Judgment K.J. Thaker, J.—The appellant-ori. Accused No. 2 has preferred Criminal Appeal No. 2339/2006 and the appellant-ori. Accused No. 1 has preferred Criminal Appeal No. 708/2007 under Section 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 21.11.2006 passed by the learned Addl. Sessions Judge, Court No. 2, Ahmedabad City in Sessions Case No. 336/2004, whereby, the learned trial Judge has convicted the appellants-ori. Accused under Section 302 read with Section 34 of IPC and sentenced them to undergo imprisonment for life and to pay a fine of Rs. 1000/-each and for the offence under Section 135(1) of Bombay Police Act they have been convicted and sentenced to under to R/I for one month, which is impugned in these appeal. Since both the appeals arise from the judgment and order of the trial Court, they are heard and decided by this common judgment. 2.1 The case of the prosecution is that the deceased Chhanubhai was residing in Tank Shaal since last many years. That one day prior to the date of incident i.e. 2.11.2003, both the accused informed the brother of deceased at his tea-stall situated near L.C. Bodiwala College, Tank Shaal that the deceased may be informed that he may not collect money from the persons doing business of colouring thread for festival of ‘uttarayan’, as the accused are going to collect the same. It is further alleged that on the day of incident, i.e. on 3.11.2003, while the complainant and his son were going towards their house after closing tea stall, they saw that the accused were giving sword blows to the deceased. Therefore, upon raising shouts by the complainant, the accused ran away from the scene of offence. Thereafter, the deceased was taken to the hospital, where it was declared he had died due to the injuries. Therefore, a complaint was lodged. 2.2 The appellants accused came to be arraigned for committing murder. The investigation being complete, the charge-sheet was laid against the present appellants. The case being exclusively triable by the Court of Sessions, the case was committed to the Court of Sessions, which was given number as Sessions Case No. 336/2004. 2.3 Thereafter, the Sessions Court framed the charge below Exh. 3 against the appellants for commission of the offence under Sections 302, 34 and 114 of IPC and under Section 135(1) of the Bombay Police Act. 2.3 Thereafter, the Sessions Court framed the charge below Exh. 3 against the appellants for commission of the offence under Sections 302, 34 and 114 of IPC and under Section 135(1) of the Bombay Police Act. The appellants-accused have pleaded not guilty and claimed to be tried. 2.4 To prove the case against the present appellants, the prosecution has examined the following witnesses whose evidence is read before this Court by the learned advocates for the appellants : 1. Babubhai Jivanlal Thakor Ex. 12 2. Anandbhai Babubhai Thakor Ex. 13 3. Ramjibhai Khemabhai Desai Ex. 14 4. Rajendra Pravinchandra Shah Ex. 15 5. Mohmad Yunus Abbasbhai Mansuri Ex. 17 6. Divansinh Fatehsinh Rathod Ex. 18 7. Tejaji Kapurji Pratapji Ex. 19 8. Kishorbhai Prahladbhai Chauhan Ex. 20 9. Rajeshbhai Ratilal Mochi Ex. 21 10. Allaudin Mahebubkhan Pathan Ex. 22 11. Abdeli Nuruddin Rangwala Ex. 23 12. Vinayakraao Vasudevrao Patil Ex. 26 13. Ravindrakumar Damabhai Gamit Ex. 30 14. Vinayak Gordhandas Patel Ex. 49 15. Prakashsinh Karansinh Ex. 51 16. Bhupendrabhai Chandidan Gadhavi Ex. 52 2.5 The prosecution also relied upon the following documentary evidences so as to bring home the charges against the appellants-accused. 1. Complaint Ex. 31 2. Report Ex. 32 3. Yadi to FSL Officer Ex. 43 4. Inquest panchnama Ex. 16 5. Opinion of FSL Officer about scene of offence Ex. 34 6. Report of FSL Ex. 35 7. Panchnama of scene of offence Ex. 33 8. Letter to FSL Ex. 28 9. Panchnama of articles recovered from the dead-body Ex. 36 10. Yadi for TI Parade Ex. 29 11. Panchnama of cloth of accused No. 1 Ex. 39 12. Panchnama of weapons used in offence Ex. 42 13. Report for TI parade of accused Kunal Ex. 38 14. Panchnama of TI parade of accused Kunal Ex.50 15. Despatch note of muddamal Ex. 53 16. Receipt of muddamal by FSL Ex. 54 17. PM Report Ex. 27 18. Forwarding letter of FSL Ex. 55 19. FSL Report Ex. 56 20. Serological report Ex. 57 3. Thereafter, after examining the witnesses, further statement of the appellants-accused under Section 313 of CrPC was recorded in which the appellants-accused have denied the case of the prosecution. 4. Receipt of muddamal by FSL Ex. 54 17. PM Report Ex. 27 18. Forwarding letter of FSL Ex. 55 19. FSL Report Ex. 56 20. Serological report Ex. 57 3. Thereafter, after examining the witnesses, further statement of the appellants-accused under Section 313 of CrPC was recorded in which the appellants-accused have denied the case of the prosecution. 4. After considering the oral as well as documentary evidence and after hearing the parties, learned trial Judge vide impugned judgment and order dated 21.11.2006 held the present appellants-original accused guilty of the charge levelled against them under Section 302 34 and 114 of IPC and under Section 135(1) of the Bombay Police Act, convicted and sentenced the appellants-accused, as stated above. 5. We have heard at length learned advocate Ms. Kruti M. Shah learned advocate for appellant of Criminal Appeal No. 2339/2006 and Mr. Madansing O. Barod learned advocate for appellant of Criminal Appeal No. 708/2007 and Ms. C.M. Shah learned APP for the respondent-State in both the appeals. 6. The accused No. 2 is at present in jail and after the conviction, accused No. 1 has been granted bail, pending appeal, by this Court vide order dated 26.6.2009 passed in Criminal Misc. Application No. 16289/2008. 7. The learned advocates for the present appellants have contended that the trial Court has committed an error in passing the impugned judgment and order, inasmuch as it failed to appreciate the material on record in its proper perspective, and hence, the present appellants deserve to be given the benefit of doubt and be acquitted. 8. On the other hand, learned APP has strongly opposed the contentions raised by the learned advocate for the present appellants and has submitted that the trial Court has passed the impugned judgment and order after taking into consideration the facts and circumstances of the case as well as the material, in the form of oral and documentary evidence, produced before it and hence, no interference is called for and the appeals deserve to be dismissed. 9. During the course of trial, the learned trial Judge has examined 16 witnesses. The brother of the deceased PW-1 Babubhai Jivanbhai Thakor is examined at Ex.12, who has lodged the complaint Ex. 9. During the course of trial, the learned trial Judge has examined 16 witnesses. The brother of the deceased PW-1 Babubhai Jivanbhai Thakor is examined at Ex.12, who has lodged the complaint Ex. 31, has stated that both the accused informed him at his tea-stall that the deceased may be informed that he may not collect hufta from the persons doing thread business, as the accused are going to collect the same. He has further stated that on the day of incident, i.e. on 3.11.2003, when he and his son were going towards their house after closing tea stall, they saw that the accused were giving sword blows on the deceased. Therefore, upon raising shouts by the complainant, the accused ran away from the scene of offence. Thereafter, the deceased was taken to the hospital, where he succumbed to the injuries. PW-2 Anandbhai Babubhai Thakor, is the nephew of deceased and son of PW-1 complainant has been examined at Ex. 13. He has supported the ocular version of PW-1 complainant in totality. The panch witness PW-3 Ramjibhai Khembhai Desai Ex. 14 has not supported either of the panchnamas which are at Ex. 33 and 39 which have been proved by the I.O. PW-5 Executive Magistrate who had effectively done TI parade has been examined at Ex. 17. He has proved the yadi which is at Ex. 37 and Ex. 50 TI Parade. In his evidence, he has justified that the accused No. 1 was identified not only by PW-3, but PW-1 and PW-2. The TI parade was hled on 12.11.2003. PW-6 Divansinh Fatehsinh Rathod Ex. 18, has supported the panchnama Ex.16, which was regarding the seizure of clothes of the deceased. PW-7,8 and 9 have not supported the prosecution case. However, PW-10 Alladdin Mahebubkhan Pathan Ex.22, a panch of recovery panchnama of clothes of accused No. 1 Ex. 39, has supported the prosecution case. PW-12 Dr. Vinayakrao Vasudevrao Patil Ex. 26 has performed the post mortem. He certified that post mortem Ex. 27 has been signed by him. His evidence shows that the deceased had the following injuries: 1. 6x1 cm bone deep I.W. directed medial to lateral down ward (lt) forehead & lateral eye brow starting from 2 cm away from midline with palpable orbital fracture. 2. 5x1cm cavity deep I.W. posterior & middle of inj. No.(1). 3. 1x1x1 cm CLW on medial of (Rt.) eye brow. 4. 6x1 cm bone deep I.W. directed medial to lateral down ward (lt) forehead & lateral eye brow starting from 2 cm away from midline with palpable orbital fracture. 2. 5x1cm cavity deep I.W. posterior & middle of inj. No.(1). 3. 1x1x1 cm CLW on medial of (Rt.) eye brow. 4. 16x7 cm transverse, open chopped wound on frontal area involving medial left & (Rt.) frontal area, (Rt.) temporal area. 5. 7x2 cm oblique, post to ant. & medical to lateral, bone visible chopped wound on (lt) midparietal region. 6. 1.5cm Rt. Upper lip cut. 7. 1x0.5x0.5 cm CLW on Rt. Cheek. 8. 0.5x0.5x0.5 cm CLW on Rt. Chin. 9. 3 x 1 cm abrasion on Rt. Ant. Ankle 10. 4x2 cm transverse contusion on mid lateral Rt. Thigh. 11. 7cm downwards forwards linear abrasion on lateral aspect of Rt. Midam. 12. 6x1cm downwards, backwords abrasion (linear) on ant. Medial of Rt. Midarm. 13. 3x3 cm abrasionon Rt. Medial lower arm. 14. (a) 17cm transverse linear abrasion starting from Rt. nipple goes slightly upwards to left. (b) 8cm linear abrasion Rt. To left & sup. to inf. On middle chest. (c) 23 cm linear abrasion downwards & left to Rt. From left intraelavicular to Rt. Lower costal region. (a)(b) & (c) making cross at middle chest. 15. 6x2 cm transverse abrasion at suprasternal notch. 16. 4 x 2 cm abrasion superior to Rt. Nipple & transverse. 17. 4x2 cm verticle abrasion on lateral aspect of Rt. Infraclavicle. 18. 7x2 cm abrasion Rt. To left & sup. To int. on middle epigastric region. 19. 3x3cm abrasion transversely directed on left lower costal region. 20. 4x2cm verticle abrasion, medial & upper to left nipple. 21. 0.5x0.5x0.5cm CLW below & Rt. To sternal notch 22. 8x2 cm contusion with intermittent abrasion on ant. Medial aspect of Lt. Arm. 23. 1x1 cm abrasion on dorsum of proximal interphalangeal joints of all fingers of Lt. Hand. 24. 1 cm middle part of left ear cut downward & forwards with tailing effect. 6cm on lower ear and cheek. 10. PW-12 Dr. Vinayakrao Vasudevrao Patil Ex. 26 has also supported the version of PW-1 and PW-2 and that the cause of death could have been with the muddamal weapon which was recovered from the accused. PW-13 Ravindrakumar Damabhai Gamit Ex. 30 has recorded the complaint and drawn the panchnama of scene of offence. 6cm on lower ear and cheek. 10. PW-12 Dr. Vinayakrao Vasudevrao Patil Ex. 26 has also supported the version of PW-1 and PW-2 and that the cause of death could have been with the muddamal weapon which was recovered from the accused. PW-13 Ravindrakumar Damabhai Gamit Ex. 30 has recorded the complaint and drawn the panchnama of scene of offence. He has written the yadi to Executive Magistrate and also drawn the inquest panchnama. He has proved the panchnamas of recovery of cloth done by him. He has arrested the accused No. 2 on 12.11.2003 after keeping watch and drawn the arrest panchnama at the place of offence. The police officials have identified the relevant muddamal. 11. Learned advocates Ms. Shah and Mr. Barod appearing for the appellants has made a very strange submission that the statement under Section 162 of CrPC of PW-2 does not form part of the paper-book. This is a submission which is not expected from an advocate. The statements under Section 162 which are not admissible in the evidence, it is the ocular version which a person testifies before the Court which is admissible in evidence and is exhibited is. Next submission that the interested and got up witnesses have been examined who have no value for truth. The contents of ocular version of both the witnesses are doubtful. They could not have seen either of the accused. When the occurrence occurred, PW-1 could not have seen the accused as it was 12.45p.m. In the night because it would be pitch dark and it does not come on record whether street lights were there or not, and therefore, at night the presence of either of the two witnesses cannot be said to be natural. Though, there were independent witnesses named in the charge-sheet and they have been conveniently dropped. Further submission was that the conduct of PW-2 is also very doubtful. He went away strait to the home and told that some one is beating the uncle. The conduct of PW-1 is also not proper as he did not call for ambulance. Further, it is submitted that there was no TI parade. It is further submitted that the place of incident could not have been coat as no blood stains were found on the article which were there at the time of making of the panchnama. The conduct of PW-1 is also not proper as he did not call for ambulance. Further, it is submitted that there was no TI parade. It is further submitted that the place of incident could not have been coat as no blood stains were found on the article which were there at the time of making of the panchnama. The panchnama of seizure of clothes shows that there were no blood marks, however, very strange enough, the FSL report shows that there were blood stains of blood group ‘AB’. It is, therefore, submitted that these aspects are not explained by the prosecution and the trial Court could not have convicted the accused No. 2. It is further submitted that the sword which has been recovered/discovered was from the place which cannot be said to be precluded place. It was a place which was with easy access. The panchnamas are not supported by the panchas, and therefore also, it would be fatal to the prosecution case. It is further submitted that the ownership of the scooter is also not proved. It is not shown as to who were there. 12. Learned advocate Mr. Barod appearing for appellant of Criminal Appeal No. 708/2007 has adopted the submissions made by Ms. Kruti M. Shah and has taken us through the entire evidence again. He has relied on inquest panchnama and has submitted that the dead-body was said to be on the coat but there was no blood stains. He has further submitted that no name of the accused was mentioned in the FIR. The TI parade is also not properly held. PW-2 did not utter the name of the accused. He has further made an induce to submit that even in the FIR, police statement and in the ocular version of PW-1 and 2, the iron rod has not been recovered. The dog squad was also called and it came back and sit besides the dead-body. He has also submitted that from the clothes which were seized there was no blood marks. However, very strange enough, the blood marks found in the FSL report. He has submitted that in absence of the recovery of weapon used by the accused No. 1, no conviction could have been based to his client. He has further relied on the following authoritative pronouncement of the Apex Court in the case of Bhimappa Chandappa Hosmani & Ors. However, very strange enough, the blood marks found in the FSL report. He has submitted that in absence of the recovery of weapon used by the accused No. 1, no conviction could have been based to his client. He has further relied on the following authoritative pronouncement of the Apex Court in the case of Bhimappa Chandappa Hosmani & Ors. vs. State of Karnataka, reported in 2006 AIR SCW 5043, to contend that the eye witnesses cannot be said to be eye witnesses. He has submitted that the Apex Court has given benefit of doubt to the accused because there was absence of blood stains on clothes of eye witness/mother and younger brother of deceased suggests that they had not witnesses occurrence. The said decision, in our respectful opinion will not apply to the facts of this case as even on re-appreciation of the facts, the blood stains even found at a distance of one feet i.e. of one “Parmar Chhapal Shop” where the dead-body was found. A probability cannot be ruled out that after giving first blow the deceased might have tried to save himself was no longer on the coat and the story might have been examined by the accused, and therefore, the said decision will not apply and will not be of any assistance to the accused. On careful reading of the evidence and on the totality of the facts and the finding which we would give, the said decision will not apply to the facts of the present case. He has further relied on the decision of Apex Court in the case of Mustkeem alias Sirajudeen vs. State of Rajsthan, reported in (2011)11 SCC 724 , to submit that what is admissible under Section 27 of the Evidence Act is information leading to discovery and not any opinion formed on it by prosecution. As per the said decision, the burden lies on prosecution to establish a close link between discovery of material object and its use in commission of offence. He has also relied on the decision of the Apex Court in the case of Vithal Laxman Chalawadi & Etc. vs. State of Karnataka, reported in 2010 AIR SCW 6408. In t his case, it would be relevant to go to the entire evidence. In this case, it is nobody’s case that the recovery memo was prepared at the police station. vs. State of Karnataka, reported in 2010 AIR SCW 6408. In t his case, it would be relevant to go to the entire evidence. In this case, it is nobody’s case that the recovery memo was prepared at the police station. In the case of Pulukuri Kottaya & Ors vs. Emperor, reported in AIR (34) 1947 Privy Council 67, as far as Section 27 of the Evidence Act is concerned, has been discussed at length and also recent decision of Hon’ble Aperx Court reiterates the ratio propounded in the aforesaid decision. The circumstantial evidence and ocular version would show that the accused were involved in the offence. It cannot be said that the learned trial Judge has committed any serous error which cause miscarriage of justice. 13. As against this, learned APP Ms. C.M. Shah has relied on the decision of the Apex Court in the case of Jitendrakumar vs. State of Haryana, reported in (2012)6 SCC 204 , Mano Dutt & Anr. vs. State of Uttar Pradesh reported in (2012) 4 SCC 79 , State of U.P. vs. Naresh & Ors. reported in 2011 CriLJ 2162, Shyamlal Ghosh vs. State of West Bengal reported in (2012) 7 SCC 646 , to contend that even if the name of one of the accused, is not in FIR, but what is available is related to the witnesses, and identification of the accused, both in TI parade and in the court. She has successfully submitted that the chain of evidence is complete from the ocular version of PW-1 and 2 as well as ocular version of I.O. and that of the medical officer. The entire evidence makes the prosecution story totally believable proving the guilt of the appellants-accused beyond any reasonable doubt and we do not think that there is any infirmity in the conviction of the accused, more particularly, the finding of the learned trial Judge on the basis of Exh. 16 is well founded. Just because some witnesses have turned hostile would not make the substratum of the prosecution case weak when there are other plausible witnesses who cannot be said to be chance witness and whose evidence is required to be evaluated in quality and not in quantity. The documentary evidences speaks volumes about the quit of the accused. The accused No. 2 had absconded and was nabbed. The documentary evidences speaks volumes about the quit of the accused. The accused No. 2 had absconded and was nabbed. The learned trial Judge has elaborately mentioned that the motive was very clear that the accused wanted to extort money because they were in the said business and both of them have common intention and common motive. The conviction under Section 34 of IPC has to be maintained on the principles enunciated by the Hon’ble Apex Court in the case of Syed Yousuf Hussain vs. State of A.P. Reported in (2013)4 SCC 517 . The presence of both the accused cannot be doubted. The weapon used was such which will not permit us to take a different view then the one taken by the learned trial Judge. In this case, it can be said that there was common intention and object to see that the people of that area were afraid during the festival popularly known as “Uttarain” during the second week of January. It was a pre-planned, pre-arranged and minds have met. The place where the deceased was kept was a prime location where the thread for flying kite is being coloured and prepared. The kite market during those three days is held in that area where the deceased was died because of the injuries which he has sustained, and therefore, it does not give us any other option but to convict both of them and to confirm the impugned judgment and order. We are supported by the decision of the Apex Court in the case of Subodh Nath and Anr. vs. State of Tripura, reported in (2013) 4 SCC 122 , the discrepancy on which both the learned advocates have contended even if it is pointed out are minor discrepancies due to normal errors of observation. As far as accused No. 2 is concerned, he was identified in identification parade. Hence, the finding of fact on this aspect also cannot be found fault with, the learned trail Judge has elaborately discussed in his well reasoned decision the motive and the intention. Even before the trial Court, no such submission was made. However, we have reevaluated and evaluated and re-appreciated and appreciated the entire evidence on record. 14. The question of related witness recently came up before the Apex Court in the case of Raju alias Balachandran & Ors. Even before the trial Court, no such submission was made. However, we have reevaluated and evaluated and re-appreciated and appreciated the entire evidence on record. 14. The question of related witness recently came up before the Apex Court in the case of Raju alias Balachandran & Ors. vs. State of Tamil Nadu, reported in AIR 2013 SC 983 , wherein, the presence of eye-witnesses at place of incident proved by FIR and by evidence of author of FIR. In this case, the ocular version of the author of FIR shows the presence of two accused, one with sword and other with iron rod. The presence of eye-witnesses at the place of occurrence cannot be fatal to the prosecution case when it has proved that their presence at the place of offence was very natural though they are related witnesses. 15. The view taken by the learned trial Judge, is based on sound appreciation of facts. The TI parade is proved, and therefore, the submission of the learned advocates that the appellants are not identified is not proved beyond reasonable doubt and the inducement is also given. The finding of facts cannot be said to be in any way such which would give benefit of doubt to the accused represented by the learned advocates. We are in complete agreement with the findings, ultimate conclusion and resultant order of conviction and sentence passed by the trial Court and we are of the view that no other conclusion except the one reached by the trial Court is possible in the instant case as the evidence on record stands. Therefore, there is no valid reason or justifiable ground to interfere with the impugned judgment and order of conviction and sentence. 16. In the result, both these appeals preferred by the appellants – original Accused No. 1 & 2 against the judgment and order of conviction and sentence dated 21.11.2006 passed by the learned Addl. Sessions Judge, Court No. 2, Ahmedabad City in Sessions Case No. 336/2004, is dismissed. Appellant – ori. Accused No. 1 of Criminal Appeal No. 708/2007 is on bail, his bail and bail bonds are cancelled. R & P to be sent back to the trial Court forthwith. 17. The appellant – ori. Sessions Judge, Court No. 2, Ahmedabad City in Sessions Case No. 336/2004, is dismissed. Appellant – ori. Accused No. 1 of Criminal Appeal No. 708/2007 is on bail, his bail and bail bonds are cancelled. R & P to be sent back to the trial Court forthwith. 17. The appellant – ori. Accused No. 1 of Criminal Appeal No. 708/2007 is directed to surrender before the Jail Authority within a period of eight weeks from the date of this order, failing which, the concerned Sessions Court shall issue non-bailable warrant to effect the arrest of the appellant-ori. Accused.