JUDGMENT : V.M. Deshpande, J.- 1. These two appeals are filed against the judgment and order of conviction passed by the learned Sessions Judge, Akola, dated 21-6-2017 in Sessions Case No. 247 of 2014. The learned Sessions Judge found the appellants in both these appeals guilty for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code, consequently he ordered them that they shall undergo imprisonment for life and to pay a fine amount of Rs.5,000/- by each of them and in default to suffer simple imprisonment for a further period of six months. 2. Since, both these appeals arise out of same judgment, they were taken up for hearing simultaneously and they are being decided by this common judgment. 3. Criminal Appeal No. 54/2018 is filed by Shamrao Sukhadeo Telgote, who was accused No.1 in the Sessions case, whereas Criminal Appeal No. 103/2018 is filed by Vandana w/o Sanjay Ghaiwat, who was accused no.2 in the Sessions case. 4. Appellant Shamrao Telgote is represented by Shri V.P. Mohod, learned counsel appointed by the High Court Legal Services Sub Committee, Nagpur. Appellant Vandana Ghaiwat is represented by Shri N.A. Badar, learned counsel. In both these appeals, the respondent/State is represented by Shri S.M. Ghodeswar, learned Additional Public Prosecutor. 5. The appellants were charged that on 8-9-2014 in between 18.45 to 19.00 hours at village Jamb, they along with juvenile in conflict with law Shubham Ghaiwat committed murder of Nitin @ Janardhan Kisan Ghaiwat by means of Axe and brick stone. In the sessions trial, obviously Shubham, juvenile in conflict with law, was not tried. The appellants denied the charge and claimed for their trial. In order to prove the charge against them, the prosecution has examined in all ten witnesses. After statements of accused under Section 313 of the Code of Criminal Procedure were recorded, they also examined two defence witnesses. 6. The incident had occurred during Ganpati festival, more specifically on the day of immersion of Lord Ganesha. In view of the said occasion, PW10 Vishnukant Gutte, Assistant Inspector of Police of Police Station, Chhani was on patrolling duty. While patrolling at village Pimpalkhuta at about 7.30 p.m., he received phone call that the appellants have committed murder of Nitin Ghaiwat by means of Axe. He passed on said information to ASI Panchbhai, who was at Alegaon. In view of the said occasion, PW10 Vishnukant Gutte, Assistant Inspector of Police of Police Station, Chhani was on patrolling duty. While patrolling at village Pimpalkhuta at about 7.30 p.m., he received phone call that the appellants have committed murder of Nitin Ghaiwat by means of Axe. He passed on said information to ASI Panchbhai, who was at Alegaon. He also asked Ashok Ingle to take entry in the Station Diary and thereafter, he proceeded to the spot of the incident i.e. village Jamb. He went in front of the house of Kisan Ghaiwat. He found that Nitin was lying in dead condition in the courtyard. He called panchas and prepared spot panchanama. Spot panchanama was prepared in presence of PW2 Raju Marodkar. It is at Exh.39. He also seized simple as well as blood mixed earth, broken bricks, one tobacco pouch, yellow colour chappal and chilly powder mixed with soil. Similarly, he seized chilly powder mixed with earth from inside the house of appellant Vandana, so also simple earth from inside the house of appellant Vandana under seizure panchanama (Exh.40). He also done inquest over the dead body. Inquest panchanama is at Exh.41. Thereafter, he sent the dead body to the Government Medical College and Hospital, Akola for most mortem. He also recorded the statements of Kisan Ghaiwat, Mankarnabai Ghaiwat and Dipali Ghaiwat. He also sent Dipali for her medical examination at Alegaon Primary Health Center under requisition (Exh.73), who was examined there. Medical Certificate of Dipali is at Exh.74. 7. In the meanwhile, Mankarnabai (PW1) lodged her oral report (Exh.35). As per the oral report (Exh.35), she is the second wife of Kisan Ghaiwat, His first wife Sindhubai died due to snake biting. From first wife, Kisan have two sons and two daughters, eldest was Sanjay. Mankarnabai begotten one son from Kisan, by name Nitin @ Janardhan (deceased). The report discloses that everybody was married. As per the report, her step son Sanjay’s marriage was performed with accused Vandana about 20 years ago and after his marriage, within a period of 15 days, he started residing separately. Sanjay was having two sons by name Shubham, aged about 16 years, juvenile in conflict with law and Roshan, aged about 14 years and one daughter Achal, aged about 11 years. The report further discloses that Sanjay committed suicide about 3 years ago by consuming poison. Sanjay was having two sons by name Shubham, aged about 16 years, juvenile in conflict with law and Roshan, aged about 14 years and one daughter Achal, aged about 11 years. The report further discloses that Sanjay committed suicide about 3 years ago by consuming poison. As per the report, his widow Vandana used to reside just adjacent to the house of Mankarnabai. According to the oral report, accused Vandana developed love relations with accused Shamrao (appellant) since last one year and he used to visit Vandana’s house and used to sleep there. Therefore, Kisan and Nitin gave advise to Vandana that she should not indulge in such affair. So also a word of advise was given to Shamrao that he should not visit the house of Vandana, however, Shamrao was not in a mood to listen the same, resultantly there was a quarrel about three months ago, which was pacified. 8. According to the report, in view of immersion of Lord Ganesha, Mankarnabai, her son and daughter-in-law were present in the house while her husband Kisan had been to Deulgaon along with one Karim bhai. At 2.30 p.m., there was a Ganpati procession. Nitin participated in the same. The said procession came in front of the house of Mankarnabai at about 4.00 O’clock, therefore, Mankarnabai also participated in the said procession. At about 5.00 O’clock, immersion of Lord Ganesha took place at the government well. Thereafter, at Hanuman Mandir, there was ‘bhandara’ (meals). As per the report, deceased Nitin took meals in the said ‘bhandara’ and the first informant was standing near the shop of Ganesh. According to the report, after taking meals, Nitin came near her and purchased one tobacco pouch from Ganesh Ambhore’s shop. As per the report, when she was proceeding towards her house and when she reached near Buddha Vihar following her son Nitin and when Nitin was in the courtyard, that time appellant Shamrao and Shubham, juvenile in conflict with law, arrived on the spot. They were armed with Axe and they stared assaulting Nitin. According to the report, Shamrao assaulted on the backside of head of Nitin repeatedly for 2-3 times whereas Shubham gave 2-3 axe blows on left cheek and Vandana threw bricks towards Nitin. After the assault, they ran away. They were armed with Axe and they stared assaulting Nitin. According to the report, Shamrao assaulted on the backside of head of Nitin repeatedly for 2-3 times whereas Shubham gave 2-3 axe blows on left cheek and Vandana threw bricks towards Nitin. After the assault, they ran away. It is also stated in the report that not only she, but also her daughter-in-law Dipali, wife of Nitin also witnessed the incident of assault. Printed first information report is at Exh.36. It shows that the crime was registered at 1.30 hours. 9. Crime was registered by PSI Pathan. Then the investigation was entrusted to PW10 Vishnukant Gutte. He arrested accused Vandana Ghaiwat under arrest panchanama (Exh.83). He also arrested Shubham Ghaiwat, juvenile in conflict with law. Clothes of accused Vandana were seized under seizure panchanama (Exh.44) in presence of panch PW3 Uddhav Band. Similarly, clothes of Shubham, juvenile in conflict with law, were seized under seizure panchanama (Exh.45) in presence of PW3 Uddhav Band. According to the prosecution, Shubham, juvenile in conflict with law made his voluntary statement in presence of panch witness Uddhav Band (PW3). The admissible portion from his statement recorded under Section 27 of the Evidence Act, is at Exh.46. By the said, Shubham agreed to show the place where he had thrown axe. After recording of his memorandum statement, he led the police party to a spot and thereafter from one shrub he took out an axe, which was seized. At the time of seizure, there were blood stains on that axe. Recovery panchanama is at Exh.47. The Investigating Officer also made search of the house of Shubham, juvenile in conflict with law. The house search panchanama is at Exh.48. From the house search, one axe was seized having blood stains. The Investigating Officer also seized the clothes and viscera of deceased Nitin under seizure panchanama (Exh.50). Clothes on the person of Dipali were also seized under seizure panchanama (Exh.70). Appellant Shamrao was arrested after a period of one month under arrest panchanama (Exh.85). He also made voluntary statement to produce the clothes in presence of PW4 Devidas Rathod and agreed to show the place where he concealed the clothes and his cell phone. The admissible portion of his statement is at Exh.56. Under seizure panchanamas (Exhs.57 and 58), his clothes and mobile phone were seized. He also made voluntary statement to produce the clothes in presence of PW4 Devidas Rathod and agreed to show the place where he concealed the clothes and his cell phone. The admissible portion of his statement is at Exh.56. Under seizure panchanamas (Exhs.57 and 58), his clothes and mobile phone were seized. Thereafter, the Investigating Officer sent muddemal property to the Chemical Analyser and on completion of the entire investigation, he filed the charge-sheet. 10. As per the prosecution case, there are two eye-witnesses, they are PW1 Mankarnabai, mother of the deceased and PW7 Dipali, widow of Nitin. 11. PW6 is Dr. Balwan Bolsure, who was working in Forensic Medicine Department at Government Medical College, Akola. On 9-9-2014, police had brought body of Nitin for post mortem. Dr. Bolsure along with Dr. Hussain and Dr. Padole conducted post mortem and found following external injuries :— 1. Abrasion of reddish colour over forehead on right frontal region of size 4 cm x 3 cm. 2. Abrasion over right cheek of size 5 cm x 4 cm. 3. Incised looking lacerated wound of scalp over left frontal region of size 5 cm x 2 cm x bone deep. 4. Chop wound over left cheek over zygoma of size 6 cm x 1.5 cm x muscle deep horizontally placed. 5. Chop wound over left cheek left ear externally of size 8 cm x 4 cm x brain deep. It also destroys anti-helix, helix and also chops the under lung entric-cartilaginous and fracture. 6. Chop wound of scalp over occipital region just beside and behind mastoid process of size 5 cm x 4 cm x bone deep. Craciate shaped. 7. Chop wound over lover aspect of occipital region shape of neck on left side size 4 cm x 1.3 cm x muscle deep. 8. Lacerated wound over left shoulder superiorly of size 3 cm x 0.5 cm x muscle deep. Also, he found following internal injuries. 1. Subgial contusion in the for of hyematoma diffusely over left fronto parito occipital region. 2. Cracked undisplaced fracture over left frontal bone of size 2.5 cm in length with infliteration of blood, fracture over left temparo parieto occipital region with displacement of size 11 cm x 5.3 cm. 3. Cracked undisplaced fracture over middle cranial fossa of size 5 cm in length. 4. 2. Cracked undisplaced fracture over left frontal bone of size 2.5 cm in length with infliteration of blood, fracture over left temparo parieto occipital region with displacement of size 11 cm x 5.3 cm. 3. Cracked undisplaced fracture over middle cranial fossa of size 5 cm in length. 4. Duraform, lacerated over left temparo occipital region with cerebral hemisphere of left size fronto parietal region shows shopped lacerated area over frontal pole. It is about 1 cm x 1 cm and over temporal region, it is 4 cm x 1 cm with blood and clots around with sub-arechical hemorrhaged diffusely all over left cerebral hemisphere. 12. Dr. Bolsure proved post mortem report (Exh.63). According to the post mortem report and the opinion of Doctor, the death was due to shock due to multiple chopped chrenial cerebral injuries. In view of evidence of PW10 Dr. Bolsure and the post morem report, there cannot be any difficulty to hold that the deceased died homicidal death. 13. According to the prosecution, it is the appellants and Shubham, juvenile in conflict with law, who are responsible for homicidal death of Nitin. According to the defence, appellant Shamrao is falsely implicated in the crime and at the relevant time he was not at all present in the village, but he was at Akola, more specifically in Icon Hospital to take care of his mother, who was indoor patient. The defence of appellant Vandana was that on the day of the incident, when she was present along with Shubham, juvenile in conflict with law and her other son and daughter, Nitin came inside her house under the influence of liquor. He was keeping bad eye on Vandana. He tried to molest her resulting into scuffle in between them. Chilly powder was thrown. Nitin tried to commit rape on her and also assaulted her resulting into injury on her head. He torn her saree and blouse. In that process, in order to save her, her son Shubham, juvenile in conflict with law, assaulted on Nitin by means of axe resulting into injury on his head. 14. First Information Report is not a substantive piece of evidence. It can be used either for corroboration or contradiction of its maker, is the settled principle of law. 15. In that process, in order to save her, her son Shubham, juvenile in conflict with law, assaulted on Nitin by means of axe resulting into injury on his head. 14. First Information Report is not a substantive piece of evidence. It can be used either for corroboration or contradiction of its maker, is the settled principle of law. 15. In the first information report (Exh.35), it is very specifically asserted that at the time of incident, appellant Shamrao Telgote had assaulted by means of axe for 2-3 times on the backside of head of Nitin and Shubham, juvenile in conflict with law, had assaulted on right cheek of Nitin by means of axe and accused Vandana threw chilly powder. In this background, it would be useful to reproduce what Mankarnabai (PW1) has stated in her examination-in-chief and the same is reproduced herein below : “My son was assaulted on head and also on back. Accused Shubham assaulted on the cheek and ears of my son Nitin. Accused Vandana threw chilly powder, as well as bricks towards my of son Nitin. I had myself seen the said incident.” From the aforesaid it is very clear that she is conspicuously silent about alleged assault made by appellant Shamrao on the backside of head of Nitin. 16. According to the autopsy surgeon Dr. Banwan Bolsure (PW6), injury Nos.1 and 2 in column No.17 were simple injuries. Injury in column No.19 to the brain corresponds to injury No.5 in column No.17 i.e. external injury, which was as under :— “Chop wound over left cheek left ear externally of size 8 cm x 4 cm x brain deep. It also destroys anti-helix, helix and also chops the under lung entric-cartilaginous and fracture.” Doctor also found that injury Nos.7 and 8 were not sufficient to cause death. 17. In the aforesaid background it is clear that the injuries found on the cheek and ear are clearly attributable to Shubham, juvenile in conflict with law and not to accused Shamrao, as alleged by the prosecution witnesses. Though, according to the prosecution, incident in question was also noticed by Dipali (PW7), in our view, her status cannot be elevated as an eye-witness and at the most she reached after the assault. In her cross-examination, she has stated as under :— “I was watching TV alone in the house when my husband came. Though, according to the prosecution, incident in question was also noticed by Dipali (PW7), in our view, her status cannot be elevated as an eye-witness and at the most she reached after the assault. In her cross-examination, she has stated as under :— “I was watching TV alone in the house when my husband came. My husband told me that he has just taken meals. My husband on reaching immediately told me that he will go and bring packet of tobacco. I heard the shouts immediately after he went out. When I came out of the house I saw that my husband was lying on the ground and blood was oozing from his head.” Neither Dipali nor Mankarnabai did state in their evidence that after Nitin fell on the ground, the assault was continued. If that be so, from the aforesaid evidence of Dipali, it is clear that she was not an eye-witness. 18. According to the defence of accused Vandana, deceased entered in her house under the influence of liquor and he tried to commit rape on her. Dr. Bolsure (PW6), who conducted post mortem, found that Nitin’s stomach was containing smell of alcohol. It would be useful to reproduce the relevant portion as appearing in his ross-examination :— “5. My attention is drawn to column relating to stomach. It is true to say that there is mention of pungent smell due to ethyl alcohol.” Though, viscera was preserved, viscera report is not placed on record. However, in view of the admission given by the autopsy surgeon and the contemporaneous finding noted by him in post mortem report (Exh.63), it is clear that the deceased had consumed liquor. Therefore, to that extent, defence of accused Vandana that under the influence of liquor Nitin had entered in her house, stands corroborated. 19. We have already noted the defence of accused Vandana that her blouse and saree were torn. Mankarnabai (PW1) gave vital admission during her cross-examination that she noticed that saree and blouse of Vandana were torn. Of course, she denied the suggestion that Nitin had torn the same. It was the defence of Vandana that she was assaulted by Nitin and during that she received injuries. P.W.5 is Dr. Nageshwar Ujade, who examined accused Vandana on 9-9-2014 when she was brought to him by police. Dr. Ujade proved injury certificate of Vandana. It is at Exh.61. Dr. It was the defence of Vandana that she was assaulted by Nitin and during that she received injuries. P.W.5 is Dr. Nageshwar Ujade, who examined accused Vandana on 9-9-2014 when she was brought to him by police. Dr. Ujade proved injury certificate of Vandana. It is at Exh.61. Dr. Ujade would state that during medical examination of Vandana he noticed small abrasion over scalp around 3 cm and she gave history of hitting by stone. It was not the case of the prosecution that Vandana selfinflicted the injury. In spite of the injury being noticed by the Doctor, Mankarnabai flatly refused that she noticed any injury on the person of Vandana. 20. In order to show that Dipali was an eye-witness, the prosecution is relying upon her injury certificate (Exh.74). She was examined by Dr. Madhuri Lahole (PW8). Evidence of Dipali (PW7) does not show that when the alleged incident was going on she tried to intervene and/or she handled any weapon. In this context, evidence of Dr. Lahole assumes importance and it is reproduced herein as under :— “It is true to say that palm is easily accessible part of the body. For self inflicted injury, palm can be most easily used. It is true to say that in case the hand is put on any sharp object such injuries can be caused as noted in the injury certificate. It is true to say that the possibility of self inflicted injury cannot be ruled out.” In view of the aforesaid, much importance cannot be given to the simple injury that was noticed on her palm. 21. Spot panchanama is at Exh.39. Relevant portion showing existence of chilly powder from house of Vandana till the dead body, is reproduced herein as under :— Spot Panchanama (Exh.39) also corroborates the defence of Vandana in view of the aforesaid noting in the spot panchanama that chilly powder was found from inside the house of Vandana till near the dead body. Even PW2 Raju Marodkar, a panch witness, also states that he noticed that blouse and saree of Vandana were torn. Even PW2 Raju Marodkar, a panch witness, also states that he noticed that blouse and saree of Vandana were torn. In totality of the aforesaid, in our view, the defence of Vandana is probablized that under the influence of liquor when Nitin entered inside her house and tried to outrage her modesty, there was a scuffle and during that scuffle Vandana suffered injury as noticed in Exh.61, her saree and blouse were torn and to save her from the clutches of Nitin, her son Shubham, juvenile in conflict with law, assaulted on Nitin by axe, resulting into his death. 22. The defence of accused Shamrao was of alibi. According to him, he was not present in the village at the time of the incident, but he was at Icon Hospital at Akola. Defence of Shamrao was not taken out of cough. In fact even during trial, it was his stand, as it could be seen from his bail application (Exh.3), that he was not present in village at the relevant time. He has examined two witnesses namely DW1 Ranjeet Ghaiwat and DW2 Shubham Ghaiwat, juvenile in conflict with law. From the evidence of DW1 Ranjit Ghaiwat, it is clear that he along with Gautam and Mangesh were proceeding towards Akola to see grandmother of Gautam and mother of accused Shamrao. They started at 4.30 p.m. They went to Icon Hospital located at Jathar Peth, Akola. They reached there at 6.30 p.m. That time Shamrao had gone for bringing tiffin. Therefore, he gave a phone call to Shamrao and thereafter Shamrao came to Icon Hospital. At about 7.30 p.m., Shamrao received a phone call from his house about murder of Nitin. 23. In the cross-examination of DW1 Ranjit, it is brought on record that in the hospital CCTV cameras were installed at various places. In the hospital, the CCTV cameras were fixed where patients and visitors of the patient were sitting. During his cross-examination, it was brought on record by the learned Additional Public Prosecutor that this defence witness had lodged report with the Superintendent of Police about the fact that Shamrao Telgote was present in the Icon hospital at the time of incident. The learned Judge of the trial Court has shifted the burden on Shamrao. During his cross-examination, it was brought on record by the learned Additional Public Prosecutor that this defence witness had lodged report with the Superintendent of Police about the fact that Shamrao Telgote was present in the Icon hospital at the time of incident. The learned Judge of the trial Court has shifted the burden on Shamrao. In our view since right from beginning it was the defence that there were CCTV cameras fixed in the hospital, it was open for the prosecution to place its footage on record to disbelieve the plea of alibi taken by accused Shamrao. 24. Evidence of Shubham (DW2) is on the line of defence of his mother Vandana. 25. As per Mankarnabai (PW1), axe (Article-8) was in the hands of Shamrao and axe (Article-13) was in the hands of Shubham, juvenile in conflict with law. 26. No weapon was seized at the behest of appellant Shamrao. As per the evidence of Dr. Bolsure (PW6), all the injuries noticed by him were possible by weapon axe (article 13). During his cross-examination, Dr. Bolsure did state as under :— “It is true to say that all the injuries mentioned by me in column no.17 are possible by weapon axe Article-13 and fracture is also possible.” It is thus crystal clear that all the injuries are attributed to weapon axe (Article-13) by the Doctor and according to the eye-witness Mankarnabai, axe (Article 13) was in the hands of Shubham, juvenile in conflict with law, and not in the hands of Shamrao. 27. It is the case of the prosecution that appellants Shamrao and Vandana developed love relations and said love relations were not digested by the family of Mankarnabai. PW2 Raju Marodkar, a panch witness, who was also Sarpanch of the village, did state in his evidence that there was dispute on the said issue between Shamrao and the family of Nitin. Though, the dispute was resolved, according to the witness, deceased Nitin gave threat to accused Shamrao that he will involve Shamrao falsely. 28. Clothes of accused Shamrao were seized. Exh.77 is the C.A. requisition. It shows that the clothes of Shamrao were not sent to the Chemical Analyser. 29. In view of appreciation of the evidence, following emerges qua Shamrao — i. Family of the deceased was not liking his love relations with Vandana. ii. 28. Clothes of accused Shamrao were seized. Exh.77 is the C.A. requisition. It shows that the clothes of Shamrao were not sent to the Chemical Analyser. 29. In view of appreciation of the evidence, following emerges qua Shamrao — i. Family of the deceased was not liking his love relations with Vandana. ii. There was no recovery of any weapon at the behest of Shamrao. iii. According to the prosecution, axe (article 8) was used by Shamrao and axe (article 13) was used by Shubham, juvenile in conflict with law. iv. As per the evidence of Autopsy Surgeon, injuries on the person of deceased were caused by axe (Article-13). v. Though, the clothes of appellant Shamrao were seized, they were not sent to the Chemical Analyser. vi. Right from beginning it was the defence of Shamrao that he had been to Icon Hospital, Akola, where CCTV cameras were fixed, however, no attempt was made by the prosecution to discredit his defence of alibi. 30. On re-appreciation of entire prosecution case, we are of the view that false implication of accused Shamrao is not completely ruled out. Insofar as accused Vandana is concerned, her defence is probablized by the prosecution witnesses themselves and the circumstances brought on record by the prosecution that under the influence of liquor, deceased Nitin tried to molest her and she was assaulted by Nitin, her clothes were torn and in order to save her, her son Shubham, juvenile in conflict with law, assaulted on Nitin by means of axe (Article 13) resulting into his death. We, therefore, pass the following order :— ORDER 1. Criminal Appeal No. 54 of 2018 is allowed. 2. Judgment and order of conviction and sentence passed by learned Sessions Judge, Akola in Sessions Case No. 247/2014 on 21-6-2017 convicting appellant – Shamrao S/o Sukhadeo Telgote for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code, is hereby quashed and set aside. 3. Appellant - Shamrao S/o Sukhadeo Telgote, who is in jail, shall be released forthwith, if he is not required in any other offence. 4. Learned counsel Shri V.P. Mohod, who represented appellant – Shamrao S/o Sukhadeo Telgote as appointed counsel by the High Court Legal Services Sub Committee at Nagpur, is entitled for his professional charges and we quantified it at Rs.5,000/-. 5. Criminal Appeal No. 103 of 2018 is hereby allowed. 6. 4. Learned counsel Shri V.P. Mohod, who represented appellant – Shamrao S/o Sukhadeo Telgote as appointed counsel by the High Court Legal Services Sub Committee at Nagpur, is entitled for his professional charges and we quantified it at Rs.5,000/-. 5. Criminal Appeal No. 103 of 2018 is hereby allowed. 6. Judgment and order of conviction and sentence passed by learned Sessions Judge, Akola in Sessions Case No. 247/2014 on 21-6-2017 convicting appellant – Vandana W/o Sanjay Ghaiwat for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code is hereby quashed and set aside. 7. Appellant – Vandana W/o Sanjay Ghaiwat, who is on bail, her bail bonds stand cancelled. 8. Both the criminal appeals are allowed and disposed of accordingly.