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2017 DIGILAW 1950 (BOM)

Abdul Ahad v. State of Maharashtra

2017-09-20

M.G.GIRATKAR, VASANTI A.NAIK

body2017
JUDGMENT : Vasanti A Naik, J. 1. The appellants have challenged the impugned Judgment of conviction dt.19.7.2005 in Sessions Trial No.228 of 2002, by which the appellant nos.1 to 3 are convicted for the offence punishable under Section 302 r/w. 34 of the Indian Penal Code and sentenced to suffer imprisonment for life and to pay a fine of Rs.100/- each, in default to suffer further rigorous imprisonment for six months. 2. The case of the prosecution/complainant, in short, is as under : On 22.6.2002, Complainant Bhikulal Babulal Jasekar went to fetch water on the public tap near his house. Accused no.1 Abdul Ahad also came there to fetch water. He pushed the pot of complainant and started fetching water. There was a quarrel between Bhikulal and Abdul Ahad. Accused no.1 Abdul Ahad called accused nos. 2 and 3. Accused nos. 1 to 3 started beating Bhikulal. Daughter of Bhikulal namely Gunja rushed to the house and informed to the family members. Brothers of Bhikulal namely Karan and Ramu rushed to the spot. There was a scuffle/beating on the spot. Accused nos. 1 to 3 called other family members with weapons. Accused no.3 gave a blow of axe on the shoulder of Karan. Karan was frightened and ran away from the spot of incident. Accused nos. 1 and 2 beat deceased Ram @ Rambabu. Accused no.1 inflicted injuries by knife. Accused no.2 also beat him by an iron pipe. 3. Wife of Rambabu reached on the spot. She was also beaten by accused nos. 1 and 2. Rambabu was seriously injured. He was taken to the Police Station by his brother and wife. The statement of Bhikulal was recorded by police. It was treated as a First Information Report. Injured Rambabu was referred to the Government hospital. He died during the treatment. Initially, the offence punishable under Section 307 r/w. Section 34 of the Indian Penal Code was registered. After death of Rambabu, the offence punishable under Section 302 of the Indian Penal Code was added. 4. Investigating Officer reached to the spot of incident. He prepared the spot panchanama etc. Some of the investigation was carried out by Investigating Officer Sharif Sikander Khan. Remaining part of the investigation was carried out by PSI Uttamsingh Gaharwar (PW7). 5. Investigating Officer arrested the accused. He seized clothes of the accused and the deceased. 4. Investigating Officer reached to the spot of incident. He prepared the spot panchanama etc. Some of the investigation was carried out by Investigating Officer Sharif Sikander Khan. Remaining part of the investigation was carried out by PSI Uttamsingh Gaharwar (PW7). 5. Investigating Officer arrested the accused. He seized clothes of the accused and the deceased. The confessional statement of accused no.1 was recorded in presence of panchas. He gave statement before the panchas that he will produce the knife. Accordingly, the knife was seized as per the Seizure Panchanama drawn in presence of the panchas. All the seized properties were sent to the Chemical Analyser. After complete investigation, the charge-sheet was filed before the Court of Judicial Magistrate, First Class. Offence punishable u/s. 302 of the I.P.C. is exclusively triable by Sessions Court, hence the case was committed for trial to Sessions Court, Amravati. Charge was framed against the accused at Exh.12. The accused pleaded not guilty and claimed to be tried. The defence of the accused was of total denial. 6. During the course of trial, Prosecution has examined Complainant Bhikulal Jasekar at Exh.41. This witness has not supported the prosecution. Dr. Someshwar Ramchandraji Nirmal (PW2) has stated in his evidence that he conducted post mortem on the dead body of deceased Rambabu. As per his evidence, he found about eight injuries. As per his opinion, the cause of death was shock due to injuries to the vital organs. Accordingly, he issued Post Mortem report (Exh.45). As per his evidence, all the injuries were sufficient to cause death in the ordinary course. 7. Karan Babulal Jasekar (PW3) and Sangita Rambabu Jasekar (PW4) only supported the prosecution. Bhikulal (PW1) and Gunja (PW5), daughter of Bhikulal not supported the prosecution. Sharif Sikanderkhan (PW6) and Uttamsingh Daulatsingh Gaharwar (PW7) carried out investigation. They have stated about the investigation before the Court. 8. Learned trial Court has relied on the evidence of Karan (PW3) and Sangita (PW4) and recorded it's finding that accused nos. 1 to 3 have committed murder of deceased Rambabu. The trial Court discarded the evidence of Karan (PW3) in respect of the offence punishable under Section 307 of the Indian Penal Code. 9. Heard Mr. Anup Choudhari, learned Senior Counsel for the appellants. He has pointed out to us that prosecution has failed to prove the report lodged by the complainant. The trial Court discarded the evidence of Karan (PW3) in respect of the offence punishable under Section 307 of the Indian Penal Code. 9. Heard Mr. Anup Choudhari, learned Senior Counsel for the appellants. He has pointed out to us that prosecution has failed to prove the report lodged by the complainant. Prosecution has not examined both panch witnesses, in whose presence the accused confessed to show the weapon used in the crime. Prosecution has suppressed the statement recorded earlier on 12th July, 2002. Evidence of Karan (PW3) and Sangita (PW4) are not reliable. Statements of witnesses are recorded after 20 days. C.A. Report is not exhibited. Conduct of Karan (PW3) and Sangita (PW4) is not taken into consideration. 10. Mr. Anup Choudhari, learned Senior Counsel for the appellants has pointed out material cross-examination/ admissions of Karan (PW3) and Sangita (PW4) and has submitted that the learned trial Court has not taken into consideration all the evidence before the Court and came to the wrong conclusion. He has pointed out that the evidence of Karan (PW3) is not relied on by the trial Court, who was injured as per the prosecution case. The learned Senior Counsel has submitted that, by not relying on the evidence of Karan (PW3), the accused persons are acquitted for the offence punishable under Section 307 of the Indian Penal Code. 11. The learned Senior Counsel Mr. Anup Choudhari has submitted that it is mandatory on the part of the police to forward the F.I.R. to the concerned Judicial Magistrate, First Class immediately, but the F.I.R. was not forwarded to the Court of J.M.F.C. In support of his submission, the learned Senior Counsel has pointed out decision reported in 2009 (7) SCC 454 , Motilal and another .vs. State of Rajasthan. 12. The learned Senior Counsel Mr. Choudhari has submitted that Section 27 of the Indian Evidence Act is an exception to Sections 25 and 26 of the said Act because, as per Sections 25 and 26, any statement made before the police is not admissible. Therefore, Section 27 of the Act is an exception to Sections 25 and 26, by which the statement in respect of discovery by the accused before the police is admissible and therefore, examination of panch witnesses, in whose presence the accused gave confession to show the weapon, is very important. Hence, examination of independent panch witnesses is very material. 13. Therefore, Section 27 of the Act is an exception to Sections 25 and 26, by which the statement in respect of discovery by the accused before the police is admissible and therefore, examination of panch witnesses, in whose presence the accused gave confession to show the weapon, is very important. Hence, examination of independent panch witnesses is very material. 13. Learned Senior Counsel submitted that in the present case, prosecution has not examined a single panch witness and all the panchanamas came to be exhibited in the evidence of Investigating Officer Sharif Sikanderkhan (PW6). The learned Counsel has submitted that the panchanama u/s.27 is very material. Therefore, examination of panch witnesses is also very material. In the present case, not a single panch witness is examined by the prosecution. No explanation is given by the prosecution as to why no panch witness is examined to prove the panchanama u/s.27 of the Evidence Act. Therefore, the panchanamas u/s.27 i.e. discovery of weapon as per memorandum (Exh.68) and seizure of weapon (Exh.69) are not reliable. In support of his submission, the learned Senior Counsel has pointed out the decision reported in (1972) 4 SCC 659 , Delhi Administration .vs. Bal Krishan and Others. 14. Learned Senior Counsel Mr. Choudhari has submitted that the evidence of Karan (PW3) and Sangita (PW4) is not reliable because Karan (PW3) has admitted in his cross-examination that there was a quarrel on public water tap between Bhikulal and accused no.1. Gunja came to the house and informed them about the incident. Therefore, Karan along with deceased Rambabu reached to the spot of incident. When the accused tried to assault him, he ran away from the spot of incident. Learned Senior Counsel has submitted that this witness was not present on the spot and he had run away. Moreover, evidence of this witness is not relied by the trial Court in respect of the injury sustained by him. All the accused persons were charged for the offence punishable u/s.307 r/w. Section 34 of the Indian Penal Code. But without relying on evidence of Karan (PW3), the accused persons are acquitted for the offence punishable u/s.307 of the Indian Penal Code. Therefore, this witness is not reliable, even though the learned trial Court has partly relied on his evidence in respect of the offence punishable u/s. 302 of the I.P.C. 15. Learned Senior Counsel Mr. But without relying on evidence of Karan (PW3), the accused persons are acquitted for the offence punishable u/s.307 of the Indian Penal Code. Therefore, this witness is not reliable, even though the learned trial Court has partly relied on his evidence in respect of the offence punishable u/s. 302 of the I.P.C. 15. Learned Senior Counsel Mr. Choudhari has submitted that the evidence of Sangita (PW4), wife of Rambabu is also not reliable because Karan (PW3) has stated in his cross-examination that when Rambabu fell down, Sangita had reached the spot of incident. This itself shows that Sangita was not present when the quarrel was going on. She reached to the spot of incident after the quarrel was over. Learned Senior Counsel has pointed out cross-examinations of Sharif Sikanderkhan (PW6) and Uttamsingh Gaharwar (PW7). Both the Investigating Officers have admitted that the statements of witnesses were recorded twenty days after the date of the incident. It is pertinent to note that all the witnesses were present, but no explanation is given by the prosecution as to why their statements were not recorded at the earliest point of time The learned Senior Counsel has submitted that the evidence of Karan (PW3) and Sangita (PW4) should not be relied on. In support of his submission, he pointed out the decision reported in AIR 1970 SC 219 , Kanbi Nanji Virji and Others .vs. State of Gujarat. 16. Learned Senior Counsel has submitted that Bhikulal (PW1) and Gunja (PW5) have not supported the prosecution and therefore, part of their evidence cannot be taken into consideration. In support of his submission, he pointed out the decision reported in AIR 1975 SCC 1400, Jagir Singh vs. The State (Delhi Administration). It is submitted by the learned Senior Counsel that that the evidence adduced by the prosecution is not sufficient to convict the accused. Learned trial Court has not taken into consideration all the material evidence brought on record. The learned trial Court has not taken into consideration the material admissions brought in the cross-examination and has wrongly convicted accused nos. 1 to 3. In the circumstances, the learned Senior Counsel has prayed to allow the appeal and acquit the accused/appellant nos. 1 to 3 of the offence punishable under Section 302 r/w. 34 of the Indian Penal Code. 17. Heard Mr. S.S. Doifode, learned Additional Public prosecutor. 1 to 3. In the circumstances, the learned Senior Counsel has prayed to allow the appeal and acquit the accused/appellant nos. 1 to 3 of the offence punishable under Section 302 r/w. 34 of the Indian Penal Code. 17. Heard Mr. S.S. Doifode, learned Additional Public prosecutor. He has submitted that the learned trial Court has rightly relied on the evidence Karan (PW3) and Sangita (PW4). He has submitted the statements recorded by the Investigating Officer are filed on record, but they are wrongly not pointed out. Therefore, it cannot be a ground to reject the testimonies of the material witnesses. Learned A.P.P. Mr. Doifode has submitted that the appellants/accused beat the deceased by knife, axe and iron pipe and caused his death. As per the evidence of Dr. Someshwar Nirmal (PW2), the Medical Officer, the injuries were proved. The post mortem report (Exh.45) showed that the deceased sustained injuries to the vital part of his body. As per evidence of Dr. Someshwar, deceased Rambabu died due to injuries to his vital organs. Learned A.P.P. has submitted that this evidence brought on record by the side of prosecution is sufficient to convict the accused and therefore, the trial Court has rightly convicted all the appellants/accused for the offence punishable under Section 302 r/w. 34 of the I.P.C. It is further submitted by the learned A.P.P. that there is no merit in the appeal and therefore, the same is liable to be dismissed. 18. Now it is a well settled principle that prosecution has to prove its case beyond reasonable doubt. For convicting the accused by the Court there should not be any doubt in the mind of the Court. Keeping this principle in mind, the Court has to decide whether the accused is guilty or not. 19. Prosecution has examined in all seven witnesses. Bhikulal (PW1), who is the main witness/complainant, has not supported to the prosecution. As per the case of the prosecution, Bhikulal (PW1) went to water tap to fetch water. At that time, accused no.1 also reached there and he started quarreling. Therefore, daughter of complainant Bhikulal namely Gunja (PW5) came to the house and informed the family members about the incident. Therefore, brothers of Bhikulal namely Karan and Rambabu reached to the spot of incident. Accused nos. 2 and 3 also reached there. At that time, accused no.1 also reached there and he started quarreling. Therefore, daughter of complainant Bhikulal namely Gunja (PW5) came to the house and informed the family members about the incident. Therefore, brothers of Bhikulal namely Karan and Rambabu reached to the spot of incident. Accused nos. 2 and 3 also reached there. They also called other family members, who also brought weapons and started beating Bhikulal. When Karan and Rambabu intervened, they started beating Rambabu. As per the case of prosecution, accused no.3 gave a blow of axe on the shoulder of Karan. Nothing is brought on record in the cross-examination of Bhikulal to support the case of the prosecution. 20. Gunja (PW5) is also a material witness. She is a relative of the deceased and daughter of Bhikulal. Said witness Gunja has also not supported the prosecution. Nothing is brought on record in her cross-examination to point out towards the guilt of the accused. 21. The Medical Officer Dr. Someshwar (PW2) has proved the Post Mortem Report (Exh.45). As per his evidence, he found in all total eight injuries. As per his opinion, the cause of death of the deceased was injuries to his vital organs. Therefore, there is no dispute that death of Rambabu was homicidal and therefore, the Court has to see who is the author of crime. The learned trial Court relied on the evidence of Karan (PW3), who is brother of the deceased and Sangita (PW4), who is wife of the deceased. Therefore, it is clear that both the witnesses are interested witnesses. 22. There is no law that the interested witnesses should not be relied on by the Court, but it is made clear by the catena of Judgments of the Apex Court that when the Courts want to rely on the evidence of relatives of the victim, their evidence should be scrutinized very carefully/minutely. Karan (PW3) has stated in his evidence that Bhikulal went to fetch water. There was quarrel between Bhikulal and the accused persons. Therefore, Gunja rushed to the house telling about the incident. Thereafter, Witness Karan along with Rambabu went to the spot. He tried to intervene. Accused no.1 started abusing him. Accused no.3 snatched axe from the hands of his sister and assaulted him. He sustained injury to his left hand. Therefore, he ran away. 23. Therefore, Gunja rushed to the house telling about the incident. Thereafter, Witness Karan along with Rambabu went to the spot. He tried to intervene. Accused no.1 started abusing him. Accused no.3 snatched axe from the hands of his sister and assaulted him. He sustained injury to his left hand. Therefore, he ran away. 23. Karan (PW3) has deposed in his evidence that he knows that one has to run away from the spot if there is a danger to his life. He started running from the spot when the assault was tried to be made on him. Later, he stopped running when he felt that there was no danger to his life. This admission given by the witness clearly shows that he was not assaulted by the accused. When he felt that there was danger to his life and accused tried to assault him then he ran away from the spot of incident. This witness was though available to police, but his statement was not recorded till 12.7.2002; whereas the incident has taken place on 22.6.2002. Karan (PW3) has stated in his cross-examination that he went to the Police Station twenty days after the date of incident and thereafter, his statement was recorded by police. 24. Karan (PW3) has stated in his cross-examination that whatever he has deposed in his examination-in-chief is stated falsely by him. Therefore, it is clear that this witness himself has admitted in the cross-examination that he has stated falsely in his examination-in-chief. Material omissions are brought on record in the cross-examination of this witness (para eight of his evidence). Karan (PW3) has specifically admitted as under: “I have stated before the police that accused no.1 assaulted Rambabu with knife on his rib. It is true that this fact is not written in his statement and I cannot assign any reason as to why police have failed to mention this fact in my statement. Rambabu fell on the spot. Thereafter, Sangita came there and then myself and Sangita have taken Rambabu in the hospital in the auto rickshaw.” 25. The above admission shows that Karan (PW3) has not stated the material facts in his statement before the police. His evidence show that he is not a reliable witness because there is a material omission. All these omissions are proved by the Investigating Officers. The above admission shows that Karan (PW3) has not stated the material facts in his statement before the police. His evidence show that he is not a reliable witness because there is a material omission. All these omissions are proved by the Investigating Officers. As per the evidence of Karan (PW3), in the cross-examination, he has stated that he ran away from the spot of incident as soon as he felt danger to his life and he stopped when he was sure that there was no danger to his life. Therefore, it cannot be said that this witness saw the incident personally. The material omissions in his statement show that he did not witness the incident personally. Therefore, the learned trial Court ought not to have relied on the evidence of Karan (PW3). 26. The learned trial Court relied on the evidence of Sangita (PW4), the wife of deceased. She has stated in her examination-in-chief that there was a quarrel between Bhikulal and the accused on the public tap. Gunja rushed to the house and thereafter, her husband Rambabu and Karan (PW3) rushed to the spot of incident. Her husband and Karan intervened in the quarrel. The accused persons assaulted her husband by knife and iron pipe. Accused no.1 gave 24 blows of knife on the person of her husband. Accused no.2 assaulted by the deceased with iron pipe. She has further stated that accused no.2 assaulted her with the help of pipe on her thigh. She has specifically stated that her statement was not recorded by police. In the cross-examination she has specifically stated that she along with the other family members made a discussion and thereafter, they went to the police Station to lodge the report. She has specifically admitted this fact in para eight of her evidence. She has stated in her cross-examination that one Karimbhai also intervened in the quarrel. But prosecution has not examined said Karimbhai, who had tried to pacify the quarrel. As per her opinion, about 2025 persons were gathered at the time of incident, but not a single witness is examined by the prosecution. 27. The evidence of Sangita (PW4) is wrongly relied on by the trial Court because she did not witness the incident personally. This fact is clear from the admission of Karan (PW3), who has stated in his cross-examination that when Rambabu fell down, Sangita (PW4) reached there. 27. The evidence of Sangita (PW4) is wrongly relied on by the trial Court because she did not witness the incident personally. This fact is clear from the admission of Karan (PW3), who has stated in his cross-examination that when Rambabu fell down, Sangita (PW4) reached there. Thereafter, he along with Sangita took Rambabu to the hospital. Admission of Karan (PW3) makes it clear that Sangita was not present on the spot of incident when the accused persons beat the deceased. Therefore, the evidence of Sangita (PW4) should not have been relied on by the trial Court. But the learned trial Court, without taking into consideration all the material evidence brought on record in the cross-examination, has relied on the evidence of Karan (PW3) and Sangita (PW4). 28. Except the evidence of Karan (PW3) and Sangita (PW4), nothing is brought on record by the side of the prosecution by examining any independent witness to prove the guilt of the accused. Karan (PW3) and Sangita (PW4) are interested witnesses and therefore, it was for the prosecution to have examined any independent witness. As per the admission of Sangita (PW4), Karimbhai had tried to pacify the quarrel. It is not explained by the prosecution as to why this witness is not examined. 29. The learned trial Court has wrongly relied on the memorandum and discovery panchanama made by accused no.1 vide Exh. Nos. 68 to 69. All the panchanamas came to be proved/exhibited in the evidence of Sharif Sikanderkhan (PW6), the Investigating Officer. Prosecution has not given any explanation as to why not a single panch witness is examined before the trial Court to prove the panchanamas filed on record. The spot panchanama and the seizure panchanama of clothes are not proved by examining any independent witness. More particularly, the panchanama u/s.27 i.e. discovery panchanama made by accused, by which he gave confessional statement to show the knife/weapon is not proved by examining any independent witness. The prosecution has not explained as to why none of the panch witnesses is examined before the trial Court. 30. As per the principles laid down in Sections 25 and 26 of the Indian Evidence Act, any statement made before the police is not admissible in evidence. Section 27 is the only exception to Sections 25 and 26 of the Evidence Act. 30. As per the principles laid down in Sections 25 and 26 of the Indian Evidence Act, any statement made before the police is not admissible in evidence. Section 27 is the only exception to Sections 25 and 26 of the Evidence Act. Therefore, heavy burden is on the prosecution to prove the panchanama u/s.27 by examining an independent witness. 31. The Hon'ble Supreme Court in the case of Delhi Administration .vs. Bal Krishan and Others, 1972 (4) SCC 659 , has held that “Section 27 is by way of proviso to Sections 25 and 26 of the Act and a statement, even by way of confession, which distinctly relates to the fact discovery is admissible as evidence against the accused in the circumstances stated in Section 27.” In para No. 8 therein, the Hon'ble Supreme Court has further observed that “as regards accused Ram Singh, he is supposed to have made a disclosure statement Ex.PR on November 22, 1965 and in consequence of that statement one 'Khes' Exh.P.4, identified as stolen property was recovered from the house of Ram Singh in village Girwari. There were three panch witnesses for this recovery, namely, Krishan Singh (PW14), Sunder Lal (PW35) and one Dal Chand. The two panchas examined for the prosecution turned hostile and the third panch Dal Chand was not examined. In these circumstances, in spite of the police witnesses giving evidence with regard to this recovery, the learned Judge was not inclined to act upon that evidence and we cannot say that the learned Judge was wrong in doing so.” 32. In the aforesaid decision, prosecution has examined two panch witnesses and the third panch witness, who was available to the prosecution, was not examined. In the circumstances, Hon'ble Apex Court has held that the learned trial Judge has rightly not relied on the evidence of Investigating Officer/police. In the present case, not a single panch witness is examined by the prosecution. The prosecution has not given any explanation as to why none of the panch witnesses is examined before the trial Court. Therefore, the evidence in respect of discovery of weapon by accused no.1 ought not to have been relied by the trial Court. The learned trial Court has wrongly relied on the discovery panchanama/statement made by accused no.1. 33. The learned Senior Counsel Mr. Therefore, the evidence in respect of discovery of weapon by accused no.1 ought not to have been relied by the trial Court. The learned trial Court has wrongly relied on the discovery panchanama/statement made by accused no.1. 33. The learned Senior Counsel Mr. Choudhari has pointed out to us the cross-examinations of witnesses Karan (PW3), Sangita (PW4), Sharif Sikanderkhan (PW6) and Uttamsingh Gaharwar (PW7). As per the admission of Karan (PW3), he had run away from the spot of incident as soon as he felt danger to his life. As per admission of Karan (PW3), Sangita (PW4) reached the spot of incident after deceased Rambabu fell down. The learned Senior Counsel Mr. Choudhari has pointed out the cross-examination of Sangita (PW4). As per her admission, they did not go to the Police Station as early as possible, but they were thinking and deciding as to what action is to be taken. As per her evidence, all of them sat together and decided and thereafter, went to the police Station. 34. Investigating Officer Sharif Sikanderkhan (PW6) has admitted in his cross-examination that “I have also inquired from the injured and their relatives about the incident.” He has further admitted that “it is true that Karan, Bhikulal, Sangita are the relatives of injured. I used to record the statement of the witness if he is stating about the incident. I have not recorded the statement of Sangita and Karan, what they have stated before me about the incident. I would have recorded the statement of Sangita and Karan in case they have stated before me about the incident. On perusal of charge-sheet, it is seen that, in the charge-sheet, there are only supplementary statements of Sangita and Karan”. 35. The above admission of Investigating Officer Sharif Sikanderkhan (PW6) clearly shows that he was ready to record the statements of material witnesses immediately after the incident, but Karan (PW3) and Sangita (PW4) might not be ready to give their statements and therefore, he could not have recorded their statements. As per admission of Investigating Officer Uttamsing (PW7), it is clear that earlier statements of witnesses namely Karan and Sangita are not filed on record. The supplementary statements of Karan and Sangita, dt.12.7.2002 are filed on record. Therefore, great prejudice is caused to the accused. The prosecution has suppressed the material fact from the Court. As per admission of Investigating Officer Uttamsing (PW7), it is clear that earlier statements of witnesses namely Karan and Sangita are not filed on record. The supplementary statements of Karan and Sangita, dt.12.7.2002 are filed on record. Therefore, great prejudice is caused to the accused. The prosecution has suppressed the material fact from the Court. If the previous statements/earlier statements would have been produced before the Court, that would have gone against the prosecution and therefore, prosecution has not filed the same on record. In the case of Lal Chand .vs. State of Haryana, AIR 1984 SC 226 , the Hon'ble Supreme Court has observed in para eight as under : “Thus even the statements made before the police were recorded four months after occurrence. Copies of these statements were not made available to the defence on the spacious plea that the prosecution did not seek to rely on these statements. The trial Court was wholly wrong in taking the view that it was not necessary to make available these statements to the defence for the purposes of cross-examination inasmuch as the prosecution did not wish to rely on these statements. The defence cannot be deprived of or denied the right to avail of these statements in order to test the evidence of the concerned witnesses or confront him with his oral version in case the evidence in the Court is inconsistent with the earlier statements made before the police......” 36. Prosecution has suppressed the material fact from the Court. Prosecution has not produced previous statements before the Court. The defence had no opportunity to contradict the witnesses or get anything elicited on the basis of previous statements during the course of cross-examination. Therefore, adverse inference can be drawn against the prosecution. Prosecution has not examined the material panch witnesses. Therefore, the discovery u/s.27 is not duly proved as observed in the above cited Judgment. 37. Prosecution has to prove the guilt of the accused beyond reasonable doubt. More particularly, in the case of offences of serious nature, the burden is high on the prosecution to prove the guilt of the accused without any doubt. In the present case, prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Case of prosecution is not reliable on the following grounds. (I) Complainant/injured Bhikulal and his daughter Gunja (PW5), who are material witnesses, have not supported the prosecution. In the present case, prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Case of prosecution is not reliable on the following grounds. (I) Complainant/injured Bhikulal and his daughter Gunja (PW5), who are material witnesses, have not supported the prosecution. (II) Evidence of Karan (PW3) is not reliable because he ran away from the spot as soon as he felt danger to his life. Therefore, whatever he has stated about the incident cannot be a gospel truth. Another ground for discarding his evidence is that the accused were prosecuted for the offence punishable under Section 307 of the I.P.C. for the injury caused to Karan (PW3). But, as per the evidence of Karan (PW-3), it appears that he did not sustain any injury because in the cross-examination he has admitted that he ran away from the spot as soon as he felt danger to him. Therefore, it suggests that before assaulting he ran away from the spot. Moreover, his evidence is not relied on by the trial Court in respect of the offence punishable u/s.307 of the I.P.C. 38. The evidence of Sangita (PW-4) is also not reliable because her evidence that she saw the incident personally is not reliable because Karan (PW-3) has stated in his cross-examination that Sangita (PW4) reached to the spot of incident when Rambabu fell down and thereafter, he along with Sangita took Rambabu to the hospital. Moreover, her cross-examination show that she did not go to the Police Station to give statement/information. Her further cross-examination shows that they discussed and thereafter they lodged report against the accused persons. 39. The evidence of Karan (PW3) and Sangita (PW4) is not reliable because there are material omissions brought and proved by the Investigating Officer. Their evidence is not reliable because prosecution has suppressed their previous statements recorded earlier and only their supplementary statements dt.12.7.2002 are produced on record. 40. Prosecution has not proved the other material evidence such as discovery of weapon by the accused. Prosecution has not examined any independent witness to prove the discovery panchanama. C.A. Report though is on record, it does not show that the blood groups of the accused persons were also detected. Blood group 'B' might have been the blood group of one of the accused. Therefore, the C.A. Report cannot be blindly relied on. Moreover, C.A. Report is not a substantive piece of evidence. C.A. Report though is on record, it does not show that the blood groups of the accused persons were also detected. Blood group 'B' might have been the blood group of one of the accused. Therefore, the C.A. Report cannot be blindly relied on. Moreover, C.A. Report is not a substantive piece of evidence. It is a corroborative piece of evidence. Prosecution has to prove the guilt without any doubt. 41. Prosecution has failed to prove by way of evidence of Karan (PW3) and Sangita (PW4) that the accused persons have committed the offence. The evidence of said witnesses Karan (PW3) and Sangita (PW4) is not reliable. The learned trial Court wrongly relied on the testimonies of both the witnesses. The reasons for not relying on their testimonies is given above. Other evidence i.e. discovery is not proved. Admissions of the Investigating Officer show that they have suppressed material fact from the Court. As per the incident of Sharif Sikanderkhan (PW6), he was visiting the spot of evidence, but nobody came forward to give evidence. Therefore, he has not recorded the statements of witnesses. As per the evidence of Uttamsing (PW7), the earlier statements are not filed on record. All this evidence goes to show that prosecution has failed to prove the guilt of the accused beyond reasonable doubt. Therefore, the appellants/accused are entitled for the benefit of doubt. Hence, the appellants are entitled for acquittal. With this finding, we allow the appeal and pass the following order. The Criminal Appeal is allowed. Appellant No.1 Abdul Ahad s/o. Abdul Samad Deshmukh, Appellant no.2 Abdul Ashfak s/o. Abdul Ahmad and appellant no.3 Abdul Akil s/o. Abdul Samad Deshmukh are hereby acquitted of the offence punishable under Section 302 r/w. Section 34 of the Indian Penal Code. Their bail bonds shall stand cancelled. Fine amount if paid be returned to appellant after appeal period. The seized property, if any, be destroyed after lapse of appeal period. The record and proceedings be sent back to the trial Court.