JUDGMENT SHRIHARI P. DAVARE, J. Heard learned counsel for the appellants (original accused Nos. l and 2) and the learned APP for the respondent State. 2. The challenge in both the present appeals is to the judgment and order dated 21st November, 2002 rendered by the learned Additional Sessions Judge, Palghar, in Sessions Case No.90 of 1999 thereby convicting the appellant No.1 Alimohammed Ajgaralli Khan and appellant No.2 Shakil @ Sunil Abdul Raheman Khan, for the offence punishable under Section 302 read with Section 34 of Indian Penal Code and sentencing them to suffer imprisonment for life and also convicting them for the offence punishable under Section 307 read with Section 34 of Indian Penal Code and sentencing them to suffer R.I. for 10 years and also convicting them for the offence punishable under Section 397 read with Section 34 of Indian Penal code and sentencing them to suffer R.I. For five years 4 and also convicting them for the offence punishable under Section 341 read with Section 34 of Indian Penal Code and sentencing them 1 to suffer R.I. for one, month and further convicting them for the offence punishable under Section 201 read with Section 34 of Indian Penal code and sentencing them to suffer R.I. For seven years. 3. Briefly stated, the prosecution case, which gave rise to the present appeals, is as follows :- (i) According to the prosecution, PW-3 Badriprasad Upadhya was working as a Manager of Kameshwar Hotel in Talasari, which was situated at Bombay-Ahmedabad Highway at Talasari and within the boundaries of Ibhad Pada Village and on 27th March, 1999 he was on duty at about 9.30 to 10.00 p.m. one person came in front of the said hotel walking lamely and sat on the railing and his clothes were tied around his throat. Hence, PW-3 Badriprasad thought that the said person might be in drunken condition, and therefore, he met him but saw that blood was oozing from the clothes tied around his throat. Initially, he signaled by hand indicating that somebody assaulted him on his throat by sharp edged weapon and he was unable to speak. Further he also demanded a pen and paper by making signal and hence PW3 provided pen and paper to the said person. Initially, he signaled by hand indicating that somebody assaulted him on his throat by sharp edged weapon and he was unable to speak. Further he also demanded a pen and paper by making signal and hence PW3 provided pen and paper to the said person. Thereafter the said person wrote his name as Shivkumar Tiwari and vehicle No.MH-04/1369 and after noting that, he fell on the ground and became unconscious. 'Thereafter PW-3 Badriprasad informed the said fact to the Talasari Police Station on telephone and thereupon the police personnel came on the spot immediately and took the said person to the hospital for treatment. Thereafter PW-9 PI Wankhede, who was attached to the Talasari Police Station at the relevant time, received the aforesaid telephone call, and therefore, sent PSI Chasalkar and staff to the said spot and removed injured to the hospital who had sustained injury on his neck and was unable to speak. Hence, he recorded complaint of PW-3 and an offence was registered against the unknown person under Section 307 of Indian Penal Code and same was treated as ELR. (Exh. 23) under C.R.No.24 of 1999. (ii) Thereafter, PW-9 PI Wankhede took over the investigation of the aforesaid C.R. And PW-3 had produced the paper (wrapper Bristol cigarette packet) on which the injured Shivkumar has noted his name, vehicle number as well as telephone number. Accordingly, with the help of aforesaid paper (Exh. 29) PI Wankhede cautioned various police stations and asked them to trace out the vehicle mentioned on the said paper (Exh. 29). Thereafter, he went to the spot and drew the spot panchanama and recorded statements of the witnesses. Pursuant to the aforesaid caution, PW-2 PC Latif Tadavi and his colleague Abbad Shaikh attached to Talasari Police Station caught the container and trailer bearing Registration No.MH-04 1369 at about 3.00 a.m. at Ambagaon Sagri outpost, while passing on highway and coming from Sanjan side, and accordingly, PW-2 PC Tadavi submitted the report to PW-9 PI Wankhede (Exh. 20) and the accused who was driver of the said truck was put under the arrest on 28th March, 1999. (iii) It is the case of the prosecution that accused No.1, during the custody, made a disclosure statement voluntarily to show the spot of the incident in the jungle and the same was recorded in the memorandum of panchanama. 20) and the accused who was driver of the said truck was put under the arrest on 28th March, 1999. (iii) It is the case of the prosecution that accused No.1, during the custody, made a disclosure statement voluntarily to show the spot of the incident in the jungle and the same was recorded in the memorandum of panchanama. Accordingly, accused No.1 led the panchas and police personnel in the forest for about 2 kms. from Talasari Police Station at the western side from the Ahmedabad Bombay highway and showed the spot of the incident where dead body of a person was lying in the trench in the pool of blood and also showed another spot at the distance of 20 feet away from the dead body where the blood stains were found ranging at various places. Accordingly, the inquest panchanama (Exh. 38) of the said spot was prepared and the said dead body was referred to for postmortem purpose. Moreover, panchanamas of both the spots were prepared and plain soil and blood stained soil and also one shirt and handkerchief were seized from the said spot under the panchanama (Exh. 26). So also, clothes on the dead body were also seized under the panchanama (Exh. 17). Moreover, the container bearing Registration No.MH-04 1369 was also seized under the panchanama (Exh.18). Moreover, one blue colour pant was found in the said container along with cassettes, clothes and same were also seized there under and PW-9 PI Wankhede sent report to the learned J.M.F.C. and Sections 302, 397 and 398 were added in the said crime (report Exh. 48). (iv) It is also the case of the prosecution that PW-4 Dr. Harishchandra Shivaji Gavai was attached to Rural Hospital, Talasari as the Medical Officer and he received the dead body of deceased Ramprasad on 28th March, 1999 and he performed the postmortem on the said dead body between 4.35 p.m. to 5.00 p.m. and issued the postmortem notes (Exh. 26). Besides, initially PW-5 Shivkumar Tiwari was admitted in the Rural Hospital at Talasari and thereafter was shifted to Bhagavati Hospital, Mumbai. PW-10 Dr. Harishchandra Gavai was attached to the said hospital as Resident Medical officer at the relevant time and he gave medical treatment to the said patient and issued certificate to that effect. 26). Besides, initially PW-5 Shivkumar Tiwari was admitted in the Rural Hospital at Talasari and thereafter was shifted to Bhagavati Hospital, Mumbai. PW-10 Dr. Harishchandra Gavai was attached to the said hospital as Resident Medical officer at the relevant time and he gave medical treatment to the said patient and issued certificate to that effect. (v) It is further the case of the prosecution that accused No.2 Shakil @ Sunil was bought by PI Patil at police station and was arrested " under the arrest panchanama (Exh. 34). On 8th April, 1999, accused No.2 made voluntary statement in presence of panchas and showed the places where he had concealed the knife and accordingly memorandum of panch an am a was prepared to that effect (Exh. 37). Thereafter, accused No.2 led the panchas and police personnel to Shanivarpada forest and produced a blood stained knife and same was recovered under the recovery panchanama (Exh. 38). Thereafter, the seized articles were sent to the Chemical Analyzer's office for examination purpose along with the forwarding letter (Exh. 50), and chemical analyzer's reports thereof were received which were marked as Exhs. 51 to 53. In the meantime, PW-9 was transferred, and therefore, the investigation was transferred to API Karad. Accordingly, after completion of investigation, the charge-sheet was filed against accused Nos.1 and 2 before the learned J.M.F.C. However, since the charges were exclusively triable by the Court of Sessions, the learned J.M.F.C. Committed the said case to the Additional Sessions Judge, Palghar. 4. Accordingly, the learned Additional Sessions Judge, Palghar, framed the charge against accused Nos. 1 and 2 for the offences punishable under Section 302, 307, 394, 397, 341 and 201 read with Section 34 of Indian Penal Code on 22nd November, 2009 at Exh 4. However, the accused Nos.1 and 2 pleaded not guilty to the said charges and claimed to be tried. 5. To substantiate the charges levelled against the accused, the prosecution has examined as many as 10 witnesses as mentioned below :- PW-l Sudhakar Sitaram Damodhare - panch witness to various panchanamas including memorandum/recovery panchanama of accused no. 1 and inquest panchanama of dead body of the victim Ramprasad, spot panchanama, panchanama of seizure of clothes of accused No.1 and seizure of trailer. PW-2 Latif Tadavi - Police Constable attached to Talasari Police Station who halted the container at Ambagaon Sagri outpost. 1 and inquest panchanama of dead body of the victim Ramprasad, spot panchanama, panchanama of seizure of clothes of accused No.1 and seizure of trailer. PW-2 Latif Tadavi - Police Constable attached to Talasari Police Station who halted the container at Ambagaon Sagri outpost. PW-3 Badriprasad Upadhya - Manager of ( Kameshwar Hotel/complainant. PW-4 Dr. Harishchandra Gavai who performed the postmortem on the dead body of Ramprasad Mourya. PW-5 Shivkumar Tiwari - eye witness. PW-6 Anil Shetty - panch witness to the arrest panchanama of accused no. 1. PW-7 Bhagwan patil- panch witness to the panchanama of seizure of shirt and pant of accused No. 2. PW-8 Ashok Dube - panch witness to memorandum recovery panchanama of accused no. 2 regarding discovery of knife from forest. PW-9 PI Ashok Wankhede - Investigating officer. PW-10 Dr. Krishna Hora - who treated injured Shivkumar Tiwari. 6. The learned counsel for the accused Nos. 1 and 2 canvassed that the only sole eye witness to the alleged occurrence of the incident is PW-5 Shivkumar Tiwari i.e. driver of the container, but his testimony does not inspire confidence to base the conviction against accused Nos. 1 and 2. The learned counsel for accused No.2 submitted that the said star witness of the prosecution was not knowing the accused no.2 and he has been referred by him as the person who was with the accused No.1 but still the prosecution has not conducted any test identification parade in respect of accused No.2. The learned counsel for the accused nos. l and 2 submitted that the dead body of deceased Ramprasad was not shown to PW- 5 and same was not identified by him, and therefore, they cannot be connected with the alleged crime punishable under Section 302 of Indian penal code. It is further submitted by the learned counsel for accused nos. 1 and 2 that the deceased was assaulted by somebody else on his throat by a sharp edged weapon and ocular evidence adduced by the prosecution is short of connecting the accused Nos. l and 2 with the alleged crime. Insofar as the medical evidence is concerned, it is submitted that the ocular evidence adduced by the prosecution is not in consonance with the said medical evidence. Moreover, it is also submitted that the evidence of Forensic Science Laboratory in the form of Chemical analyzer's reports also are not incriminating against accused Nos. l and 2 with the alleged crime. Insofar as the medical evidence is concerned, it is submitted that the ocular evidence adduced by the prosecution is not in consonance with the said medical evidence. Moreover, it is also submitted that the evidence of Forensic Science Laboratory in the form of Chemical analyzer's reports also are not incriminating against accused Nos. l and 2. It is further submitted that the accused nos. 1 and 2 have undergone the sentence for more than nine years. Accordingly, it is canvassed that the direct and circumstantial evidence are not in tune with each other against accused Nos. 1 and 2, and therefore, urged that present appeals be allowed and convictions and sentences inflicted upon accused Nos. 1 and 2 be quashed and set aside and they be acquitted for the offences with which they were charged. 7. The learned APP countered the said argument and opposed the present appeals vehemently and submitted that there is cogent direct evidence of PW-5 Shivkumar Tiwari who is the eye witness to the occurrence of incident who has narrated the incident in detail. Moreover, it is submitted that he knew accused no. 1 prior to occurrence of incident and he ascribed the specific role to accused No.1 during the occurrence of incident while assaulting PW-5 himself and deceased Ramprasad. He also attributed to specific role to accused No.2 during the occurrence of incident and he identified accused No.2 in the Court. Moreover, PW-5 sustained severe injuries during the occurrence of the incident and was admitted in the hospital for two months and the doctor has certified that such injuries sustained by him were sufficient to cause his death, if no adequate treatment was given, It is also canvassed that discovery of dead body of victim Ramprasad was effected at the instance of accused No. 1 under the memorandum/recovery panchanama. Moreover, discovery of knife i.e. the incriminating weapon was also made at the instance of accused no. 2 under the memorandum/recovery panchanama. Moreover, it is submitted that the medical evidence and ocular evidence correlate with each other. So also, the evidence of forensic science laboratory in the form of Chemical Analyzer's reports disclose that the blood group of injured PW-5 Tiwari was of "B" group and incriminating weapon also bore same group of blood, and accordingly, the said corroborative piece of evidence is incriminating against the accused. So also, the evidence of forensic science laboratory in the form of Chemical Analyzer's reports disclose that the blood group of injured PW-5 Tiwari was of "B" group and incriminating weapon also bore same group of blood, and accordingly, the said corroborative piece of evidence is incriminating against the accused. In the circumstances, the learned APP submitted that both the present appeals are devoid of any merits, and therefore, urged that same be dismissed. 8. We have perused the ocular, documentary and medical evidence and also the evidence of Forensic Science Laboratory and impugned judgment and order dated 21st November, 2002 and heard the submissions advanced by learned counsel for the parties in anxiously. 9. While adverting to the submissions advanced by learned counsel for the parties, it is necessary to deal with the material evidence adduced/produced by the prosecution. At the outset, coming to the deposition of star witness of the prosecution, PW-5 Shivkumar Tiwari who was working as a driver with Chadha and Chadha Company, Masjid Bunder, Mumbai and was driving a trailer being Registration No. MH- 04-1369 and one Ramprasad Mourya was the cleaner on the said trailer. According to him, both of them started from Nhava-sheva to Hajira by the said trailer on 26th March, 1999 at about 4.00 to 5.00 p.m. and at Shilphata they halted and prepared the food. Thereafter, at about 6.00 p.m. on 27th march, 1999, they started for onward journey. At about 12.00 noon they halted at Pinjap river upto 4.00 p.m. Thereafter, they started at 4.00 p.m. from the pinjap river and the section of the said truck was broken near Manor. Thereafter, they came to Charoti to change the pipe of the said vehicle. At this juncture, accused No.1 along with three others came by vehicle TATA 407 and asked PW-5 Tiwari whether they can be taken up-to Vapi. Accordingly, PW-5 agreed to take them upto Vapi and all the four persons boarded on trailer of PW-5 Tiwari. According to PW-5 Tiwari, when their trailer left Talasari, the accused No.1 Allimohamad Khan put his leather belt around his neck and tried to strangulate the neck of Tiwari and started to take control of the steering, and accordingly, accused No.1 halted the vehicle near the forest. Thereafter, the accused no. 1 took him to the forest with the help of other persons. Thereafter, the accused no. 1 took him to the forest with the help of other persons. Moreover, the person accompanying accused No.1 i.e. accused No.2 also assaulted him by knife giving blows thereof on his neck and hands and thereby PW-5 sustained severe injuries on his neck. Hence, accused felt that he was dead. So they went towards trailer. Thereafter PW-5 Tiwari took out his lungi and wrapped it around his injury and slowly went to nearby Dhaba and met PW-3 Badriprasad i.e. Manager of Kameshwar Hotel, from whom he asked for pen and paper and he gave wrapper of cigarette packet and pen to him. Then he put down the number of the trailer, name of his transport company and phone number on it and the said chit is Exh. 29 and the said Dhaba owner i.e. PW-3 Badriprasad informed the police and he was removed to the local hospital for medical treatment. Thereafter he was shifted to Bhagvati Hospital, Mumbai, and was hospitalized for about two months. Besides, he stated that accused Nos. l and 2 also assaulted the cleaner i.e. deceased Ramprasad and they had removed the trailer. He identified accused no. 2 in the Court and also identified the incriminating weapon knife in the court. He further stated that the driver, namely, Parvez of another truck introduced accused No.1 to him 4-5 days prior to the incident and accordingly he knew him. 10. In cross-examination, he admitted that there is difference in writing on chit of cigarette pocket (Exh. 29) but he volunteered that his fingers were cut at that time, but there is no cross-examination in that respect. He denied the suggestion that accused No.1 did not strangulate by means of leather belt. He stated that, he does not know whether the trailer was taken by those persons. A suggestion was given to him that he was not on the steering and did not park the container by road side, but the same was denied by him. He also denied that Parvez did not introduce accused No.1 to him. It is also stated that name of the said Dbaha was Uttar Bhartiya Hotel, but he does not know the name of the person who supplied him the chit of the cigarette pocket. He did not remember the date on which his statement was recorded by the police. He also denied that Parvez did not introduce accused No.1 to him. It is also stated that name of the said Dbaha was Uttar Bhartiya Hotel, but he does not know the name of the person who supplied him the chit of the cigarette pocket. He did not remember the date on which his statement was recorded by the police. He admitted that, police did not take any test identification parade during the investigation. 11. The survey of testimony of PW-5 Shivkumar Tiwari clarifies that he has witnessed the occurrence of the incident closely and he also was injured therein at the hands of accused nos. 1 and 2. His testimony discloses that the driver of another truck namely, Parvez introduced him to accused No.1 about 4-5 days prior to the incident, and therefore, he knew the accused no.1. He has attributed specific role to the accused No.1 during the occurrence of the incident that he put his leather belt around his neck and tried to strangulate him. Moreover, he also stated that accused no.2 assaulted him by way of knife and gave blow of knife on his neck and hands and thereby sustained severe injuries on his neck, and hence, since the accused felt he was dead, they went away. Thereafter, he put his lungi around the injury and went to the Dhaba slowly as aforesaid and thereafter he requested for paper and pen to PW-3 Badriprasad who supplied wrapper of cigarette packet and pen to him and thereafter PW-5 wrote name of his transport company, phone number thereof and trailer number and handed over the said chit to PW-3 which gave clue in the further investigation and thereafter he was shifted to the hospital for medical treatment. His testimony also discloses that assailants assaulted the cleaner i.e. victim Ramprasad and removed the trailer. Accordingly, the testimony of PW-5 Shivkumar gave graphic details of the occurrence of incident and he ascribed specific roles to accused Nos. l and 2 during the occurrence of the incident. However, the role attributed to accused Nos. 1 and 2 during the occurrence of the incident does not spell out that accused Nos. l and 2 caused murder of the victim Ramprasad/caused such bodily injuries knowingly and intentionally which were sufficient to cause death of the deceased Ramprasad. l and 2 during the occurrence of the incident. However, the role attributed to accused Nos. 1 and 2 during the occurrence of the incident does not spell out that accused Nos. l and 2 caused murder of the victim Ramprasad/caused such bodily injuries knowingly and intentionally which were sufficient to cause death of the deceased Ramprasad. He categorically stated in the cross-examination that his fingers were cut during the said occurrence of the incident and the said version has gone unchallenged. Few suggestions were given to him in the cross-examination which were obviously denied by him. He admitted that, no identification parade was conducted during the investigation and he was not put therein. However, he knew the accused No.1 since he was introduced with him 4-5 days prior to the occurrence of the incident by Parvez and he also identified the accused in the court, and hence, non-conducting of test identification parade in the investigation has got material bearing on the prosecution case. Thus, the testimony of PW-5 Shivkumar Tiwari, who is the eye witness, has not been shaken in the cross-examination, and hence, it deserves to be construed as reliable and trustworthy testimony to connect the accused Nos. l and 2 with the crime. 12. That takes us to the medical evidence of PW-4 Dr. Harchand Gavai who stated that he was attached to Rural Hospital, Talasari, at the relevant time and conducted the postmortem on the dead body of Ramprasad Mourya on 28th march, 1999 between 4.35 p.m. to 5.00 p.m. and on examination of the said dead body, he noticed the following external injunes:- "(1) Incised wound of size 5"x2.1/2 inches x 41 inches at the anterior part of the back. All the major blood vessels of the neck and trenches were cut. (2) Ligature mark found present around the neck drcular present at the back. (3) Multiple abrasions of various sizes over the chest and abdomen. (4) Multiple abrasions over the left forearm lower 1/3rd and the lower wrist. (5) Contusion of size 3 cm x 1 cm over the left frontal region of the skull. (6) Abrasion of size 6 cm x 2 cm over left lateral malledus. (7) Abrasion of size 5x2 cm over the left calf. 13. Accordingly, he issued postmortem notes which were produced at Exh. 26. (5) Contusion of size 3 cm x 1 cm over the left frontal region of the skull. (6) Abrasion of size 6 cm x 2 cm over left lateral malledus. (7) Abrasion of size 5x2 cm over the left calf. 13. Accordingly, he issued postmortem notes which were produced at Exh. 26. He also stated that injury No.1 mentioned in the postmortem notes could be possible by knife shown to him and the said injury No.1 itself was sufficient to cause death. He also stated that the ligature mark noticed by him could be possible by Article No. 10 i.e. small size rope (nadi) and stated that rest of the injuries could be possible by struck. 14. In his cross-examination, he stated that there are cardoite on the left and right side of the neck. Similarly, there are jegular vessels and these are the major vessels which circulate blood to the brain as well as to the heart. He stated that, if the cardoite and jegular vessels are cut, the person may not survive and if these two vessels are not cut, then person may survive. As regards injury No. 1, he stated that if neck of a person is pressed by back side by means of a rope and his head is pushed downwards, then injury No.1 is possible. As regards injury No.4 is concerned, he stated that only of twisting of hand injury No.4 was not possible. He stated that, if in the scuffle the head is struck against high scuffle, then injury No.5 is possible. He further stated that person may fall unconscious if the neck is pressed by means of a rope. He also stated that, if the knife is pressed on the neck and cordoite and jegular are cut, then injury No.1 can be possible and then blade of knife would be stained with blood. However, he stated that there are no blood stains on knife. According to him, injury No.1 is possible by any knife. According to him, the police did not show him any knife. He also stated that, he examined the accused no. 1 on 29th March, 1999 who was brought by Talasari Police and on examination he found the following injuries on his person:- "(1) Multiple crescentras hall marks over the night infras acefule region. (2) Multiple nail marks over the right infras slavicular and the left supra caricular region. He also stated that, he examined the accused no. 1 on 29th March, 1999 who was brought by Talasari Police and on examination he found the following injuries on his person:- "(1) Multiple crescentras hall marks over the night infras acefule region. (2) Multiple nail marks over the right infras slavicular and the left supra caricular region. (3) Multiple nail marks over left memory and right infra memory region." Accordingly, he issued certificate (Exh. 54). He stated that such injuries are possible. He further stated that he examined accused no.2 Shakil on 3rd April, 1999 who was brought by Talasari police and there was incised wound of size 1 ½ x ½ cm. Over left index finger. Accordingly, he issued certificate which is marked (Exh. 55). He stated that such injuries can be possible in the scuffle. He further stated that injuries can be possible by human nails, but cannot say which person had caused those injuries. As regards injuries sustained by accused No. 2, he stated that those are possible only by sharp edged knife. 15. The testimony of PW-4 Dr. Gavai and the contents of postmortem notes are in tune with each other and the cause of death of deceased Ramprasad is given as death due to haemorrhagic shock due to cut of major blood vessels of the neck with fracture of the spleen with cut of teches and the injury No.1 mentioned in postmortem notes is throttle and the said injury itself is sufficient to cause death which could be caused by knife which was shown to him and which itself was sufficient to cause death. Moreover, ligature mark noted from the neck of the victim was also possible (Art. 10) i.e. small size of rope (nadi). The said witness was cross-examined by advocate for the accused and it has come on record that the said injuries sustained by victim are possible during scuffle. He also admitted that, if the neck of the person is pressed by means of rope and his head is pushed downward, then injury No. 1 which is throttle is possible, and moreover, said injury No.1 can be possible by any knife. It is amply clear from the testimony of PW-4 Dr. Gavai and postmortem notes (Exh. 26) that deceased Ramprasad met with the homicidal death (unnatural). The contents of inquest panchanama (Exh. It is amply clear from the testimony of PW-4 Dr. Gavai and postmortem notes (Exh. 26) that deceased Ramprasad met with the homicidal death (unnatural). The contents of inquest panchanama (Exh. 14) which was drawn in presence of PW-1 Sudhakar Damodhare panch witness, strengthens the aforesaid position. 16. Moreover, PW-10 Dr. Krishna Vora, who was attached to Bhagavati Hospital, examined PW-5 Shivkumar Tiwari on 28th March, 1999 who was initially admitted to Talasari Hospital and thereafter shifted to Bhagavati Hospital. It is stated that PW-5 had an injury on the upper part of throat which was caused by sharp cutting instrument. He stated that the case papers were prepared by Dr. Mane and after seeing the condition of the patient, Dr. Mane had issued the certificate which is produced at Exh. 56. He described the nature of the injuries as horizontal injuries extending from one sternocle leomarcoild to the opposite side, strep muscles were cut, epiglottis was seen. It was not damaged, there was no damage to the posterior phryngeal volve. Vocal cords were sedematous. Both carotide seen no injury to them. No other major artevylver was damaged. There were grievous injuries. Injury was sufficient to cause a death if no adequate treatment was given. The patient was discharged on 6.9.1999. 17. In cross-examination, he stated that cardoite and jegular veins were not found weak. As the main jegular was not cut, because cardoite was not cut, patient could survived. Further he stated that patient could not speak till the 6th day. He further stated that police did not obtain information from him whether the patient could speak. The testimony of PW-10 Dr. Vora indicates that he examined PW-5 Shivkumar Tiwari and identified the certificate (Exh. 56). He stated that the injury sustained by patient Tiwari was caused by sharp cutting instrument. Accordingly, the ocular evidence in respect of injury sustained by PW-5 Tiwari and the said medical evidence is in consonance with each other. 18. That takes us to the next circumstance of discovery of the place where the dead body was concealed at the instance of accused No.1 and in the said context PW-1 Sudhakar Deamodhare - panch witness, stated that accused No.1 made the disclosure statement in the custody of police personnel on 28th March, 1999 that the dead body was lying, which was recorded under memorandum panchanama (Exh. 12) and thereafter the accused No.1 led the panch and police personnel at the distance of about ½ km. from the highway in the forest area and showed the spot where a male dead body was lying with its throat slit and blood was found on the side of the said dead body which was covered by the blanket. Accordingly, the police personnel prepared the panchanama (Exh. 13) thereof. Moreover, police personnel also prepared the inquest panchanama of the said dead body (Exh. 14). 19. PW-1 further stated that, on the same day, police also called him for making panchanama at Nimbapada, Kameshwar Hotel and police collected mixed soil with blood from the said spot and prepared the panchanama thereof (Exh. 15). Police also seized the blanket from the spot where the-dead body was lying, and also prepared the panchanama of the spot and blood stains on the said blanket were noted (Exh. 16). He was called to the police station in the evening on the same day and one police constable produced the blood stained clothes of deceased which were seized under panchanama Exh. 17. Moreover, police also prepared the panchanama of one trailer with a container which was standing in the compound of the police station under panchanama Exh. 18. 20. During the cross-examination, he stated that the panchanama of the spot where dead body was lying was made between 12.30 to 1.00 in the noon. However, he could not state whether there was any injury on the said dead body as the police had not taken away the blanket and shown the condition of the dead body to him. He also stated that his tea shop is situated near the compound of Tahasi office at Talasari and police constable do come to him canteen for a cup of tea. He denied that he has signed all the panchanamas while sitting at the police station at the instance of police constable. He also denied that no statement was made by accused No.1 on that day. However, he could not specify the company of the trailer and container. He also did not ask any question to the accused No.1 at the time of the said memorandum of panchanama. He further stated that all the panchanamas were prepared on the same day i.e. on 28th March, 1999. However, he could not specify the company of the trailer and container. He also did not ask any question to the accused No.1 at the time of the said memorandum of panchanama. He further stated that all the panchanamas were prepared on the same day i.e. on 28th March, 1999. He also stated that, on that day accused No.1 had only stated that he would show the place where dead-body was lying. He denied that police gave all the information on that day and no accused was present. 21. The testimony of PW-l Sudhakar Damodhare reveals that the dead body of male person was recovered at the instance of accused No.1 under the memorandum panchanama (Exh. 12) and recovery panchanama (Exh. 13). However, it is nowhere reflected in his testimony that it was whose dead body. Moreover, the prosecution evidence is silent in respect of the identity of the said dead body since, more particularly, the said dead body was not shown to PW-5 Mr. Shivkumar i.e. the eye witness, and hence, the identity of the said dead body is in doldrums which is the vital lacuna in the prosecution case, and hence, the said non-identification of the dead body by the prosecution witnesses, more particularly, PW5 Shivkumar, hampers the case of the prosecution and does not connect the accused Nos. l and 2 with the alleged crime punishable under Section 302 of Indian Penal code. As regards the other panchanamas, there is no dispute that those are the procedural formalities in the investigation which are the links in respect of the other offences charged against accused Nos. l and 2. 22. That takes us to the next circumstance to the discovery of knife at the instance of accused No.2 and PW-8 - panch witness PW-8 Ashok Dubey has stated that accused No.2 made the disclosure statement in the custody of the police personnel on 8th April, 1999. He was shown the place where he had kept the knife in forest area and the said statement was recorded (Exh. 37) and thereafter accused No.2 led the panchas and police personnel in the forest area on the highway and shown the spot and took out the knife and produced it before the police personnel which was recovered under the recovery panchanama (Exh. 38). 37) and thereafter accused No.2 led the panchas and police personnel in the forest area on the highway and shown the spot and took out the knife and produced it before the police personnel which was recovered under the recovery panchanama (Exh. 38). In cross-examination, he stated that he knew panch Sudhakar Damodhare prior to the said day and he could not take the size of the knife and could not take the registration number of the police jeep, however, he denied that his signature was obtained on the panchanama in the hotel and also denied that he did not accompany with the police as well as the accused to his hotel and further denied that knife was not recovered at his instance. Thus, it is amply clear from his testimony that knife i.e. incriminating weapon was discovered/recovered at the instance of accused No.2 under memorandum/recovery panchanam, which is incriminating circumstance against accused No.2. 23. Coming to the testimony of PW-3 Badriprasad Upadhya i.e. the complainant, who stated that he was working as a Manager in Dubey Hotel in Talasari in the year 1999 which was situated at Bombay-Ahmedabad Highway and it is named as Kameshwar Hotel. According to him, on 27th March, 1999 he was present in the hotel and at about 9.30 to 10.00 p.m., one c person came to the said hotel. He thought that he might have consumed liquor, however, he found that the said person had sustained injury across the neck and cloth was tied around the injury. He tried to talk but he made signal to give pen and paper to him and accordingly, PW3 provided pen and paper to him. The said person wrote his name, number of the truck and phone number of Mumbai on that paper and then he became unconscious. Hence, PW3 went to nearby hotel and informed the said fact to the police, and accordingly, police personnel came and took that person. He then narrated the entire incident to the police and his complaint was recorded at Exh. 23. The learned counsel for the accused declined to cross-examine the said witness. 24. It is pertinent to note that PW-5 Shivkumar i.e. the eye witness has produced the said writing on the chit (Exh. 29) on the wrapper of cigarette packet. He then narrated the entire incident to the police and his complaint was recorded at Exh. 23. The learned counsel for the accused declined to cross-examine the said witness. 24. It is pertinent to note that PW-5 Shivkumar i.e. the eye witness has produced the said writing on the chit (Exh. 29) on the wrapper of cigarette packet. A bare perusal of the said chit discloses the Truck No. MH-04 1369 and phone number of Mumbai, and accordingly, the testimony of PW-3 complainant, PW-5 Shivkumar and the said chit (Exh. 29) can be tacked with each other and the said link in the chain amounts to incriminating piece of evidence against the accused persons in respect of other crimes with which they are charged, except the offence punishable under Section 302 of Indian Penal code. 25. That takes us to the testimony of PW-7 Bhagwan Patil - the panch witness, which discloses that shirt and pant of the accused No.2 were seized in his presence. Accordingly, the seized articles were sent to the chemical analyzer's office for examination purpose along with the forwarding letter (Exh. 50) and the chemical analyzer's reports which are produced on record disclose that the blood group of PW-5 was of "B" group and the Chemical Analyzer's report (Exh. 64) discloses that the incriminating weapon i.e. "Sura" bore blood stains on blade and handle of human blood of "B" group. Admittedly, the said weapon was discovered/recovered at the instance of accused No.2 which bore human blood stains of "B" group and the blood group of injured PW-5 is of "B" group, but the accused No.2 failed to give any explanation in that respect, and therefore, the said link connects the accused No.2 with the alleged crimes. 26. In the circumstances, having the comprehensive view of the matter and taking the entire survey of ocular, documentary and medical evidence and also the evidence of forensic science laboratory as mentioned herein above, the dead body of the victim Badriprasad allegedly recovered/discovered at the instance of accused No.1 was not shown to the eye witness i.e. PW-5 and the said dead body was not identified by any of the prosecution witnesses, and therefore, the identification of the dead body is under suspicion, and therefore, the accused Nos. l and 2 cannot be connected with the alleged offence punishable under Section 302 of Indian Penal code, and therefore, the conviction and sentence imposed upon them under the said offence deserves to be quashed and set aside and they deserve to be acquitted thereof. However, the direct evidence of PW-5 i.e. the eye witness Shivkumar and the other circumstantial evidence adduced/produced by the prosecution and the medical evidence and the evidence of Chemical Analyzer's reports, is in consonance with each other in respect of the alleged other offences with which they are charged, and therefore, the convictions and sentences imposed upon the accused Nos. l and 2 in respect of other offences deserve to be confirmed and upheld. Since our attention is invited to the fact that accused are in jail since more than nine years, the sentences imposed upon the accused Nos. l and 2 for the offence punishable under Section 307 read with Section 34 of Indian Penal code, deserves to be quashed and set aside, and instead sentence of the imprisonment already undergone by them is required to be imposed upon them there for. While maintaining the conviction there under, and they are required to be set at liberty forthwith if not required in any other case. Besides, insofar as the convictions and sentences for the other offences punishable under Section 397, 341, 201 read with Section 34 of Indian Penal code are concerned, same deserve to be confirmed and maintained. Moreover, directions given by the learned Trial Judge regarding set off and destruction of muddemal property etc., under clauses (6) to (9) of the impugned judgment and order dated 21st November, 2002 also deserve to be confirmed. Accordingly, appeals are required to be allowed partly in the aforesaid terms. 27. In the result, we pass the following order :- (i) Both appeals are allowed partly. (ii) The conviction and sentence imposed upon accused Nos.1 and 2 for the offence punishable under Section 302 read with Section 34 of Indian Penal Code, by judgment and order dated 21st November, 2002 rendered by the learned Additional Sessions Judge, Palghar, stand quashed and set aside and they are acquitted thereof. (iii) Moreover, the conviction imposed upon accused Nos. (ii) The conviction and sentence imposed upon accused Nos.1 and 2 for the offence punishable under Section 302 read with Section 34 of Indian Penal Code, by judgment and order dated 21st November, 2002 rendered by the learned Additional Sessions Judge, Palghar, stand quashed and set aside and they are acquitted thereof. (iii) Moreover, the conviction imposed upon accused Nos. l and 2 for the offence punishable under Section 307 read with Section 34 of Indian Penal Code stands confirmed and upheld, but the sentence imposed upon them there for stands quashed and set aside and instead, the imprisonment which they have already undergone, is imposed upon them. Moreover, the convictions and sentences imposed upon accused Nos. l and 2 for rest of the offences with which they were charged, stand confirmed and upheld. (iv) Clauses (6) to (9) under the impugned judgment and order dated 21st November, 2002 also stand confirmed and maintained. (v) Accused Nos. l and 2 be set at liberty forthwith, if not required in any other case. Ordered accordingly.