JUDGMENT : M.G. Giratkar, J. 1. By way of present appeal, the appellant/State of Maharashtra challenges the judgment and order dated 10th August, 2007 passed by the learned Adhoc Additional Sessions Judge6, Nagpur in Sessions Trial No. 71 of 2005, thereby acquitting the respondents for the offence punishable under Sections 302, 201, 294 read with Section 34 of the Indian Penal Code. 2. The case of the appellant/prosecution against the respondents (hereinafter referred as accused), in short, is as under: Deceased Sohan Yadav was residing near Yeshwant Stadium at Sangam Chawl within the jurisdiction of Police Station, Dhantoli, Nagpur. On 28.09.2004, at about 5 o' clock, deceased returned from his work. There was programme of immersion of idol of Lord Ganesh of Sarvajanik Ganesh Utsav Mandal in their locality. At about 6:30 p.m. men and women of their locality started procession for immersion of idol of Lord Ganesh. Deceased was also accompanying in the procession. Wife of deceased went up to Bank of Maharashtra, Sitabuldi, Nagpur and returned. 3. At about 9:00 p.m. all the persons, who went for immersion, returned back. Deceased came in front of Ganesh Utsav Mandal, Udasi Mandir, after immersion of Lord Ganesh in Futala water tank. Dinner was arranged there in the pendal for the people who had gone for immersion. At that time, accused Manoj @ Balya Gudadhe, who was under the influence of liquor, was abusing without any reason saying "Saale Dawke Log Madarchod Rahate Hai." Deceased was of Dawke community. Deceased asked Manoj as to why he was abusing them. Accused Manoj caught hold collar of deceased, took him while dragging inside his house. Nilkanth Uikey and Arvind Sharma were behind. They went near the door of the house of accused. Accused gave fist blows on the nose and chest of deceased. Deceased fell down. Accused Manoj took out one small sword (knife) kept under the mattress and by holding it with his right hand, he delivered its blow on the left armpit portion of deceased. Deceased fell down and started bleeding profusely. On deceased shouting as "Mara Re" Arvind Sharma, Sanjay Ambadare, Samir Yadav brought auto rickshaw. They uplifted deceased Sohan from the house of accused. When they were taking deceased to Medical College, they stopped auto rickshaw in front of Police Station, Dhantoli and informed the police. Police advised them to go to Medical College. On deceased shouting as "Mara Re" Arvind Sharma, Sanjay Ambadare, Samir Yadav brought auto rickshaw. They uplifted deceased Sohan from the house of accused. When they were taking deceased to Medical College, they stopped auto rickshaw in front of Police Station, Dhantoli and informed the police. Police advised them to go to Medical College. Doctor examined deceased Sohan and declared him dead. Wife of deceased namely Kusum lodged oral report (Exh.39). Crime was registered vide printed FIR (Exh.40). Police Sub Inspector Shri Barraiyya started investigation. 4. Psi Barraiyya went to the spot of incident and prepared spot panchnama (Exh.44). He seized pieces of floor tiles, plaster on the wall having blood stains vide seizure panchnama (Exh.45). Thereafter, he arrested both the accused vide arrest panchnamas (Exhs.46 and 47). Accused Manoj @ Balya made a disclosure statement vide Exh.52 saying that he would show the knife/small sword hidden in his house. As per his memorandum, produced the knife, the same was seized as per seizure panchnama (Exh.53). PSI Barraiyya recorded statements of witnesses. Further investigation was carried out by PSI Patil. After completing investigation, chargesheet came to be filed before the Court of JMFC, who, in turn, committed the same to the Court of Session for trial. 5. Learned trial Court framed charge at Exh.11 for the offence punishable under Sections 294, 302, 201 read with Section 34 of the Indian Penal Code. Prosecution has examined following ten witnesses:- (i) PW-1 Arvind Abhayraj Sharma Exh.13 (ii) PW-2 Kusum Sohan Yadav Exh.16 (iii) PW-3 Nilkanth Bheluji Uike Exh.26 (iv) PW-4 Sameer Ramdulare Yadav Exh.28 (v) PW-5 Deepak Ramkrushna Ahir Exh.30 (vi) PW-6 Subhash Shantaram Murkute Exh.31 (vii) PW-7 Ramvilas Sitasharan Pande Exh.33 (viii) PW-8 Dr. Manish Baburao Shrigiriwar Exh.34 (ix) PW-9 Nandkishor Ramkishan Chauhan Exh.38 (x) PW-10 Arun Haribhau Barraiyya Exh.43 6. Learned trial Court recorded the statements of accused. They have denied material incriminating evidence against them. It is the defence of accused that Manoj Sharma is the real culprit. PSI Barraiyya falsely implicated both the accused by making show of false recovery etc. After hearing the prosecution and defence, learned trial Court acquitted both the accused. Hence, the present appeal by the State. 7. There is no dispute that during the pendency of proceedings before the trial Court, accused persons made several complaints and requests to the State Government, Superior Officers of the Police Department to reinvestigate the crime. After hearing the prosecution and defence, learned trial Court acquitted both the accused. Hence, the present appeal by the State. 7. There is no dispute that during the pendency of proceedings before the trial Court, accused persons made several complaints and requests to the State Government, Superior Officers of the Police Department to reinvestigate the crime. There is no dispute that Dy. S.P. Shri Tayade reinvestigated the crime and submitted his report. Accused persons got the said report under the provisions of Right to Information Act. Vide application (Exh.64), said report was produced by the accused. Learned APP/prosecution given no objection to accept the document. Accordingly, report submitted by Dy. S.P. Shri Tayade is marked as Exh.66. 8. Evidence of PW-1 shows that accused Manoj inflicted blow of knife on the armpit of deceased Sohan Yadav. He has stated that accused Manoj Gudadhe was abusing Dawke community. Deceased Sohan Yadav was belonging to Dawke community. Therefore, he asked Manoj as to why he was abusing. Accused Manoj caught hold the collar of deceased Sohan and dragged him in his house. He has stated that mother of accused No. 1 was standing at the door. When they tried to rescue deceased, accused Manoj took out knife from the cot and inflicted injury on deceased. PW-3 (Nilkanth Uike) stated the same story as stated by PW-1 (Arvind Sharma). 9. PW-2 (Kusum Yadav), wife of deceased, has not supported the case of prosecution. On the other hand, she has stated in her evidence that she did not state the contents of report. Those contents were stated by PW-1 (Arvind Sharma). She has admitted in her cross-examination that in the reinvestigation, she has stated real fact. In fact, she had not seen the incident, even though it was mentioned in her report. 10. PW-4 (Sameer Yadav) and PW-5 (Deepak Ahir) also did not support the case of prosecution. 11. PW-6 (Subhash Murkute) has stated in his evidence that at the time of incident, he was taking dinner at the house of accused. Wife of Munna Uikey came there and informed them about the quarrel of accused Manoj @ Balya. Accused Sheelabai went outside and brought her son to the house. Thereafter, Manoj Sharma, Munna Sharma, Manindar Sharma and deceased Sohan came there. Accused Manoj was changing his clothes. They all started assaulting accused Manoj. Wife of Munna Uikey came there and informed them about the quarrel of accused Manoj @ Balya. Accused Sheelabai went outside and brought her son to the house. Thereafter, Manoj Sharma, Munna Sharma, Manindar Sharma and deceased Sohan came there. Accused Manoj was changing his clothes. They all started assaulting accused Manoj. When accused Sheelabai intervened to rescue him, she was pushed aside. At that time, Manoj Sharma took out a knife and raised it to inflict on the person of accused Balya. However, accused avoided the said attack and that knife caused injury to the deceased on his armpit. Thereafter all assailants ran away. This witness was declared hostile. He has denied portion marked "A" of his statement. In the cross-examination, he has stated that enquiry was made by CID police. He made statement before them in the same fashion as deposed by him before the Court. 12. PW-7 (Ramvilas Pande) did not support the case of prosecution. All the panch witnesses also did not support the case prosecution. 13. PW-8 (Dr. Manish Shrigiriwar) performed postmortem on the dead body. As per the evidence of Dr. Manish, he found following injuries: "(1) Stab wound present over left side of chest over posterior axillary region obliquely placed 17 cm away from left nipple 4 cm x 1 cm x cavity deep upper angle acute lower angle acute margin clean cut. (2) Contused abrasion present over right shin of tibia 1 cm x 1 cm reddish brown. (3) Contused abrasion present over left mandibular region 1 cm x 1 cm reddish brown. (4) Abrasion present over left side of neck 2 cm x .5 cm reddish." All above injuries were fresh. The same were antemortem. On internal examination, he found following injuries. Through and through stab wound present over poster lateral aspect of lower lobe of left lung, length 4 cm. It also penetrate medial surface of upper lobe having length 3 cm corresponding to injury No. 1 of column No. 17. Track of wound - left side of chest - then goes through third and fourth ribs then inside lower lobe of left lung and upper lobe of left lung." 14. PW-9 (Nandkishor Chauhan), Police Inspector registered the crime. PW-10 (Arun Barraiyya), Police Sub Inspector investigated the crime. 15. Heard Ms. Track of wound - left side of chest - then goes through third and fourth ribs then inside lower lobe of left lung and upper lobe of left lung." 14. PW-9 (Nandkishor Chauhan), Police Inspector registered the crime. PW-10 (Arun Barraiyya), Police Sub Inspector investigated the crime. 15. Heard Ms. H.N. Jaipurkar, learned Additional Public Prosecutor appearing on behalf of the appellant/State and Shri R.S. Kurekar, learned Counsel appearing on behalf of the respondents (accused). 16. There is no dispute that deceased Sohan Yadav died homicidal death. As per the evidence of Dr. Manish, he found, (i) stab wound on the left side of chest over posterior axillary region obliquely placed 17 cm away from left nipple 4 cm x 1 cm x cavity deep upper angle acute lower angle acute margin clean cut; (ii) contused abrasion present over right shin of tibia q cm x 1 cm reddish brown; (iii) contused abrasion present over left mandibular region 1 cm x 1 cm reddish brown; and (iv) abrasion present over left side of neck 2 cm x .5 cm reddish. As per his opinion, cause of death was due to injury No. (i). Accordingly, he prepared postmortem report (Exh.35). 17. There is no dispute about the cause of death of deceased. It is the defence of the accused persons that real culprit was the brother of PW-1 (Arvind Sharma), namely Manoj Sharma. Manoj Sharma tried to kill accused No. 1 Manoj Gudadhe but he avoided the attack and accidentally that knife caused injury to deceased. During the pendency of sessions trial, several representations were made by the accused. At last, State CID reinvestigated the crime. Dy. S.P. Shri Tayade recorded the statements of witnesses and it was found during reinvestigation that PSI Barraiyya falsely implicated accused Manoj Gudadhe and his mother in the crime. In fact, real culprit is Manoj Sharma and Others. 18. Report of Dy. S.P. Shri Tayade is very important. It was obtained by the accused under the Right to Information Act. Said report was filed along with application (Exh.64). Prosecution had given no objection to accept the said report. Accordingly, report submitted by Dy. S.P. Shri Tayade is marked as Exh.66. Real fact is disclosed in the report, therefore, it is necessary to highlight material facts of the report. It was obtained by the accused under the Right to Information Act. Said report was filed along with application (Exh.64). Prosecution had given no objection to accept the said report. Accordingly, report submitted by Dy. S.P. Shri Tayade is marked as Exh.66. Real fact is disclosed in the report, therefore, it is necessary to highlight material facts of the report. "Sir, It is humbly submitted as under:- Enquiry was held into the application under reference as per the order mentioned in reference No. 2 above. For the purpose of the said enquiry, I obtained from Police Station, Dhantoli, the case diary, xerox copies of the documents enclosed with the chargesheet....... As the Deputy Inspector General of Police, Crime Investigation Department, Maharashtgra State, Pune had issued orders to me to hold fresh re-enquiry (into the said matter). During the course of enquiry, I have recorded statements of 25 witnesses. Shri B.P. Chate, Assistant Police Inspector of Police Station Dhantoli executed Inquest Panchanama on the body of deceased Sohan Hiralal Yadav during the course of investigation of C.R. No. 234/04 under Sections 302, 201 read with Section 34 of the I.P.C. registered with Police Station Dhantoli Police Sub-Inspector Shri Baraiyya carried out investigation of the said crime from 28.9.2004 to 4.1.2005 i.e. from case diary No. 1 to case diary No. 30 Shri Patil, Assistant Police Inspector carried out further investigation (of the said crime) from 19.1.2005 to 20.1.2005 i.e. case diary Nos. 31 and 32 and submitted a chargesheet in the court on 20.1.2005. Statement of Police Sub-Inspector Shri Baraiyya was recorded. On 4.5.2005, during the course of recording statement of Police Sub-Inspector Shri Baraiyya, he (Police Sub-Inspector Baraiyya) produced before me, photographs (2) of the incident of taking out and producing the weapon before us by accused Manoj Gudadhe after his statement of admission. As we had sent for examination, to the Chemical Analyser, the weapon seized as per the statement of admission given by accused Manoj Gudadhe, I personally went to the Regional Forensic Science Laboratory Nagpur and verified the photographs and weapon. Deceased Sohan Yadav had sustained the injury below his left armpit portion which was responsible for his death. As it became clear that force of the said injury was from the left to the right on the lateral side. Hence it becomes clear that deceased Sohan Hiralal Yadav was attacked with right hand. Deceased Sohan Yadav had sustained the injury below his left armpit portion which was responsible for his death. As it became clear that force of the said injury was from the left to the right on the lateral side. Hence it becomes clear that deceased Sohan Hiralal Yadav was attacked with right hand. However it is found that Manoj Madhukar Gudadhe, the accused arrested by the local police, is left handed. Complainant Kusum Sohan Yadav is a wife of deceased Sohan Yadav. The crime was registered on the basis of her report. The said report contains facts that accused Manoj Gudadhe caught hold of the collar of shirt of Sohan Yadav (the deceased) near Hanuman temple dragged him up to a distance of about 1520 feet inside the house, took out a knife from under the cot and delivered a blow thereof on Sohan Yadav as a result of which he (Sohan) got injured and died. On perusing statements of the witnesses enclosed with the chargesheet i.e. (1) Complainant Kusum Yadav, the deceased's wife (2) Rahul Puran Uike (3) Nilkanth Bheluji Uike (4) Arvind Abhayraj Sharma and (5) Subhash Shantaram Murkute are found to be the eye witnesses whereas the remaining witnesses stated that they had heard about the incident. As per the statement of the said witnesses, the incident of crime with its background occurred as under:- Every year, Sarvajanik Navyuvak Ganeshotsav Mandal celebrates Ganeshotsav (festival of Lord Ganesh) in Sangam Chawl near Udasi Mandir behind Yashwant Stadium within the area of Police Station Dhantoli. As per the statement of Manoj Gudadhe, the son of applicant Sheela Gudadhe, in the year 2003, he was the active member of the said Mandal and he himself had collected subscriptions for the Ganeshotsav Mandal. He himself had given an amount of Rs. 500/- also for incurring expenses on (musical) band for the procession of immersion of Lord Ganesh. However Raj Shendare spent the said amount for consuming liquor instead of spending it on band. Hence in the year 2004 he did not take part in Sarwajanik Ganeshotsav Mandal. In the intervening period i.e. in the month of June 2004 prior to three months of the incident, Shatru Shendare and Kishor Bhagat from Patwardhan hutments beside Sangam Chawl had beaten Raj Shendare and Guddu Sharma from Sangam Chawl. Hence in the year 2004 he did not take part in Sarwajanik Ganeshotsav Mandal. In the intervening period i.e. in the month of June 2004 prior to three months of the incident, Shatru Shendare and Kishor Bhagat from Patwardhan hutments beside Sangam Chawl had beaten Raj Shendare and Guddu Sharma from Sangam Chawl. Hence Raj Shendare had asked Manoj Gudadhe to accompany him by a vehicle, along with other accomplices. However Manoj Gudadhe had refused it. Over this reason, relations between Manoj Gudadhe (on one side) and Raj Shendare and his accomplices (on the other side) were strained. Since then Manoj Gudadhe was not on talking terms with Raj Shendare and his accomplices. As Raj Shendare was the active member of "Navyuvak Ganesh Mandal" Manoj Gudadhe did not take active part in the Ganeshotsav Mandal. There was a programme of immersion of the idol of Lord Ganesh on 28.9.2004. For the said purpose, Dharmendra Sharma had brought 407 matador (four wheeler) of a person named Gedam (for procession of immersion). The idol was carried by the said four wheeler with procession and it was immersed. Manoj Gudadhe had not taken part in the procession women and children from Sangam Chawl hailing from Chhattisgarh had gone in the procession. As stated by complainant Kusum Yadav, she had gone from Sangam Chawl to Bank of Maharashtra in the immersion procession. Women and Children had returned home from there. The herein non-applicant and Others had gone to Futala tank with procession. The procession for immersion started on 28.9.2004 at 19.30 hours and after immersion of the idol of Lord Ganesh they came back to Sangam Chawl at about 21.00 hours at night. Thereafter a programme of dinner was arranged for 10 to 12 workers of the Mandal in the lane of Rahul Uike near the house of Nilkanth Uike just near Udasi Mandir. The non-applicant and other persons came back after immersion of idol of Lord Ganesh. At that time, Manoj Gudadhe was sitting with Mukund Yadav on a cement chair fitted by N.M.C. near Yashwant Stadium. Vijay Raotele, a boy from Sangam Chawl was sitting near them Manoj Gudadhe was under the influence of liquor. When the non-applicant and other persons came after immersion of the idol of Lord Ganesh. At that time, Manoj Gudadhe was sitting with Mukund Yadav on a cement chair fitted by N.M.C. near Yashwant Stadium. Vijay Raotele, a boy from Sangam Chawl was sitting near them Manoj Gudadhe was under the influence of liquor. When the non-applicant and other persons came after immersion of the idol of Lord Ganesh. Manoj Gudadhe, unnecessarily uttered words, "Dauke Log Aa Gaye Sale" (Sale (an abuse term) Dauke people have come) which would hurt the non-applicant. There started altercation and exchange of abuses between them over the said reason Kuvarvatibai Uike who was present there immediately went to the house of applicant Sheela Gudadhe and narrated the said incident to her. Hence Sheela Gudadhe took home her son Manoj Gudadhe. Distance between the house of Sheela Gudadhe and the spot where first altercation between Manoj Gudadhe and non-applicants had taken place is about 30-40 meters. After Sheela Gudadhe brought home Manoj Gudadhe, she served him food in a plate. At that time, Subhash Murkute who was working on her tea stall was taking meal at her house. Manoj came near the tap near entrance door for washing hands before taking meals. At that time, the non-applicants who were prepared to go for taking meal were present near Hanuman temple at a distance of 10-15 feet from the tap. On seeing them, Manoj Gudadhe again uttered words "Dauke Log Sudharenge Nahin" (There will be no improvement in the people belonging to Dauke community). Thereupon including Sohan Yadav (the deceased) all the non-applicants i.e. (1) Raj Bodhiram Shendare (2) Arvind alias Guddu Abhayaraj Sharma (3) Manoj Jaisham Sharma (4) Dharmendra alias Mindar Sharma and (5) Nilkanth Bheluji Uike entered the applicant's house. The applicant tried to obstruct them in the door itself. However by pushing aside the applicant, the non-applicants went in and started beating Manoj Gudadhe. Out of the non-applicants, Manoj Sharma took out a knife and brandished it to assault Manoj Gudadhe with it. By presence of mind Subhash Murkute pulled back Manoj Gudadhe due to which the said knife blow on Manoj Gudadhe came to be warded off and Sohan Yadav came to be hit with it below his left armpit portion. Thereupon immediately Sohan Yadav shouted as "Are Mar Gaya Re" (oh! I am dying) and fell down in prone condition. On knowing gravity of the situation, all the non-applicants hurriedly came out of the applicants house. Thereupon immediately Sohan Yadav shouted as "Are Mar Gaya Re" (oh! I am dying) and fell down in prone condition. On knowing gravity of the situation, all the non-applicants hurriedly came out of the applicants house. In the said hurry, the no-napplicant happened to push the bucket near the tap as a result of which water fell in the house. Out of them, chappals of two persons slipped from their feet at the spot of occurrence itself and they remained there itself. At that time, Abhayraj Sharma, on seeing the stains of blood on the clothes on Manoj Sharma's person and knife in his hand, drove him to his house, by saying to him, Run away from here immediately. (1) Nikki Balvindarsingh Saddyal (2) Simranjit Kaur Saddyal (3) Durga Naresh Trivedi and (4) Manjit Kaur Saddyal are the witnesses who have stated to have seen Manoj Sharma fleeing with the knife in his hand with blood stained clothes (on his person) Non applicant Raj Shendare went away with Dharmendra alias Mindar Abhayraj Sharma on the Scooty of Pramod Mishra. After the non-applicant who were accompanying Sohan Yadav ran away when he fell down in prone condition, by shouting, "Are! Mara Re!" (Oh! I am dying) soon on getting injured, Sheela Gudadhe turned him in supine condition asked his accomplice who was running away to take the deceased to the hospital and with Manoj Gudadhe, (she) lifted him and brought him near the entrance. In the mean time, on hearing Sohan Yadav's shout as "Are! Mara Re" (Oh! I am dying) a boy named Nandu Shahu, aged 12 years, went to Sohan Yadav's house and informed Sohan Yadav's wife Kusum that Sohan was being assaulted. On hearing this, when Kusum Yadav came in front of the applicant's house, she saw that the applicant and her son Manoj Gudadhe were keeping Sohan Yadav near the door by lifting him. Sanjay Ambadare, Raju Thakur and Sameer Yadav who were present there lifted Sohan Yadav and kept him in 407 matador standing there. After some time when non-applicant Arvind Sharma came with an Autorickshaw there, Sanjay Ambadare, Arvind Sharma and Sameer Yadav took him out of 407 matador and kept him in the autorickshaw and then carried him to Police Station Dhantoli. After some time when non-applicant Arvind Sharma came with an Autorickshaw there, Sanjay Ambadare, Arvind Sharma and Sameer Yadav took him out of 407 matador and kept him in the autorickshaw and then carried him to Police Station Dhantoli. After Sohan Yadav was lifted from in front of the house of the applicant and put in 407 matador, Sheela Gudadhe wiped with a broom, the water from the bucket near the entrance, of the house that had spread in the house as the said bucket had come to be pushed by the non-applicant while going away therefrom hurriedly after Sohan Yadav had got injured and fallen down. Blood had fallen in the said water while carrying Sohan Yadav by lifting while Manoj Gudadhe and Sheela Gudadhe were carrying Sohan Yadav by lifting, stains of blood had stuck to their clothes. Manoj Gudadhe put off the blood stained pant and kept it at home. After wiping the water and chaining the house, Sheela Gudadhe went to the Police Station on foot. Prior to that, Raj Shendare and Dharmendra were present at the Police Station when she went to Police Inspector Shri Chavan for lodging a report, he (Shri Chavan) said to her, "you only committed his murder" and asked the Policeman to arrest her without recording her any complaint whatsoever. Raj Shendare accompanied by Dharmendra Sharma immediately went to Police Station Dhantoli on the Scooty of Pramod Mishra and they only gave there information about the quarrel that was being taken place at Udasi Mandir. Accordingly the Police went to the spot of occurrence, took Kusum Yadav in the jeep and brought her to the Police Station. I interrogated Kusum Yadav and recorded her detailed statement in which she did not state to have personally witnessed the said incident as mentioned by her in the complaint of the said crime. In her statements recorded by Shri Revate, Assistant Commissioner of Police, Ajni Division Nagpur and Shri Karmarkar, Police Inspector, Crime Investigation Department Nagpur. She did not state to have witnessed the incident personally. Kusum Yadav has stated in her statement before me to have informed Dhantoli Police about whatever she had witnessed and that Arvind Sharma had informed the Police about the remaining facts mentioned in the complaint of the crime. However, Arvind Sharma has refused it. She did not state to have witnessed the incident personally. Kusum Yadav has stated in her statement before me to have informed Dhantoli Police about whatever she had witnessed and that Arvind Sharma had informed the Police about the remaining facts mentioned in the complaint of the crime. However, Arvind Sharma has refused it. During the course of enquiry into the application carried out by me, following facts have come to light about the weapon seized as per the statement of admission of accused Manoj Gudadhe recorded by Investigation Officer Police Sub-Inspector Shri Baraiyya on 4.10.2004. (i) On 4.10.2004 at about 9.00 O'clock in the morning Shri Bire, Incharge of D.B. Squad calleda Balvindarsingh Saddyal to Police Station Dhantoli, Nagpur and showed to him, cover of the card board box having red coloured cloth fitted to it and asked him to prepare a weapon of that shape. Hence Balvindarsingh Saddyal went to Avtarsingh Jabbal along with a policeman named Dhale and got prepared through him, a weapon of iron sheet fitting in the cover given by Bire Policeman and handed over it to Policeman Dhale. (ii) On the same day at about 13.00 or 13.30 hour, Police (men) Devanand, Rajesh and Ganeshsingh came on motorcycle and Scooter, opened the applicants house and entered it. When they were keeping something below the almirah in the house, Kamal Pande, Proprietor of Pande opticals nearby followed them and he saw the said incident. Thereafter within a short time, Shri Baraiyya came to the spot of occurrence along with the accused, staff and photographer and (they) got the said weapon taken out and produced through Manoj Gudadhe, took its photographs and seized it from him. Balvindarsingh Saddyal saw Police Inspector Baraiyya taking away Manoj Gudadhe from the house, with the weapon and he got confirmed that the Police had falsely implicated Manoj Gudadhe by seizing from him the weapon got prepared by him. He stated this in his statement recorded on 11.4.2005 before me. (iii) Thereafter on 4.5.2005, Police Sub-Inspector Shri Baraiyya handed over to me, the photographs taken at the time of recovery of weapon. On showing the said photographs to Balvindarsingh Saddyal, he stated that he had got prepared the weapon shown in the photographs. He stated this in his statement recorded on 11.4.2005 before me. (iii) Thereafter on 4.5.2005, Police Sub-Inspector Shri Baraiyya handed over to me, the photographs taken at the time of recovery of weapon. On showing the said photographs to Balvindarsingh Saddyal, he stated that he had got prepared the weapon shown in the photographs. As the said weapon was sent to the Regional Forensic Science Laboratory Nagpur for Chemical examination, I, on 7.5.2005, made contact with Chemical Analyser Shri Kadukar and collected information from him about the weapon. Thereupon it is found that the said weapon is as described in the statement given by Balvindarsingh Saddyal on 11.4.2005. (iv) Applicant Sheela Gudadhe had just chained the house at the time of going to the Police Station for lodging a complaint. At that time, she and Manoj Gudadhe were detained there itself. The police had not brought them to the spot of occurrence at the time of executing the panchanama of the spot of occurrence. After executing the panchanama of the spot of occurrence Police Sub Inspector Shri Baraiyya locked the applicant's house with their lock only. Key of the lock of the applicant's house was with Police Sub Inspector Shri Baraiyya only up to 12.10.2004. As Kamal Pande had stood as a surety for the applicant, Police Sub-Inspector Shri Baraiyya handed over to Kamal Pande, the said key for giving it to the applicant. (v) In the Panchanama executed by the local police on 28.9.2004, it is mentioned one drum of tin sheet partly filled with wheat is kept in a room admeasuring 9 x 4.4 feet. The clothes which were on the person of the accused at the time of incident were seized from the said drum of tin sheet on 4.10.2004, as per his statement of admission. (vi) In the intervening period i.e. on 4.10.2004, Isha Sanjay Bangalkar, the applicant's daughter wanted to seek bail for the applicant. As the papers of medical prescription for the applicants illness were in the house, Isha Bangalkar had met Police Sub-Inspector Shri Baraiyya and as per his direction one Police Constable had opened the applicants house. Isha had taken the papers of medical prescription for the illness of her mother Sheela Gudadhe, in the presence of the said Police Constable. Thereafter the Policeman had locked the applicant's house and retained its key with himself. Isha had taken the papers of medical prescription for the illness of her mother Sheela Gudadhe, in the presence of the said Police Constable. Thereafter the Policeman had locked the applicant's house and retained its key with himself. (vii) Subhash Murkute is the eye witness and independent and important witness to the incident mentioned in the application. He has personally witnessed the incident. The statement of the said witness recorded by Police Sub Inspector Baraiyya bears facts as mentioned in the complaint of the crime. However, in his statement recorded by Assistant Commissioner of Police Shri Revate and Police Inspector Shri Karmarkar during the course of enquiry into the application, has denied the fact from the statement recorded by Police Sub-Inspector Shri Baraiyya. As Subhash Murkute is an independent and important witness it was necessary to record his statement on oath under Section 164 of Criminal Procedure Code. However, Police Sub-Inspector Shri Baraiyya, did not record his statement on oath. Regarding this he stated in his statement that he had not recorded (his) statement under Section 164 of Criminal Procedure Code as Police Inspector Shri Chavan had said that it was not necessary. (viii) Subhash Murkute is a witness in the grave offence of murder. It is necessary for the officer visiting the spot of occurrence to verify the statement of important witness personally. However, in the instant case, Assistant Commissioner of Police Shri Revate and Police Inspector Shri Chavan who had visited the spot of occurrence had not verified the statements of any witness whatsoever in the said case. As there is no signature of any senior officer on the statement of any of the witnesses in token of having verified it, it cannot be said that Police Sub-Inspector Shri Baraiyya has recorded the statement of witness Subhash veraciously. (ix) Assistant Police Inspector Shri Patil took over the investigation (of the said crime) from Police Sub-Inspector Shri Baraiyya on 19.01.2005 Police Inspector Patil, without verifying (statements) of any witness whatsoever, submitted a chargesheet in the said crime, in the court on 20.01.2005, on the basis of the papers prepared by Police Sub Inspector Shri Baraiyya statements of complainant Kusum Yadav and eye witness Subhash Murkute recorded by Assistant Commissioner of Police Shri Revate during the course of enquiry into the application prior to that were totally contrary to their statements recorded by Police Sub-Inspector Shri Baraiyya. (x) District Government Pleader Shri Satiyanathan has given his report about submitting a chargesheet in the court after scrutinizing the papers on 7.1.2005 before preparing a charge sheet in the crime. Therein he has stated that the incident has taken place in the house of Sheela Madhukar Gudadhe and Manoj Madhukar Gudadhe and that they have defended themselves as mentioned in the application and that the Court would decide whether they are guilty or innocent. However in the instant case it is not only the point whether the accused are guilty or innocent. Even if accused Sheela and Manoj under arrest in connection with the crime are found innocent, real culprits are different. Under such circumstances though the local Police have submitted a charge sheet in the Court, under Sections 302, 201 read with 34 of the I.P.C. against applicant Sheela Gudadhe and Manoj Gudadhe I think that it will be proper to state before the Hon'ble Court, detailed facts about the said crime and withdraw the case against them. As the incident in the said crime, has occurred under Sections 143, 147, 148, 149, 323, 352, 452, 304, 302 of the I.P.C. read with Sections 3, 25 of Arms Act and Section 135 of Bombay Police Act, I think that it will be proper to register the said sections against (1) Raj Bodhiram Shendare (2) Arvind alias Guddu Abhayaraj Sharma (3) Manoj Jaisham Sharma (4) Dharmendra alias Mindar Sharma and (5) Nilkanth Bheluji Uike hold investigation into the said crime submit a chargesheet in the Court and similarly bring participation of guilty Policemen to notice during investigation (of the crime). It is submitted. Dated 10.5.2005 Sd/- S.D. Tayade Dy. Supdt. of Police State Crime Investigation Department, Nagpur." 19. Learned trial Court rightly recorded its finding that the evidence of PW-1 and 3 are not reliable. It is also observed by the trial Court that both the accused are falsely implicated by the Investigating Officer. Prosecution/appellant has not disputed the report (Exh.66) submitted by Dy. S.P. Shri Tayade, Crime Investigation Department, Nagpur. 20. From the perusal of contents of report (Exh.66), it is crystal clear that PSI Barraiyya falsely implicated accused Nos. 1 and 2. He has made a false show of recovery of weapon etc. by showing confessional statement made by accused No. 1-Manoj Gudadhe. S.P. Shri Tayade, Crime Investigation Department, Nagpur. 20. From the perusal of contents of report (Exh.66), it is crystal clear that PSI Barraiyya falsely implicated accused Nos. 1 and 2. He has made a false show of recovery of weapon etc. by showing confessional statement made by accused No. 1-Manoj Gudadhe. In fact, as per the report (Exh.66), brother of PW-1 namely Manoj Sharma stabbed the deceased. When PW-1 found him with blood stained knife in his hand, he told him to run away immediately. Witnesses have stated this fact before Dy. S.P. Shri Tayade. 21. As per the report of Shri Tayade (Exh.66), PSI Barraiyya got prepared knife. After the incident, PW-1 and Others reached to the Police Station. Both the accused also went to Police Station. Immediately, both the accused were arrested. Keys of the house were kept by the Investigating Officer. After getting the knife prepared, the said knife was hidden (planted) by some of the police constables in the house of accused and thereafter PSI Barraiyya took accused No. 1 to his home, opened the lock and showed false recovery from the house of accused. It is noted in the report (Exh.66) that spot panchnama was prepared immediately after the incident. The room was of size of 8 x 9 ft. At that time, weapon etc. were not found. It appears from the report (Exh.66) that false seizure panchnama of knife and clothes of accused were shown. For the reason best known to PSI Barraiyya, he got falsely implicated accused Nos.1 and 2 and left the real culprit free from the prosecution. 22. In the circumstances, we find it useful to refer to the case of State of West Bengal and Others vs. Committee for Protection of Democratic Rights, West Bengal and Others, (2010) AIR SC 1476, wherein the Hon'ble Supreme Court has held as under: "The power of judicial review conferred on the High Court is in a way wider in scope. The High Courts are authorized under Article 226 to issue directions, orders or writs to any person or authority, including any government to enforce fundamental rights and "for any other purpose." It is manifest from the difference in the phraseology of Articles 32 and 226 that there is a marked difference in the nature and purpose of the right conferred by these two Articles. Whereas the right guaranteed by Article 32 can be exercised only for the enforcement of fundamental rights conferred by Part III of the constitution, the right conferred by Article 226 can be exercised not only for the enforcement of fundamental rights, but "for any other purpose" as well, i.e. for enforcement of any legal right conferred by a Statute etc." 23. Similarly, Hon'ble Supreme Court in the case of Hardeep Singh vs. State of Madhya Pradesh, (2012) 1 SCC 748 , has held as under: "Denial of dignity and reputation of accused affected by handcuffing and publishing photographs in the local newspaper. Appellant subsequently acquitted. Division Bench of High Court awarded compensation of Rs. 70,000/-. It is held that said compensation was too small and did not do justice to the sufferings and humiliation undergone by appellant, hence compensation amounting to Rs. 2 lakhs awarded." 24. Having considered the enquiry report (Exh.66) and evidence on record, in fact, the appellant/State should not have filed the present appeal. But, it appears that since accused persons have filed writ petition claiming compensation etc., the present appeal is filed, though the prosecution/appellant is well aware about the report (Exh.66), in fact it was the duty of prosecution not to challenge the judgment of acquittal of trial Court. However, prosecution machinery has falsely dragging accused persons from one Court to another. 25. In the case of Nachhattar Singh alias Khanda and Others vs. State of Punjab, (2009) 4 RCR (Criminal) 409, Division Bench of Punjab and Haryana has held that "the appellants/accused Nachattar and Others were convicted for the offence punishable under Sections 363, 302, 148, 149 and 201 of the Indian Penal Coee for abduction and murder of one Jagsir Singh. During the pendency of appeal before High Court, alleged deceased Jagsir Singh was found alive. He was lodged in jail. It is held that false and fabricated case has been registered against the appellants (accused) which lead to their conviction. Therefore, State Government was directed to pay Rs. 20 lakhs each to all the appellants for falsely implicating them. It was also directed to initiate proceedings under Section 340 of the Code of Criminal Procedure against the witnesses." 26. In the appeal in hand, it is proved beyond doubt that both the respondents/accused are falsely implicated by PSI Barraiyya. Therefore, State Government was directed to pay Rs. 20 lakhs each to all the appellants for falsely implicating them. It was also directed to initiate proceedings under Section 340 of the Code of Criminal Procedure against the witnesses." 26. In the appeal in hand, it is proved beyond doubt that both the respondents/accused are falsely implicated by PSI Barraiyya. PW-1, 3 and 10 falsely deposed against the accused persons with an intention to convict them. Learned trial Court rightly not relied on the evidence of PW-1, 3 and 10. We have already recorded our findings that both the respondents are rightly acquitted by the trial Court even though State of Maharashtra dragged them to this Court. 27. It is proved by the report of Dy. S.P. Shri Tayade vide Exh.66 that accused/respondents are falsely implicated by PSI Barraiyya by procuring false evidence against them. The accused had gone to lodge report in Police Station, Dhantoli after the incident took place on 28.09.2004. In stead of accepting the report of accused persons, they were arrested and detained in the Police Station. Since the time of arrest they were behind the bars more than a month. The reputation of accused persons is lowered down in the public. They would have been convicted by the trial Court if the report of Dy. S.P. Shri Tayade was not placed before it. On the several requests of accused persons to the superior authorities, Dy. S.P. Shri Tayade reinvestigated the crime and submitted his report (Exh.66). Dy. S.P. Shri Tayade recorded his findings that both accused Nos.1 and 2 are falsely implicated by PSI Barraiyya. The detailed report is recited supra. Therefore, there is no doubt that accused persons are falsely implicated by the prosecution. Both accused Nos. 1 and 2 (son and mother respectively) came to be acquitted by the trial Court by relying on report (Exh.66). Report (Exh.66) is not challenged by the prosecution. 28. There is no evidence against the accused. Hence, the appeal is liable to be dismissed. However, we find both the respondents/accused to be entitled for reasonable compensation. Hence, we proceed to pass the following order: ORDER (i) The appeal is dismissed. (ii) Appellant/State of Maharashtra shall pay compensation of Rs. 2,50,000/- each (rupees two lakh and fifty thousand only) to accused/respondents. Total amount of compensation of Rs. Hence, the appeal is liable to be dismissed. However, we find both the respondents/accused to be entitled for reasonable compensation. Hence, we proceed to pass the following order: ORDER (i) The appeal is dismissed. (ii) Appellant/State of Maharashtra shall pay compensation of Rs. 2,50,000/- each (rupees two lakh and fifty thousand only) to accused/respondents. Total amount of compensation of Rs. 5,00,000/- (rupees five lakhs only) shall be paid to the accused/respondents within a period of six months from today. (iii) The appellant/State of Maharashtra is at liberty to recover the said amount of compensation of Rs. 5,00,000/- (rupees five lakhs only) from the concerned guilty Officer who falsely implicated both the accused. (iv) The trial Court is directed to preserve all the records (including B, C, D files etc.). (v) Copy of this judgment be sent to the Commissioner of Police, the Superintendent of Police, Crime Investigation Department, Maharashtra State, Nagpur for information and to take necessary action on the report (Exh.66) submitted by Dy. S.P. Shri Tayade, CID (Crimes), dated 02.06.2005. (vi) State of Maharashtra is directed to file chargesheet against the real culprit and also against PSI Barraiyya and other erring police personnel who had falsely implicated accused/respondents and also falsely deposed against them. (vii) High Court Legal Services Authority is requested to consider and to quantify amount of compensation to be paid to the victim of crime namely, Kusum Wd/o Sohan Yadav as per the provisions of Victim Compensation Scheme as contemplated under Section 357A of the Code of Criminal Procedure. (viii) Accused are on bail. Their bail bonds stand cancelled. (ix) R and P be sent back to the trial Court.