JUDGMENT : P.V. Hardas, J. 1. The appellants/Original Accused No. 2 - James Shegar Nadar and Original Accused No. 4 - Gopal Nadaraj Nadar, who stand convicted for offence punishable under Sections 449 r/w34 and 302 r/w 34 of the Indian Penal Code and sentenced to RI for ten years and each accused to pay a fine of Rs. 5000/-, in default of which to undergo further SI for one month and imprisonment for life and each accused to pay a fine of Rs. 5000/-, in default of which to undergo further SI for one month, by the Additional Sessions Judge, Mumbai, by judgment dated 15/5/2009, in Sessions Case No. 849 of 2007, by these appeal challenge their conviction and sentence. Facts, as are necessary for the decision of this appeal, may be stated thus:-- PW 13 - PSI Bharat Dhumal, who was attached to the Dharavi Police Station and was on duty on 23/7/2007, received information about one person being murdered in Vijaynagar slum area. He accordingly communicated the said information to his superiors and proceeded to the scene of the incident. On reaching the scene of the incident, he contacted father of the deceased i.e. PW. 1 - Yallappa. He recorded the statement of PW. 1 - Yallappa at Exh. 21. On the basis of the statement of PW. 1 - Yallappa at Exh. 21, he registered an offence vide Crime No. 178 of 2007 under Section 302 of the IPC. He, thereafter, drew the inquest panchanama of the dead body of deceased Sukamppa, in the presence of panchas at Exh. 26. He forwarded the dead body for postmortem examination to the Sion Hospital along with police constable, Buckle No. 403. A scene of the incident panchanama was thereafter drawn in the presence of pachas at Exh. 25. The printed first information report is at Exh. 21 A. He seized the clothes of the deceased in the presence of panchas under seizure memo at Exh. 42. Further investigation was then handed over to PW. 14 - PI Dilip Kendre. PW. 14 - PI Dilip Kendre, who wa also attached to the Dharavi Police Station, was entrusted on 23/7/2007 with the investigation of Crime No. 178 of 2007. Till 26/7/2007 he recorded the statements of eight witnesses. On 27/7/2007, statement of another witness was recorded. He arrested all the accused. 14 - PI Dilip Kendre. PW. 14 - PI Dilip Kendre, who wa also attached to the Dharavi Police Station, was entrusted on 23/7/2007 with the investigation of Crime No. 178 of 2007. Till 26/7/2007 he recorded the statements of eight witnesses. On 27/7/2007, statement of another witness was recorded. He arrested all the accused. On 27/8/2007, a memorandum accused No. 2 - James was recorded and a knife and his clothes stained with blood were recovered under panchanama at Exh. 40A. The disclosure memorandum is at Exh. 40. On 7/8/2007, he recorded the statement of accused No. 4 - Gopal and at the behest of accused No. 4 - Gopal recovered an iron chopper, shirt and pant and seized the same under seizure memo at Exh. 35A. The memorandum is at Exh. 35. The accused were referred for medical examination and the seized property was then forwarded to the Chemical Analyzer under requisition at Exh.44 Colly. Further to the completion of investigation, a charge-sheet against the accused was filed. Postmortem on the dead body of deceased Sukamppa was performed by PW. 11 - Dr. Rajesh Dhere. PW. 11 - Dr. Dhere, noticed the following external injuries:-- (i) Incised wound of 7 x 1 x bone exposed over left frontal region (vertical). (ii) CLW of 3 x 1 x 1/2 cms. below left eye. (iii) Chop wound of 17 x 8 x bone exposed with flap on lower surface over left fronto-parietal region. (iv) Incised wound of 14 x 5 x 3 cm. over back of neck intending from right shoulder to midline of neck. (v) Incised wound of 10 x 4 x 2 cms. just 4 cm. below injury No. 4 (horizontal). (vi) Incised wound of 5 x 3 x 1 cms. over back in inter-scapular region. (vii) Incised wound vertical 10 x 5 x 2 cms. Over right subscapular region. (viii) Incised wound 13 x 3 x 1/2 cms. Just below above injury No. 7. (ix) Incised wound of 8 x 3 x 1 cms. Over right chest, 10 cms. lateral to mid-sternal line and 4 cm above the right nipple. (x) Incised wound of 16 x 7 x bone deep (2 cms) over midsternal line (vertical). (xi) Incised wound of 12 x 2 x 1 cms over right upper limb just above the right elbow. (xii) Incised wound of 12 x 2 x 1 cms. lateral to mid-sternal line and 4 cm above the right nipple. (x) Incised wound of 16 x 7 x bone deep (2 cms) over midsternal line (vertical). (xi) Incised wound of 12 x 2 x 1 cms over right upper limb just above the right elbow. (xii) Incised wound of 12 x 2 x 1 cms. Over elbow just below injury No. 11. (xiii) Incised wound of 9 x 6 x underlying bone dislocated over right hand between thumb and index finger. (xiv) Incised wound of 21 x 14 x peritoneal cavity opened over entire of abdomen. (xv) Incised wound of 10 x 3 x 2 cms. over left sub-coastal region 2 cms. above injury No. 16. According to him, the injuries were caused by sharp and pointed weapon. The injuries must have been caused within 12 to 24 hours prior to the postmortem examination. He further opined that the injuries were sufficient in ordinary course of nature to cause death. The postmortem report is at Exh. 38. 2. On the case being committed to the Court of Sessions, Trial Court vide Exh.6 framed charge against the accused Nos. 1 to 4 for offence punishable under Sections 449 r/w 34and 302 r/w 34 of the IPC. The accused denied their guilt and claimed to be tried. Prosecution, in support of its case, examined 14 witnesses. The defence of the accused was of denial. The trial court upon appreciation of the evidence on record, convicted and sentenced the appellants as afore-stated, while acquitting Original Accused Nos. 1 and 3. 3. We have heard Mrs. Sonia Miskin, learned counsel appointed for appellant in Cri. Appeal No. 729 of 2009, Mr. Khajotia, learned counsel appearing for appellant in Cri. Appeal No. 582 of 2011 and the learned APP and in order to effectively deal with the submissions which have been advanced before us by the learned counsel for the parties, it would be useful to refer to the evidence of the prosecution witnesses. 4. Prosecution unfolds its case through the evidence of PW. 1 - Yallappa. PW. 1 - Yallappa, father of deceased Sukamppa deposes that he was residing in Room No. 4, Dharavi, Mumbai for the last 35 years along with his sons Krushna, Narayan, Ram. Deceased Sukamppa was residing separate from PW. 1 - Yallappa and was working as a plumber and electrician. 1 - Yallappa. PW. 1 - Yallappa, father of deceased Sukamppa deposes that he was residing in Room No. 4, Dharavi, Mumbai for the last 35 years along with his sons Krushna, Narayan, Ram. Deceased Sukamppa was residing separate from PW. 1 - Yallappa and was working as a plumber and electrician. According to Yallappa, on 23/7/2007 at about 8 a.m. some boys had shouted about Sukamppa being killed and, therefore, he rushed to the house of Sukamppa He noticed Sukamppa having sustained injuries on his body and lying in a pool of blood. He inquired from the persons who were present at the spot as to how the incident had occurred. Those persons, however, did not disclose anything about the incident. On arrival of the police, he lodged his report at Exh. 21. 5. Prosecution has examined PW. 3 - Gangaram, who is an eye witness to the incident. PW. 3 - Gangaram deposes that he was working as a private wireman and was acquainted with the deceased since last 10 to 12 years. On 22/7/2007 at about 10 p.m. he had gone to the house of the deceased as the deceased had arranged a party. In that party, accused No. 1 - Joseph, one Narsinha, Shakti and Dilip and 2 to 3 other persons were present. In that party, the liquor and biryani was served. Biryani was cooked by PW. 5 - Mohd. Rafiq. At about 11.30 to 11.45 p.m. Shakti and Narsinha left the house of deceased. PW. 3 - Gangaram questioned Sukamppa about presence of his wife and children and deceased Sukamppa had disclosed that they had gone to the house of his brother-in-law. Accused No. 1 thereafter received a call on his cell phone from one Shekhar. Accused No. 1 informed Shekhar that the party was over. At about 1 a.m. on 23/7/2007, Gangaram and Shakti had gone on the railway track for answering the call of nature. Thereafter, he and Shakti had gone to their respective houses and Gagamaram reached home at about 1.30 a.m. and was smoking a cigarette in front of his house. Accused No. 1 came to the house of Gangaram and informed him that he had been called by Sukamppa and PW. 3 - Gangaram accompanied accused No. 1 to the house of Sukamppa. From a distance of about 10 to 15 ft. he noticed accused Nos. Accused No. 1 came to the house of Gangaram and informed him that he had been called by Sukamppa and PW. 3 - Gangaram accompanied accused No. 1 to the house of Sukamppa. From a distance of about 10 to 15 ft. he noticed accused Nos. 2 and 4 coming out of the house of the Sukamppa armed with chopper/scythe. The said chopper and scythe were stained with blood and seeing this, Gangaram was frightened and, therefore, gave a push to accused No. 1 and ran in the lane and returned home. Accused Nos. 1, 2 and 4 followed him and at that time accused No. 2 was saying that Sukamppa had been killed and now it was the turn of Gangaram. On 24/7/2007, the police had arrived at the house of Gangaram and he had narrated the incident and his statement was recorded. 6. In cross-examination, he has admitted that he had not cried when he had noticed accused Nos. 2 and 4 coming out of the house carrying blood stained chopper and scythe. He has admitted that on that day he had not gone to the house of Sukamppa to ascertain what was going at his house. He has admitted that when the police had come to the scene of the incident for inquiry, he was in the same vicinity. 7. Prosecution has examined PW. 6 - Laxman, who deposes that deceased Sukamppa was his maternal uncle. On 22/7/2007 at about 10 p.m. he had gone to the house of his maternal uncle Sukamppa and had noticed PW. 3 - Gangaram, Guddu and Joseph present in the house of Sukamppa. All of them were drinking liquor. Deceased Sukamppa asked PW. 6 - Laxman to have dinner and then go. At that time, accused No. 1 - Joseph received a telephone call on his cell phone. Joseph had gone out of the room for talking on the cell phone. At about 1 a.m. there was a quarrel between deceased Sukamppa and accused No. 1 - Joseph. According to this witness, he corrected himself and stated that deceased Sukamppa had a quarrel with Shegar, Gopal and Joseph. Thereafter all the persons removed choppers from their shirts and assaulted Sukamppa by the said choppers. According to PW. 6 - Laxman he fled from the scene of the incident and thereafter learnt that Sukamppa had died. According to this witness, he corrected himself and stated that deceased Sukamppa had a quarrel with Shegar, Gopal and Joseph. Thereafter all the persons removed choppers from their shirts and assaulted Sukamppa by the said choppers. According to PW. 6 - Laxman he fled from the scene of the incident and thereafter learnt that Sukamppa had died. In cross-examination, he has admitted that police had recorded his statement after two days of the incident. He has also admitted that he had not gone to the house of Sukamppa after learning about his murder on the next day morning. He has admitted that he was present in the Dharavi locality since the incident till his statement was recorded. He has also admitted that he on his own had not gone for informing the police. An omission has been elicited that he had not stated in his previous statement that accused No. 1, Shegar and Gopal removed choppers from their shirt and assaulted the deceased with the said choppers. In further cross-examination, he has admitted that after he had gone from the house of deceased, he had not disclosed about the incident to anyone. He has admitted that till his statement was recorded, he had not disclosed the incident to anyone. 8. PW. 3 - Gangaram does not refer to the presence of PW. 6 - Laxman at the scene of the incident. PW. 6 - Laxman refers to the presence of PW. 3 - Gangaram. According to Gagaram, accused No. 1 had received the telephone call and had spoken on the telephone in the room itself, while according to PW. 6 - Laxman accused No. 1 had gone outside. PW. 3 - Gangaram does not state about any assault, though according to him he was present till 1 a.m. The conduct of both these witnesses in not informing the police immediately on the arrival of the police about the incident, casts a serious doubt regarding the presence of these witnesses at the scene of the incident. It is extremely unlikely that these witnesses had witnessed the incident as otherwise they would have immediately informed the police when the police had come at the scene of the incident for making inquiries. In our opinion, therefore, no reliance whatsoever can be placed on the testimony of PW. 3 - Gangaram and PW. 6 - Laxman. 9. Prosecution has examined PW. In our opinion, therefore, no reliance whatsoever can be placed on the testimony of PW. 3 - Gangaram and PW. 6 - Laxman. 9. Prosecution has examined PW. 2 - Suresh, who deposes that on 22/7/2007 he had gone to the house of his maternal uncle Maruti at about 11 p.m. and was present at the house till about 2 a.m. At about 1.30 a.m. he had left the house of his maternal uncle Maruti and had noticed light burning in the house of deceased. He had, therefore, gone to the front door of the deceased and through the open door had noticed accused Nos. 2 and 4 assaulting deceased Sukamppa with some weapons. Seeing this, PW. 2 - Suresh fled from the scene of the incident. He went home and then went to sleep and on 24/7/2007 informed the police about the incident for the first time. He has admitted not to have disclosed the incident to anyone prior to his recording of the statement. 10. In cross-examination, he has admitted that on seeing the incident, he had not cried out for help. He also does not state that deceased Sukamppa was acquainted with him or was his relative. The evidence of this witness is unbelievable that while returning from the house of his maternal uncle, on seeing the light burning in the house of deceased, he had gone to the house of deceased. It is unbelievable that on seeing the incident, this witness did not disclose the incident to anyone for two days till his statement was recorded by the police. In our opinion, no reliance whatsoever can be placed on the testimony of this witness. 11. Prosecution has examined PW. 9 - Gurrappa, who deposes that he along with PW. 6 - Laxman had gone to the house of deceased Sukamppa and had noticed deceased Sukamppa drinking liquor along with PW. 3 - Gangaram, Laxman, accused No. 1 - Joseph and one Shakti. Deceased Sukamppa also invited them for dinner and, therefore, PW. 9 - Gurrappa waited at the house of deceased Sukamppa. According to him, accused-Gopal and Shegar arrived there and deceased Sukamppa started abusing them. Thereafter, accused Gopal and Shegar started assaulting Sukamppa by sickle and chopper. On seeing the assault, PW. 9 - Gurrappa fled from the scene of the incident. 9 - Gurrappa waited at the house of deceased Sukamppa. According to him, accused-Gopal and Shegar arrived there and deceased Sukamppa started abusing them. Thereafter, accused Gopal and Shegar started assaulting Sukamppa by sickle and chopper. On seeing the assault, PW. 9 - Gurrappa fled from the scene of the incident. According to Gurrappa, he did not come out of his house for two days and after two days, the police came to his house and took him to the police station. The police inquired with him and on inquiry by the police, Gurappa narrated the incident. Police accordingly recorded his statement. In cross-examination, he has admitted that along with him, Laxman also fled from the scene of the incident. He has admitted that he had also joined others in drinking liquor. PW 6 - Laxman does not refer to the presence of PW. 9 - Gurrappa at the scene of the incident. PW. 3 - Gagaram also does not refer to the presence of PW. 9 - Gurrappa at the scene of the incident, though Gurrappa claims that he was their friend. Though this witness claims to have witnessed the incident, no disclosure was made by him for about two days. It is unbelievable that he did not stir out of the house for two days till the police questioned him. In the light of the unnatural conduct of the eye witnesses, in our opinion, no reliance whatsoever can be placed on their testimony. 12. Prosecution has examined PW. 5 - Mohd. Rafiq a cook, who had cooked the biryani and the prosecution has examined the panch witnesses to the disclosure memorandums of the accused. PW. 14 - PI Kendre does not depose about the exact information given by the accused nor does he state about the place of concealment and about the accused leading the police and panchas to the place of concealment and producing the weapons and clothes. He only deposes about the weapons and the clothes being seized at the instance of the accused without deposing about the exact statement made by the accused. In the evidence of PW. 14 - PI Kendre there is no admission of the accused in respect of the authorship of concealment and also about the place from which the articles are said to have been produced. In the evidence of PW. 14 - PI Kendre there is no admission of the accused in respect of the authorship of concealment and also about the place from which the articles are said to have been produced. In our opinion, therefore, no reliance can be placed on the disclosure memorandums of the appellants leading to the discovery of the weapons and the clothes. 13. We thus found that there is no evidence which would conclusively establish the offence against the appellants beyond reasonable doubt. The appellants, in our opinion, therefore, are entitled to be given the benefit of doubt. Accordingly, Criminal Appeal Nos. 729 of 2009 and 582 of 2011 are allowed and the conviction and sentence of the appellants are hereby quashed and set aside and the appellants are acquitted of the offence with which they were charged and convicted. Fine if paid by the appellants be refunded to them. Since the appellants are in jail, they be released forthwith if not required in any other case. Fees payable to the learned counsel appointed on behalf of the appellant in Criminal Appeal No. 729 of 2009 is quantified at Rs. 5000/-.