JUDGMENT : V.M. Deshpande, J. 1. By the present appeal, the appellants are challenging their conviction and sentence awarded to them by learned Sessions Judge, Nagpur, vide Judgment dated 27th April, 2012 passed in Sessions Trail No. 479 of 2010, for the offence punishable under Section 302, Indian Penal Code, and directing that they shall suffer Imprisonment for Life and to pay a fine of Rs. 1,000/- each, and, in default, to suffer Rigorous Imprisonment for six months. The prosecution story, in brief, as could be gathered from the material placed on record, is as under:-- Sachin Bhaurao Deshbhartar [PW. 1] lodged his Written Report with Police Station, Nandanwan, Nagpur, on 22nd August, 2010. Since the said complaint was disclosing a cognizable offence against the present appellants, offences punishable under Section 302read with Section 34, Indian Penal Code, Sections 4 and 5 of the Arms Act and Section 135of the Bombay Police Act, were registered vide Crime No. 184/10. The First Information report discloses the sequence for commission of the offence as under:- [a] Deceased Pappu Deshbhartar is the brother of first informant. [b] Deceased was in jail for eighteen months for robbery and house breaking. [c] On 16th August, 2010, deceased Pappu was released from jail. [d] Deceased left his house on 22nd August, 2010 at 10.00 O'clock. At 11.30, one boy informed the first informant that at Jai Bhim Chowk, Akram and his brother Anwar [appellants] are assaulting Pappu by sword. Therefore, the first informant immediately rushed to Jai Bhim Square, just to notice that his brother, Pappu, was lying in a pool of blood in front of Vicky Mobile and he was already dead, and even police were also there. [e] The cause for assault, according to the First Information Report, is that on 21st August, 2010, Anwar came to the house and extended threats because of the act of deceased of assaulting one Surendra, the friend of Anwar. 2. The Investigating Officer conducted investigation and submitted the charge-sheet in the Court of Judicial Magistrate. Since the offence was exclusively triable by a Court of Sessions, the case was committed to the Sessions Court and it was registered as Sessions Trial No. 479 of 2010. 3. The learned Sessions Judge on 3rd January, 2011 was pleased to frame the charge against the appellants for committing the murder of deceased Pappu Bhaurao Deshbhartar. Since the offence was exclusively triable by a Court of Sessions, the case was committed to the Sessions Court and it was registered as Sessions Trial No. 479 of 2010. 3. The learned Sessions Judge on 3rd January, 2011 was pleased to frame the charge against the appellants for committing the murder of deceased Pappu Bhaurao Deshbhartar. Both the appellants denied the charge and claimed for their trial. 4. In order to bring home the guilt of the appellants, the prosecuting agency has examined in all twelve witnesses and also relied upon various documents. The learned Sessions Judge, after a full dress trial, has convicted both of them as observed in the opening paragraph of this Judgment. It is against this judgment and order of conviction, the present appeal is filed. 5. We have heard the learned Additional Public Prosecutor for State. This Court on 24th August, 2012 was pleased to dismiss the application filed by the appellants for suspension of substantive jail sentence and for grant of bail. However, while rejecting the application, this Court granted permission to the appellants to file the private paper-book. In pursuance of order dated 24th August, 2012, private paper-book is already filed on record. 6. On 29th September, 2014, the present appeal was taken up for its final hearing. However, on that date, learned counsel for the appellants was not present. Therefore, the matter was adjourned to 30th September, 2014 with a direction that the same would be treated as part heard. Even today, namely 30th September, 2014, when the matter was called out, none appeared for the appellants. In view of the Judgment of the Hon'ble Supreme Court in the case of K.S. Panduranga v. State of Karnataka [2013 ALLMR (Cri) 1485 (S.C.)], this Court proceeded further with the hearing of the appeal in absence of the learned counsel for the appellants. 7. The learned Addl. Public Prosecutor, Mr. N.S. Khubalkar, took us in detail through the record and proceedings. We also for ourselves have minutely scanned and examined the record and proceedings and entire evidence, in order re-appreciate the prosecution case afresh. 8. Dr. Uday Chaudhari [PW 7] is the doctor who has conducted autopsy on the dead body. Following are the injuries which were found by the said doctor:-- "1. Incised wound over forehead, in midline vertical of size 3.5 cm x 0.2 cm x skin deep. 2. 8. Dr. Uday Chaudhari [PW 7] is the doctor who has conducted autopsy on the dead body. Following are the injuries which were found by the said doctor:-- "1. Incised wound over forehead, in midline vertical of size 3.5 cm x 0.2 cm x skin deep. 2. Incised wound over right lower lip and adjacent area, lateral one third, external surface, oblique of size 1.5 cm x 0.5 cm x through and through over lip and bone deep in adjacent area. 3. Incise wound over right mandibular region 2 cm below right angle of mouth, oblique, 2.5 cm x 0.2 cm x subcutaneous deep. 4. Chop wound over right on anterolateral neck, upper one third, oblique of size 12 cm x 3 cm x right carotid and jugular vessel deep. 5. Chop wound over right lateral neck, upper one third, just posterior to injury No. 4, oblique of size 5 cm x 1.5 cm x muscle deep. 6. Chop wound over left anterior neck, upper one third and over left mandibular area, oblique of size 9.5 cm x 2.5 cm x mandible deep on lateral part and laryngeal cavity deep in medial part. Underlying mandible shows clean and complete cut fracture. 7. Chop wound over left lateral neck, upper one third, oblique, just posterior to injury No. 6, 5 cm x 1 cm x muscle deep. 8. Incised wound over anterior neck, middle one third, horizontal, 7 cm x 0.2 cm x skin deep. 9. Incised wound over anterior neck, lower one third, oblique, 8 cm x 0.2 cm x skin deep. 10. Incised wound over anterior neck, lower one third, oblique, of size 9.5 cm x 0.2 cm x skin deep. This incised wound crosses at right angle to injury No. 9. 11. Chop wound over left occipital region, oblique of size 8 cm x 1.5 cm x bone deep. 12. Incised wound present over left posterolateral neck, upper one third oblique of size 3 cm x 0.5 cm x muscle deep. 13. Incised wound over left lateral neck, middle one third, oblique, of size 6 cm x 0.2 cm x skin deep. 14. Incised wound over right shoulder, anterior aspect, oblique, of size 3 cm x 0.2 x skin deep. 15. Incised wound over right arm, upper one third, anterior lateral aspect, oblique of size 2 cm x 0.2 cm x skin deep. 16. 14. Incised wound over right shoulder, anterior aspect, oblique, of size 3 cm x 0.2 x skin deep. 15. Incised wound over right arm, upper one third, anterior lateral aspect, oblique of size 2 cm x 0.2 cm x skin deep. 16. Incised wound over right arm, lower one third, posterior aspect, oblique of size 3 cm x 0.2 cm x skin deep. 17. Chop wound over right elbow, oblique of size 5 cm x 2 cm x bone deep with underlying bone shows partial cut fracture. 18. Incised wound present over right forearm, upper one third, posteromedial aspect, oblique of size 3 cm x 0.5 cm x skin deep. 19. Incised wound over right forearm, upper one third, posterolateral aspect of size 2 cm x 0.2 cm x skin deep. 20. Incised wound over right forearm, middle one third, extensor aspect, oblique of size 5 cm x 0.2 cm x skin deep. 21. Incised wound present over right hand, dorsal aspect, oblique of size 4 cm x 0.2 cm x skin deep. 22. Incised wound over right hand, dorsal aspect 2 cm below injury No. 21, oblique of size 4 cm x 0.5 cm x bone deep. Underlying bone shows partial cut fracture. 23. Incised wound over left arm, anterior aspect, middle one third, oblique of size 4 cm x 0.2 cm x skin deep. 24. Incised wound left forearm, middle one third, flexor aspect, vertical, 4 cm x 1 cm x skin deep. 25. Incised wound over left forearm, middle one third, flexor aspect, horizontal of size 3 cm x 1 cm x skin deep. 26. Incised wound over left forearm, lower one third, flexor aspect of size 4 cm x 1 cm x skin deep. 27. Incised wound over left wrist joint, flexor aspect, horizontal of size 3 cm x 1 cm x bone deep. Underlying ulna shows partial cut fracture. 28. Contused abrasion over left shoulder, posterior aspect of size 2 cm x 2 cm, reddish. 29. Incised wound over left shoulder, posterior aspect, oblique of size 3 cm x 0.2 cm x skin deep. 30. Incised wound over left arm, upper one third, posterior aspect, oblique of size 4 cm x 0.2 cm x skin deep. 31. Incised wound over left arm, lower one third, posterior aspect, oblique of size 5 cm x 0.2 cm x skin deep. 32. 30. Incised wound over left arm, upper one third, posterior aspect, oblique of size 4 cm x 0.2 cm x skin deep. 31. Incised wound over left arm, lower one third, posterior aspect, oblique of size 5 cm x 0.2 cm x skin deep. 32. Chop wound over left forearm, upper one third, extensor aspect, oblique of size 4 cm x 2 cm x muscle deep. 33. Incised wound over left forearm, middle one third extensor aspect, oblique of size 3 cm x 0.2 cm x skin deep. 34. Incised wound over left forearm, lower one third, extensor aspect, oblique of size 3 cm x 0.2 cm x skin deep. 35. Incised wound over anterior chest, left side, supra-clavicular region, extending obliquely downwards and lateral to infra clavicular region of size 7 cm x 0.5 cm x skin deep. 36. Linear contusion over abdomen left hypochondriac region extending obliquely downwards to epigastric and right hypochondriac region of size 13 cm x 0.2 cm, reddish. 37. Incised wound over back, left side, upper one third, oblique of size 3 cm x 0.5 cm x muscle deep. 38. Incised wound over back, left side, middle one third, oblique of size 12 cm x 0.2 cm x skin deep. 39. Incised wound over back right side, scapular region, oblique of size 5 cm x 0.2 cm x skin deep. 40. Incised wound over back, right side, middle one third, horizontal of size 7 cm x 0.2 cm x skin deep. 41. Incised wound over root of right palm, ulnar side, oblique of size 3 cm x 1 cm x muscle deep. 42. Incised wound over right palm, thenar eminence, oblique of size 3 cm x 1 cm x muscle deep. 43. Incised wound over right palm 3 cm medial to injury No. 42, oblique, 3 cm x 1 cm x muscle deep. 44. Incised wound over right palm at the root of index and middle finger, oblique, 2 cm x 1 cm x muscle deep. 45. Incised wound over root of right ring finger, palmar surface, transverse, 2 cm x 1 cm x muscle deep. 46. Incised wound over left palm, hypothenar eminence, oblique, 5 cm x 1 cm x muscle deep. 47. Incised wound over left palm, 2 cm distal to injury No. 46, 5 cm x 2 cm x muscle deep. 48. 45. Incised wound over root of right ring finger, palmar surface, transverse, 2 cm x 1 cm x muscle deep. 46. Incised wound over left palm, hypothenar eminence, oblique, 5 cm x 1 cm x muscle deep. 47. Incised wound over left palm, 2 cm distal to injury No. 46, 5 cm x 2 cm x muscle deep. 48. Incised wound over root of left thumb, palmar aspect, oblique, 2 cm x 1 cm x bone deep. 49. Incised wound over left index finger, palmar aspect, oblique 2 cm x 1 cm x bone deep. 50. Incised wound over left middle finger, palmar aspect, oblique, 2 cm x 1 cm x bone deep. 51. Incised wound over left middle finger, palmer aspect distal to injury No. 50, oblique, 2 cm x 1 cm x bone deep." According to the doctor, Injury Nos. 4 and 6, as mentioned in Column No. 17, individually were sufficient in the ordinary course of nature and events to cause death. The Doctor also expressed an opinion that the injuries mentioned in Column No. 17 corresponding to the internal injuries mentioned in Column Nos. 19 and 20 were possible by a sharp and cutting object. He also points out in his evidence that Article No. 14, which was a sword, is sufficient to cause the injuries. The Post-mortem Report is at Exh. 42. 9. It is to be noted that during the course of investigation, the Investigating Officer sent the weapon in question to the doctor seeking his opinion as to whether the injuries, as mentioned in the Post-mortem Report, are possible by such weapon. Dr. Uday Chaudhari has given his opinion in positive, which is at Exh. 43. Exh. 11 is the Inquest Panchanama done on the dead body on 22nd August, 2010. At the time of drawing of Inquest Panchanama, various injuries were found on the dead body. In view of the specific evidence of Dr. Uday Chaudhari, the injuries, as noticed by him while conducting the post-mortem and mentioned in the Post-Mortem Report [Exh. 42] and Inquest panchanama, we are in agreement with the findings given by the learned Sessions Judge that deceased Pappu Deshbhartar died homicidal death. 10. The next question is whether the appellants can be held responsible for such death? 11. Uday Chaudhari, the injuries, as noticed by him while conducting the post-mortem and mentioned in the Post-Mortem Report [Exh. 42] and Inquest panchanama, we are in agreement with the findings given by the learned Sessions Judge that deceased Pappu Deshbhartar died homicidal death. 10. The next question is whether the appellants can be held responsible for such death? 11. Though Rakesh Ramteke [P.W. 4] and Nikhil Rangari [PW 5] were examined by the prosecution as eye-witnesses to the incident, both of them turned hostile. They flatly denied the entire prosecution case. Similarly, one Suresh Nikhare [PW 6] was examined by the prosecution, since, according to the prosecution, to this witness, an extra judicial confession was made. However, this witness has also failed to support the prosecution case. Similarly, Kanchan Naik [PW 2] was also declared hostile. 12. Sachin Deshbhartar [PW. 1] is the real brother of deceased Pappu. It appears that Pappu was freed six days prior to the incident from Nagpur Jail. Deceased was languishing in jail for eighteen months. There were cases against the deceased for robbery, house breaking with Lakadganj, Nandanwan and Jaripatka Police Stations in Nagpur. The First Information Report is not a substantive piece of evidence. The said can be used either for corroboration or for contradiction. Exh. 19, the First Information Report, specifically mentions the names of present appellants as assailants. It also discloses the motive for commission of the offence at the hands of the appellants. However, worth to be noted is that from the substantive evidence, the first informant, Sachin Deshbhartar [PW 1], did not state that a boy informed him that the appellants are assaulting his brother, Pappu, at Jai Bhim Chowk. What he has stated from the witness box is that he was informed by one boy that his brother, Pappu, is being beaten at Jai Bhim Chowk. His substantive evidence is conspicuous by absence of mentioning of the names of the present appellants as the assailants as disclosed to him by the boy. 13. As observed in the preceding paragraph, Kanchan [PW 2], Rakesh [PW 4] and Nikhil [PW 5] have turned hostile and they did not support the case of the prosecution. 14. In the prosecution case, apart from the aforesaid hostile eye-witnesses, there is evidence of Shyama Gadaliya [PW 9]. This prosecution witness was knowing deceased Pappu. 13. As observed in the preceding paragraph, Kanchan [PW 2], Rakesh [PW 4] and Nikhil [PW 5] have turned hostile and they did not support the case of the prosecution. 14. In the prosecution case, apart from the aforesaid hostile eye-witnesses, there is evidence of Shyama Gadaliya [PW 9]. This prosecution witness was knowing deceased Pappu. On 22nd August, 2010, Shyama was present at Vicky Mobile Shop, in front of which, ultimately the deceased was done to death. His evidence would reveal that on 22nd August, 2010 at 11.00 or 11.30 am., Pappu came along with one Kanchya and they were engaged in talk. That time, appellant Akram and his brother Anwar came there and a quarrel ensued in between them and Pappu. That time, accused/appellant Akram assaulted deceased on head, hand and neck by means of a sword. What is to be noted is that this eye-witness has not ascribed any role to appellant Anwar. We have gone through the evidence of Shyama in detail and with microscopic eyes. Merely because he did not go to Police Station for about half or one hour of the incident and non-disclosure on his part of the incident to his relatives or he not being present in Govt. Medical College & Hospital either with the dead body or with the brother of deceased Pappu, his evidence cannot be said as interested version. There is nothing on record to show that this witness was very closely associated with deceased Pappu. His evidence only reveals that he was knowing deceased Pappu. If a witness is not very closely associated with or related to the deceased, it is not expected from such a witness that he will be with the dead body at Govt. Medical College & Hospital. Further, different persons will react differently to the same situation. Therefore, merely because for one-and-half-hour, this witness did not go to Police Station, we need not discard his testimony on that count alone. Hence we are of the opinion that the testimony of this witness can be relied upon, as same inspires confidence. 15. It is to be noted that both the appellants were arrested on 22nd August, 2010 vide Arrest Panchanamas [Exhs. 47 and 48 respectively]. Their blood stained clothes were also seized on 22nd August, 2010 itself under Seizure Panchanamas [Exhs. 49 and 50]. 15. It is to be noted that both the appellants were arrested on 22nd August, 2010 vide Arrest Panchanamas [Exhs. 47 and 48 respectively]. Their blood stained clothes were also seized on 22nd August, 2010 itself under Seizure Panchanamas [Exhs. 49 and 50]. During the course of the investigation, on 25th August, 2010, appellant, Akram, gave his Memorandum Statement [Exhs. 83] and agreed to point out the place where he concealed the sword which was used as a weapon for commission of the offence. Pursuant to his disclosure statement, recovery was made at the instance of the appellant, Akram, from his house and the sword was recovered vide Recovery Panchanama [Exh. 84]. 16. All the Muddemal articles were sent by the Investigating Officer to the Chemical Analyzer through the carrier, Sachin Halmare [PW. 10] in a sealed condition. 17. Report of Chemical Analyzer [Exh. 91] shows that deceased Pappu's blood group was "O.". The C.A. Report [Exh. 90] shows that the clothes of the appellant, Akram, and weapon [sword], which was recovered at the instance of the appellant, Akram, were found to be stained with human blood of Group 'O'. No plausible explanation is given by the appellant, Akram, for such blood appearing on his clothes. 18. Thus, the entire case of the prosecution rests on the eye-witness account of Shyama Gadaliya [PW 9]. As observed, he has attributed the role only to appellant, Akram. His evidence is completely silent on either the active or passive participation on the part of appellant, Sheikh Anwar. Therefore, it will be hazardous to convict the appellant, Sheikh Anwar alias Raja, as convicted by the court below. Resultantly, we pass the following order:-- ORDER The Appeal needs to be partly allowed. The conviction of Appellant No. 1 Sheikh Akram son of Sk. Shabbir for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code passed by the learned Sessions Judge, Nagpur dated 27th April, 2012 is maintained. However, Accused No. 2 Sheikh Anwar @ Raja son of Sheikh Shabbir is acquitted of the offence with which he is charged. The Appellant No. 2 be set at liberty forthwith, if not required in any other case. Fine amount, if any, paid by the Appellant No. 2 be refunded to him.