JUDGMENT : B.R. GAVAI, J. 1. The appellants have approached this Court being aggrieved by the judgment and order dated 5/12/2016 passed by the learned Additional Sessions Judge, Nagpur in Sessions Trial No. 405/2014, thereby convicting appellants for the offence punishable under Section 302 read with Section 34 of Indian Penal Code and sentencing them to suffer imprisonment for life and to pay fine of Rs. 5000/- and in default, to suffer imprisonment for three months. 2. The prosecution case, in brief, as gathered from the material placed on record is thus: On 4/7/2015 in the evening hours, accused no. 1 Mukesh, resident of village Dighori, presented himself in Police Station, Mouda along with Bolero vehicle No. MH 40-Y-1391 and informed that his said vehicle had dashed one Bandu Dhobale in between 5.30 p.m. and 6 p.m. near village Dighori. He informed that since he had fear that villagers would beat him, he came to Police Station. P.W. 18 P.I. Gaigole took entry with regard to the same in the station diary. He also took photographs of the vehicle. Thereafter P.W. 18 P.I. Gaigole along with other Police staff went to the spot. They found that one damaged motor cycle was lying near agricultural land of one Satyanarayan Agrawal. P.W. 3 Sunil met the Police party at the spot and informed that he was brother of deceased Bandu. On the same day, at about 9.15 p.m. he lodged a report in Police Station stating therein that his brother deceased Bandu had some money transactions with uncle of accused no. 1 Mukesh, namely, Sadaram Rohankar. It was also stated in the report that Bandu had come to P.W. 3 Sunil's house at Pardi, Nagpur and told him that prior to eight days, there was quarrel between him on one hand and accused no. 1 Mukesh, accused no. 2 Rajhans and accused no. 3 Sandeep on the other hand on account of amount and they had beaten him by hands and fist blows and also threatened to kill him. He further informed that on 4/7/2014 at 6 p.m. when he was at Nagpur, he received a mobile phone call from his cousin Rupesh that when Bandu was coming from Mahalgaon to Dighori on his motor-cycle, accused no. 1 Mukesh had dashed Bandu by his four wheeler, due to which Bandu had fallen down and blood was oozing from his body. 1 Mukesh had dashed Bandu by his four wheeler, due to which Bandu had fallen down and blood was oozing from his body. He, therefore, came to his house, collected his mother, sister and wife and went to village Dighori by his friend's car. P.W. 3 Sunil had, therefore, lodged oral report against accused nos. 1 Mukesh, accused no. 2 Rajhans and accused no. 3 Sandeep. 3. On the basis of said oral report, Crime No. 164/2014 came to be registered for the offences punishable under Section 302 read with Section 34 of Indian Penal Code and Section 4/25 of the Arms Act. During investigation, Investigating Agency found that there were two more accused involved in the crime. As such, on completion of investigation, a charge-sheet came to be filed against five accused in the Court of learned Judicial Magistrate, First Class, Mouda. Since the case was exclusively triable by learned Sessions Judge, the same came to be committed to Sessions Court. The learned trial Judge framed charge against accused for the offences punishable under Sections 120-B, 302 read with Section 34 of Indian Penal Code and Section 4/25 of the Arms Act. The accused pleaded not guilty and claimed to be tried. On conclusion of trial, learned trial Judge acquitted accused nos. 4 and 5 and passed the order of conviction and sentence against present appellants as aforesaid. Being aggrieved thereby, the present appeals have been filed. 4. We have heard Shri Jaltare and Shri Daga, learned Counsel for appellants and Shri Patil, learned Additional Public Prosecutor for the respondent. With the assistance of learned Counsel for the parties, we have also scrutinized the entire evidence on record. 5. The prosecution case mainly rests on the evidence of three eye witnesses, namely, P.W. 2 Vinayak, P.W. 4 Pramod and P.W. 6 Mitaram. P.W. 2 Vinayak states in his evidence that the incident took place on 4/7/2014 at around 5 p.m. to 5.30 p.m. in the land of Marwadi at the side of Mahalgaon - Dighori road. At that time, he was proceeding on bicycle from Dighori side to Mahalgaon side. He saw accused no. 1 Mukesh giving dash by his Bolero vehicle to motor-cycle of deceased Bandu. Thereafter accused no. 1 Mukesh, accused no. 2 Rajhans and accused no. 3 Sandeep stepped down from Bolero vehicle. They ran following Bandu in the agricultural land of Marwadi. Accused no. He saw accused no. 1 Mukesh giving dash by his Bolero vehicle to motor-cycle of deceased Bandu. Thereafter accused no. 1 Mukesh, accused no. 2 Rajhans and accused no. 3 Sandeep stepped down from Bolero vehicle. They ran following Bandu in the agricultural land of Marwadi. Accused no. 2 Rajhans made Bandu to fall down, accused no. 1 Mukesh assaulted by axe and accused no. 3 Sandeep assaulted by iron angle on the head and face of deceased Bandu frequently. He saw that Pramod Thakare was going towards deceased Bandu. He was frightened at that time. After some time, when he and Pramod Thakare were proceeding towards deceased Bandu, accused no. 2 Rajhans and accused no. 3 Sandeep ran away. Accused no. 1 Mukesh took Bolero vehicle and went towards Mahalgaon. He stated that after some time, deceased Bandu's younger brother Sunil came there and he told him about the incident. 6. In his cross-examination, P.W. 2 Vinayak admits that he is paternal cousin of deceased Bandu. He further admits that there is a farm house in the agricultural land of Marwadi. He also admits in his cross-examination that after the incident, he did not go to Dighori on bicycle immediately. He further admits that though road was having traffic, he did not stop any vehicle passing by that road. He also admits that he did not shout for help at that time. He further admits that when Sunil came there with his mother and sister, he and two-four other persons were there. He further admits that Police had reached the spot of incident before arrival of Sunil. He further admits that Police did not record his statement on the spot of incident and he did not tell Police about the incident at that time. The statement of this witness was recorded after two days of incident. 7. P.W. 4 Pramod is another eye witness. The narration of this witness is almost identical as that of P.W. 2 Vinayak. However, he admits in his evidence that before some years, due to quarrel he had assaulted by hammer on the nose of accused no. 2 Rajhans. He further admits that accused no. 1 Mukesh, accused no. 2 Rajhans and accused no. 3 Sandeep are close friends. He also admits that bungalow of Marwadi is adjacent to the road. However, he admits in his evidence that before some years, due to quarrel he had assaulted by hammer on the nose of accused no. 2 Rajhans. He further admits that accused no. 1 Mukesh, accused no. 2 Rajhans and accused no. 3 Sandeep are close friends. He also admits that bungalow of Marwadi is adjacent to the road. He further admits in his cross-examination that there is a Police Patil at village Dighori. In spite of that, he did not lodge report of incident to Police Patil. He further admits that he did not give information to Police on the spot about the incident. He further admits that he gave statement to Police after two days of incident. 8. P.W. 6 Mitaram is stated to be another eye witness. He has given another version. He states that deceased Bandu was coming from Mahalgaon towards Dighori. A four wheeler of white colour came from Dighori side. Accused no. 1 Mukesh gave dash by said vehicle to the vehicle of deceased Bandu. Bandu kept his vehicle on stand. Accused no. 1 Mukesh, accused no. 2 Rajhans and accused no. 3 Sandeep alighted from said vehicle and ran behind Bandu in the agricultural land of Marwadi. Accused no. 1 Mukesh was having an axe while accused no. 3 Sandeep was having an angle. In his cross-examination, he has admitted that he has served with P.W. 3 Sunil, first informant. From his cross-examination itself, it is revealed that learned trial Judge, who was recording his evidence, has found that this witness was avoiding to give answers in straight way. The statement of this witness was recorded about one month after the incident. 9. It could thus be seen that P.W. 2 Vinayak is relative of deceased Bandu and P.W. 3 Sunil, first informant. P.W. 6 Mitaram was working with P.W. 3 Sunil whereas P.W. 4 Pramod has admitted with regard to enmity between him and accused no. 2 Rajhans. As such, evidence of these three witnesses will have to be scrutinized with great caution and circumspection. The conviction could be based on their testimonies only if the same are found to be trustworthy, reliable and cogent. 10. Perusal of testimonies of aforesaid three witnesses would reveal that they came to the spot immediately after the incident had taken place. They also admit that Police officials were present on the spot. The conviction could be based on their testimonies only if the same are found to be trustworthy, reliable and cogent. 10. Perusal of testimonies of aforesaid three witnesses would reveal that they came to the spot immediately after the incident had taken place. They also admit that Police officials were present on the spot. However, in spite of that, they did not find it necessary to inform Police regarding their witnessing the incident. P.W. 2 Vinayak and P.W. 4 Pramod kept mum for two days and their statements were recorded after two days of incident whereas statement of P.W. 6 Mitaram was recorded after a period of about one month. 11. It will be relevant to refer to the injuries sustained by deceased Bandu, which are as under: (i) Lacerated wound was present over right side of forehead of size 5 cms. x 2 cms. x bone deep underlying bone fracture. (ii) Lacerated wound present over middle 1/3rd of right eyebrow of size 2 cms. x .5 cms. x muscle deep. (iii) Lacerated wound present over area below lateral half of right eyebrow of size 2 cms. x 0.5 cms. x bone deep, underlying bone fractured. (iv) Lacerated wound present over right zygomatic region of face of size 1.5 cm. x 0.5 cm. x muscle deep. (v) Periorbital contusion present on right side of size 4 cms. x 3 cms. bluish. (vi) Contused abrasion present over right side of face over maxilla of size 3 cms. x 2 cms. dark red. (vii) Lacerated wound present over lower lip on right side of size 3 cms. x 0.5 cms. x muscle deep. (viii) Lacerated wound present over area overlying right mandibular region of face of size 5 cms. x 0.5 cms. x bone deep, underlying bone fractured. (ix) Contused abrasion present over area overlying angle of left mandibular region of face of size 2.5 cms. x 2 cms. dark red. (x) Multiple lacerations of right ear pinna present of sizes varying from 0.5 cms. to 2 cms. (xi) Lacerated wound present over right temporal region of head of size 3 cms. x 0.5 cm. x bone deep, underlying bone fractured. (xii) Lacerated wound present over right mastoid region of head of size 2 cms. x 0.5 cm. x muscle deep. (xiii) Contused abrasion present over posterior aspect of right elbow of size 3 cms. x 1.5 cm., dark red. x 0.5 cm. x bone deep, underlying bone fractured. (xii) Lacerated wound present over right mastoid region of head of size 2 cms. x 0.5 cm. x muscle deep. (xiii) Contused abrasion present over posterior aspect of right elbow of size 3 cms. x 1.5 cm., dark red. (xiv) Lacerated wound present over posterior aspect of right forearm in lower 1/3rd region of size 1 cm. x 0.5 cm. x muscle deep. (xv) Contused abrasion present over medial aspect of left leg in lower 1/3rd region of size 4 cms. x 2 cms., dark red. (xvi) Contused abrasion present over upper 1/3rd region of right leg of size 1 cm. x 0.3 cms., dark red." It could thus be seen that deceased Bandu was not having even a single incised wound. If version of all the three eye witnesses is to be believed that accused no. 1 Mukesh assaulted deceased Bandu with axe, then at least some incised wounds ought to have been there. 12. P.W. 3 Sunil is the first informant. However, he is not an eye witness to the incident. He states that he came to know about the incident from his cousin Rupesh. He states that Rupesh told him that accused no. 1 Mukesh had dashed deceased Bandu's two wheeler by his four wheeler vehicle. He admits that he reached the spot at about 6.30 p.m. to 6.50 p.m. When he was on the spot, he saw Police party there. At that time, he did not complain anything to the Police. First information report was lodged at 21.15 hours. If P.W. 2 Vinayak had really informed P.W. 3 Sunil about the incident as narrated in the evidence of P.W. 2 Vinayak, then there was no reason as to why immediately information was not given to the Police party, which was very much present on the spot. As such, false implication of accused on account of previous enmity cannot be ruled out. 13. We are, therefore, of the considered view that in view of inordinate delay in recording statements of witnesses, though they were very much available on the spot at about 6 p.m., the evidence of eye witnesses being inconsistent with injuries sustained by deceased Bandu and witnesses being either interested or inimical to the accused, conviction cannot be based solely on the evidence of these witnesses. 14. 14. Insofar as recoveries on memorandum under Section 27 of Evidence Act are concerned, it would be noted that panch to all the said memorandums is P.W. 5 Pravin. He is a resident of Nagpur. He has admitted in his cross-examination that he serves at Mahila Co-operative Society, Zenda Chowk, Mahal, Nagpur and that P.W. 3 Sunil's wife is Chairman of the said Society. It is difficult to understand as to why a person, who is working with the Institution, of which P.W. 3 Sunil's wife is Chairman, was brought as panch when number of independent panchas at the village could have been available. In any case recoveries on the basis of memorandums under Section 27 of Evidence Act at the instance of accused no. 1 Mukesh and accused no. 2 Rajhans are from open place accessible to one and all and as such, no reliance could be placed on such recoveries. 15. Perusal of evidence of Investigating Officer itself would reveal that muddemal property was not properly seized or sealed. It is further to be noted that accused no. 1 Mukesh had himself gone to Police Station and informed about the accident. As already noticed hereinabove, almost all the injuries on deceased Bandu are on right side of his body. As such, possibility of death of Bandu happening due to injuries sustained in a dash cannot be ruled out. 16. In that view of the matter, we are of the considered view that prosecution has failed to prove the case against accused beyond reasonable doubt and appeals deserve to be allowed. Hence, we pass the following order: The criminal appeals are allowed. The impugned judgment and order of conviction and sentence, dated 5/12/2016 passed by learned Additional Sessions Judge, Nagpur in Sessions Trial No. 405 of 2014 for the offence punishable under Section 302 read with Section 34 of Indian Penal Code is quashed and set aside. The appellants/accused are acquitted of the offences charged with. The appellants/accused are directed to be set at liberty forthwith, if not required in any other case.