JUDGMENT B. R. GAVAI, J. :- Being aggrieved by the judgment and order passed by the learned Additional Sessions Judge, Greater Mumbai dated 16th February 2005 thereby convicting the appellant- accused for the offence punishable under section 302 read with section 34 of Indian Penal Code (I.P.C.) and sentencing them to suffer imprisonment for life and to pay fine of Rs.2,000/- and, in default, to suffer further R.I. for one year, the appellants have approached this Court by way of present appeal. 2. It is the prosecution case that accused No.2- Mohammed Farukh @ Akram Abdul Razak Kazi was having illicit relations with P.W.2- Hasina Abdul Hamid Shaikh. It is further case of the prosecution that accused Nos.1, 2 and 4 along with deceased accused Firoz Inayatali Shaikh, on 8th October 2002, at about 00.30 hours, near Garib Nawaj Pan Shop, Janata Sevak Society, behind Mahim Bus Depot, Mahim in furtherance of their common intention, committed the murders of Mohd. Sharif Hanif Shaikh and Salim Pashu Shaikh. It is also the case of the prosecution that during the incident the accused also assaulted the complainant and witness Fazal by means of dangerous weapons and attempted to commit their murder. It is further case of the prosecution that accused voluntarily caused hurt to P.W1 and P.W2, namely, Banu Bashir Shaikh and Hasina Abdul Shaikh and that accused Nos.1, 2 and 4 were in possession of sword and choppers in contravention of the prohibitory order issued by the Police Commissioner, Greater Bombay and thereby committed an offence punishable under section 125 of the Bombay Police Act. 3. The learned trial Court, at the conclusion of the trial, convicted the appellants-accused for the offence punishable under section 302 of I.P.C. for committing murder of Mohd. Sharif Hanif Shaikh and Salim Pashu Shaikh and sentenced them as aforesaid. Accused No.2 was also held guilty for the offence punishable under section 324 of I.P.C. for voluntarily causing hurt to P.W.4- Abdul Latif Abdul Hanif Shaikh and he is convicted and sentenced to suffer S.I. for a period of two years and to pay fine of Rs.500/-. The accused were acquitted for rest of the offences, Being aggrieved by the said order, the appellants-accused are here in the present appeal. 4. Shri Pradhan, learned counsel appearing for the appellants submits that the prosecution has not come to the Court with clean hands. The accused were acquitted for rest of the offences, Being aggrieved by the said order, the appellants-accused are here in the present appeal. 4. Shri Pradhan, learned counsel appearing for the appellants submits that the prosecution has not come to the Court with clean hands. He submits that the remand applications seeking remand of the arrested accused show that there was no eye-witness till 10th December 2012. He, therefore, submits that so called eye-witnesses are not, in fact, eye-witnesses to the incident. He submits that the said witnesses are got-up witnesses and that all the witnesses are interested witnesses and, as such, the conviction based on the ocular testimony of such witnesses is not sustainable in law. He further submits that the injuries sustained by the accused persons have not been explained by the prosecution. It is further submitted that even an attempt has been made to suppress the injuries sustained by the accused persons. In the light of the above, he submitted that the prosecution case is not a truthful case and, as such, the accused are entitled to be acquitted. 5. The learned A.P.P. appearing for the State, on the contrary, submits that the learned trial Court, upon appreciation of evidence on record, has rightly convicted the accused and, as such, no interference is warranted in the findings recorded by the learned trial Court. 6. With the assistance of the learned counsel for the appellants and learned A.P.P. we have perused the evidence on record. P.W.1- Smt. Banu Bashir Ahmed Shaikh has stated in her evidence that there was illicit relations of her sister Hasina with accused No.2. She further stated that all accused were residing in the same locality. She stated that on 6th October 2002 there was a quarrel between Hasina and accused No.2 since accused No.2 was insisting Hasina for marriage and Hasina was not ready for the marriage. She also stated that accused No.2 assaulted and beat Hasina at the residence of the accused, due to which, she sustained injuries and was taken to Pikle Hospital. She further stated that on 7th October 2002, she along with other ladies in the family was sitting outside their house at around midnight time and they were chitchatting. She stated that at that time she heard hue and cry from the direction of one Garib Nawaj Pan Shop. After reaching near pan shop, she saw that Mohd. She further stated that on 7th October 2002, she along with other ladies in the family was sitting outside their house at around midnight time and they were chitchatting. She stated that at that time she heard hue and cry from the direction of one Garib Nawaj Pan Shop. After reaching near pan shop, she saw that Mohd. Sharif was lying on the ground in the pool of blood and one stone was lying on his face. She also stated that Abdul Latif was lying near Mohd. Sharif and there were several bleeding injuries on his person. She stated that accused Nos. 1 to 4 were present there. She further stated that deceased accused Firoz was threatening them not to come forward otherwise they will kill them. She stated that accused No.1 gave her one slap and they caught hold of her sister Hasina. She stated that at that time, Salim Pashu came there in order to rescue them but accused Nos.1 to 4 started beating Salim. She stated that accused No.2 and accused No.4 were in possession of small weapons and accused No.1 was in possession of sword. Though this witness has been thoroughly cross-examined, nothing damaging has come in her cross-examination. 7. P.W.2- Hasina Shaikh, whose illicit relationship with accused No.2 is said to be the cause of the incident, has narrated about the incident which happened between her and accused No.2 on 6th October 2002. In so far as incident which happened on 7th October 2002 is concerned, she has given the same narration as that of P.W.1. Here also nothing damaging has come in the cross-examination of this witness. P.W.3- Shaikh Fazal Hussain is the injured witness. He has stated that on the date of incident, accused No.2, who was holding a chopper, inflicted blow on his head with the chopper. P.W.4- Abdul Latif Abdul Hamid Shaikh is also the injured witness. He is also the complainant. He stated that on 6th October 2002 he was standing in front of Garib Nawaz Pan Shop. He had sent his nephew Mohd. Sharif to bring pan. He further stated when he reached there, Mohd. Sharif was also standing in front of pan shop. He stated that all the accused encircled Mohd. Sharif and assaulted him by means of sword and choppers. He had sent his nephew Mohd. Sharif to bring pan. He further stated when he reached there, Mohd. Sharif was also standing in front of pan shop. He stated that all the accused encircled Mohd. Sharif and assaulted him by means of sword and choppers. He stated that accused No.1- Khalid was armed with sword and accused No.2 to 4 were armed with choppers. He stated that when the accused assaulted Mohd. Sharif, he fell on the ground. He stated that because the accused inflicted blow, firstly, on the head of Sharif, Sharif sustained bleeding injuries on his head, due to which, he fell down. He further stated that after Sharif fell down, the accused gave blow on the head of Sharif by Shahabadi stone. He further stated that when he made an attempt to intervene, accused No.2-Akram inflicted a blow by chopper on his head. He further stated that at that time both his sisters Banu and Hasina came there, who were also assaulted. He further stated that in order to save his sisters, Salim Pashu came forward and all the accused assaulted Salim Pashu. 8. It can, thus, be seen that the testimonies of P.W.1, P.W.2 and P.W.4 regarding assault on deceased Mohd. Sharif and Salim Pashu are consistent. The said testimonies are also corroborated by the recitals in the F.I.R. The perusal of testimony of P.W.11- Dr. Mukesh Ghuge, who had conducted autopsy and issued, post mortem report, would also corroborate the ocular testimony of the eye-witnesses. The medical evidence clearly shows that the injury sustained by the deceased Salim Pashu and Mohd. Sharif were possible with the weapons used by the accused persons. In the light of this evidence on record we are of the considered view that no fault can be found with the findings of the learned trial Court that the accused persons are responsible for causing death of the deceased Mohd, Sharif and Salim Pashu. 9. The question now required to be decided is as to whether the present case would fall under section 302 of I.P.C. or not. It is to be noted that the motive which is attributed in the present case is illicit relations of P.W.2 Hasina with accused No.2. 9. The question now required to be decided is as to whether the present case would fall under section 302 of I.P.C. or not. It is to be noted that the motive which is attributed in the present case is illicit relations of P.W.2 Hasina with accused No.2. According to the prosecution, on an earlier night, there was a quarrel between accused No.2 and P. W.2 since the accused No.2 was insisting that P.W.2 should marry with him and P.W.2 was not willing to do so. It is pertinent to be noted that accused No.2 had himself gone to Mahim Police Station in the midnight between 7th and 8th October 2002 to lodge a complaint against the deceased persons. The perusal of the remand requisition dated 8th October 2002 would reveal that the accused No.2 had come to the police station in an injured condition and, on the basis of his statement, Crime No.363/2002 for the offence punishable under section 324 read with section 34 of I.P.C. with section 4 and section 35 of the Arms Act was registered. It further reveals that accused No.2 was sent to the Sion Hospital for medical treatment. However, the prosecution has not placed on record the certificate of injuries sustained by this accused. It is further to be seen from the evidence of P.W.14- Dilip Shinde, the investigating officer, that accused No.1- Khalid was arrested on 10th October 2002. P.W.14 in his evidence has categorically stated that during the personal search conducted by him, he noticed that there were injuries to the hands and legs of accused No.1. He further stated that he also found the case papers of Pikle Nursing Home and he seized the said papers. The arrest panchanama of the said accused, which is at Exh.27, would also reveal that the said accused had sustained five injuries on his person. During search, the case papers of Pikle Nursing Home were also found which were seized by the police. The prosecution has also not produced medical evidence regarding injuries sustained by the accused and the case papers of Pikle Nursing Home. 10. It can, thus, clearly be seen that the prosecution has attempted to suppress the injuries sustained by these two accused for the reasons best known to them. In any case, the alleged motive does not appear to be probable. 10. It can, thus, clearly be seen that the prosecution has attempted to suppress the injuries sustained by these two accused for the reasons best known to them. In any case, the alleged motive does not appear to be probable. If, according to the prosecution, the altercation has taken place on previous night, there was no reason to commit the crime for the alleged motive after a period of more than 24 hours. In any case, if that was the motive, then the accused could have very well committed murder of P.W.2. In any case, as already stated hereinabove, the prosecution has, for the reasons best known to them, suppressed the injuries sustained by the accused persons. From the documents placed on record itself, it can clearly be seen that accused No.1 and accused No.2 have sustained injuries. As such, we find that the possibility of prosecution withholding the real genesis cannot be ruled out. In view of suppression of injuries sustained by the accused persons and in absence of explanation thereof, it cannot be said, beyond reasonable doubt, that the accused had• an intention to commit murder of the deceased persons. We are, therefore, of the view that the present case does not fall under section 302 but fall under Part-I of section 304 part-I of I.P.C. 11. We, therefore, pass the fol1owing order: (i) The Appeal is partly allowed. (ii) Insofar as the conviction for the offence punishable under section 302 is concerned, the same is altered to one under Part - I of section 304 of I.P.C. and the appellant~ are directed to suffer R.I. for ten years and to pay fine of Rs.2,0.00/- and, in default, to suffer R.I. for three months. (iii) The rest of the order passed by the learned trial Court including the direction regarding substantive sentence to run concurrently and set of be given to the accused, is maintained. (iv) Since according to the report of the Superintendent, Kolhapur Central Jail, Kalamba dated 24th April 2012, an the accused have undergone the sentence of more than ten years and seven months as on 31st March 2012, the appellants are directed to be set of at liberty forthwith, if not required in any other case. Appeal Partly allowed.