JUDGMENT : V.M. Deshpande, J. 1. These two appeals are decided by this common judgment. These two appeals arise out of the judgment and order of conviction passed by the learned Sessions Judge, Chandrapur, dated 8th of May, 2013 in Sessions Case No.161 of 2011. 2. Criminal Appeal No.490 of 2013 is filed by Nagendra Tekam, original accused no.1 and Sunil Tekam, original accused no.2. Criminal Appeal No.328 of 2013 is filed by Krushna Jatwa, original accused no.3. All the appellants were convicted by the learned Sessions Judge for the offence punishable under Sections 302, 201 read with Section 34 of the Indian Penal Code and they were directed to suffer imprisonment for life on account of their conviction for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and all of them were directed to pay a fine of Rs.3000/- and in default of payment of fine to suffer rigorous imprisonment for six months. All the accused persons were also directed to suffer rigorous imprisonment for five years on account of their conviction for the offence punishable under Section 201 read with Section 34 of the Indian Penal Code and to pay a fine of Rs.2000/- by each of them and in default to suffer simple imprisonment for three months. 3. The facts, which give rise to the present appeals, are as under :- Deceased Nanaji Hanumantu Soyam was cultivating a land encroached by him. He had two brothers, Maroti Hanumantu Soyam and Namdeo Hanumantu Soyam. Maroti Soyam predeceased him. Sugandhabai Atram (acquitted accused) is daughter of Maroti Soyam. Accused nos.1 and 2 are the son-in-laws of acquitted accused Sugandhabai whereas accused no.3 is grand son-in-law of deceased. Vimal Soyam (PW 1), the widow, set the Criminal Law into motion by lodging First Information Report with Police Station, Kothari of Distt.Chandrapur. The report is dated 13th of July, 2011. Her oral report is at Exh.37. The report was lodged against acquitted accused Sugandhabai and her relatives on account of suspicion. The printed FIR is at Exh.38 for the offence punishable under Sections 302, 201 read with Section 34 of the Indian Penal Code, vide Crime No.8 of 2011. Oral report of Vimal states that agricultural land was originally owned by Hanumantu, her father-in-law, who is no more. The said land stands in the name of three sons. The printed FIR is at Exh.38 for the offence punishable under Sections 302, 201 read with Section 34 of the Indian Penal Code, vide Crime No.8 of 2011. Oral report of Vimal states that agricultural land was originally owned by Hanumantu, her father-in-law, who is no more. The said land stands in the name of three sons. However, in the revenue record subdivision of that land was not effected. It is also reported in the First information Report that since deceased was cultivating the land encroached by him (Jabranzot), acquitted accused Sugandhabai was disputing in respect of giving due share in the land of Hanumantu. On that, she extended threats to deceased as well as the first informant that she will kill them with the help of her son-in-laws. The First Information Report also states that a report was lodged against the first informant by Sugandhabai. The First Information Report further proceeds that on 12th of July, 2011 at 12.00 noon, deceased took his bullocks for grazing. In the evening, in between 5 to 6, only the bullocks returned to the house therefore she sent her son Vasanta towards the field. After some time, Vasanta came back without any result. On 13th of July, 2011, in the morning, when she, her son Vasanta and her brother Vitthal (PW 3) started search, that time they noticed from the field of Maroti Dhodare (PW 4) that there is a evidence of dragging and therefore, they followed the same and noticed the dead body of Nanaji near two Ranzi trees. 4. Tejram Thakare (PW 12) was Station Diary in charge on 13th of July, 2011. That time, Vimal (PW 1) came to Kothari Police Station and filed her report. On the basis of the same, a Crime was registered vide Crime No.8 of 2011 and investigation was handed over to API Swapnil Dhule (PW 13). Swapnil Dhule (PW 13) took the investigation of Crime No.8 of 2011. He visited the spot and prepared Spot Panchanama (Exh.12) in presence of panch witness Rushi Dhodare (PW 2). Inquest was also done by preparing Inquest Panchanama (Exh.43). Dead body was sent for Post Mortem. He also seized the clothes of the deceased under seizure Memo (Exh.46). During the investigation, he arrested four accused persons under arrest Memos (Exhs.120 to 123). During the course of their police custody, accused no.1 Nagendra gave a disclosure statement. Inquest was also done by preparing Inquest Panchanama (Exh.43). Dead body was sent for Post Mortem. He also seized the clothes of the deceased under seizure Memo (Exh.46). During the investigation, he arrested four accused persons under arrest Memos (Exhs.120 to 123). During the course of their police custody, accused no.1 Nagendra gave a disclosure statement. The admissible portion of said disclosure statement is at Exh.76. Accused Nagendra agreed to show the place whereat weapons and clothes on their persons were concealed. Accordingly, police party along PW 8 Nitin Yellore, in whose presence disclosure was made, followed the accused persons and seized articles under Seizure Memo (Exh.76A). The Investigating Officer also requested the Magistrate to record statement of three witnesses under Section 164 of the Code of Criminal Procedure. Their statements were also recorded by the learned Magistrate. The Muddemal articles were sent to the Chemical Analyzer. After completion of the investigation, charge sheet was presented in the Court of Judicial Magistrate (F.C.), Gondpipri. The learned Magistrate found that the offence is exclusively triable by the Court of Sessions and therefore, he committed the case to the Sessions Court. Thereafter, the case was registered as Sessions Case No.161 of 2011. The learned Additional Sessions Judge Chandrapur, under Exh.8, framed charge against the appellant and acquitted accused Sugandhabai. In order to bring home the guilt of the accused persons, thirteen witnesses were examined by the prosecution. Prosecution has also relied upon various documents duly proved in the course of the trial. The learned Sessions Judge also recorded the statements of all accused persons under Section 313 of the Code of Criminal Procedure from the line of their cross-examination and from their statements, according to the all accused persons, they were falsely implicated. The learned Sessions Judge after appreciating the prosecution case acquitted accused no.4 Sugandhabai from all the charges which she faced, however, convicted the appellants as observed in the opening paragraph of this judgment. Hence, these appeals. 5. We have heard Shri Ashok Bhangde, the learned counsel appearing for the appellants in Criminal Appeal No.490 of 2013. The learned counsel for the appellant appearing in Criminal Appeal No.328 of 2013 remained absent when the appeal was taken up for hearing. In both these appeals, the State was represented by learned Additional Public Prosecutor Shri S.M.Ukey. 5. We have heard Shri Ashok Bhangde, the learned counsel appearing for the appellants in Criminal Appeal No.490 of 2013. The learned counsel for the appellant appearing in Criminal Appeal No.328 of 2013 remained absent when the appeal was taken up for hearing. In both these appeals, the State was represented by learned Additional Public Prosecutor Shri S.M.Ukey. Both Shri Bhangde and Shri Ukey took us through the notes of evidence and record and proceedings of the Sessions Case. 6. The submission of the leaned counsel for the appellants Shri Bhangde is that the only eye witness PW 4 Maroti Dhodare is not a reliable one. He submitted that this witness is introduced in the persecution case. He further submits that though it is claimed by this prosecution witness that the assault was made in his agricultural field, the Investigating Officer has not drawn spot panchanama of his field. He further submitted that on the point of discovery the evidence of the prosecution is not reliable one and needs to be discarded. He therefore prayed that the appeal be allowed. Per contra, the learned Additional Public Prosecutor would submit that PW 4 Maroti Dhodare is an independent person. He has identified the accused persons in the Court when they were in dock. He further submits that there was no reason to this independent person to falsely implicate the accused persons. He further submitted that in view of the consistent evidence of PW 8 Nitin Yellore, the discoveries are duly proved and there is corroborative piece of evidence in the nature of Chemical Analyzer's report to show the existence of blood on the clothes of appellant Sunil Tekam. 7. On scanning the prosecution evidence, the Court can reach to a safe conclusion that there is a motive to eliminate Nanaji. Undisputedly, accused nos.1 and 2 are son-on-laws of Sugandhabai. The First Information Report and also the evidence of PW 1 Vimal Soyam shows that the agricultural land in possession of Sugandhabai is originally owned by Hanumantu, the father of the deceased. Her First information and her evidence show that there was a dispute since deceased and first informant demanded share from Sugandhabai. In this behalf, it would be useful to refer the evidence of PW 12 and PW 13. Her First information and her evidence show that there was a dispute since deceased and first informant demanded share from Sugandhabai. In this behalf, it would be useful to refer the evidence of PW 12 and PW 13. These two Police Officers deposed that on 2nd of July, 2011, Sugandhabai (acquitted accused) came to the Police Station and lodged her report (Exh.110) against deceased Nanaji, first informant Vimal and their son Vasanta. The said report shows that on the day of the incident i.e. on 1st of July, 2011 when Sugandhabai was working in the field, that time aforesaid three persons entered into agricultural field and tried to assault her. The report was registered as N.C.No.155 of 2011 for the offence punishable under Sections 504, 506 of the Indian Penal Code. 8. The aforesaid recitals of the report filed by Sugandhabai corroborate the version of Vimal Soyam in her First Information Report and also from the witness box that there was a dispute in between her and Sugandhabai on account of share of land originally owned by Hanumantu. 9. Dr. Ritesh Patil (PW 9) when was on duty at Rural Hospital, Gondpipri, he received request from Police Station, Kothari for Post Mortem examination of dead body of Nanaji Soyam. Accordingly, he conducted the Post Mortem. He noticed following external injuries on the dead body. 1. Incised wound – 5 x 2 cm x 1 cm. Over vertically upward over left side of upper lip. 2. Incised wound – 5 x 2 x 1 cm. horizontal above left side of chin. 3. Incised wound – 3 x 1 x 1 cm. horizontal above left eye brow. 4. Conclusion – 7 x 7 cm. over area including left temporal, left post auricular, left parotid ad pinna of left ear. 5. Contusion – 6 x 6 cm. over area including right temporal right post auricular, right parotid and pinna of right ear. 6. Abrasion – 3 x 2 cm. over right umblical region of abdomen. 7. Abrasion – 6 x 4 cm. over left side of scapular region of back. 8. Incised wound – 3 x 1 x 1 cm. over left cheek, horizontally. He found that all injuries are ante mortem in nature. On internal examination, he found following injuries- “Hematoma of 3 x 2 cm. over temporal region of right side. Hematoma of 3 x 3 cm. over left side of scapular region of back. 8. Incised wound – 3 x 1 x 1 cm. over left cheek, horizontally. He found that all injuries are ante mortem in nature. On internal examination, he found following injuries- “Hematoma of 3 x 2 cm. over temporal region of right side. Hematoma of 3 x 3 cm. over temporal region of left side. Brain was congested. There was contusion of 3 x 2 cm. and laceration of 2 x 1 x 1 cm. over temporal lobe of brain tissue of left side. Right and left lung were congested. Heart was empty. Stomach contains semi-digested food with fluid, large intestine contains fecal matter with gases. Spleen and kidneys were congested.” He proved the Post Mortem Report (Exh.89). According to the autopsy surgeon, cause of death was head injury with intra cranial bleed. 10. In view of the evidence of Doctor Ritesh Patil (PW 9) and the Post Mortem (Exh.89), there is no doubt in our mind that Nanaji met homicidal death. Now, the question that is posed before us as to whether the prosecution has proved its case beyond reasonable doubt against these three appellants. 11. Except PW 4 Maroti Dhodare, there is no other witness who has seen actual assault. All other witnesses except Police Officers and Doctor, they are the panch witnesses and the photographer, who has developed the photos of dead body of Nanaji. 12. PW 4 Maroti Dhodare is a star witness of the prosecution. His evidence discloses that he was knowing deceased Nanaji. Both these witnesses and deceased are resident of village Aksapur. He also claims that he know the accused persons. Being resident of same village, knowing deceased Nanaji is most natural. Further, Sugandhabai (acquitted accused) also resides in the very same village. The claim of this prosecution witness that he was knowing deceased Nanaji is not at all challenged by the accused persons. According to Maroti Dhodare, time of incident is 2 p.m. He claims that that time he was in his field to see standing paddy crops. There is nothing unusual on the part of this prosecution witness to be in his agricultural field at that time. He further claims that after taking the round in the field when he was proceeding towards dam, where he was having bullocks, that time he noticed deceased Nanaji running to his field. He was gasping. There is nothing unusual on the part of this prosecution witness to be in his agricultural field at that time. He further claims that after taking the round in the field when he was proceeding towards dam, where he was having bullocks, that time he noticed deceased Nanaji running to his field. He was gasping. He was chased by accused no.1 Nagendra Tekam and accused No.2 Sunil Tekam and their friend. He also ascribed weapons in their hands. He further stated that all three made an attack on Nanaji due to which he died. Thereafter, they extended threat to Maroti, the prosecution witness, and thereafter they left the spot. In his examination-in-chief itself he has stated that there may be confusion in telling about the weapons in the hands of the accused persons due to the fact that at that particular point of time he was frightened. 13. A statement under Section 164 of the Code of Criminal Procedure of this witness was recorded by PW 11 Shri J.W. Gaikwad, Judicial Magistrate (F.C.), Gondpipri. The said statement is at Exh.50 In the said statement also, this prosecution witness has disclosed names of accused nos.1 and 2. The cross-examination of this witness would show that his evidence on the point of actual assault is not at all challenged. Certain omissions are tried to be brought on record and those are in respect of the fact that which accused was holding which weapon. In that behalf, this prosecution witness has also given explanation that at the time of incident he was frightened and therefore he could not give the exact account of such weapons. 14. An attack is made on this prosecution witness by the learned counsel for the appellants that he has not disclosed this fact to the family members of Nanaji. However, he volunteers that it was disclosed to some other villagers. The age of this witness was 60 years at the time of evidence. This witness cannot have any control about the reaction of the villagers to whom he has disclosed the fact. Merely because he has not disclosed the fact to the family members of deceased that by itself does not render the testimony of this prosecution witness, who has withstood the searching cross-examination of the learned cross-examiner. As observed earlier, the evidence of this man in respect of actual assault has remained unshaken. Merely because he has not disclosed the fact to the family members of deceased that by itself does not render the testimony of this prosecution witness, who has withstood the searching cross-examination of the learned cross-examiner. As observed earlier, the evidence of this man in respect of actual assault has remained unshaken. The statement of this prosecution witness was recorded immediately i.e. on 13/7/2011. After scanning the evidence of this prosecution witness, we hold that this prosecution witness is reliable insofar as accused nos.1 and 2 are concerned. Once it is found that the evidence of PW 4 Maroti Dhodare is reliable and trustworthy, who is an ocular witness, we see no merit in the submission of the learned counsel for the appellants that in absence of drawing of spot panchanama of the agricultural field of Maroti Dhodare, the prosecution case is doubtful. Merely for certain lapses on the part of the Investigating Officer, the prosecution case cannot be viewed with tainted glasses, especially when before the Court there is a trustworthy and reliable ocular evidence of Maroti Dhodare. For the lapse on the part of the Investigating Officer the evidence of such witness need not be discarded. The Court will be making its observation viz-a-viz accused no.3 in the later part of this judgment. 15. The learned Judge of the Court below has relied upon the discovery statement and its consequent recoveries. After going through the same and the relevant evidence on record, we see no reason to take a different view than the view taken by the learned Sessions Judge. 16. Chemical Analyzer's reports are placed on record. C.A.report Exh.132 shows that blood group of deceased Nanaji was “AB”. The clothes of all three accused were sent to Chemical Analyzer. Chemical Analyzer's Report (Exh.131) shows that on the clothes of accused no.2 Sunil Tekam there is a human blood and out of that his full pant is having blood group “AB”. The learned counsel for the appellants submits that as per Exh.133, Sunil's Blood group is also “AB”. He submitted that even the learned Judge of the Court below has recoded that the C.A. reports are not much help as on the clothes of Sunil the blood might be of his. 17. This Court is a final Court insofar as facts are concerned. As an appellate Court, this Court has to re-appreciate entire prosecution case. He submitted that even the learned Judge of the Court below has recoded that the C.A. reports are not much help as on the clothes of Sunil the blood might be of his. 17. This Court is a final Court insofar as facts are concerned. As an appellate Court, this Court has to re-appreciate entire prosecution case. Even while maintaining the judgment of the Court below, this Court, while exercising appellate jurisdiction, can upset a particular finding. 18. When accused Sunil was answering to the questions put to him by the learned Sessions Judge under Section 313 of the Code of Criminal Procedure, a specific question was put to him about noticing of blood stains, that time he could have offered explanation. He failed to offer the same. Therefore, in our view, that will be one of the incriminating circumstance corroborative to the prosecution case against the accused persons. 19. Insofar as accused no.3 Krushna is concerned, his name does not find even in Exh.50. During the cross-examination of Maroti Dhodare (PW 4) he has admitted that at the time of incident he was not knowing him nor he was knowing his name. In the present case, no Test Identification Parade was held by the Investigating Officer. All the three accused persons are identified by Maroti Dhodare in court. Law is settled on this question that there need not be any Test Identification Parade and for that the Identification by a witness in the Court cannot be doubted. However, in the present case, from the cross-examination of Maroti Dhodare it appears that after the arrest of accused no.3, police called Maroti Dhodare in the Police Station and police pointed out accused no.3 to him. In that behalf, it would be useful to reproduce the relevant portion of his cross-examination :- “I do not know name of friend of accused nos.1 and 2. I was not knowing him prior to the incident. Police did not call me for identification parade. I was called in Police Station after arrest of the accused. It is correct to say that police pointed out accused no.3 to me”. Thus, it is crystal clear that in the Police Station, Police Officer showed accused no.3 to the prosecution witness No.4 Maroti Dhodare and thereafter he has identified him during trial. I was called in Police Station after arrest of the accused. It is correct to say that police pointed out accused no.3 to me”. Thus, it is crystal clear that in the Police Station, Police Officer showed accused no.3 to the prosecution witness No.4 Maroti Dhodare and thereafter he has identified him during trial. Therefore, in our view, the identification by PW 4 Maroti Dhodare of accused no.3 Krushna Jatwa loses its importance and value. 20. The learned Additional public Prosecutor could not point out anything to show that anything was seized at the behest of accused no.3 Krushna. Further, the scientific evidence also shows that the clothes of this accused, which were sent to Chemical Analyzer, were not having any blood stains. Accused no.3 was arrested on 14th of July, 2011 under arrest Memo (Exh.122). Statement of PW 4 Maroti Dhodare under Section 164 of the Code of Criminal Procedure was recorded by Shri J.W.Gaikwad (PW 11), Judicial Magistrate, on 22nd of July, 2011. As per the evidence of Maroti Dhodare, after the arrest police called him in the Police Station and showed accused no.3. In spite of that Exh.50, the statement recorded of this witness under Section 164 of the Code of Criminal Procedure by the learned Magistrate, did not disclose the name of accused no.3. In absence of any connecting evidence against the accused no.3 – Krushna, he is entitled for the acquittal. 21. The upshot of the aforesaid discussion leads us to pass following order. ORDER Criminal Appeal No.490 of 2013 is dismissed. The judgment and order of conviction, convicting the appellants in Criminal Appeal No.490 of 2013, is hereby confirmed. Criminal Appeal No.328 of 2013 is allowed. The judgment and order of conviction, convicting the appellant Krushna Ramesh Jatwa for the offence punishable under Sections 302, 201 of the Indian Penal Code by the learned Sessions Judge, Chandrapur is hereby quashed and set aside. The appellant Krushna Ramesh Jatwa is hereby acquitted of the offence punishable under Sections 302 and 201 of the Indian Penal Code. He be released forthwith if not required in any other case. Order accordingly.