the chawl which is situate by the side of the chawl in which Complainant Latika was residing. Occasionally, accused Shivaji used to visit the Complainant’s home. After observing the conduct of said Shivaji, Latika warned him not to arrive at her residence on the ground that she is having young daughters. It is also the case of prosecution that about four to five months prior to the incident, deceased Laxman had seen accused Shivaji talking with Alka on the road. At that time Laxman slapped on Shivaji’s face and told him not to meet his daughter again and not to speak to his daughter. The said Laxman learnt that accused Shivaji was clandestinely meeting his daughter Alka and hence on twothree occasions altercation has taken place between accused Shivaji and deceased Laxman. Laxman had warned accused Shivaji not to speak to his daughter and, therefore, Shivaji became furious and was angry with Laxman in view of the same. 5. On 24th October, 2000, at 5.00 p.m. Laxman returned home from his duty. After taking tea, he went to the market for fetching vegetables. At about 8.30 p.m. Laxman, his wife Latika and Alka and Anita were watching T.V. at their home. About 8.30 to 8.40 p.m, accused Shivaji and original accused No.2Amit Patil suddenly entered the complainant’s room. Accused Shivaji abused Laxman in an indecent language and also asked Laxman as to why he is not allowing him to meet his daughter Alka. Accused rushed towards Laxman to assault him. Latika and Alka went to rescue Laxman but accused Shivaji and Amit pushed aside Latika and Alka. Accused Shivaji abused Laxman in an indecent language and also asked Laxman as to why he is not allowing him to meet his daughter Alka. Accused rushed towards Laxman to assault him. Latika and Alka went to rescue Laxman but accused Shivaji and Amit pushed aside Latika and Alka. Thereupon, accused Shivaji took out a gupti from his waist and stabbed Laxman on the left side of his stomach. Latika and her daughter tried to apprehend the accused Shivaji and at that time accused No.2 obstructed Latika and Alka from rescuing Laxman. Simultaneously, accused Shivaji again stabbed Laxman on the left side of his stomach with gupti. Laxman received serious injuries and collapsed on the floor. Latika and her daughter shouted loudly for help. The accused thereafter ran way and disappeared in the darkness. Thereafter the complainant and her neighbours took the victim Laxman to a hospital in a rickshaw. The victim was admitted at Rukminibai Hospital at Kalyan. The Medical Officer Dr. Dondiram Gokhale examined the victim Laxman and pronounced him dead. The wife of the victim Latika filed a complaint on 24th October, 2000 at about 20.45 Hrs. at Mahatma Phule Police Station against both the accused. On the basis of the aforesaid complaint, a crime bearing No. I326/2006 for the offence punishable under Sections 302 and 452 read with 34 IPC was registered against the accused. The police after completing the investigation submitted a charge-sheet and, as pointed out earlier, charge was framed against the appellant and other accused viz. Amit Patil. Since they did not plead guilty, the trial commenced against both the accused. On behalf of the prosecution 15 witnesses were examined. 6. The learned trial Judge held that both the accused entered into the room of the complainant on the relevant day and from the evidence of eye witnesses, it is proved beyond reasonable doubt that accused No.1 Shivaji entered the house with gupti and stabbed the victim. The learned Judge found that as per the evidence on record, the ingredients of Section 452 as well as 34 of the IPC are proved and accordingly convicted the appellant and accused No.2 for the offence punishable under Section 452 read with 34 of the IPC. The learned Judge found that as per the evidence on record, the ingredients of Section 452 as well as 34 of the IPC are proved and accordingly convicted the appellant and accused No.2 for the offence punishable under Section 452 read with 34 of the IPC. However, the learned Judge acquitted original accused No.2 Amit Patil for the offence punishable under Section 302 of the IPC and convicted the appellant for the offence punishable under Section 302 of the IPC. . 7. The learned counsel for the appellant submitted that the prosecution has failed to prove its case against the accused beyond reasonable doubt. The learned counsel further submitted that the presence of PW1, PW2, PW3 and PW8 at the spot at the relevant time was doubtful and the same is not established in evidence. Learned counsel further submitted that the prosecution has come with two conflicting and contradictory versions about the incident. It is submitted that out of two versions, only one version can be said to be true. It is further submitted that the prosecution version is supported by the evidence of PW1, PW2, PW3 and PW8. According to these witnesses, they have stated that they had seen the incident and they witnessed the incident. It is, however, submitted that the other two independent witnesses examined by the prosecution i.e. PW 12 and PW 14 have deposed in their evidence that when they reached the spot, the deceased was in an injured condition but alive and was resting his back to the wall demanding water and that they gave water to him, put a towel on the wound to restrict the flow of blood and took him to the hospital. They have stated that during the aforesaid time, the deceased was alone at home and no family member of the deceased was present in the house. It is submitted that the aforesaid piece of evidence has been corroborated by other evidence led by the prosecution, such as the presence of the towel, presence of blood on the towel, etc. It is submitted that on the other hand the evidence of the family members, i.e. PW1, PW2, PW3 and PW8 is not believable as they are interested witnesses and their evidence is otherwise not free from doubt. It is submitted that on the other hand the evidence of the family members, i.e. PW1, PW2, PW3 and PW8 is not believable as they are interested witnesses and their evidence is otherwise not free from doubt. It is submitted that when there are conflicting versions and when it is not possible to accept both the versions that the one which is in favour of the accused should be accepted especially when the witnesses have not been declared hostile by the prosecution and in such eventuality, the evidence of such witness is binding on the prosecution. It is also submitted that PW 12 and PW 14 are independent witnesses and their evidence is required to be preferred as against the evidence of family members. It is submitted that it is not possible to believe that the accused after entering the house of the victim would stab him without any prelude or without any exchange of words. Learned counsel further submitted that the article of clothing found on the person of the deceased by the hospital and subsequently handed over to the police under panchanama at Exh. 11 is a towel which was found by the Chemical Analyser to have innumerable blood stains. It is submitted that neither the presence of the towel among the articles found at the hospital nor the presence of blood stains on the towel has been explained by any of the family members in their evidence. As against that, independent witnesses i.e. PW 12 and PW 14 have stated that when they entered the house of the deceased, they saw the deceased in a wounded condition, they tied the towel to his wounds to stop the blood and took him in a rickshaw to the hospital. It is submitted that this explains the presence of the towel among the articles which were found at the hospital and also the presence of blood stains on the towel bearing the blood group of the deceased. It is submitted that if the family members of the deceased had taken the deceased to the hospital, they would have been able to explain the presence of towel. It is submitted that if the family members of the deceased had taken the deceased to the hospital, they would have been able to explain the presence of towel. Learned counsel further submitted that even though the family members have deposed that PW 1 took the deceased to the hospital along with one neighbour, no particulars of such neighbour is given as to who accompanied PW 1 at the time when the victim was taken to the hospital. It is also submitted that though PW 1 claims that she took the deceased to the hospital, her clothes which may have stained with blood have not been seized. It is submitted that as per the case of the prosecution, the deceased had suffered two stab injuries and in that case there is bound to be a lot of blood split at the spot. Yet, only a solitary spot of blood that was dry and faded was found in the house of the victim and that blood has not been shown to belong to the deceased. It is submitted that absence of blood on the spot strongly suggests that the incident did not occur in the house as alleged by the family members. It is submitted that as per the case of the prosecution, the incident occurred after the deceased had returned from work and the family members alleged to have been present at that time in the house. However, they have given different versions about the return of the deceased from his work. It is also submitted that none of the family members has been asked to identify the clothes of the accused. It is submitted that the clothes of the deceased were shown only to PW 8, who was barely about 10 years old at the time of the incident and his presence at the spot has not been mentioned by PW 1, PW2 or PW3. It is submitted that there are omissions and improvements in the say of the witnesses i.e. PW1, PW3 and PW8. It is also submitted that as per the say of PW1, PW3 and PW 8, the accused locked the door from inside which fact has not been mentioned to the police. It is submitted that there are omissions and improvements in the say of the witnesses i.e. PW1, PW3 and PW8. It is also submitted that as per the say of PW1, PW3 and PW 8, the accused locked the door from inside which fact has not been mentioned to the police. It is also submitted that the said witness have also not stated before the police that the co-accused caught hold of the deceased and restrained him while he was stabbed by the accused No.1 and the said version is given for the first time before the Court. It is submitted that it is also not possible that the accused who was having intimacy with the girl would enter her house with the sole object of murdering her father. It is submitted that the recovery made on the basis of the disclosure statement of the accused by which gupti is recovered from the grass outside the public toilet can never be said to be reasonable at all as it is nothing but a farce. It is submitted that the I.O. has admitted in his evidence that in none of the remand applications preferred while the accused was in police custody, he has mentioned about the recovery of the clothes and this would show that there was no such recovery made on 27th October, 2000 as alleged by the prosecution. It is submitted that the alleged discovery made on 27th October, 2000 and 30th October, 2000 vide Exhibit 23, 24 , 27 and 28 were a farce and carried out to fabricate the evidence. It is submitted that the alleged recovery of the clothes at the instance of the accused has not been shown to any of the eye witnesses. It is also submitted that the confessional statement relied upon by the prosecution is contradictory in nature. It is submitted that as per the confessional statement recorded at Exh. 44, the accused confessed that the deceased was killed with a kitchen knife. However, as per Exh. 23, the accused confessed that he killed the deceased with a gupti. It is submitted that gupti and knife both are different type of weapons. It is submitted that the so called confessional statements are not consistent. 44, the accused confessed that the deceased was killed with a kitchen knife. However, as per Exh. 23, the accused confessed that he killed the deceased with a gupti. It is submitted that gupti and knife both are different type of weapons. It is submitted that the so called confessional statements are not consistent. It is submitted that gupti was recovered from the grass in the area adjoining to the public toilet and it is impossible that a gupti which is 12 inches long could remain undetected for five days at such a public place. It is submitted that when a public place is accessible to all, the recovery of an article from such a public place is not admissible under Section 27 of the Evidence Act. The learned counsel for the appellant has further submitted that, according to the prosecution, the accused’s clothes were recovered from a show case kept in his house but it is not possible to believe that after committing the murder, the accused would try and conceal his blood stained clothes by keeping them in the show case. Learned counsel further submitted that the panchas selected by the police are not the persons who can be said to be independent panchas as they are all connected to the police or the deceased as PW 5 and PW 6 were the colleagues of the deceased and they had visited the hospital and also attended his funeral. It is submitted that PW 4 used to go to the police regularly. It is submitted that the disclosure statement is required to be discarded as there is nothing to connect the accused to the recovery. The learned counsel further submitted that the panchanama prepared is also highly doubtful as there are gaps which have been left in the panchanama for the insertion of the dates, timings, etc. The learned counsel further submitted that the alleged motive attributed is an incident which had occurred about four months prior to the incident as the deceased had slapped the accused and warned him not to meet his daughter again. It is submitted that the motive attributed is, therefore, too stale and insufficient to constitute a motive to murder a person four months later. It is submitted that if really accused wanted to commit an offence because of the alleged incident, there was no reason for him to wait for four months. It is submitted that the motive attributed is, therefore, too stale and insufficient to constitute a motive to murder a person four months later. It is submitted that if really accused wanted to commit an offence because of the alleged incident, there was no reason for him to wait for four months. In the alternative, it is submitted that even if this Court comes to the conclusion that the prosecution has proved its case that it was the accused who had killed the deceased, even in that eventuality it can be said that the accused has committed an offence punishable under Section 304 Part I or II or Section 326 of the IPC. It is submitted that the doctor has not deposed that the injuries were sufficient to cause death and in the absence of such a finding, the ingredients of Section 302 IPC are not satisfied and in that view of the matter, conviction under Section 302 IPC is not sustainable and the case would fall under Section 326 IPC or 304 Part II. In order to substantiate his submission, the learned counsel has relied upon the evidence of the doctor by which the doctor has stated that the deceased might have survived if prompt medical treatment was given. It is also submitted that the disclosure statement of accused, which is relied upon by the prosecution, shows that the accused did not carry the weapon with him when he went to the house of the deceased. It is submitted that in any case the incident occurred at the spur of the moment owing to the exchange of words between the victim and the accused. 8. The learned counsel for the appellant has placed on record his written submissions. The learned counsel for the appellant submitted that considering the aforesaid submissions, the appeal is required to be allowed by setting aside the order of conviction or in the alternative the conviction is required to be altered to Section 304 Part II or Section 326 of the IPC. 9. The learned Additional Public Prosecution, on the other hand, submitted that the prosecution has proved its case that it is the accused who committed the alleged offence and the prosecution has proved its case beyond reasonable doubt against the accused. 9. The learned Additional Public Prosecution, on the other hand, submitted that the prosecution has proved its case that it is the accused who committed the alleged offence and the prosecution has proved its case beyond reasonable doubt against the accused. It is submitted that the conviction recorded by the learned trial Judge is based on the evidence of PW1, PW2 and PW 3 who had witnessed the incident in question and their presence in the house is natural as the accused came at the victim’s house at the late evening and at that time naturally the presence of the said witnesses in the house is natural. It is submitted that the said witnesses have given correct description of the incident in question. The learned APP has further submitted that the evidence of the eye witnesses i.e. PW1, PW2, PW3 and PW 8 is consistent with other evidence on record and is not at variance. It is submitted that the weapon in question i.e. gupti was not visible but it was hidden and, therefore, recovery was absolutely proper as it took about five days to find out the said weapon from the place in question. It is submitted that the prosecution has clearly established the motive. It is further submitted that simply because the witnesses are related to the victim, it cannot be said that their evidence cannot be believed or required to be discarded. The learned APP further submitted that the injury in question is proved by medical evidence and the accused inflicted two fatal blows on the stomach of the deceased which resulted into the death of deceased and, therefore, this case squarely falls under Section 302 of the IPC . The murder is committed with the intention and knowledge. It is submitted that since the deceased was against the relationship of accused with his daughter that ultimately the accused committed this heinous crime of murdering the deceased. It is submitted that in view of the overwhelming evidence on record, the prosecution has proved its case against the accused beyond reasonable doubt. It can, therefore, be safely said that the prosecution has proved its case against the accused and the learned trial Judge has rightly convicted the accused under Section 302 of the IPC. Both the sides have also cited various judgments to substantiate their say. 10. We have heard the learned counsel at great length. It can, therefore, be safely said that the prosecution has proved its case against the accused and the learned trial Judge has rightly convicted the accused under Section 302 of the IPC. Both the sides have also cited various judgments to substantiate their say. 10. We have heard the learned counsel at great length. We have gone through the evidence on record. We have also gone through the written submissions. 11. On behalf of the prosecution, complainant Latika Dhanva was examined as prosecution witness No.1 at Exh. 13. In her evidence she has stated that at the time of incident she was residing at Milind Nagar, Kalyan. She was residing with her daughter Alka, two sons Arvind and Manoj as well as with his deceased husband Laxman. She has stated that her husband was serving at Kalyan Dombivli Municipal Corporation and he used to go on duty at 8.00 a.m. and used to come back about 12 Noon for taking food. At 5.00 p.m. he used to come back after his duty. In her evidence she has stated that before four to five months prior to the incident, her daughter Alka was talking with accused Shivaji and her husband Laxman saw them talking with each other. Her husband warned accused No.1 not to talk with Alka. The witness has further stated that on 24th October, 2000, at 8.00 p.m. accused No. 1 Shivaji came to their house. He closed the door of the house from inside. Accused No.2 Amit Patil was also with accused No.1. Accused No.1 stabbed the deceased on the left side of his stomach. She and her daughter went to rescue Laxman. In her examination, she has stated that the accused stabbed her husband twice. Thereupon her husband fell down. Accused No.2 caught hold of her husband when accused No.1 stabbed her husband. The accused thereafter ran away. In her evidence she has stated that she and one boy removed her husband to the hospital and thereafter she filed a complaint which is at Exh. 14. The said witness has identified gupti by which her husband was stabbed. In the cross-examination she has stated that her room was admeasuring 10’ x 10’. In the cross-examination she has stated that on the date of the incident they were sitting in the said room and because of their shouts some persons gathered outside the house. 14. The said witness has identified gupti by which her husband was stabbed. In the cross-examination she has stated that her room was admeasuring 10’ x 10’. In the cross-examination she has stated that on the date of the incident they were sitting in the said room and because of their shouts some persons gathered outside the house. According to her, about 50 to 60 persons gathered at the time of the incident. She denied the suggestion that there was love affair between her daughter Alka and the accused No.1. 12. The prosecution also examined the daughter of the victim Alka as prosecution witness No.2 at Exh. 15. She has stated in her evidence that she used to see accused No.1 Shivaji on the road and accused No.1 used to smile at her. The said witness has stated that before four to five months prior to the incident, she was speaking with accused Shivaji and at that time her father Laxman came and told accused No.1 that he should not talk to her. Her father gave a threat to accused No.1 that if he again talk with her, he would file complaint against him in the police station. The said witness has stated that the incident took place at about 8.10 p.m. on 24th October, 2000. She sated that accused Shivaji and his friend entered the house. She identified both the accused. In her evidence she has stated that accused No.1 asked her father as to why he did not allow him to talk with Alka. Her father told the accused that he would like to speak to the accused in this behalf outside the house. Accused No.1 caught hold of shirt of her father. She and her mother Latika went to rescue her father but accused pushed her and her mother aside. The accused was having a knife which was kept with him in the left side of his waist. Accused stabbed her father with a gupti on the left side and he stabbed him twice and her father fell down. The witness has further stated that her mother and one boy took her father to the hospital and her father died on the same day. She has stated that her father was stabbed by the accused with gupti. In the cross-examination, she has admitted that she knew the accused since about one year. The witness has further stated that her mother and one boy took her father to the hospital and her father died on the same day. She has stated that her father was stabbed by the accused with gupti. In the cross-examination, she has admitted that she knew the accused since about one year. She has further stated that she was having love affair with accused No.1. she has stated that her family members did not like the love affair with the accused No.1. In her cross-examination she stated that her father told the accused that he would file a complaint if accused No.1 talked with her. She has stated that many people gathered outside the house. 13. The prosecution examined son of the deceased Arvind as prosecution witness No. 3 at Exh. 16. He is aged about 14 years. The said witness has stated that deceased Laxman was his father. The incident took place on 24th October, 2000. At the time of incident he was at home. At about i.30 p.m. in the evening his father returned from duty and about 8.30 p.m. accused Shivaji and another accused came to their house. Accused Shivaji closed the door from inside. Accused Shivaji told his father that he wanted to talk with him. His father told him that he would talk with the accused outside the house. The accused told him that he wants to talk there only. The accused No.1 started beating his father and another accused pushed aside his mother and sister. Accused No.1 Shivaji took out a gupti and stabbed his father on stomach. When her mother tried to rescue his father, accused No.1 pushed her. His father fell down and all of them started shouting. The said witness further stated that her mother and one boy removed his father to the hospital and his father died there. The witness also identified the gupti. In the cross-examination the witness has stated that his statement and the statement of his mother and sister were recorded one by one. The witness denied the suggestion in the cross-examination that because of his father’s drinking habit disputes took place between his father and neighbours. 14. One Rajendra Pashte was examined as prosecution witness No.4 by the prosecution at Exh. 22. The said witness is a panch witness. He signed the memorandum of panchanama exh. 23. The witness denied the suggestion in the cross-examination that because of his father’s drinking habit disputes took place between his father and neighbours. 14. One Rajendra Pashte was examined as prosecution witness No.4 by the prosecution at Exh. 22. The said witness is a panch witness. He signed the memorandum of panchanama exh. 23. The said panchanama is in connection with the discovery of the clothes of the accused Shivaji. The said witness has stated in his evidence that he along with accused Shivaji and one constable Bangare went to the house of accused Shivaji. He produced one shirt and pant from the show case kept in his house. The police seized the shirt and pant and prepared the discovery panchanama. In the cross-examination the said witness has stated that the police chowky is near a shop named Prem Auto. At the time of making panchanama, he was unemployed. He has stated that he was knowing Police Constable Thorat as he used to meet him in connection with his work. He stated that he did not know where Thorat resides. 15. Prosecution examined one Balu Jadhav as prosecution witness No. 5 at Exh.25. The said witness was called as a panch witness at Mahatma Phule Police Station where accused No.1 was also present there. Accused No.1 gave a statement that he has kept his clothes in room at Milind Nagar. He sent the discovery panchanama at Exh. 23. In the cross-examination the said witness has stated that he was serving as a Gardner in Kalyan Municipal Corporation and deceased Laxman was also serving in Kalyan Municipal Corporation in Garden Department. 16. One Anant Patil was examined as prosecution witness No.6 at Exh. 26 as a panch witness in connection with the discovery of gupti. The said witness has stated that accused No.1 took him along with another panch and police to a public latrine situate in Milind Nagar, Kalyan in Government jeep. The accused produced one gupti hidden in heap of grass. Police seized the gupti and the seizure panchanama was prepared at Exh. 28. In the cross-examination , the said witness has admitted that he was serving as a Gardner in Kalyan Municipal Corporation in the Garden Department. In the cross-examination he has stated that he had gone to the hospital where Laxman was admitted and he had attended his funeral also. 17. 28. In the cross-examination , the said witness has admitted that he was serving as a Gardner in Kalyan Municipal Corporation in the Garden Department. In the cross-examination he has stated that he had gone to the hospital where Laxman was admitted and he had attended his funeral also. 17. One Mahesh Badhange was examined as prosecution witness no. 7. He was called as a panch witness. The said witness has stated that accused was not arrested in his presence and clothes of the accused were not seized in his presence. 18. The prosecution also examined the daughter of the deceased, Anita as prosecution witness No. 8 at Exh. 36, who is aged about 12 years. The trial Court had asked her few questions regarding the sanctity of the oath and after recording the fact that the witness is aware of the sanctity of the oath, oath was administered to the said witness. The said witness has stated in her evidence that she knew accused No.1 Shivaji and accused No.2 Amit Patil. The said witness has stated that her father had slapped accused No.1 as he was talking with her sister. The said witness has stated that on 24th October, 2000 she was at home and her sister and her brothers Arvind and Manoj and her father were present at home. They were watching T.V. and at that time accused Shivaji and Amit Patil entered the house. Amit Patil fastened the latch of the door from inside and her father told the accused Laxman that whatever they wanted to speak, they should speak outside the house but accused Shivaji insisted that he wants to speak to her father inside the room. The accused Shivaji asked her father as to why he is not allowing his daughter Alka to meet him. The accused Shivaji thereafter took out a gupti and stabbed his father on the stomach. Her mother and sister tried to stop the accused but the accused Amit Patil caught hold of her mother and her sister Alka. Then accused Shivaji inflicted a second stab on the stomach of her father. The said witness has stated that accused Shivaji also her aside and her sister and her mother. In her evidence she has stated that her father fell down on the floor. Accused No.1 and Amit Patil thereafter ran way. Then accused Shivaji inflicted a second stab on the stomach of her father. The said witness has stated that accused Shivaji also her aside and her sister and her mother. In her evidence she has stated that her father fell down on the floor. Accused No.1 and Amit Patil thereafter ran way. The said witness has stated that her mother took her father to the Municipal Hospital. She has identified the weapon i.e. gupti. In the cross-examination , she has admitted that their relationship with the persons who were residing in the chawl were not good. She has stated that before talking to the police regarding the incident, she did not tell about the incident to anybody. In the cross-examination she has stated that her father was taken to the hospital in one rickshaw. She has stated that her mother and the rickshawala placed her father in the rickshaw and the persons residing in the neighborhood did not come to take her father in the rickshaw. She has stated that rickshaw came within five minutes on the call given by her mother. In the cross-examination she has stated that on the day of the incident, for the first time, she saw accused No.2 Amit Patil. She has further stated that since his name was declared in the newspaper and, therefore, she came to know about the name of the said person. She has stated that she had seen accused No.1 before the incident. 19. One Pandit Salve was examined as prosecution witness No.9 at Exhibit 39 who was called as a panch witness on 26th October, 2000. The said witness has stated that the accused was not arrested in his presence. 20. One Janardhan S. Kale was examined as prosecution witness No.10 at Exh. 42. The said witness has stated that victim Laxman was having one daughter but he stated that he did not know who killed Laxman. The said witness was declared hostile by the prosecution. 21. The prosecution also examined Mahendra Bhoir as prosecution witness No.11 at Exh. 43 who was called as a panch witness . The said witness was declared hostile. 22. The prosecution also examined one Ganesh Matkar as prosecution witness No.12 at Exh. 47. The said witness has stated that his friend Sandip Jadhav was residing in Milind Nagar area of Kalyan. He used to go to Milind Nagar area. 43 who was called as a panch witness . The said witness was declared hostile. 22. The prosecution also examined one Ganesh Matkar as prosecution witness No.12 at Exh. 47. The said witness has stated that his friend Sandip Jadhav was residing in Milind Nagar area of Kalyan. He used to go to Milind Nagar area. The said witness has stated that he knew Amit Patil, accused No. 2. He stated that he did not know the person named Laxman Dhanva. The witness further stated that he did not now Laxman’s daughter’s name. The said witness has stated that on 24th October, 2000, the incident took place at about 8.30 p.m. He had gone to his friend Sandip Kesarkar’s house for a party and his other friends Yogesh Wagle, Mangesh Gaikwad and Sandip Kesarkar were there. At the time when they were proceeding towards their home, they saw the crowd near one chawl in Milind Nagar and accordingly they went there. The said witness has stated that thereafter his friends went there . He also went inside the room and saw one person was resting his back to the wall and blood was oozing from his stomach. The witness has stated that Mangesh Gaikwad tied towel around the stomach of that person and in one rickshaw they took him to Municipal Hospital. He has stated that the accused were not present on the site. The said witness has stated that Mangesh Gaikwad has taken a towel from the house of the deceased but he stated that he had not seen anybody in the house. The said witness has stated that he did not go to the hospital. He stated that his friend Yogesh had gone to the hospital. He has stated that between his house and Laxman’s house, there are about 20 to 30 houses. In the cross-examination the said witness has admitted that only he and his friends went inside the room and they called the persons from the group to remove the deceased in the rickshaw but nobody came to help them. He has stated that at that time relatives of the deceased had not come there. He further stated that deceased was initially alive and was demanding water. 23. The prosecution also examined Dr. Dondiram Tatoba Gokhale as prosecution witness No. 13 at Exh. 49. He has stated that at that time relatives of the deceased had not come there. He further stated that deceased was initially alive and was demanding water. 23. The prosecution also examined Dr. Dondiram Tatoba Gokhale as prosecution witness No. 13 at Exh. 49. The aforesaid witness has stated in his evidence that on 24th October, 2000 dead body of the person named Laxman Dhanva was brought at Rukminibai Hospital by his relatives. The said doctor examined the victim and he found that he is already dead. Therefore, he informed the police about the incident. The police thereafter prepared the inquest panchanama of the dead body. The said doctor carried out the post mortem of the dead body. As per the post mortem report, there were two perforating stab injuries over left side of the abdomen of the deceased. The doctor has described the said injury in his evidence. According to the evidence of the said doctor, the first injury which is mentioned as “A” in the report was on the left hypochondriac region of the body. This injury was 2 inches below from left costal margin and the said injury was ½ inch x ¼ inch deep on superior medical medical direction. Injury “B” was over the inter costal line and it was below ¾ inch below the injury mentioned above as “A”. The size of the injury was ½ inch x ½ inch x 8 inch deep superio medial direction. The said witness has also stated about the bleeding and blood in the abdomen. He has stated that there was a bleeding of over 2 litres of blood. The doctor found that in the small intestine there was cut rupture at 4 sites. According to the evidence of the said doctor, the cause of death is haemorrhagic shock due to haemoperitoneum due to perforating stab injuries. The said witness was shown gupti and stated that the aforesaid injuries are possible by the said gupti and stated that such injuries are possible if the person is stabbed twice with this gupti. In the cross-examination the said doctor has stated that in case a person is given treatment immediately after he suffered above mentioned injury, the person may survive. The said witness has denied the suggestion that the deceased Laxman died due to the shock of stabbing. 24. The prosecution examined one Mangesh Gaikwad as prosecution witness No.14 at Exh.52. In the cross-examination the said doctor has stated that in case a person is given treatment immediately after he suffered above mentioned injury, the person may survive. The said witness has denied the suggestion that the deceased Laxman died due to the shock of stabbing. 24. The prosecution examined one Mangesh Gaikwad as prosecution witness No.14 at Exh.52. The said witness has stated that on 24th October 2000 the incident in question took place at about 8.30 p.m. to 9.00 p.m. The incident took place at Milind Nagar area at Kalyan. He had gone to the house of his friend Sandip Jadhav. He stated that he, along with his friend, Sandip Jadhav went to the spot of the incident and saw the deceased was lying in a pool of blood resting his back to the wall and he was demanding water. According to the said witness, Yogesh Wagle gave water to the injured. He took towel which was hanging on the rope and Yogesh Wagle took the victim in a rickshaw to the hospital. He has stated that he did not know who had stabbed the victim. The said witness was declared hostile. 25. The prosecution examined Bhagat Bhangare as prosecution witness No.15 who was serving as a PI at the relevant time in Mahatma Phule Police Station, Kalyan. The said witness has stated that a complaint filed by Latika was taken by PSI Patil and on the basis of the same he registered Crime No. I326/ 2000. He deputed PSI Shirsagar to bring the accused in the police station and he directed PSI Kamble to prepare the inquest panchanama on the dead body of the deceased. The said witness visited the spot of the incident on 24102000. The accused Amit Patil was produced before him by PSI Saghe whom he interrogated. The said witness had prepared the arrest panchanama on 24th October, 2000. The clothes of the deceased were brought before the said witness on 25th October, 2000 by Constable Dhamal. The said police officer also recorded the statement of the witness Alka. The said witness has stated that on 27th October, 2000, the accused Shivaji was in P.C.R. and he showed his willingness to produce gupti and accordingly in a Government jeep he travelled along with accused Shivaji and panch witnesses. From the grass, the accused Shivaji produced one gupti stained with blood. The said witness has stated that on 27th October, 2000, the accused Shivaji was in P.C.R. and he showed his willingness to produce gupti and accordingly in a Government jeep he travelled along with accused Shivaji and panch witnesses. From the grass, the accused Shivaji produced one gupti stained with blood. The discovery panchanama was accordingly prepared. 26. So far as the evidence of complainant PW1 Latika as well as the evidence of PW 2 Alka and evidence of PW 3 Arvind is concerned, it is required to be noted that each of these witnesses has witnessed the incident and they are the eye witnesses to the incident in question. Witness Latika has given full particulars about the incident in question. Her presence in the house at about 8.00 p.m. is most natural as she is the housewife and, therefore, naturally her presence at that time cannot be ruled out. As per the evidence of the said witness, the incident took place in her presence and accused Shivaji stabbed her husband in her presence. As per the evidence of the said witness, she and her daughter Alka went to rescue her husband but in vain and the accused thereafter ran away. The evidence of the said witness gets complete corroboration from the evidence of PW 2, who is the daughter of deceased Laxman. The said witness Alka has also narrated the incident and she has stated that she and her mother i.e. PW1 tried to rescue her father and accused No.1 stabbed her father twice. The said witness has clearly admitted in her cross-examination when a question was put to her that she was having love affair with accused No.1 and her family members did not like her love affair with the accused. The evidence of PW 1 and 2, in our view, is absolutely trustworthy and there is no reason to disbelieve the said witnesses simply because they are relative of the deceased and that they are interested witnesses. It is a well settled proposition of law that simply because the witness is a relative, the evidence of the said witness cannot be discarded on the said ground, provided the same is trustworthy. PW 2 Alka admitted her affairs with accused No.1 and she has stated that her father told accused No.1 that he should talk outside the house. The said aspect is also corroborated by PW 3 Arvind. PW 2 Alka admitted her affairs with accused No.1 and she has stated that her father told accused No.1 that he should talk outside the house. The said aspect is also corroborated by PW 3 Arvind. In our view, there is absolutely no reason to discard the evidence of PW1 and PW2 who have witnessed the incident and their presence in the house is absolutely natural one. Similarly, so far as PW 3 is concerned, he has also given similar version and pointed out as to how the incident in question has happened. All the aforesaid witnesses have seen the incident and stated that accused Shivaji gave two gupti blows to the deceased. The said version is even corroborated by medical evidence as the doctor has also certified that there were two blows inflicted on the deceased and the said blows were possible by weapon in question i.e. gupti. The evidence of the said witness is, therefore, clearly corroborated by the doctor’s evidence. In our view, there is absolutely no reason to doubt the evidence of the aforesaid three witnesses in any manner. It is true, as argued by the learned counsel for appellant, that the two witnesses i.e. PW 12 and PW 14 have given different versions in their evidence as the said witnesses have stated that none of the relatives were present at the relevant time. PW 12 has stated that on the relevant day he along with his friend Sandip Wagle, Mangesh Gaikwad and Sandip Kesarkar were proceeding towards their house and at that time they witnessed the incident. The said witness has stated that he had taken the deceased to the hospital and that the accused were not present on the spot. According to the said witness, he was in the company of Mangesh Gaikwad, another friend. The said witness Mangesh Gaikwad is declared as hostile by the prosecution and in our view the evidence of the said witness is not at all believable. According to the said witness, he was in the company of Mangesh Gaikwad, another friend. The said witness Mangesh Gaikwad is declared as hostile by the prosecution and in our view the evidence of the said witness is not at all believable. It is true, as argued by the learned counsel for the appellant, that when there are two sets of evidence, one in favour of the accused should be believed but when the evidence of PW 14 is taken out from consideration, as it is clear that he has resorted to falsehood though it is true that PW 12 is not declared hostile, his evidence shows that one person was found sitting and resting his back to the wall and blood was oozing from his stomach. The said witness has admitted in his cross-examination that Mangesh Gaikwad had taken the towel from the house of the deceased but he did not see anybody in the house. Though in his examination in chief he has stated that in one rickshaw he along with his friends took the victim at the hospital but in the cross-examination in para 3 he has admitted that he had not gone to the hospital but his friend Yogesh had gone to the hospital. In our view, evidence of PW 12 cannot be said to be trustworthy and it is no doubt true that he has not been declared hostile but considering the evidence as a whole, in our view, on the basis of the evidence of PW 1, PW 2 and PW3, the prosecution can be said to have established their case beyond reasonable doubt against the appellant accused. 27. Learned counsel for the appellant at this stage relied upon the decision of the Supreme Court in the case of Harchand Singh and another vs. State of Haryana (1974) 3 SCC 397 wherein the Supreme Court has held that when there are two sets of evidence, one in favour of the accused should be accepted. In the instant case, PW 1 and PW 3 have clearly given full description of the incident and their presence in the scene of offence was most natural. It is not possible to believe that, as suggested by the learned counsel for the appellant, none of the socalled eye witnesses were present in the house. In the instant case, PW 1 and PW 3 have clearly given full description of the incident and their presence in the scene of offence was most natural. It is not possible to believe that, as suggested by the learned counsel for the appellant, none of the socalled eye witnesses were present in the house. As pointed out earlier, the incident happened at about 8 p.m. Naturally presence of witness No.1 can be said to be most natural at the house. Similar is the position so far as the other witnesses i.e. PW2 and PW3 are concerned. So far as PW 12 is concerned, he has clearly stated that he is not aware about any love affair of the daughter of the victim with the appellant. As against this, PW2 has clearly stated in her evidence that she had an affair with the accused and her father was annoyed because of such relationship and in the past her father has scolded the accused which ultimately resulted into the unfortunate incident on the relevant day. Considering the aforesaid aspect, it is not possible to accept the say of the learned counsel for the appellant that we should accept the evidence of PW 12 and discard the evidence of PW Nos. 1, 2 and 3, especially when, in our view, presence of PW Nos. 1, 2 and 3 at the house is most natural at their house and their evidence is corroborated by the medical evidence as regards the fatal blows inflicted on the victim. The learned counsel for the appellant has also relied upon the decision of the Supreme Court in the case of Bhim Singh vs. State of Haryana (2002) 10 SCC 461 wherein it is held that when there are two pieces of evidence in regard to the same fact, both un-controverted and uncorroborated, the benefit of doubt must go to the accused. 28. Regarding the submission of the learned counsel for the appellant that the towel was wrapped by PW 12 and PW 14. It is required to be noted that PW 14 has stated that he took towel which was hanging on the rope and tied the towel on the stomach of the injured. The said witness has already been declared as hostile. His evidence is not at all believable. It is required to be noted that PW 14 has stated that he took towel which was hanging on the rope and tied the towel on the stomach of the injured. The said witness has already been declared as hostile. His evidence is not at all believable. It is true that the presence of towel is noticed at the time when the deceased was brought to the hospital. Simply because PW Nos. 1, 2 and 3 have not stated anything regarding towel, in our view, it is not such an omission by which their entire evidence can be discarded, if otherwise their evidence is found to be trustworthy. In our view, the prosecution has succeeded in proving its case beyond reasonable doubt in view of the unimpeachable trustworthy evidence of prosecution witness Nos. 1 to 3. 29. So far as the submission of the learned counsel for the appellant that the panch witnesses are interested witnesses, it is required to be noted that two of the witnesses were knowing the deceased. Simply because they were knowing the deceased itself is not a ground to discard the version of the panch witnesses. So far as the panchanama regarding recovery of the clothes of the accused is concerned, he had taken the panchas at his house and from the cupboard the said clothes were recovered. So far as recovery of article used in the offence i.e. gupti, no doubt the same is recovered near a public toilet. The learned Additional Public Prosecutor has rightly pointed out that it was hidden in the grass and it was found out after about five days. Subsequently even as per the evidence of the doctor, the injury in question is possible by the aforesaid weapon i.e. gupti. The learned counsel for the appellant has submitted that if recovery is from a place which is accessible to public, no reliance can be placed on such evidence. He has relied upon the decision of the Supreme Court in the case of Trimbak vs. State of Madhya Pradesh AIR 1954 SC 39 wherein the Supreme Court has held as under: “4. It is settled law that the presumption of the innocence of an accused person is reinforced by an order of acquittal and a heavy onus rests on the prosecution in an appeal from such an order to prove that the order is manifestly erroneous. It is settled law that the presumption of the innocence of an accused person is reinforced by an order of acquittal and a heavy onus rests on the prosecution in an appeal from such an order to prove that the order is manifestly erroneous. The High Court seems to have approached the case as if it was considering an appeal preferred against his conviction by an accused person. The Magistrate came to the conclusion that the witnesses for the discovery were interested in the prosecution and were not on good terms with the appellant, that the kangi from where the property is said to have been taken was in the open and easily accessible to all the sundry and that in these circumstances it was not safe to hold that the place was in the possession of the accused or that the property was recovered from his possession. The learned Judges in the High Court, however, took the view that the ornaments belonging to the complainant were taken out by the respondent from the field of Namdeo Anand and that the respondent having given no explanation regarding his knowledge of the place from which the ornaments were taken out, it must be presumed that he must have kept the ornaments there. It was further held that the fact that the field did not belong to the respondent and that the place was accessible to others would not show that the ornaments were not in his possession but were kept by someone else, in the absence of a statement from the respondent explaining the circumstances under which he came to know about the ornaments. 6. When the field from which the ornaments were recovered as an open one, and accessible to all and sundry, it is difficult to to hold positively that the accused was in possession of these articles. 6. When the field from which the ornaments were recovered as an open one, and accessible to all and sundry, it is difficult to to hold positively that the accused was in possession of these articles. The fact of recovery by the accused is compatible with the circumstance of somebody else having placed the Articles there and of the accused somehow acquiring knowledge about their whereabouts and that being so, the fact of discovery cannot be regarded as conclusive proof that the accused was in possession of these articles.” The learned counsel for the appellant has also placed reliance of the decision of the Supreme Court in the case of Kora Khasi vs. State of Orissa AIR 1963 SC 360 and a decision of this Court in the case of Jaysingh vs. State of Maharashtra 1999 Cri.L.J. 1687 in support of his argument as regards recovery of articles from an open place. In the instant case, though it is true that the recovery is made after five days of the incident, the weapon used in the offence i.e. gupti was not found at open place but it was found in a hidden place which was not accessible to others. 30. The learned counsel for the appellant has submitted that while considering the evidence relating to recovery, Courts should exercise utmost caution and care. To fortify his submission, the learned counsel has relied upon the decision of the Supreme Court in the cases of (i) Himachal Pradesh Administration vs. Om Prakash (1972) 1 SCC 249 and Sanjay vs. State (NCT of Delhi) (2001) 3 SCC 190 . 31. The learned counsel for the appellant has submitted that the doctor has not stated in his evidence that the injury in question is likely to cause death. In order to support his submission, the learned counsel has relied upon the judgments of the Supreme Court in the cases of Vadla Chandraiah vs. State of Andhra Pradesh (2006) 13 SCC 587 , Chilamakur vs. State o f Andhra Pradesh (1977) 3 SCC 560 , Chuttan and others vs. State of Madhya Pradesh (1994) Supp. 1 SCC 594 and a decision of this Court(Nagpur Bench) in the case of Vinod s/o Bapuna Kolhe vs. State of Maharashtra 2009 ALL MR (Cri.) 350. 1 SCC 594 and a decision of this Court(Nagpur Bench) in the case of Vinod s/o Bapuna Kolhe vs. State of Maharashtra 2009 ALL MR (Cri.) 350. In the instant case, however, the doctor has clearly stated in his evidence in para 9 that the death was caused on account of haemorrhagic shock due to haemoperitoneum due to perforating stab injuries. The doctor was shown the weapon i.e. gupti and the doctor has opined that the two stab injuries on the person of the deceased are possible by this weapon. In our view, therefore, simply because the doctor has not stated in his evidence that the injuries in question are likely to cause death is no ground for coming to the conclusion that the appellant cannot be convicted under Section 302 IPC but it may fall under Section 304 Part I or II of the IPC. Learned counsel for the appellant has invited our attention to the decision of the Supreme Court in the case of Nachittar Singh vs. State of Uttar Pradesh (1982) 1 SCC 609 . In the aforesaid case the Supreme Court has held that the medical witnesses did not categorically opine that the injuries found on the deceased, collectively or individually, were sufficient to cause death in the ordinary course of nature and that all the medical evidence amounts to is that those injuries found on the deceased were likely to cause death. The Supreme Court, therefore, considering the facts of the said case found that the only reasonable inference that can be drawn is that the accused appellant caused the injuries to the deceased only with the knowledge that he would likely to cause death of the deceased and on that basis conviction was altered from one under Section 302 to that under Section 304 Part I of IPC. So far as the present case is concerned, the doctor has clearly stated that in his opinion the deceased was stabbed twice with the gupti and according to him it is not true that deceased died of the shock of the stabbing. So far as the present case is concerned, the doctor has clearly stated that in his opinion the deceased was stabbed twice with the gupti and according to him it is not true that deceased died of the shock of the stabbing. The doctor has stated that in case a person is given treatment immediately after he suffered the injury he may survive but that itself is not sufficient to hold that the incident will fall under Section 304 Part I. Looking to the injury in question and considering the fact that the accused gave two gupti blows on the stomach of the deceased, in our view, the trial Court has rightly convicted the appellant under Section 302 of the IPC. 32. The learned counsel for the appellant submitted that if on the evidence before the Court two views are possible, the view favourable to the accused must be accepted. In this connection, the learned counsel has relied upon the decision of the Supreme Court in the case of Harchand Singh and another vs. State of Haryana (1974)3 SCC 397 wherein the Supreme Court has held as under: “The function of the Court in a criminal trial is to find whether the person arraigned before it as the accused is guilty of the offence with which he is charged. For this purpose the court scans the material on record to find whether there is any reliable and trustworthy evidence upon the basis of which it is possible to found the conviction of the accused and to hold that he is guilty of the offence with which he is charged. If in a case the prosecution leads two sets of evidence, each one of which contradicts and strikes at the other and shows it to be unreliable, the result would necessarily be that the court would be left with no reliable and trustworthy evidence upon which the conviction of the accused might be based. Inevitably, the accused would have the benefit of such a situation.” In the present case, it cannot be said that there are two sets of evidence, one favours the prosecution and other favours the accused. As a matter of fact, out of two prosecution witnesses i.e. PW 12 and PW 14, PW 14 is already declared hostile. Inevitably, the accused would have the benefit of such a situation.” In the present case, it cannot be said that there are two sets of evidence, one favours the prosecution and other favours the accused. As a matter of fact, out of two prosecution witnesses i.e. PW 12 and PW 14, PW 14 is already declared hostile. So far as PW 12 is concerned, it can be said that he was at the site but considering the overall evidence on record, PW Nos. 1, 2 and 3 have given full particulars about the entire incident and the said evidence is sufficient to bring home the charges levelled against the accused. 33. The learned counsel for the appellant has relied upon the decision of the Supreme Court in the case of Raja Ram vs. State of Rajasthan 2005 SCC (Cri.) 1050 wherein the Supreme Court has held that when a witness is not declared hostile, defence can rely upon evidence of such witness and it would be binding on the prosecution. The learned counsel has also relied upon the decision of the Supreme Court in the case of Mukhtiar Ahmed Ansari vs. State (N.C.T. Of Delhi) 2005 CRI.L.J. 2569, wherein the view taken was that when prosecution witness is not supporting the accused can rely upon his evidence. In para 34 of the said judgment it is held as under. “34. The learned counsel for the appellant also urged that it was the case of the prosecution that the police had requisitioned a maruti car from Ved Prakash Goel. Ved Prakash Goel had been examined as a prosecution witness in this case as PW 1. He, however, did not support the prosecution. The prosecution never declared PW 1 hostile. His evidence did not support the prosecution. Instead, it supported the defence. The accused hence can rely on that evidence.” 34. The learned counsel for the appellant has also invited our attention to the judgment of the Supreme Court in the case of Sukhram vs. State of Madhya Pradesh AIR 1989 SC 772 wherein it has been held that in view of the version given by the prosecution witnesses which are in conflict with each other the conviction of the appellant under the two charges cannot be sustained. 35. 35. In the case of Pradeep s/o Narayanrao Rajgure vs. State of Maharashtra 2004 ALL MR (Cri) 1308 this Court has held that when recovery of bloodstained clothes and sword were made at the instance of the accused and which were not identified by the panch witnesses, such recovery evidence cannot be relied upon to convict the accused in the absence of identification of said articles by the panch witnesses. The learned counsel for the appellant has also placed reliance on the judgment of this Court in the case of Manohar Balaram Khanavkar vs. State of Maharashtra 2003 All MR (Cri)1609 1609 in support of his contention. In the present case, the recovery of gupti was made at the instance of the panchas. Similar is the position as regards recovery of the clothes of the accused is concerned. To buttress the point regarding recovery of clothes, the learned counsel also placed reliance on the judgment of this Court (Nagpur Bench) in the case of Sanjay s/o Keshavrao Dhote vs. State of Maharashtra 2007 ALL MR (Cri.) 2762. In the present case, when substantial evidence is available on record regarding recovery of articles supported by overwhelming evidence of eye witnesses on record, in our view, the learned trial Judge has rightly convicted the appellant for the offence with which he is charged. The learned counsel for the appellant, in support of his argument, relied on the disclosure statement. In this connection, he placed reliance on the judgment of this Court in the case of Devidas and others vs. State of Maharashtra 1982 Cri.L.J. 2189. In connection with this argument, the learned counsel has also placed reliance on the decisions of the Supreme Court in the cases of (i) Thimma vs. The State of Mysore AIR 1971 SC 1871 , (ii) Jaffer Husain Dastagir vs. The State of Maharashtra AIR 1970 SC 1934 and the decisions of this Court in the cases of (i) Jaysing alias Gangawa Mesraj Kharariya and another vs. State of Maharashtra 1999 Cri.L.J. 1687 and (ii) Ashok s/o Sonaji Bedke vs. State of Maharashtra 2005 ALL MR (Cri) 965. 36. 36. The learned counsel for the appellant has relied upon the judgment of the Supreme Court in the case of Hem Raj and others vs. State of Haryana 2005 CRI.L.J. 2152 wherein the Supreme Court has held that when no independent witness, though available, was examined and not even an explanation was sought to be given for not examining such witness is a serious infirmity in the prosecution case. The Supreme Court in the said case has held as under. “One more aspect which deserves notice is that at the alleged scene of offence no bloodstains were found by the I.O. though he made a search. The surmise of the High Court that the blood stains at the public place would have disappeared in view of the time gap between the incident and the I.O’s inspection may not be correct, especially, in view of the fact that it is a metal road, as shown by P.W.8 in the site plan and it was night time. It is difficult to believe that traces of blood would fade out by the time of the visit of I.O. This is one of the circumstances that has to be kept in mind while appreciating the prosecution case.” The learned counsel for the appellant has also placed reliance on the decision of the Supreme Court in the case of Khima Vikamshi and others vs. State of Gujarat (2003) 9 SCC 420 and submitted that the absence of blood on the spot strongly suggests that the incident did not occur in the house as alleged by the family members of the deceased. However, as discussed earlier, in the instant case, P.W. Nos. 1, 2 and 3 who were present in the house were examined by the prosecution and simply because no other witness from the vicinity is examined itself is no ground for discarding the evidence of the aforesaid witnesses. 37. As regards motive, the learned counsel for the appellant has relied upon the case of State of M.P. vs. Kriparam (2003) 12 SCC 675 wherein the Supreme Court has held as under: “In this background if we consider the alleged motive, we notice that the prosecution has stated that there was some theft in the house of PW 4 about a month prior to the incident in regard to which PW4 had complained to the police blaming A1’ s family. The police were investigating the said case and this was the motive for the murder. We notice, according to the prosecution case itself that after the lodging of the complaint and till the date of incident there had been no untoward incident of any kind between the two families though they are neighbours. In such a situation it is extremely difficult to accept that the respondent herein would entertain a motive to eliminate the son of PW 4 for having made a complaint against him or his family. Thus even the motive suggested, in our view, is very weak. It is based on these facts available from the evidence of the prosecution, the High Court rightly came to the conclusion that it was not safe to base a conviction on the accused, hence it allowed the appeal.” In the instant case, the prosecution has clearly established the motive as the witness Alka was having love affair with accused appellant. 38. On the other hand, the learned Additional Public Prosecutor, has submitted that simply because related witnesses are there, their evidence cannot be discarded. The learned APP has relied upon the decision of the Supreme Court in the case of Lala Ram vs. State of Rajasthan (2007) 10 SCC 225 and submitted that there is no proposition in law that the evidence of the relatives cannot be relied upon by the prosecution. The learned APP has placed reliance on the judgment of the Supreme Court in the case of Amit Singh Bhikamsingh Thakur vs. State of Maharashtra (2007) 2 SCC 310 and submitted that simply because the witnesses are related would not result in the mechanical rejection of the testimony of the witnesses. Settled norms of appreciation of evidence require that the evidence of such witnesses is to be assessed with caution. 39. In our view, considering the evidence adduced by the prosecution as a whole, it is clear that the prosecution has proved its case against the appellant accused beyond reasonable doubt. The appellant accused gave two gupti blows on the stomach of the deceased. The said gupti was recovered at the instance of the appellant accused. The motive behind the murder is already proved by the prosecution and the injury sustained by the deceased is also corroborated by the medical evidence. The appellant accused gave two gupti blows on the stomach of the deceased. The said gupti was recovered at the instance of the appellant accused. The motive behind the murder is already proved by the prosecution and the injury sustained by the deceased is also corroborated by the medical evidence. Considering the aforesaid factors into consideration, in our view, it is established that the accused had committed the aforesaid crime. In our view, the learned trial Judge was perfectly justified in convicting the appellant for the offence in question. We, therefore, do not find any substance in the appeal. The appeal is accordingly dismissed.