ORAL JUDGMENT (PER SMT. V.K. TAHILRAMANI, J.) Criminal Appeal 606 of 2012 has been preferred by Javed Shaikh, who is original accused No.2 and Criminal Appeal 1321 of 2012 has been preferred by Shabir Shaikh, original accused No.1. Both these Appeals are preferred against the judgment and order dated 21st February 2012 passed by the Learned Additional Sessions Judge, Pune in Sessions Case No.260 of 2008. By the said judgment and order the Learned Sessions Judge convicted both the Appellants under Section 302 read with 34 of the Indian Penal Code and sentenced them to rigorous imprisonment for life and fine of Rs.1,000/-, in default to suffer further rigorous imprisonment for one month each. For the sake of convenience both the Appellants will be referred to as they were referred before the Trial Court i.e. Appellant Shabir Shaikh will be referred to as accused No.1 and Appellant Javed Shaikh will be referred to as accused No.2. 2. The prosecution case briefly stated is as under : (i) Deceased Sohail Shaikh, his brother P.W.4 Samir Shaikh and the accused were all residents of Pune. Deceased Sohail Shaikh was the younger brother of P.W.4 – Samir Shaikh. Sohail Shaikh was an under trial prisoner in murder case of Faiyyaz. In the said case deceased Sohail Shaikh came to be acquitted in the year 2007. The Appellants along with others committed the murder of Sohail to take revenge for the murder of Faiyyaz. The incident occurred at Gulmohar Society, Kondhwa, Kamela in Pune. The prosecution case is that on 18th December 2007 at about 1.30 a.m. original accused No.3 –Abdul Gani Khan, original accused No.4 – Khalil Shaikh, and Accused Nos.1 and 2 i.e. the present Appellants and juvenile accused Kaisar assaulted Sohail Shaikh. In the said incident, accused No.2 – Javed Shaikh was armed with scythe and he dealt blows with it on the person of Sohail Shaikh. Thereafter the scythe was taken by original accused No.1 – Shabir Shaikh and he assaulted Sohail with scythe. Thereafter the head of Sohail was cut off with scythe and both the Appellants left the spot. At that time accused No.2 - Javed was carrying the head in his hand and accused No.1 - Shabir was carrying the scythe in his hand. Thereafter the head of Sohail was cut off with scythe and both the Appellants left the spot. At that time accused No.2 - Javed was carrying the head in his hand and accused No.1 - Shabir was carrying the scythe in his hand. (ii) P.W.1 - PSI Raju Mukheri and P.W.11 - Police Constable Saste were on night patrolling duty within the limits of Wanawadi Police Station. While they were discharging their duty at about 1.55 a.m., they received wireless message from police control room about quarrel going on amongst some persons at Kondhwa Kamela in front of Gulmohar Society. Hence, the patrolling party went to the spot from Lullanagar, Fakri hill to Salunkhe Vihar road. When their vehicle reached in front of Kamela Hutment, they noticed two persons passing by. One was possessing scythe and the other had a cut off human head in his hand. They were accosted by P.W.1 - PSI Mukheri. Those two persons tried to run away, but they were apprehended by the police. Both the accused along with scythe and a cut off human head were taken into custody by the police. On enquiry it was found that the person holding the scythe in his hand was accused No.1 – Shabir Shaikh and the person holding the cut off human head was accused No.2 - Javed Shaikh. (iii) Enquiry was made with both the accused as to where the body of the cut off head was lying. Then both the accused pointed to spot situated in front of Gulmohar Apartment by the side of the rough road. Both the accused also informed the police party that the dead body was of Sohail Shaikh who had committed the murder of one Faiyyaz, along with others, but Sohail was acquitted from the charge in the year 2007. Hence, the accused were enraged and committed the murder of Sohail Shaikh with the help of other accused. (iv) P.W.1 - P.S.I. Mukheri then lodged First Information Report. Thereafter investigation commenced. The dead body of Sohail was sent for postmortem. The cause of death was due to decapitation with multiple chopped injuries. After completion of the investigation, charge-sheet came to be filed. 3. (iv) P.W.1 - P.S.I. Mukheri then lodged First Information Report. Thereafter investigation commenced. The dead body of Sohail was sent for postmortem. The cause of death was due to decapitation with multiple chopped injuries. After completion of the investigation, charge-sheet came to be filed. 3. Charge came to be framed against the Appellants and two other accused i.e. original accused Nos.3 and 4 under Section 143, 147, 148, 302 read with Section 149, alternatively 302 read with Section 34 of the Indian Penal Code and under Section 135 of the Bombay Police Act. As the fifth accused Kaisar Nadaf was found to be juvenile, his case was forwarded to the Juvenile Justice Court. All the accused who faced trial pleaded not guilty to the charge and claimed to be tried. Their defence is of total denial and false implication. After going through the evidence adduced in this case, the Learned Sessions Judge acquitted original accused Nos.3 and 4 of all the charges. However, he convicted and sentenced the Appellants i.e. original accused Nos.1 and 2 as stated in paragraph 1 above. Hence, these Appeals. 4. We have heard the learned advocate for the Appellants and the Learned APP for the State. We have carefully considered their submissions, the facts and circumstances of this case, the judgment and order passed by the Learned Sessions Judge and the evidence in this case. After carefully considering the matter, for the reasons stated herein below, we are of the opinion that there is no merit in these Appeals. 5. Though many persons witnessed the gruesome incident, the witnesses have not supported the prosecution. Thus, the conviction is mainly dependent on the evidence of P.W.1 – P.S.I. Mukheri and P.W.11 – Police Constable Saste. P.W.1 – P.S.I. Mukheri has stated that at the relevant time he was attached to Wanawadi Police Station as P.S.I. From 9 p.m. of 17th December 2007 till 9 a.m. of 18th November 2009, he was on patrolling duty on the mobile van. He was accompanied by P.W.11 – Police Constable Saste and others. When they were within the limits of Kondhwa Police Chowki, they received a wireless message about quarrel going on near Gulmohar Society, Kondhwa Kamela. Hence, they started proceeding in that direction. When they reached Kondhwa Kamela by Salunkhe Vihar Road, they noticed two persons. He was accompanied by P.W.11 – Police Constable Saste and others. When they were within the limits of Kondhwa Police Chowki, they received a wireless message about quarrel going on near Gulmohar Society, Kondhwa Kamela. Hence, they started proceeding in that direction. When they reached Kondhwa Kamela by Salunkhe Vihar Road, they noticed two persons. They were seen by the police party in the head light of the police mobile van. One of the persons was armed with scythe and the other person was holding cut off head of a human being. Therefore, the van was stopped. They all got down from the van. On seeing them, those two persons tried to run away. However, both the persons were apprehended. On enquiry these two persons disclosed their names. It was found that the person carrying the scythe was accused No.1 - Shabir and the person carrying the cut off head of a human being was accused No.2 – Javed Shaikh. Police made enquiry with them about the rest of the body. Thereupon both the accused informed that the body was lying near Gulmohar Housing Society. They also informed that deceased Sohail Shaikh had committed murder of their friend Faiyyaz and as Sohail was acquitted in the murder case, to take revenge for the murder of Faiyyaz, they had assaulted Sohail. On reaching near Gulmohar Society, they noticed a dead body of a person without head. Full trouser of blue colour and white banian in torn condition was seen on that body. The clothes and the body were stained with blood. A pool of blood was found on the ground. The scythe which was carried by accused No.1 was stained with blood. P.W.1 – P.S.I. Mukheri has further stated that the scythe was seized on the spot. Then P.S.I. Mukheri lodged First Information Report Exhibit 70. Thus, the evidence of P.W.1 – P.S.I. Mukheri shows that they received a message on wireless that a quarrel was going on near Gulmohar Society and on reaching at the spot, they saw accused No.1 – Shabir carrying a bloodstained scythe and accused No.2 – Javed carrying the cut off head of deceased Sohail in his hand. 6. The evidence of P.W.1 – P.S.I. Mukheri is fully corroborated by the evidence of P.W.11 – Police Constable Saste. Police Constable Saste was also on patrolling duty in the same van as P.S.I. Mukheri. 6. The evidence of P.W.1 – P.S.I. Mukheri is fully corroborated by the evidence of P.W.11 – Police Constable Saste. Police Constable Saste was also on patrolling duty in the same van as P.S.I. Mukheri. Police Constable Saste has also stated that at about 1.55 a.m., they received wireless message about quarrel going on at Kondhwa Kamela. Hence, they proceeded towards the spot which is near Gulmohar Society. At that time they noticed two persons passing by. One was armed with scythe and the other was holding a cut off human head in his hand. Then they got down from the van. Those persons tried to run away but, they were apprehended. On enquiry, it was found that the person carrying the scythe was accused No.1 - Shabir and the person carrying the cut off head of a human being was accused No.2 - Javed Shaikh. Both P.W.1 – P.S.I. Mukheri and P.W.11 – Police Constable Saste have identified the scythe, muddemal article No.1 before the Court as well as both the accused before the Court. Nothing has been elicited in the cross examination of both P.W.1 – P.S.I. Mukheri and P.W.11 – Police Constable Saste so as to shake their testimony that accused No.1 – Shabir was found carrying a bloodstained scythe and accused No.2 – Javed was carrying a cut off human head. 7. The prosecution case is that deceased Sohail was assaulted with scythe and thereafter his head was cut off is corroborated by the medical evidence. P.W.17 – Dr. Ganesh Pujari is the doctor who conducted postmortem on the dead body of Sohail Shaikh. On external examination Dr. Ganesh Pujari found the following injuries : “[1] Vertical incised wound, 5 cm above glabella, 2 x 0.5 cm, bone deep. Angles and margins clean cut. [2] Lacerated wound. 1 cm right lateral to external inj No.1 of 3 x 0.5 cm muscle deep. [3] Oblique incised wound 1 cm right lateral to external injury No.2, 3 x 1 cm. muscle deep. Angles and margins clean cut. [4] Lacerated wound above lateral end of left eyebrow, 1.5 x 0.5 cm bone deep. [5] Lacerated wound. 1 cm above medial 1/3rd of left eyebrow, 1.5 x 0.5 cm bone deep. [6] Vertical chopped wound, lateral end of left eyebrow, 3 x 2 cm underlying bone shows clean cut fracture. Angles and margins clean cut. [4] Lacerated wound above lateral end of left eyebrow, 1.5 x 0.5 cm bone deep. [5] Lacerated wound. 1 cm above medial 1/3rd of left eyebrow, 1.5 x 0.5 cm bone deep. [6] Vertical chopped wound, lateral end of left eyebrow, 3 x 2 cm underlying bone shows clean cut fracture. Angles and margins clean cut. [7] Oblique chopped wound, on left cheek 3 x 1 cm. Underlying zygomatic bone shows clean cut fracture. Angles and margins clean cut. [8] Vertical incised wound, 1 cm below left angle of mouth, 2 x 1 cm bone deep. Angles and margins clean cut. [9] Contusion middle third of upper lip, on inner aspect 1 x 0.5 cm. Reddish purple in colour. [10] Oblique incised wound, sub-medially in the middle 5 x 1 cm bone deep. Angles and margins clean cut. [11] Horizontal incised wound, 2 cm below middle third of inj. No.10, 1 x 0.5 cm muscle deep. Angles and margins clean cut. [12] Oblique incised wound, 2 cm below inj. No.11. - 2 x 0.25 cm muscle deep. Angles and margins clean cut. [13] Circumferential chopped wound at 3rd and 4th cervical vertebra. 12 x 10 cm underlying soft tissues and bones exposed. Head separated completely from rest of the body (Decapitation) [14] Oblique incised wound 1 cm below the right lobule of ear, 7 x 1 cm muscle deep. Angles and margins clean cut. [15] Oblique incised wound 0.5 cm below inj. No.14, - 8 x 2 cm muscle deep. Angles and margins clean cut. [16] Horizontal incised wound, starting from medial end of external inj. No.15 – 9 x 1 cm. muscle deep. Angles and margins clean cut. [17] Oblique chopped wound, lateral end of left clavicle – 3 x 2 cm underlying bone shows clean cut fracture. Angles and margins clean cut. [18] Circumferential chopped wound at the level of C-5, C-6 vertebra 14 x 12 cm muscle deep. Angles and margins clean cut. [19] Oblique incised wound, 1 cm below middle 1/3rd of inj. No.18 – 4 x 1 cm tailing left laterally for 1 cm muscle deep. Angles and margins clean cut. [20] Oblique incised wound starting from lateral end of injury No.19 – 4 x 0.5 cm muscle deep. Angles and margins clean cut. [21] Horizontal chopped wound at sternal angle – 10 x 3 cm underlying manubrium sterni shows clean cut fracture. Angles and margins clean cut. [20] Oblique incised wound starting from lateral end of injury No.19 – 4 x 0.5 cm muscle deep. Angles and margins clean cut. [21] Horizontal chopped wound at sternal angle – 10 x 3 cm underlying manubrium sterni shows clean cut fracture. Angles and margins clean cut. [22] Abrasion on posterior aspect of right shoulder. - 5 x 3 cm. [23] Multiple contusions all over back, size varying from 2 x 1 cm. to 15 x 9 cm. [24] Multiple linear incised wounds over left scapular region. size varying from 2 cm to 3.5 cm long muscle deep, distributed in an area of 8 x 4.5 cm. Angles and margins clean cut. [25] Abrasion on lateral aspect of middle 1/3 of left arm – 4 x 2 cm. [26] Multiple small abrasions dorsum of left hand in an area of 5 x 3 cm. [27] Abrasion at the base of right thumb. - 0.5 cm. in diameter.” On internal examination Dr. Pujari found the following injuries : “[1] Corresponding to ext. inj. No.13 - all soft tissues including carotids, jugulars and its branches show cleancut injuries. [2] Clean cut injury to esophagus and trachea. [3] Clean cut injuries 3rd and 4th cervical vertebra, involving partial thickness.” The evidence of Dr. Pujari shows that all the injuries were ante mortem and recent. In the opinion of Dr. Pujari death was caused due to decapitation associated with chopped injuries. Dr. Pujari further opined that scythe Article No.1 can cause all the chopped wounds as well as decapitation. Thus, the medical evidence supports the case of the prosecution. 8. From the circumstances in which the dead body was found and from the nature of injuries it becomes clear that the death was homicidal in nature. That the dead body was of Sohail Shaikh is established from the evidence of P.W.4 – Samir Shaikh who was the brother of the deceased. Samir has identified the dead body as that of his brother Sohail. Thus the identity of the body is also established. 9. In addition to the evidence of P.W.1 – P.S.I. Mukheri and P.W.11 – Police Constable Saste, the prosecution has relied on the fact that on 18th December 2007 when the Appellants were apprehended by the police, the clothes on their person were found bloodstained. Thus the identity of the body is also established. 9. In addition to the evidence of P.W.1 – P.S.I. Mukheri and P.W.11 – Police Constable Saste, the prosecution has relied on the fact that on 18th December 2007 when the Appellants were apprehended by the police, the clothes on their person were found bloodstained. P.W.2 – Aslam Shaikh is the panch witness who was examined on this point and the Panchanama is at Exhibit 71. However, the learned advocate for the Appellants submitted that this piece of evidence cannot be taken into consideration because the panch who was examined on this aspect i.e. P.W.2 - Aslam Shaikh has turned hostile and has not supported the prosecution. The learned APP has stated that, P.W.11 – Police Constable Saste has disposed about the finding of bloodstained clothes on the person of both the Appellants and seizure of the same, she contended that even if the panch witness has turned hostile, the evidence of P.W.11 - Police Constable Saste can be relied upon on this aspect. In this connection we would like to make useful reference to the decision of the Supreme Court in the case of Mohd. Aslam v. State of Maharashtra (2001) 9 SCC 362 , wherein it was contended that as the panch witness has turned hostile, the evidence of the police officer was unsupported and hence, it cannot be relied upon. The Supreme Court observed that “we cannot agree with the said contention. If Panch witnesses turned hostile, which happens very often in criminal cases, the evidence of the person who effected the recovery would not stand vitiated. Nor do we agree with the contention that his testimony is unsupported or uncorroborated. The very fact that P.W.34 produced in the Court lethal weapons recovered is a very formidable circumstance to support his evidence”. It has been held in the case of Mohd. Aslam that the evidence of the police officer deposing about recovery would not stand vitiated by the reason of the panch witness turning hostile. 10. In the case of Modan Singh v. State of Rajasthan reported in AIR 1978 SC 1511 the Supreme Court observed that if the evidence of the Investigating Officer who recovered the material objects is convincing, the evidence as to recovery need not be rejected on the ground that the seizure witnesses did not support the prosecution version. 10. In the case of Modan Singh v. State of Rajasthan reported in AIR 1978 SC 1511 the Supreme Court observed that if the evidence of the Investigating Officer who recovered the material objects is convincing, the evidence as to recovery need not be rejected on the ground that the seizure witnesses did not support the prosecution version. In the present case all the articles were produced before the Trial Court. We find that the evidence of P.W.11 – Police Constable Saste is cogent and trustworthy and hence we have no hesitation in relying on the same. 11. The bloodstained clothes which were on the person of the accused and the clothes of the deceased which were all bloodstained were sent to the Chemical Analyzer. As per the Chemical Analyzer's report Exhibit 117, it shows that the clothes of both the accused were stained with human blood, so also the clothes of the deceased were stained with human blood. In this connection, we may usefully refer to the decision of the Supreme Court in the case Gura Singh Vs. State of Rajasthan, (2001) 2 SCC 205 wherein it has been observed as under : "In view of the authoritative pronouncement of this Court in Teja Ram Case (1999) 3 SCC 507 ) we do not find any substance in the submissions of the learned Counsel for the appellant that in the absence of the report regarding the 'origin of the blood, the trial Court could not have convicted the accused. The Serologist & Chemical Examiner has found that the chadar seized in consequence of the disclosure statement made by the appellant was stained with human blood. As with lapse of time the classification of the blood could not be determined, no bonus is conferred upon the accused to claim any benefit on the strength of such a belated and stale argument. The trial Court as well as the High Court were, therefore, justified in holding the circumstance as proved beyond doubt against the appellant.” It is further pertinent to note that in the present case both the Appellants have not furnished any explanation for the presence of bloodstains on their clothes. 12. The learned APP submitted that there is one more circumstance against accused No.1 - Shabir. She has stated that when accused No.1 - Shabir was apprehended, he was carrying a bloodstained scythe in his hand. 12. The learned APP submitted that there is one more circumstance against accused No.1 - Shabir. She has stated that when accused No.1 - Shabir was apprehended, he was carrying a bloodstained scythe in his hand. The scythe was seized under Panchanama Exhibit 69 and panch witness who was examined on this aspect is P.W.16 Santosh Gajre. Though this panch witness has turned hostile, however, we find that the evidence of P.W.1 – P.S.I. Mukheri is clear and consistent on the point that bloodstained scythe was found with accused No.1 - Shabir and the same was seized under Panchanama Exhibit 69. In view of the decision in the case of Mohd. Aslam (supra) and Modan Singh (supra), we can safely rely on the evidence of P.W.1 – P.S.I. Mukheri whose evidence we find to be trustworthy and reliable on the aspect of seizure of bloodstained scythe at the instance of accused No.1 – Shabir. This scythe was sent to C.A. and as per the C.A. report it was stained with human blood. This fact in view of the decision of the Supreme Court in Gura Singh is an incriminating circumstance which points out to the involvement of accused No.1 – Shabir in the crime. 13. On carefully going through the record, we find that there is sufficient evidence which connects both the Appellants with the murder of Sohail Shaikh. Thus, we find no merit in both the Appeals. The Appeals are dismissed. 14. At this stage, we must record our appreciation for Advocate Ms. Rohini Dandekar, who is on the High Court Legal Services Committee and who was appointed to represent the Appellants in these Appeals. We found that she had meticulously prepared the matter and she has very ably argued the Appeals. We quantify total legal fees to be paid to her in each of these Appeals by the High Court Legal Services Committee at Rs.5000.