JUDGMENT : B.P. Dharmadhikari, J. 1. These three appeals are directed against the judgment and order dated 27.10.2015, delivered by the Adhoc District Judge and Additional Sessions Judge, Nagpur in Sessions Trial No. 208/2014. Originally there were three accused. Accused no. 2 Gaffar Ali s/o Ramzan Ali was murdered and hence, prosecution against him has abated. Accused no. 1 Samsher and original accused no. 3 Mujjaffar have been convicted for offences punishable under Section 307 read with Section 34 of Indian Penal Code and sentenced to undergo rigorous imprisonment for 5 years and to pay find of Rs. 1000/- and in default, to undergo rigorous imprisonment for 3 months. Samsher is also punished with rigorous imprisonment for 6 months for offence punishable under Section 4 read with Section 25 of Indian Arms Act. While Mujjaffar is acquitted thereof. They are also acquitted of offence punishable under Sections 135 and 142 of Bombay Police Act. 2. Criminal Appeal No. 435/2015 is filed by the State Government under Section 377 (1) of Criminal Procedure Code for enhancement of sentence. Criminal Appeal No. 385/2015 is filed by Mujjaffar challenging his conviction; while Criminal Appeal No. 387/2015 is filed by Samsher assailing his conviction. Samsher, Mujjaffar and deceased Gaffar are real brothers. 3. As per case of prosecution, on 28.12.2013 at 9 p.m. complainant Alim Khan was returning to his house from Mobin Pan Thela. Accused persons all of a sudden came and delivered blow of sword upon him. He avoided it, left his vehicle and ran towards his house. Samsher and Mujjaffar chased him on two wheeler and Samsher then delivered blow of sword on his head causing bleeding injury. Complainant Alim Khan reached his house in injured condition. His family members took him to police station and police authorities immediately sent him to Government Medical College. He lodged report and after completing investigation, charge sheet came to be filed. Accused no. 2 Gaffar Ali expired before framing of charge and hence, case against him abated. 4. We have heard Shri R.B. Gaikwad, learned Counsel for the appellant Samsher; Shri A.K. Bhangde, learned Counsel for the appellant-Mujjaffar and Shri V.A. Thakare, learned A.P.P. for State Government. 5. It is not in dispute that Alim Khan who is the complainant in present matter and PW-3 Mahfuj Ahmad, who is relative of Alim Khan, is accused in case of murder of Gaffar. 6. 5. It is not in dispute that Alim Khan who is the complainant in present matter and PW-3 Mahfuj Ahmad, who is relative of Alim Khan, is accused in case of murder of Gaffar. 6. Shri Gaikwad, learned Counsel as also Shri Bhangde, learned Counsel submit that investigation has not been conducted fairly and impartially. PW-1 Alim Khan has given false evidence because of enmity on account of property dispute between the parties. PW-3 is his son in law and he has also assisted him. Faulty investigation has resulted in fabrication of material against the appellants. No report was lodged immediately by PW-1 Alim Khan and there is no authentic record of his medical treatment. There is no record of his discharge by the doctors. If evidence of PW-1 is accepted, police authorities obtained his two signatures on next day i.e. 29.12.2013 at his residence and hence, the report as also printed FIR are obviously by way of an after thought. Mandatory requirement of forwarding copy of FIR to the learned Judicial Magistrate First Class was also violated in present matter. 7. Shri Bhangde, learned counsel submits that Mujjaffar Ali is alleged to have been driving motor cycle on which Samsher Ali was riding as pillion rider with that motor cycle is not seized by the police authorities. There is no material against Mujjaffar Ali and hence, his involvement in the matter is not established beyond reasonable doubt. 8. Both the learned counsel have taken us through relevant evidence to urge that said evidence is not acceptable and liable to be discarded. 9. Learned A.P.P. submitted that blood of Group "O" of PW-1 Alim Khan is found on clothes of Samsher and also on weapon. Clothes and weapon are recovered at the instance of Samsher and this recovery under Section 27 is not in dispute. Though there are some technical errors in the investigation, same are not material and have not resulted in any prejudice to the accused persons. Previous criminal history of accused persons placed on record by the State Government is ignored by trial Court. Samsher was earlier externed and several offences are registered him. As this material is discarded inadvertently, and due to technical breach, punishment as inflicted is too mild. A severe and drastic punishment was called for. Previous criminal history of accused persons placed on record by the State Government is ignored by trial Court. Samsher was earlier externed and several offences are registered him. As this material is discarded inadvertently, and due to technical breach, punishment as inflicted is too mild. A severe and drastic punishment was called for. He submits that initially an offence registered was only under Section 326 of Indian Penal Code, but, later on Section 307 was added. He contends that if investigating agency wanted to collude with PW-1, there could not have been any such lacunae as alleged. He has taken us through all material on record and papers to substantiate his contentions. 10. Defence of appellants/accused is that of previous enmity and therefore, false implication. They are also relying upon lacunae at the hands of the Investigating Officer. We therefore, find it appropriate to commence our consideration with independent evidence which is available on record. That evidence is of two doctors working with the government hospitals. 11. PW-7 Dr. Nilesh Agrawal is first in point of time who has examined the victim Alim Khan. He was working as a Medical Officer at Government Medical College. Police Constable - Sachin, buckle no. 5348 brought Alim Khan to him at 10 p.m. on 28.12.2013. He found incise wound on right parito occipital region, 6 x 0.25 cm x 0.25 cm in size. He referred Alim Khan to Clinical FMT department. He exhibited casualty paper Exh.34. He also pointed out that it was a fresh enquiry. There was no vomiting or bleeding as per ENT. He was not sure of any internal brain injury. His cross-examination does not bring anything on record to discredit him. 12. Other Doctor who examined Alim Khan thereafter is Dr. Naushad Hussain (PW-5). He was working in casualty department on that date. He examined Alim Khan and found incise wound of dimension 8 cm x 0.3 cm, which was muscle deep. It was fresh and caused by sharp cutting weapon. He referred the patient for C.T. Scan, which revealed linear fracture. The injury was grievous. He exhibited the certificate at Exh.31. He also proved answer to query on report at Exh.32 and 33. He accepted that skin on head is in stretched position, and if injury is caused by any blunt weapon, it gapes and look like incise one. He referred the patient for C.T. Scan, which revealed linear fracture. The injury was grievous. He exhibited the certificate at Exh.31. He also proved answer to query on report at Exh.32 and 33. He accepted that skin on head is in stretched position, and if injury is caused by any blunt weapon, it gapes and look like incise one. He did not find any bleeding at the site of the injury. He accepted that report at Exh.31 is prepared on 01.01.2014, when patient was already discharged. He accepted that he did not examine the patient before preparing the report at Exh.31. He denied that he prepared Exh.31 as per the say of police, and it is a false document. He also denied that the fracture mentioned therein, or opinion of grievous injury were as per the say of police. He accepted that size of injury mentioned by Dr. Agrawal and in his report are different. 13. Coupled with this, there is evidence of PW-2 Sarfaraz Khan on recovery at the instance of the accused. PW-2 is uncle of victim Alim Khan. He deposes that on 31.12.2013 police called him and then Samsher (accused no. 1) made a statement that he wanted to show sword used by him and also his clothes. He deposes recovery of thee articles from "Sajja" on first floor of house of the accused, where the accused took them and retrieved the same. The said clothes and sword was identified by him. Clothes were stained with blood. 14. He accepted that accused did not, in his memorandum speak of any particular place where he concealed the clothes or weapon. He only agreed to take it out and accordingly he led them to that place which is mentioned as Sajja. This evidence cannot be discarded and his cross in any case is not sufficient to disbelieve him. This recovery is also supported by the investigating officer (PW-8). Report of Chemical Analyzer shows human blood on the clothes of accused no. 1 and also on sword, as also on the spot. Group of blood on full shirt of Samsher and on sword is found to be "O". Blood of same group is found on the clothes of injured victim and blood group of victim Alim Khan is also found to be of "O". 15. Merely because while issuing certificate at Exh. 1 and also on sword, as also on the spot. Group of blood on full shirt of Samsher and on sword is found to be "O". Blood of same group is found on the clothes of injured victim and blood group of victim Alim Khan is also found to be of "O". 15. Merely because while issuing certificate at Exh. 31, victim Alim Khan was not before PW-5 Dr. Naushad, the certificate cannot be discarded. Moreover, he has referred to C.T. Scan report which refers to linear fracture. He has specifically added a note that the report has been given on 01.01.2014, after scanning C.T. head report. 16. This material therefore, shows grievous injury caused to the victim Alim Khan on vital part of his body with a dangerous weapon on spot, as alleged by him in his report. The fact that the weapon is recovered under Section 27 from accused no. 1 Samsher and clothes of Samsher carry blood of group of victim Alim Khan, also connect Samsher with the crime. 17. Alim Khan himself has been examined by the prosecution as witness no. 1. His evidence shows first attack near Lucky Chicken Center, where after the deceased accused expressing that Alim Khan should be killed, Samsher gave a blow of sword and he avoided it. He left his vehicle and ran towards his house. He reached Hasanbagh Chowk, where the appellants Samsher and Mujjaffar came on Hero Honda motor cycle. It was being driven by Mujjaffar and Samsher was pillion rider. Samsher got down and gave blow of sword on head of Alim Khan. Alim Khan sustained grievous injuries and blood started flowing. His shirt, baniyan and pant got stained in blood. He then went to his house and people carried him to police station. Police took him to government medical college and hospital. The fact that he was carried to government medical college and hospital by police, is supported by medical evidence. Evidence of this witness shows that police obtained his signatures on report. He proved that report at Exh.22 and printed FIR at Exh.23. His supplementary statement was obtained on 30.12.2013. In cross-examination, he accepted that he got himself discharged against medical advise and came back to his home from medical college. He stated that he took rest for entire day. He has further stated that on 30.12.2013, police had been to his house. His supplementary statement was obtained on 30.12.2013. In cross-examination, he accepted that he got himself discharged against medical advise and came back to his home from medical college. He stated that he took rest for entire day. He has further stated that on 30.12.2013, police had been to his house. He also stated that police also obtained his signatures on two forms. He denied that Exhs. 22 and 23 were prepared on 30.12.2013. This evidence show that report at Exh.22 or printed FIR at Exh.23 were signed by him on 30.12.2013. This also does not show that police had not gone to his house before 30.12.2013. 18. He has accepted that he has signed affidavit on 29.12.2013 mentioning therein that Mujjaffar and Gaffar did not assault him. This again does not mean that accused Samsher did not assault him. Why such an affidavit was required to be sworn by him, is not explained either by him or by prosecution. Burden definitely was on the accused. 19. Evidence of Ashok Dixit (Investigating Officer), examined as PW-8 shows that after sending Alim Khan to medical college, he went there to record his statement. After recording statement, he registered offence. Report is at Exh.22 and it bears signature of Alim Khan and investigating officer. He also stated that there is signature of Doctors also on Exh.22. He also accepted his signature on printed FIR, Exh.23. He has then spoken about further investigation. 20. His cross-examination shows that after obtaining signatures, he came back to police station at about 11.30 p.m. and at that time complainant Alim Khan was in medical college. On next day, he learnt that Alim Khan was discharged. 21. Investigating Officer Ashok in cross-examination stated that on next day after visit to the medical college between 4 to 5 a.m. he learnt about discharge of complainant Alim Khan. Thus, he has gone back to the hospital within 6 hours of his previous return therefrom. He therefore went to the house of the complainant at about 6 a.m. He called complainant Alim Khan at police station and Alim Khan reached there before preparing the spot panchnama. After preparing spot panchnama, he again brought Alim Khan to police station. He obtained his signatures on Exh.23 at that time. He denied that Exh.22 and Exh.23 were fabricated and ante timed. He accepted that in Exh.23 in column no. After preparing spot panchnama, he again brought Alim Khan to police station. He obtained his signatures on Exh.23 at that time. He denied that Exh.22 and Exh.23 were fabricated and ante timed. He accepted that in Exh.23 in column no. 3C different pen has been used. He denied that column no. 3 was not filled in at the same time. He also accepted that FIR needed to be sent to the Court of Judicial Magistrate First Class within 24 hours and that time is to be mentioned in column no. 15. He accepted that, column no. 15 in Exh.23 is totally blank. He deposed that he forwarded copy of FIR in the morning, but, it was not mentioned in column no. 15. He accepted that copy sent by him to the Magistrate and that it was carbon copy of Exh.23. That copy has been separately marked as Exh.43. Investigating officer accepted that in Exh.43, it was shown that copy was sent on 02.01.2014 and column no. 3C therein was kept blank. Thus, station diary number and registration time did not figure in it. He accepted that Alim Khan did not tell him while lodging report that Mujjaffar was riding the vehicle and Samsher was pillion on it. Alim Khan also had not mentioned that his clothes had blood. He denied that on next day, he himself scribed the report and registered the offence against the accused person. 22. In cross-examination by accused no. 2, he accepted that he did not receive injury certificate, but, Doctor told him that Alim Khan has sustained grievous hurt. He could not remember name of the Doctor who treated Alim Khan. He accepted that on next day, while showing spot, Alim Khan narrated the incident to him. Accordingly, he recorded the incident in spot panchnama. He accepted that, at that time Alim Khan told him that incident took place in-front of Lucky chicken center. No blood stains were found in front of that chicken center. He denied that adjacent to Hasanbagh Police Chowki, there is a square called as Hasanbagh Chowk. He denied that square in front of house of the complainant is known as Kabrastan chowk. 23. The complainant has stated that on 30.12.2013, police had come to his house and at that time police obtained his signatures on two forms. He denied that adjacent to Hasanbagh Police Chowki, there is a square called as Hasanbagh Chowk. He denied that square in front of house of the complainant is known as Kabrastan chowk. 23. The complainant has stated that on 30.12.2013, police had come to his house and at that time police obtained his signatures on two forms. There is no suggestion given to him that police did not come to his house on 29.12.2013. Similarly, the investigating officer has clearly stated that he went to house of Alim Khan at 6 a.m. on 29.12.2013. Report lodged by complainant Alim Khan clearly mentions that Samsher and Mujjaffar followed him and thereafter he was attacked. It is therefore, apparent that cross-examination of investigating officer does not in any way help the accused persons. Independent evidence of medical officers, coupled with the evidence of Investigating officer clearly implicates both the accused. Though there is enmity between the complainant and accused, material on record supports narration of events by the complainant Alim Khan, and therefore, it cannot be discarded. 24. There are some lacunae in the investigation. The motor cycle driven by Mujjaffar (accused no. 3) has not been recovered. However, that by itself is not fatal in the matter. The participation of Samsher and attack by him at two places has been proved beyond reasonable doubt. Deposition of complainant about role of Mujjaffar is consistent and needs to be accepted. 25. Taking over all view of the matter, we find no substance in the appeals filed by the appellants-Samsher and Mujjaffar. In criminal Appeal No. 435/2015, appellant-State Government is seeking enhancement of sentence, on the ground of previous criminal record of accused persons. However, that record has not been proved as required by law. The trial court therefore, has correctly discarded that record. We do not find anything wrong with said exercise. 26. In this situation, we proceed to pass the following order. ORDER (1) All Criminal Appeals are dismissed. (2) Judgment and order delivered by the Adhoc District Judge and Additional Sessions Judge, Nagpur dated 27.10.2015 in Sessions Trial No. 208/2014 is, maintained. (3) Muddemal property be dealt with as directed by the Trial Court, after appeal period is over. Appeals dismissed.