JUDGMENT V.M. DESHPANDE, J. Feeling aggrieved by recording of conviction and sentencing to suffer life imprisonment and to pay a fine of Rs. 2,000/-, and in default to undergo further rigorous imprisonment for a period of three months, by the learned Additional Sessions Judge, Nilanga, dated 9.12.2011, in Sessions Case No. 24 of 2009, the appellant approached to this court by tiling the present appeal. FACTS :- 2. Mahadu Balu Kumbhar, who was examined as Prosecution Witness No. 3 amongst others, was having a daughter by name Jyoti. Her marriage was performed on 2.2.2006. Her marital house was situated at village Murum. - Kernath, father of present, appellant-Santosh and Dattu (PW 5) are cousins of Mahadu (PW 3). There was competition amongst Kernath and PW 3 Mahadu to purchase the land of Dattu (PW 5). Ultimately, the land was purchased by Kernath for a consideration of Rs. One Lac. There were bickerings in the family of Mahadu and Kernath on the said point, as according to the family of Kernath, they were required to pay more in view of the competition. Mahadu (PW 3) was required to bring back his daughter Jyoti for her delivery. Accordingly, she was residing at village Badur at her parental house at the time of the incident. During her stay, Jyoti disclosed Mahadu her father that Santosh (appellant) is looking at her with evil intention. On the said complaint, PW 3 Mahadu convinced Jyoti that appellant Santosh will not behave like that since he is from their brotherhood (Bhawki). 3. In the morning of 6.8.2008 at 10.30, when Mahadu (PW 3) was returning from his field, near the agricultural field of one Ankush Jaishette, he saw Santosh running towards his field and that time he noticed that his clothes were stained with blood. He proceeded further and when he reached to the field of one Anand Kulkarni, he saw people there. To his misfortune, he found his daughter Jyoti lying in the pool of blood. He noticed injuries on her neck, breast and stomach. 4. Baburao Birajdar (PW 4) and Rajendra Gundre (PW 6) informed him that when Jyoti had been there to answer the nature's call, that time appellant Santosh gave knife blows and ran away. First Information Report was recorded at 12.10 p.m. by PW 3 Mahadu Kumbhar with police station Kasar Shirshi, District Latur. The printed first information report is at Exh.4. Baburao Birajdar (PW 4) and Rajendra Gundre (PW 6) informed him that when Jyoti had been there to answer the nature's call, that time appellant Santosh gave knife blows and ran away. First Information Report was recorded at 12.10 p.m. by PW 3 Mahadu Kumbhar with police station Kasar Shirshi, District Latur. The printed first information report is at Exh.4. 5. The investigation was taken up by P.S.I. Ravindra Koli (PW 10). He rushed to the spot. He prepared inquest panchanama. Same is at Exh.34. He then sent dead body of Jyoti to Primary Health Center, Balkunda for postmortem. In the presence of panch as, spot panchanama was drawn. It is at Exh.35. He seized pair of slipper, tin pot, simple earth and blood stained earth. On the same day, he also seized the clothes on the person of deceased, which were brought by Head Constable B.No. 408 under panchanama Exh.23. On the same day, the appellant was arrested vide arrest panchanama Exh.58 at 1800 hours. Under seizure panchanama Exh.21, the clothes of the appellant/accused were seized in between 1750 to 1800 hours. Apart from the clothes under seizure panchanama Exh.21, seven pages were also seized from the back pocket of his pant. On 7.8.2008, he recorded statements of other witnesses. On 8.8.2008 while in custody, the appellant gave his memorandum statement under Section 27 of the Evidence Act and in pursuance to the said statement, at the instance of the appellant, in presence of panchas, the weapon was recovered, which was concealed in the agricultural field of one Shivaji Kumbhar, which is adjacent to the agricultural field of the appellant. The memorandum statement and the recovery panchanama of the weapon are at Exh.48 and 49 respectively. The map of the spot was drawn, which is at Exh.60. On 21.8.2008, request was made to the Judicial Magistrate, First Class, Nilanga for recording the statement of Baburao Birajdar (PW 4) and Rajendra Gundre (PW 6). He sent the seized muddemal articles to the Chemical Analyser under the request letter Exh.62. Viscera of the deceased was also sent to the Chemical Analyser, Aurangabad under Exh.64. 6. After completion of the entire investigation, charge sheet was filed in the court of the Judicial Magistrate, First Class, Nilanga on 3.11.2008. 7. He sent the seized muddemal articles to the Chemical Analyser under the request letter Exh.62. Viscera of the deceased was also sent to the Chemical Analyser, Aurangabad under Exh.64. 6. After completion of the entire investigation, charge sheet was filed in the court of the Judicial Magistrate, First Class, Nilanga on 3.11.2008. 7. After the order of committal by the learned Magistrate, the case was registered as Sessions Case No. 24 of 2009 in the court of the Additional Sessions Judge, Nilanga. The learned Additional Sessions Judge, Nilanga on 26.11.2009 framed charge against the appellant for having committed the offence punishable under Section 302 of the Indian Penal Code. The appellant denied the charge and claimed that he be tried. 8. In order to bring home the guilt, the prosecution has examined in all ten witnesses. The statement of appellant under Section 313 of the Code of Criminal Procedure was recorded. According to the appellant, he was falsely implicated in the crime. 9. On 3.11.2011, he submitted his written statement, in which he took a plea that at the time of the incident he was of unsound mind. He also examined his father Kernath Kumbhar as defence witness. 10. The learned Additional Sessions Judge, Nilanga, after appreciating the case of the prosecution and on the evaluation of the entire case, found that the prosecution has proved its case in order to bring home the guilt of the appellant beyond reasonable doubt and convicted the appellant. 11. We have heard Shri Satej S. Jadhav, learned counsel representing the appellant and Shri P.N. Mule, learned Additional Public Prosecutor appearing for the respondent. With the assistance of both the learned counsel and the learned A.P.P., we have perused the entire record minutely. SUBMISSIONS :- 12. By the learned counsel for the appellant :- (i) The court below grossly erred in convicting the appellant, in as much as, the court below has failed to appreciate the evidence brought on record in its true perspective. (ii) Though PW 4 Baburao Birajdar and PW 6 Rajendra Gundre are cited as eye witnesses to the incident, in fact they are not the eye witnesses. (iii) In view of the omissions as found in their police statement recorded under Section 161 of the Code of Criminal Procedure, their version before the court has to be rejected in to to. (iii) In view of the omissions as found in their police statement recorded under Section 161 of the Code of Criminal Procedure, their version before the court has to be rejected in to to. (iv) The recovery of weapon at the instance of the appellant is highly doubtful. (v) The blood stains found on the clothes of the appellant are of "O" group and the same is the blood group of appellant alone. Thus, in the totality of the circumstances, the learned counsel with vehemence submitted that this is a fit case to extend the benefit of doubt in favour of the appellant. Per contra by the learned Additional Public Prosecutor :- (i) There are two eye witnesses in the present case. (ii) In so far as main attack on Jyoti is concerned, the eye witnesses are not at variance with their previous statement recorded before the learned Magistrate. (iii) PW 7 Laxman Mane, who is the independent panch witness, has duly proved the memorandum statement and recovery panchanama. (iv) The Chemical Analyser's reports are in the nature of corroborative piece of evidence and merely because blood of "O" group is found on the clothes of the appellant, the prosecution case cannot render as false. 13. We have bestowed our thoughtful consideration and examined the record in the light of above rival submissions. POINTS FOR DETERMINATION:- 14. (i) Whether the death of Jyoti was homicidal? (ii) Whether the prosecution has proved its case against the appellant beyond reasonable doubt to sustain the order of conviction as given by the trial court ? EVALUATION OF PROSECUTION CASE :- 15. Exh. 34 is the inquest panchanama drawn in presence of panch as by the investigating officer on 6.8.2008 during 1230 to 1300 hours. The said inquest panchanama shows existence of injuries on the various parts of dead body of Jyoti. Dr. Sunil Birajdar (PW 9) has performed postmortem on dead body of Jyoti. He has proved the postmortem report. Same is at Exh.54. The provisional death certificate is at Exh.55. From the witness box, Dr. Sunil (PW 9) deposed before the court that while performing the postmortem, he noticed following injuries :- (i) Stab wound below the base of left mandible, neck, 3 x 2 cm on skin surface, track is about 3½ cm piercing sternoclidomastoid muscle. Same is at Exh.54. The provisional death certificate is at Exh.55. From the witness box, Dr. Sunil (PW 9) deposed before the court that while performing the postmortem, he noticed following injuries :- (i) Stab wound below the base of left mandible, neck, 3 x 2 cm on skin surface, track is about 3½ cm piercing sternoclidomastoid muscle. (ii) Stab wound over left thorax 4 cm below left nipple, 3 cm lateral to the body of sternum (midline). Entry wound punctured incised wound elliptical in shape 3 x 1 cm on skin surface it is horizontal. There is abrasion or bruising all wound margin track is 5 cm deep evenly cut directed from right to left, front to back and angulated slightly downwards the track perforated the chest wall through 6th intecostal space perforating left lung the pericardial sac and perforates the heart. Perforating the ventricular wall (left ventricle). The entire wound track is infiltrated with blood and around 1,000 ml of liquid, clotted blood found in left chest cavity. No exit wound. (iii) C L W size 2 x 1 X 1½ cm medial to injury no. 2. (iv) C L W size 3 x 1 x 1½ cm laterally and just above injury no.2 (v) -Stab wound in epigastric region 9 cm above umbilicus 2.5 x 1 cm over skin surface, track is 4 cm deep, evenly cut directed from slight left to right track perforated the abdominal wall, penetrates liver. The entire wound track is infiltrated with blood and blood clotting around 800 to 1,000 ml found in peritonial cavity. (vi) Stab wound over epigastric region above 7 cm to unbilicus, 3 x 2 cm on skin surface, track is 5 cm deep evenly lateral directed from front to back, the track perforates the abdominal wall and penetrates the stomach. (vii) C L W size 2 x 1 x 1½ cm in epigastric region just lateral to injury no. 6. (viii) C L W size 2 x 1 x 1 cm just parallel to the injury no. 7. (ix) C L W size 2 x 1 x 1½ cm in left hyponchondrine region in midaxillary line. (x) C L W size 2 x 1 x 1 cm in left hypochondriac region just medially to the injury no. 9. (xi) C L W size 2 x 1 X ½ cm. Parallel to injury no. 10. 7. (ix) C L W size 2 x 1 x 1½ cm in left hyponchondrine region in midaxillary line. (x) C L W size 2 x 1 x 1 cm in left hypochondriac region just medially to the injury no. 9. (xi) C L W size 2 x 1 X ½ cm. Parallel to injury no. 10. Injury over right upper limb. (xii) C L W size 3 x 2 x 1 cm on right forearm dorsally. (xiii) C L W size 2 x 1½ cm ventral side of the forearm. (xiv) C L W size 3 x 1 x 1 cm medially to the injury no. 13. (xv) C L W on right cubital fora size 1 x ½ x ½ cm. (xvi) C L W size 3 x 2 x 1 cm on arm right side ventrally. (xvii) Abrasion over left shoulder size 2 x 1 cm. (xviii) C L W at left axilla anteriorly size 1 x 1 x ½ cm. (xix) C L W at left axilla radially size 1 x 1 x ½ cm. (xx) C L W at left arm dorsally, size 2 x 1 X ½ cm. (xxi) C L W at left elbow joint, size 1 x 1 x ½ cm. (xxii) Abrasion on the left arm ventrally size 2 x 1 cm. (xxiii) Stab wound over left scapular region. (xxiv) C L W on left knee joint, size 1 x ½ x ½ cm. According to him, injury nos. (i), (ii), (v) and (vi), which are stab wounds, are grievous in nature. According to him, all the injuries mentioned in the postmortem are antemortem. All the injuries in the opinion of PW 9 Dr. Sunil are caused by sharp object. The muddemal article no. 11, a large knife, was shown to him and according to him, the injuries mentioned in the postmortem are possible by the said weapon. According to postmortem report (Exh. 54), the following is the cause of death. Death is due to haemorrhagic shock due to rupture of heart and liver due to stab injuries over chest and abdomen. The evidence of PW 9 Dr. Sunil Birajdar has virtually gone unchallenged. In that view of the matter, the death of Jyoti is homicidal one. 16. In the present case, according to the prosecution, PW 4 Baburao Birajdar and PW6 Rajendra Gundre are the eye witnesses. The evidence of PW 9 Dr. Sunil Birajdar has virtually gone unchallenged. In that view of the matter, the death of Jyoti is homicidal one. 16. In the present case, according to the prosecution, PW 4 Baburao Birajdar and PW6 Rajendra Gundre are the eye witnesses. Their status as eye witnesses is seriously challenged by the learned counsel for the appellant. In order to buttress his submission, the learned counsel for the appellant submitted that, the claim of these witnesses to have witnessed inflicting of knife blows on Jyoti from the witness box, is an improvement, in as much as, according to him, this vital aspect is proved omission in their previous police statement recorded under Section 161 of the Code of Criminal Procedure, and therefore, according to the learned counsel, their version cannot be accepted as a version of eye witnesses. 17. Though there is some grain of force in the submission of the learned counsel, however, merely because the statement about inflicting of knife blows on Jyoti by the appellant was absent in the previous police statement recorded under Section 161 of the Code of Criminal Procedure, these two witnesses do not lose their character as eye witness in view of their statements recorded under Section 164 of the Code of Criminal Procedure before the learned Magistrate, which are at Exhs. 36 and 95, respectively. Learned counsel submitted that though in their statements Exhs. 36 and 95, there is no improvement in their version from the witness box, still they cannot be the eye witnesses, because their statements before the learned Magistrate recorded under Section 164 of the Code of Criminal Procedure are later in point of time. We find ourselves in disagreement with the submissions of the learned counsel for the appellant that PW 4 Baburao Birajdar and PW 6 Rajendra Gundre are not the eye witnesses to the incident. Statement recorded under Section 164 of the Code of Criminal Procedure was confronted to these two witnesses, however, during their cross-examination nothing could be brought on record to discredit their version about the actual incident witnessed by them. Further, from cross-examination of PW 4 Baburao Birajdar, it is clear that the father of the appellant was in his panel in Grampanchayat election held in the year 2000. Therefore, it is clear that there cannot be any animosity with him. 18. Further, from cross-examination of PW 4 Baburao Birajdar, it is clear that the father of the appellant was in his panel in Grampanchayat election held in the year 2000. Therefore, it is clear that there cannot be any animosity with him. 18. The Court below has found that the version of these two witnesses can safely be relied upon. Learned court below has rightly observed in the judgment that these witnesses have boldly declined to accept their statement recorded by the police on the aspect of giving the blows, and therefore, the court has rightly found that there may be the mistake on the part of the police while recording their statements. 19. In the light of over all evidence of these two eye witnesses, there is no slightest doubt in our mind that these two persons are the witnesses, who have actually witnessed the incident of inflicting of knife blows by the appellant on deceased Jyoti. 20. The recovery of sura (big knife) at the instance of the appellant is duly proved by the prosecution. PW 7 Laxman Mane was examined by the prosecution in order to prove memorandum statement Exh.48 and recovery panchanama Exh.49. This witness was not declared hostile. The learned trial court has rightly observed in its judgment that though the recovery of the weapon is not proved strictly through this witness, the case of the prosecution cannot be thrown in the dust bin, coupled with the fact that the investigating officer has proved this recovery by stating all the facts correctly and in absence of any inimical terms with the accused, the investigating officer's evidence, merely because he is police, does not lose its weightage. 21. The clothes of deceased and appellant were seized and sent to the Chemical Analyser. The blood of deceased was not determined, however, the blood appearing on the clothes of the deceased is of 'A' group; whereas the blood appearing on the clothes of the appellant is of 'O' group. The weapon was having blood of 'A' group. Merely because the blood appearing on the clothes of the deceased and the blood appearing on the clothes of the appellant are of different group, the case of prosecution does not render as false one. This piece of evidence is corroborative in nature. Primarily the case of the prosecution rests on the ocular version. Merely because the blood appearing on the clothes of the deceased and the blood appearing on the clothes of the appellant are of different group, the case of prosecution does not render as false one. This piece of evidence is corroborative in nature. Primarily the case of the prosecution rests on the ocular version. Further, there is no explanation on the part of the appellant as to how blood of 'O' group is appearing on his clothes. Further, the incident has occurred at 10.30 in the morning and the appellant is apprehended at 6 O’ clock in the evening. Though we are not suggesting anything, sufficient time was available for the appellant for maneuvering. 22. One important aspect of this case is the immediate filing of the first information report. From perusal of Exh. 4, the printed first information report, it is clear that the police station is 5 kms. away from village Badur. The incident occurred in between 10.15 to 10.30 in the morning and the first information report is lodged at 12.10 in the noon. PW 3 Mahadu, the father of the deceased, has stated from the witness box as follows :- I had gone to my field. While returning from the field, near the land of Ankush Jaishette, accused Santosh met me there. Clothes on his person were blood stained and he was running towards his field. Then I proceeded further, and near the land of Anand Kulkarni on Aundha Road saw people there. I removed fodder bundle from my head. I saw there my daughter Jyoti lying in the pool of blood. Babu Ganpati Birajdar, Rajendra Gundre who were present at the spot, informed that Jyoti had come to answer nature's call near the field of Anand Kulkarni and at that time, Santosh came there from behind, inflicted blows on her person and went away. In the lengthy cross-examination of the father of the deceased, there is nothing to discredit and to impeach the testimony of Mahadu. Further, Exh.30, the immediate first information report lodged by PW 3 Mahadu corroborates the afore said version. Lodging of immediate first information report rules out the fabrication on the part of the prosecution. In the lengthy cross-examination of the father of the deceased, there is nothing to discredit and to impeach the testimony of Mahadu. Further, Exh.30, the immediate first information report lodged by PW 3 Mahadu corroborates the afore said version. Lodging of immediate first information report rules out the fabrication on the part of the prosecution. Further, as noticed by PW 3 Mahadu that the appellant was running having blood stains on his clothes from the spot of the incident and non-explanation as to how that time there was blood on his clothes, is also one of the strong circumstance against the appellant. 23. The claim of the prosecution that ultimately the land of Dattu was purchased by Kernath, the father of the appellant, is an admitted position on record. Thus a motive is suggested by the prosecution in its case. The learned counsel for the appellant submitted various reported cases before this court to show that through the learned trial court has used the wording in this seven chits seized from the person of the appellant, the contents thereof are not proved and handwriting was not examined. In the light of availability of ocular evidence in the prosecution case, the motive loses its importance. In that view of the matter, we do not advert to the reported decisions submitted by the learned counsel in the present judgment. 24. Though, in the written statement recorded under Section 313 of the Code of Criminal Procedure, the appellant has taken a plea of his own unsound mind, it appears that the said plea was taken just for his defence sake. Kernath, father of the appellant was examined as defence witness. The learned counsel for the appellant submitted that from his evidence it is clear that at the relevant time Kernath was at Veerbhadra Tea House and the females who had gone for answering nature's call and for throwing dust told to the persons at Veerbhadra Tea House that Jyoti had been killed by pig by bite. The injuries found on the person of deceased clearly shows that those cannot be the injuries of pig bite. 25. According to Kernath, one Ibrahim Mulla saw a sura lying at a distance of 50 feet from the spot. The injuries found on the person of deceased clearly shows that those cannot be the injuries of pig bite. 25. According to Kernath, one Ibrahim Mulla saw a sura lying at a distance of 50 feet from the spot. The learned counsel for the appellant, therefore, submitted that on this count also the so-called recovery of the weapon at the behest of the appellant has no value in the eye of law. The submission needs to be rejected, because Ibrahim Mulla ought to have been examined by the defence to prove the fact of sura lying on the spot. We cannot give much importance to the testimony of Kernath in absence of his cross-examination. His examination-in-chief was recorded on 23.11.2011. On the said date, an application was filed by the learned A.P.P. Shri G.B. Patil, however, the learned trial court appears to have rejected the said application and closed the case. The learned trial court ought not to have rejected the application for adjournment at once and ought to have given an opportunity to the prosecution to cross-examine this witness. 26. The examination-in-chief of Kernath also gives account of number of lunatics in his family. Perusal of the record of the case shows that during pendency of the trial, the appellant was sent to the Regional Mental Hospital, Yerwada, Pune. There is a communication available on record at Exh. 16 from the Superintendent of the said Hospital that the appellant was produced before the Committee on 20.3.2010 and the said Committee has declared him, fit for discharge and trial. 27. There is nothing produced on record during trial by the appellant to show that he committed crime when he was under mental unsound condition, as suggested by him in his statement recorded under Section 313 of the Code of Criminal Procedure. Apart from that, before this court, the learned counsel for the appellant did not press that point, nor any ground to that effect was taken in the memo of appeal. 28. Thus, on the evaluation of the entire prosecution case, in the light of the evidence on record, it is clear that the prosecution case is fully supported by the ocular evidence of PW 4 Sabu Sirajdar and PW 6 Rajendra Gundre. Their evidence is credit worthy, which inspires confidence. These two persons are independent witnesses. There was no reason for these two witnesses to falsely implicate the appellant. Their evidence is credit worthy, which inspires confidence. These two persons are independent witnesses. There was no reason for these two witnesses to falsely implicate the appellant. 29. The aforesaid discussion leads us to record a finding that the learned Additional Sessions Judge, Nilanga has rightly found that the prosecution has proved its case against the appellant beyond reasonable doubt and has rightly convicted him for the offence punishable under Section 302 of the Indian Penal Code and the sentence awarded by the learned trial court in favour of the appellant is just and proper. We concur with the said judgment and order of conviction and sentence recorded against the appellant by the learned trial court. 30. Consequently, the appeal is dismissed, confirming the judgment and order, dated 9.12.2011, passed by the learned Additional Sessions Judge, Nilan in Sessions Case No. 24 of 2009. Appeal dismissed.