JUDGMENT : S. L. KOCHAR, J. 1. Both the aforesaid appeals arise out of the judgment and order passed in the same sessions trial, therefore, they are being decided by this common judgment. 2. The appellants stood convicted under section 302 read with section 34 of the Indian Penal Code and each is sentenced to suffer imprisonment for life and to pay a fine of Rs. 2,000/- in default of payment of fine to suffer additional R.I. for two years passed in S.T. No. 81/02 by the learned Third Addl. Sessions Judge, Ujjain on 3-5-2002. Being aggrieved by this judgment of conviction and sentence, the appellants have preferred Cri. A. No. 685/2002 under section 374 of the Criminal Procedure Code and appellant Dilip has preferred Cri. A. No. 687/2003 under section 454 of the Criminal Procedure Code against the order of confiscation of Scooter and refusal of its interim custody to the appellant by order dated 19-7-2002 passed in the same Sessions Trial. 3. In nut-shell, the prosecution case as put forth before the trial Court is that the deceased Tarachand alias Babulal used to ply an auto-rickshaw and for assaulting father of the appellants named Nand Kishore, he was prosecuted and convicted under section 307 of the Indian Penal Code and sentenced to R.I. for seven years by a competent Court having jurisdiction over the matter. Against his conviction, he had filed appeal before the High Court and was released on bail. On 4-7-2001, in the evening deceased in his rickshaw reached at the shop of Shiv Kumar (PW-2) where his son PW-11 Sandeep was undergoing training of motor rewinding work. Tarachand asked his son whether he was going with him to the house on which Sandeep complained him about his abdominal pain on which Tarachand suggested to take treatment from Punjabi doctor (Dr. Umesh Punjabi -PW-1). Tarachand took Sandeep in the auto-rickshaw at the Nursing Home of PW-1 Dr. Punjabi. The moment Tarachand alighted from the rickshaw, the appellant and the third juvenile accused Anil reached over there on a scooter having sword and knife and rushed at Tarachand to assault him. The deceased entered inside the Nursing home, chased by the accused persons and all the accused assaulted him by their respective weapons. Tarachand died on the spot. Punjabi. The moment Tarachand alighted from the rickshaw, the appellant and the third juvenile accused Anil reached over there on a scooter having sword and knife and rushed at Tarachand to assault him. The deceased entered inside the Nursing home, chased by the accused persons and all the accused assaulted him by their respective weapons. Tarachand died on the spot. During the course of incident, Sandeep was crying for help and accused persons also rushed towards him to assault, but he managed to run away up to some distance. After assault, the appellants fled away from the spot and witness Sandeep reached near his father who had already died. Sandeep lodged the report Ex.P/12 at Mahankal Police Station, Ujjain recorded by PW-13 SHO Shri Mahendra Singh Shaktawat and returned back with him. Shri Shaktawat prepared the spot map Ex.P/13 at the instance of eye-witness Sandeep. After preparation of Inquest Report Ex. P/3 in presence of several witnesses the dead body was sent for post-mortem examination and the same was conducted by PW-3 Dr. Ravindra Gangwal. Post-mortem report is Ex.P/4. Accused persons were arrested and at their instance, weapons were seized. Seized articles were sent to Forensic Science Laboratory and its report is Ex.P/16. Investigating Officer recorded the statements of the witnesses who were acquainted with the facts of the case and on completion of investigation, filed the charge-sheet against the appellants for the offences punishable under sections 302 and 302 read with section 34 of the Indian Penal Code. The third co-accused Anil being juvenile, was produced and charge-sheeted before the Juvenile Court. 3. Appellants refuted the charges. According to appellant Rajesh at the time of incident he was in his house and he came to know after reading the news in the news paper that he was implicated in this case whereas the defence of appellant Dilip was that at the time of incident, he was in the company of Gappu alias Yadav (DW-1) during his election campaign. In all, both the appellants denied the charges and pleaded innocence, therefore, put to trial. Learned trial Court after examining the prosecution and defence witnesses and hearing both the parties, found the prosecution case proved, convicted and sentenced the appellants as mentioned hereinabove. 4. We have heard learned counsel for the parties and also perused the entire record of the trial Court carefully. 5. Learned trial Court after examining the prosecution and defence witnesses and hearing both the parties, found the prosecution case proved, convicted and sentenced the appellants as mentioned hereinabove. 4. We have heard learned counsel for the parties and also perused the entire record of the trial Court carefully. 5. Learned counsel for the appellants has submitted that the conviction of the appellants is based on solitary testimony of PW-11 Sandeep, son of the deceased who is interested and partisan witness and in view of the statement of defence witness DW-2 Shiv Kumar Patel, he was in his work-shop at the time of incident, therefore, he could not remain on the site of occurrence to witness the incident. It is also submitted that there is no reason for not placing reliance on the testimony of DW-1 Prem Kumar Yadav who was a practicing Advocate and Corporator at the time of incident with whom the appellant Dilip was moving in the town. Learned counsel has also argued that the prosecution itself was not sure about solitary eye witness PW-11 Sandeep because of which his statement under section 164 of the Criminal Procedure Code was got recorded by the Magistrate and that the reasons for presence of Sandeep on or near the vicinity of the place of incident does not appear to be reasonable and the same is not acceptable, because in front of his house, there was dispensary of a doctor and he could be treated by that doctor. On all these premises, learned counsel for the appellants has challenged the conviction of the appellants. 6. In oppugnation, learned counsel for the State has submitted that the incident occurred in broad day light at the dispensary of PW-1 Dr. Umesh Punjabi and the prosecution has examined Dr. Punjabi and his compounder, but the compounder has not supported the prosecution case and was declared hostile whereas Dr. Punjabi had not actually witnessed the incident, because he happened to be inside the dispensary and was examining the patients. However, learned counsel for the State has supported the impugned judgment and finding arrived at by the learned trial Court. 7. Homicidal death of the deceased has not been disputed before the trial Court as well as before this Court. Even otherwise, it is amply proved on the basis of the evidence of PW-3 Dr. Ravindra Gangwal. Dr. However, learned counsel for the State has supported the impugned judgment and finding arrived at by the learned trial Court. 7. Homicidal death of the deceased has not been disputed before the trial Court as well as before this Court. Even otherwise, it is amply proved on the basis of the evidence of PW-3 Dr. Ravindra Gangwal. Dr. Gangwal performed the autopsy on the body of the deceased on 5-7-2001 and found following injuries on his person :- (1) Incised wound on right mandible region at symptomatic process extends up to chin 6" x 2" x bone deep and muscle deep. Blood clot present. (2) Incised wound over neck size 4" x 2" deep up to trachea and esophagus. (3) Incised wound four in number in sternum region. 3 on right and one on left side 1" x ½" x muscle deep. (4) Incised wound on right shoulder 2" x ½" x muscle deep. (5) Incised wound on hypogestic region below nostrils 1" x ½" x muscle deep. (6) Incised wound 1" below injury No. 5 size 1" x ½" muscle deep. (7) Incised wound 1" above the right nipple over chest. (8) Incised wound one sterms ½" x ½" x muscle deep. (9) Incised wound 3" x 1" x muscle deep left inguinal region Femoral and Penoral vein cut. (10) Incised wound on right lumber region ant. aspect ½" x ½" x muscle deep. (11) Incised wound 1" above injury No. 10 ½" x ½" (12) Incised wound on left upper arm on medial aspect ½" x 1/3" x muscle deep. (13) Incised wound on left forearm dorsum 1 ½" x ½" x muscle deep. (14) Linear abrasion left form 3" x ¼" . (15) Linear abrasion 2" x 1 /4" on left upper arm. (16) Incised wound left scapular region ½" x ¼" . (17) Incised wound ½" x ¼" on left post axillary line ½" x ¼" . (18) Incised wound ½" x ¼" on left side chest post auxiliary line 3" below injury number 17. (19) Incised wound on left scapular region 1" x ½" x muscle deep. (20) Incised wound ¼" x ¼" on mid line back on thoracic area. (21) "Incised wound 1 ½" x ½" posterior aspect of chest on right thoracic area. (22) Linear abrasion 5" x ¼" on left side of chest. (19) Incised wound on left scapular region 1" x ½" x muscle deep. (20) Incised wound ¼" x ¼" on mid line back on thoracic area. (21) "Incised wound 1 ½" x ½" posterior aspect of chest on right thoracic area. (22) Linear abrasion 5" x ¼" on left side of chest. (23) Incised wound ½" x ½" muscle deep upper part of left hip. (24) Linear abrasion right leg below knee 3" x ¼". (25) Incised wound on thyroid cartilage. 8. In the opinion of Dr. Gangwal, deceased died because of shock and hemorrhage due to injuries caused to vital organs as mentioned hereinabove and the injuries were sufficient in ordinary course of nature to cause death. He proved post-mortem report Ex.P4. In his cross-examination, nothing has come out to attach vulnerability to the testimony of Dr. Gangwal. 9. This is true that the conviction of the appellants is based on the solitary testimony of PW-11 Sandeep, Son of the deceased and there was inimical terms between the deceased and the appellants on account of assaulting father of the appellants named Nand Kishore for which the deceased was convicted under section 307 of the Indian Penal Code and was ordered to enlarge on bail in a pending appeal, by the High Court. But merely on this count, his testimony cannot be discarded. It is settled legal position that quality of witnesses is required to be seen and not the quantity and evidence of interested and inimical witness has to be appreciated with due caution and care. [See Sunil Kumar vs. State Govt of NCT of Delhi, (2003)11 SCC 367 and State of U.P. vs. Kishan Chand and others, (2004)7 SCC 629 ] Keeping in view this legal position, now we proceed to scrutinize the statement of PW-11 Sandeep. 10. PW-11 Sandeep has deposed that he was working in the shop of Shiv Patel and was doing motor rewinding work. His father was plying auto-rickshaw. On 4-7-2001, in the evening at about 6.00 PM at the motor rewinding shop and asked whether he was also accompanying him on which he replied that he was having abdominal pain. Thereafter, his father suggested him to go to Dr. Punjabi for check-up and treatment and they reached near the dispensary of Dr. Punjabi. At that moment, appellants along with third co-accused Anil reached there on a scooter and stopped their auto-rickshaw. Thereafter, his father suggested him to go to Dr. Punjabi for check-up and treatment and they reached near the dispensary of Dr. Punjabi. At that moment, appellants along with third co-accused Anil reached there on a scooter and stopped their auto-rickshaw. They took out sword from the scooter. Dilip was having knife. Thereafter, they rushed at his father deceased Tarachand to assault him. His father entered into the hospital of Dr. Punjabi, but the appellants did not return back and entered inside the hospital and assaulted his father. When he was crying for help, they rushed towards him also to assault, therefore, he managed to run away up to some distance. He was threatened by appellant Rajesh for not giving evidence, otherwise he would also be treated in the same manner. They turned the auto-rickshaw and broken the wind-screen and damaged the rickshaws. After assaulting his father, the appellants fled away and he found his father in dead condition. One person had dropped him at the Police Station on motor cycle where he lodged the report Ex.P/12. Sandeep proved the report Ex. P/12 and the map Ex.P/13. In his presence from the spot, chappel, piece of curtain smeared with blood, polythene bag, children's clothes and auto-rickshaw were seized through seizure memo Ex.P/6. In cross-examination, he was subjected to describe the overt act of the accused persons on which he expressed his inability to describe the same. In our considered view, when three persons were assaulting the deceased and caused as many as 25 injuries, it was not possible for anybody to describe the individual overt act of the assailant. He was confronted with his First Information Report Ex.P/12 and case-diary statement Ex.D/1 about omission of the fact that Dilip was having knife and sword in his possession and he failed to assign any reason for this omission. In our view, this is not a substantive contradiction which goes to the root of the case and able to cause serious dent to the prosecution case. Use of sword and knife by the appellants has been fully corroborated by medical evidence of Autopsy Surgeon PW-3 Dr. Gangwal. 11. Though there was detailed cross-examination of this witness, but nothing substantial has come to say that he was not present on the scene of occurrence and did not witness the incident. 12. Use of sword and knife by the appellants has been fully corroborated by medical evidence of Autopsy Surgeon PW-3 Dr. Gangwal. 11. Though there was detailed cross-examination of this witness, but nothing substantial has come to say that he was not present on the scene of occurrence and did not witness the incident. 12. The testimony of this witness has been criticized on the ground that he is an interested and inimical witness. On this issue, there is no denial. So far as enmity is concerned, it is a double edged weapon which cuts in both ways. Because of inimical terms, the appellants had the motive to commit murder of the deceased and in the instant case, there is strong motive. The deceased was convicted for assaulting the father of appellant and was sentenced to RI for seven years. On filing appeal before the High Court, he was enlarged on bail. This could be a strong reason for the appellants to take revenge. At the same time, because of inimical terms and being the son of the deceased Sandeep could appear as an eye witness and this is the issue before this Court to visualize in its proper perspective in the facts and circumstances of the case on hand. 13. Learned counsel for the appellants has drawn attention of this Court towards the statement of PW-1 Dr. Punjabi at whose Nursing Home, the incident had occurred, but Dr. Punjabi had not actually witnessed the incident. He has specifically stated that he was knowing the deceased by face, but was not remembering his name and he was also knowing his son and family members, but his son was not seen by him on or near the place of incident. On the basis of this statement of Dr. Punjabi, learned counsel has submitted that Sandeep was not there otherwise Dr. Punjabi would have not failed to notice his presence. We do not agree with this argument, because Dr. Punjabi has not stated that Sandeep or the son of deceased was not at all present on or near the scene of occurrence, but he has stated that "Aahat Ka Bachcha Mujhe Wahaan Nahin Dikha Thaa". This statement cannot be interpreted for holding that Sandeep was not present. Of course Dr. Punjabi did not notice his presence, but if Sandeep was present there, he did not see him. This statement cannot be interpreted for holding that Sandeep was not present. Of course Dr. Punjabi did not notice his presence, but if Sandeep was present there, he did not see him. There appears one more thing in the statement of Dr. Punjabi that he was knowing the deceased and his family members. There could be so many reasons for knowing them amongst which one reason could be that they might be taking treatment in the Nursing Home of Dr. Punjabi and it has been stated by Sandeep in his statement that he did not go to the dispensary of the doctor which was situated in front of the shop where he was working. But, his father suggested him to get himself medically checked by Dr. Punjabi from whom, they were taking regular treatment. One more fact is noticeable in the statement of Dr. Punjabi that he has not given the specific name of the son of the deceased and there could be more than one son of the deceased. Over and all, on perusal of the statement of Dr. Punjabi, it cannot said that PW-11 Sandeep was not present on the spot of incident. 14. Learned counsel for the appellants has laid much emphasis on the testimony of defence witness DW-2 Shiv Kumar Patel who was cited as a prosecution witness and not examined by the prosecution. According to this witness, on the date of incident, Sandeep was at his shop and somebody had come to his shop and gave information that his father Tarachand was murdered. Thereafter, Sandeep had gone from the shop. In his cross-examination para 3, it has come that summon was sent to him for his examination as a prosecution witness, but the same was received by his son Manoj, but he denied the information about the summons given to him by his son and knowing well that he would not appear in the Court. Whatever may be the reason, the fact remains that he was not examined as a prosecution witness, but was examined as a defence witness. His ipse dixit about presence of Sandeep at his shop as mentioned herein-above, cannot be accepted. If it was true, what action he had taken after knowing the fact that Sandeep was not the eye-witness and for the first time, after about more than one year and three months he appeared as a defence witness. His ipse dixit about presence of Sandeep at his shop as mentioned herein-above, cannot be accepted. If it was true, what action he had taken after knowing the fact that Sandeep was not the eye-witness and for the first time, after about more than one year and three months he appeared as a defence witness. Learned counsel has pointed out an illegality committed by the learned A.G.P. and permitted by the learned trial Court the confrontation of this witness with his case diary statement Ex.P/18. We fully agree with the contention of the learned counsel for the appellants that if a witness has not been examined by the prosecution and the same is examined as a defence witness, he cannot be confronted by the prosecution with his statement recorded under section 161, Criminal Procedure Code. Because the statement recorded under section 161, Criminal Procedure Code can be used only as per provision prescribed under section 162 of the Criminal Procedure Code and in this section there is no provision for use of the statement of the witness cited by the prosecution as a prosecution witness to confront him if he was examined as a defence witness. Supreme Court has categorically dealt with this issue in the case of Laxman Kalu Nikalje vs. State of Maharashtra, AIR 1968 SC 1390 and held that if witness has been examined in defence, he cannot be confronted with his police statement recorded as per provision under section 161 of the Criminal Procedure Code. 15. The statement of solitary eye-witness PW-11 Sandeep is also fully corroborated and is in line of the First Information Report Ex.P/12 lodged by him immediately after the incident on the same day. The First Information Report is containing the names of all the assailants, place of incident, brief detail of the incident and weapon used. There is absolutely no material omission, contradiction, improvement or embellishment brought on record in cross-examination of this witness with the First Information Report and his case diary statement. 16. PW-11 Sandeep being son of the deceased would not leave the real culprit by implicating the innocent persons, but at the same time, close relative of the deceased who was also having inimical terms would not be immune to implicate the innocent person along with the real culprit. 16. PW-11 Sandeep being son of the deceased would not leave the real culprit by implicating the innocent persons, but at the same time, close relative of the deceased who was also having inimical terms would not be immune to implicate the innocent person along with the real culprit. We have not lost sight of this position existing in the instant case, but looking to the time, place and number of injuries on the person of the deceased, there is no room for having any kind of doubt on the testimony of Sandeep. 17. The prosecution has examined independent witness-Compounder PW-2 Devendra Singh Arora of the hospital of Dr. Punjabi where the incident had occurred, but he has been declared hostile and was confronted with his case-diary statement. It is common phenomena that independent witnesses though available are remotely appearing and support the prosecution in Court. Merely independent witness has not supported the prosecution case, the testimony of Sandeep cannot be brushed aside on this count. 18. There is evidence of recovery of weapons, but the same need not require any discussion here because in the Forensic Science Laboratory Report, human blood tallying with the blood group of the deceased was not found on the seized weapon, therefore, the same would not be of any assistance to the prosecution ease. 19. It is true that the statement of eye-witness Sandeep was got recorded as per provision under section 164 of the Code of Criminal Procedure, but merely on this ground, he cannot be considered as a tainted witness and ultimately it is for the Court to appreciate the evidence of a witness on the basis of law of appreciation of evidence. [See : Supreme Court judgments rendered in the cases of S. Somashekar (dead) by Lrs. vs. State of Karnataka, (2004)11 SCC 334 . Badri vs. State of Rajasthan, (1976) 1 SCC 442 and Balakram and another vs. State of U.P., AIR 1974 SC 2165 ]. 20. For the foregoing discussion, we do not find any merit in Cri. Appeal No. 685/02, therefore, the same is liable to be and is hereby dismissed maintaining the conviction and sentence of the appellants as passed by the learned trial Court. 21. Now, we take up Cri. 20. For the foregoing discussion, we do not find any merit in Cri. Appeal No. 685/02, therefore, the same is liable to be and is hereby dismissed maintaining the conviction and sentence of the appellants as passed by the learned trial Court. 21. Now, we take up Cri. Appeal No. 687/03 preferred under section 454 of the Code of Criminal Procedure against the order passed by the learned trial Court on 19-7-2002 in the same Sessions Trial whereby Learned trial Court has ordered for confiscation of Bajaj scooter bearing Registration No. MP 13-JC 2574 holding that it was used in commission of crime. We do not agree with the reasoning given by the learned trial Court. The scooter was not used in commission of crime. Merely because the accused persons came on the said scooter, it cannot be said that it was used in commission of crime. By the scooter, auto-rickshaw of the deceased was not dashed deliberately nor the deceased or the witnesses were caused any harm thereby. Therefore, no case is made out for confiscation of the said scooter, hence, the impugned order is liable to be and is hereby set aside. It is ordered that the aforementioned seized scooter be returned to its registered owner. Learned trial Court is directed to order for return of the scooter on verification of its Registration Book. In case the scooter is still available, the same be returned and if it is auctioned or sold in pursuance of the impugned order, then the sale proceeds of the scooter be given to the registered owner of the scooter. 22. Consequently this appeal stands allowed in terms indicated hereinabove. 23. Original judgment shall be retained in the record of Cri. Appeal No. 685/02 and a copy thereof be placed in the record of Cri. Appeal No. 687/03. Office is directed to send a copy of this judgment to the trial Court along with its record for immediate compliance.