JUDGMENT : All appellants are convicted by the learned Sessions Judge, Amravati in Sessions Case No.187/2015 on 20.08.2018 for the offence punishable under Section 302 read with Section 149 ; under Section 323 read with Section 149 and under Sections 143 and 148 of the Indian Penal Code. Appellant nos.1, 2, 4 and 5 are further convicted for the offence punishable under Section 4 read with Section 25(1-B)(b) of the Arms Act. Also all appellants stand convicted for the offence punishable under Section 135 read with Section 37(1) of the Bombay Police Act, are before this Court in this appeal. Appellant no.3 Roshan is acquitted for the offence punishable under Section 4 read with Section 25 of the Arms Act. 2. The appellants are sentenced as under :- [i] For the offence punishable under Section 302 read with Section 149 of the Indian Penal Code – to suffer rigorous imprisonment for life and to pay a fine of Rs.2,000/- each, in default to suffer further rigorous imprisonment for three years [ii] For the offence punishable under Section 323 read with Section 149 of the Indian Penal Code - to suffer rigorous imprisonment for six months and to pay a fine of Rs.300/- each, in default to suffer further rigorous imprisonment for one month ; [iii] For the offence punishable under Section 143 of the Indian Penal Code - to suffer rigorous imprisonment for six months and to pay a fine of Rs.300/- each, in default to suffer further rigorous imprisonment for one month ; [iv] For the offence punishable under Section 148 of the Indian Penal Code - to suffer rigorous imprisonment for two years and to pay a fine of Rs.300/- each, in default to suffer further rigorous imprisonment for three months. [v] For the offence punishable under Section 4 read with Section 25(1-B)(b) of the Arms Act, appellant nos.1, 2, 4 and 5 were sentenced to suffer rigorous imprisonment for two years and to pay fine of Rs.300/- each, in default to suffer rigorous imprisonment for three months ; and [vi] For the offence punishable under Sec. 135 r/w Section 37(1) of the Bombay Police Act, all appellants to suffer rigorous imprisonment for six months and to pay a fine of Rs.300/- each, in default to suffer further rigorous imprisonment for one month. FACTUAL MATRIX :- 3. FACTUAL MATRIX :- 3. The prosecution case, as it is unfurled during the course of the trial, is narrated herein under :- A] On 02.08.2015, Rahul Chavhan (PW10) was discharging his duties as Police Sub Inspector at Police Station, Gadge Nagar, Amravati. On the said day, he was discharging his duty as Night Officer. While discharging his duties as such, he received an information from Police Control Room that at Navsari, quarrel is going on. Accordingly, an entry (Exh.125) in that behalf was taken in the station diary. He thereafter sent some police staff at the spot of information. An entry in that behalf was taken in the Station diary, which was signed by Senior Police Inspector Pundkar. The said entry is at Exh.126. [B] Thereafter, PW10 PSI Rahul Chavhan proceeded towards the spot of information. On reaching there, he found that the person who had sustained injuries in the quarrel was already sent to the hospital. He inspected the spot of the incident and he found splash of blood there. He also noticed some hairs littered there. He deputed one Police Constable to preserve the spot. Thereafter he went to Irwin Hospital. At Irwin Hospital, one person by name Ravi Farkade, who sustained injuries was lying in dead condition. Several persons were assembled there. There he asked the relatives of the deceased to come to the police station. Accordingly, Mangala Farkade, wife of brother of deceased came to the police station and she lodged her first information report. The first information report is dated 02.08.2015. The oral report is at Exh.127 and the printed first information report is at Exh.128. [C] First informant Mangala was also having injuries. Therefore, she was sent for her medical examination under requisition (Exh.25) given to the Medical Officer. Similarly, one Divya Gosavi (PW1), sister of Mangala was also sent for her medical examination by issuing letter (Exh.27) to the Medical Officer. After the medical examination, Mangala came back to the police station and she put her signature on the printed first information report. The crime was registered vide Crime No. 329/2015. [D] The Investigating Officer along with Mangala went to the spot of the incident. At the spot, there was a talk in between Mangala and Divya. He recorded the statement of Divya. On the basis of her statement, the Investigating Officer found that five accused persons were involved in the incident. The crime was registered vide Crime No. 329/2015. [D] The Investigating Officer along with Mangala went to the spot of the incident. At the spot, there was a talk in between Mangala and Divya. He recorded the statement of Divya. On the basis of her statement, the Investigating Officer found that five accused persons were involved in the incident. Thereafter, he came back to the police station along with Mangala and recorded her statement. [E] PW10 PSI Chavhan arrested Niraj Ugale (appellant No.5) on 03.08.2015. His arrest form is at Exh.34. He also seized the clothes of the said accused under seizure panchanama (Exh.129). Blood stains were found on his clothes. [F] The Investigating Officer also seized clothes of first informant Mangala, which were stained with blood, under seizure panchanama Exh.130. Similarly, he seized the clothes of Divya Gosavi under seizure panchanama (Exh.50). [G] During the course of investigation, he received an information that remaining four accused are at Akola. Therefore, police staff was sent to Akola to arrest them. [H] In the meanwhile, he issued letters to the Block Development Officer, Panchayat Samiti, Amravati for sending two persons to as as panchas and to the Head Master, Kamaljyoti School, Navsari, Amravati for sending a person to act as a panch. The letters are at Exhs.131 and 132. Accordingly, Vasant Abhyenkar and Laxman Rajurkar acted as panch. In their presence, spot panchanama was prepared, which was in the lane of one Gawande at Navsari. Blood mixed earth, simple earth and hairs scattered on the ground were seized under spot panchanama. The spot panchanama is at Exh.133. Seized articles were deposited by him in the muddemal room of the police station. [I] The spot panchanama was started at 8.00 O’clock and it was finished at 9.00 O’clock on 03.08.2015. Thereafter, the Investigating Officer went to Irwin Hospital. He prepared inquest panchanama (Exh.30). By giving request letter (Exh.31) to the Medical Officer, the Investigating Officer asked for conducting post mortem over the dead body. Exh.134 is the police report to be forwarded to the Civil Surgeon with the dead body for post mortem examination. [J] Thereafter, PW10 PSI Chavan recorded the statements of the witnesses. On the basis of the witnesses, he found that five persons were involved in the commission of crime and therefore, he added Section 147, 148 and 149 of the Indian Penal Code. [J] Thereafter, PW10 PSI Chavan recorded the statements of the witnesses. On the basis of the witnesses, he found that five persons were involved in the commission of crime and therefore, he added Section 147, 148 and 149 of the Indian Penal Code. Necessary entry to that effect was taken in the Station Diary. Accused Amar Sarode (appellant no.1), Vikki Gole (appellant no.2), Akshay Junghare (appellant no.4) and Roshan Gaikwad (appellant no.3) were found at Akola and they were arrested by Khadan Police Station, Akola and after completing the formalities, they were handed over to the Police Station authority of Gadge Nagar Police Station, Amravati. They were produced before the Investigating Officer. He arrested the aforesaid four persons in the crime. Their arrest forms are at Exhs.35 to 38. Their clothes were stained with blood. Their clothes were seized. Seizure panchanama (Exh.135) is in respect of Akshay Junghare, seizure panchanama (Exh.136) is in respect of accused Vikki Gole, seizure panchanama (Exh.137) is in respect of accused Amar Sarode and seizure panchanama (Exh.138) is in respect of accused Roshan Gaikwad. He deposited the seized clothes in Malkhana of the police station. [K] On 03.08.2015, accused Amar Sarode, while in the custody shown his willingness to give his statement. Accordingly, he called panch Dnyaneshwar Shegokar and Krushikesh Kokate by giving letters Exhs.140 and 141. Before them, accused Amar made his voluntary statement and agreed to show the place where he concealed the Sword. Admissible portion is at Exh.81. After taking entry in Station Diary (Exh.142), the police party along with panchas and accused Amar went to his house. From behind his house, from a pit from beneath a custard tree, he took out the Sword. The same was seized under seizure panchanama (Exh.82). The sword was deposited in the Malkhana. [L] In the meanwhile, the samples collected by the Medical Officer at the time of post mortem and the clothes of the deceased were seized under seizure panchanama (Exh.118). Thereafter, he added Section 4 punishable under Section 25 of the Arms Act and Section 135 of the Bombay Police Act. Accordingly, a communication was given to the learned jurisdictional magistrate (Exh.145). On 03.8.2015, the Investigating Officer informed the learned jurisdictional Magistrate vide Exh.146 regarding adding of Sections 143, 147, 148 and 149 of the Indian Penal Code. Thereafter, he added Section 4 punishable under Section 25 of the Arms Act and Section 135 of the Bombay Police Act. Accordingly, a communication was given to the learned jurisdictional magistrate (Exh.145). On 03.8.2015, the Investigating Officer informed the learned jurisdictional Magistrate vide Exh.146 regarding adding of Sections 143, 147, 148 and 149 of the Indian Penal Code. [M] On 04.08.2015, accused Vikky Gole shown his willingness to make a statement in respect of the crime. Accordingly, the Investigating Officer called two panchas namely Saurabh Kamble and Sunil Kale and in their presence, he agreed to show the place where he has hidden the Sword. Exh.88 is the admissible portion of his statement under Section 24 of the Evidence Act. Accordingly accused Vikky led the police party along with panchas to a place and from a heap of firewood, he took out a Sword. The same was recovered. The recovery panchamama is at Exh.89. The said was also deposited in the Malkhana. [N] On 05.8.2015, accused Roshan Gaikwad shown his willingness to make discovery statement. Therefore, the Investigating Officer (PW10) called two panchas by giving communication (Exh.149). In presence of the panchas, accused Roshan’s statement was recorded. The admissible portion is at Exh.78. Thereafter, he led the police party near Kamaljyoti Primary School. From there he went to a D.P. and took out a wooden log. It was seized under seizure pancnanama (Exh.79). [O] The Investigating Officer thereafter gave a letter (Exh.153) to the learned Judicial Magistrate, First Class for recording the statements of witnesses under Section 164 of the Code of Criminal Procedure. Accordingly, the statements of Divya Gosavi, Naresh Khadsam, Rakesh Kolhe and Nitin Kale were recorded. [P] On 06.8.2015, accused Niraj Ugale shown his willingness to give his statement. Therefore, the Investigating Officer gave letter (Exh.154) and called panchas and in the presence of the panchas, he made a statement and agreed to show the place where knife is hidden. The admissible portion of his statement is at Exh.85. Thereafter, in presence of the panchas from the place shown by accused Niraj, knife was seized under recovery memo (Exh.86). [Q] On 07.8.2015, accused Akshay Junghare during his custody shown his willingness to give his statement. Therefore, the Investigating Officer called the panchas by giving letter (Exh.157) and in their presence he gave his disclosure statement and agreed to show the place where he has concealed the Sword. [Q] On 07.8.2015, accused Akshay Junghare during his custody shown his willingness to give his statement. Therefore, the Investigating Officer called the panchas by giving letter (Exh.157) and in their presence he gave his disclosure statement and agreed to show the place where he has concealed the Sword. The admissible portion is at Exh.95. The Sword was recovered from the spot shown by accused Akshay in presence of the panchas and the same was seized at Exh.96. [R] On 07.8.2015, blood and hair samples of PW1 Divya were seized under seizure panchanama (Exh.97). He also gave letter to the M.S.E.B. on 10.08.2015 and made an enqiry whether in the night of incident, the electricity of electric pole situated near the spot of the incident was on or off. The said letter is at Exh.160. On 18.8.2015, reply from M.S.E.B. was received in the affirmative. [S] On 12.08.2015, the seized weapons were also forwarded to the Medical Officer for examination. Exh.91 is the letter issued in that behalf. [T] On 14.08.2015, the seized muddemal was sent to the Chemical Analyser vide communication (Exh.167). [U] After completion of other usual investigation, according to the Investigating Officer, on account of money there was dispute between the accused persons and the deceased and due to that murder was committed and the charge-sheet was filed in the Court of law. 4. The learned jurisdictional Magistrate found that the offence was exclusive triable by the Court of Sessions. Therefore, the case was committed to the Court of Sessions, which was registered as Sessions Case No. 187/2015. 5. The learned Sessions Judge, in Sessions Case No. 187/2015 framed the Charge against the appellants for the offence punishable under Sections 143, 147, 148, 302 r/w Section 149 and under Section 323 r/w Section 149 of the Indian Penal Code ; under Sections 4 read with Section 25 of the Arms Act ; and under Section 135 read with Section 37(1)(3) of the Bombay Police Act. The appellants abjured their guilt and claimed for their trial. 6. In order to bring home the guilt of the accused persons, ten witnesses were examined by the prosecution and also relied upon numerous documents proved during the course of the trial. The appellants abjured their guilt and claimed for their trial. 6. In order to bring home the guilt of the accused persons, ten witnesses were examined by the prosecution and also relied upon numerous documents proved during the course of the trial. After appreciation of the prosecution case, the learned Sessions Judge found that the prosecution has proved its case against all the appellants and accordingly, passed the judgment and order of conviction, which is challenged in this appeal. 7. We have heard Mr. R. M. Daga, learned counsel for the appellants and Mr. T.A. Mirza, learned Additional Public Prosecutor for the respondent/State. RIVAL SUBMISSIONS :- 8. Mr. R. M. Daga, learned counsel for the appellants has submitted that the case of the prosecution is in the realm of doubt. He submitted that the prosecution has utterly failed to prove its case against the appellants beyond reasonable doubt. He, therefore, submitted that on re-appreciation of the entire prosecution case, benefit of doubt is required to be given in favour of the appellants. 9. To buttress his submission, the learned counsel submitted that though the prosecution has examined three persons as eye-witnesses, they are not in fact the eye-witnesses if their evidence is scrutinized in its correct perspective. He also submitted that no plausible explanation is coming on record in respect of non-examination of the first informant. He submitted that the conduct of all the three eye-witnesses is unnatural inasmuch as though an opportunity was there for them, at the first instance when the police were present, they did not disclose the incident. He submitted that even when the police were present in the hospital where deceased Ravi was brought, that time also for the reasons best known to them, they missed the opportunity to disclose that they have witnessed the incident of assault on deceased Ravi. In that behalf, he relied upon the authoritative pronouncement of the Hon’ble Apex Court reported in (2020) 10 SCC 733 in the case of Chunthuram .vs. State of Chhattisgarh. 10. Learned counsel Mr. Daga also submitted that the scientific evidence, which is used against the appellants while convicting them cannot also be pressed into service. In that behalf, he relied upon the authoritative pronouncement of the Hon’ble Apex Court reported in (2020) 10 SCC 733 in the case of Chunthuram .vs. State of Chhattisgarh. 10. Learned counsel Mr. Daga also submitted that the scientific evidence, which is used against the appellants while convicting them cannot also be pressed into service. According to him, no convincing evidence is brought on record in respect of “sealing” of the weapons allegedly seized at the behest of the appellants or in respect of their clothes, which according to the prosecution, were stained with the deceased’s blood. 11. The learned counsel for the appellants also submitted that even though the scientific evidence in the nature of C.A. report was used against the appellants, the entire incriminating material in the C.A. reports, which was used for convicting the appellants, was not put to them when they were examined by the learned Judge of the trial Court under Section 313 of the Code of Criminal Procedure. Thus, he submitted that an opportunity was not given to them to offer their explanation. In that behalf, the learned counsel has relied upon the following cases :- [1] AIR 1973 SC 2622 ( Shivaji Sahebrao Bobade .vs. State of Maharashtra) [2] 2018 All M.R. (Cri.) 1838 (Pralhad S/o Gunwant Madhar and another .vs. State of Maharashtra) The learned counsel has submitted that therefore, the scientific evidence will have to be kept aside. He submitted that the appeal needs to be allowed and the appellants be acquitted by extending benefit of doubt in their favour. 12. Per contra, learned Additional Public Prosecutor Mr. T.A. Mirza for the State submitted that nothing will turn even if the first informant is not examined. He submitted that even in absence of examination of the first informant, who was also an eye-witness, since the prosecution has examined three other eye-witnesses, her non-examination hardly matters. 13. The learned Additional Public Prosecutor further submitted that since the first information report is not a substantive piece of evidence and it is used only for the purposes of corroboration or contradiction of the maker of the same, in view of the prosecution examining other eye-witnesses, the prosecution case cannot be thrown for non-examination of the first informant. 13. The learned Additional Public Prosecutor further submitted that since the first information report is not a substantive piece of evidence and it is used only for the purposes of corroboration or contradiction of the maker of the same, in view of the prosecution examining other eye-witnesses, the prosecution case cannot be thrown for non-examination of the first informant. He relied upon the authoritative pronouncement of the Hon’ble Apex Court reported in AIR 2002 SC 2815 in the case of Baburam and another .vs. State of U.P. ; and (2009) 10 SCC 773 in the case of Pandurang Chandrakant Mhatre and others .vs. State of Maharashtra. 14. The learned Additional Public Prosecutor has further submitted that most of the incriminating material was brought to the notice of the appellants when they were examined, however, they failed to offer any explanation. He submitted that nothing turns on the fact that some evidence was not brought to the notice of the appellants. It is his submission that since the eye-witnesses were frightened, they did not disclose immediately the assault which they witnessed to the police. Thus, according to him, plausible explanation is offered for non-disclosure to the police immediately and when they gathered courage they disclosed the same. He, therefore, submitted that the appeal be dismissed. CRITICAL ANALYSIS OF THE PROSECUTION CASE :- [A] NATURE OF DEATH :- 15. According to the prosecution, the assault on deceased Ravi took place on 02.08.2015 at 10.00 O’clock in the night. Evidence of PW10 PSI Rahul Chavan, the Investigating Officer shows that initially an intimation was given to the Police Station by police control room that a quarrel has occurred at Mahatma Fule Nagar, Navsari. Sana entry in that behalf was at Exh.125. Sana entry Exh.126 shows that police personnel were sent immediately to the spot of the occurrence. Evidence of PW10 PSI Chavan would show that thereafter he himself along with police staff had been to the spot of occurrence. That time he found that injured person Ravi was already shifted to the hospital. 16. PW8 Dr. Chandrashekhar Patil, on 03.8.2015, was serving as a Medical Officer at Irwin Hospital, Amravati as Autopsy Surgeon. Dead body of Ravi Farkade was brought to him for post mortem examination by Police Constable Nitin. Accordingly, he conducted post mortem on the dead body in between 11.35 am and 12.35 pm. 16. PW8 Dr. Chandrashekhar Patil, on 03.8.2015, was serving as a Medical Officer at Irwin Hospital, Amravati as Autopsy Surgeon. Dead body of Ravi Farkade was brought to him for post mortem examination by Police Constable Nitin. Accordingly, he conducted post mortem on the dead body in between 11.35 am and 12.35 pm. He found following nine injuries over the dead body. 1] Incised wound of size 4 inch in length and ½ inch in depth on left occipital region of head with underline skull fracture. [2] Incised wound of size 1 inch in length x ½ inch in depth on right occipital region of head/skull. [3] Incised would of size 1 inch in length x ½ inch in depth at superior, middle and anterior part of the head. [4] Incised wound of size 1 inch x ½ inch on left forehead above the left eye-brow. [5] Abrasion of size 1 inch x ½ inch on nose tip. [6] Multiple incised wound of ½ inch x ¼ inch on right elbow, right forearm, upper part of forearm, right forearm on anterior part. [7] Lacerated wound of size 1 inch x ¼ inch on left index finger and on left forearm of size ½ inch x ½ inch. [8] Incised wound of size ½ inch x ½ inch on right foreleg at middle and later part. [9] Incised wound of size ½ inch x ½ inch on right thigh. 17. According to the Doctor, all injuries were ante mortem. On internal examination, he noticed fracture of skull on left temporal region and extending to right temporal region with brain matter fall congested with heamatoma of size 2 x 2 inch in occipital region with intra cranial heamorrhage. Evidence of Dr. Patil would show that death of Ravi was caused due to severe head injury with heamatoma and intra crenial heamorrhage in occipital region of brain with fracture of skull. He issued post mortem report which is at Exh.32. 18. In view of the findings recorded by the Autopsy Surgeon in the post mortem report (Exh.32) and his evidence, there cannot be any doubt in anyone’s mind that Ravi’s death was homicidal death. [B] ABOUT FIRST INFORMANT :- 19. He issued post mortem report which is at Exh.32. 18. In view of the findings recorded by the Autopsy Surgeon in the post mortem report (Exh.32) and his evidence, there cannot be any doubt in anyone’s mind that Ravi’s death was homicidal death. [B] ABOUT FIRST INFORMANT :- 19. The first submission of the learned counsel for the appellant is that the contents of the first information report are not proved at all in view of prosecution failing to examine first informant Mangala. He, therefore, submitted that this itself is sufficient to discard the entire prosecution case. This submission is countered by the learned Additional Public Prosecutor by pointing out that the first information report is not a substantive piece of evidence. In our view this position is already crystallized in Baburam and another’s case (supra) 20. In view of the aforesaid, what shall be the effect of non-examining Mangala, the first informant ? According to evidence of Rahul Chavhan (PW10), who on 02.08.2015 was serving as Police Sub Inspector at Police Station, Gadge Nagar, Amravati, received an information from police control room that at Navsari, a quarrel is going on. Sana entry (Exh.125) in that behalf was taken. He sent some police staff on the spot of information and an entry in that behalf was taken in the Station Diary under the signature of Senior Police Inspector Pundkar, whose signature was identified by Rahul Chavan (PW10). The said Station Diary entry is at Exh.126. Thereafter, he proceeded on the spot of information there he got knowledge that the person who sustained injury in the quarrel is sent to the hospital. As per the evidence of Rahul Chavan (PW10), he then went to Irwin Hospital where several persons were assembled and he asked the relatives of the deceased to come to the police station and Mangala Farkade, wife of brother of the deceased came to police station and lodged the first information report. The printed first information report is at Exh.128. It is stated in the first information report that on 02.08.2015 at about 10.00 O’clock, when she was watching TV, her sister Divya Goswami (PW1) came running to her house and informed that her brother-in-law Ravi is being assaulted by “some” persons by Sword. Therefore, she rushed towards the spot of the incident. It is stated in the first information report that on 02.08.2015 at about 10.00 O’clock, when she was watching TV, her sister Divya Goswami (PW1) came running to her house and informed that her brother-in-law Ravi is being assaulted by “some” persons by Sword. Therefore, she rushed towards the spot of the incident. That time as per her report, the present appellants were assaulting Ravi by means of Swords and she could recognize them because of bright illumination of the tube lights. When she tried to stop the attack, she was also assaulted by butt of sword and thereafter they ran away. She thereafter dragged her brother-in-law deceased Ravi towards her mother’s house and informed police on phone. The printed first information report (Exh.128) shows the name of the informant as Mangala Farkade. Thus, she is the person who has set the criminal law into motion. 21. The first information report (Exh.128) sets the investigative process in motion. The first information report by itself is not a substantive piece of evidence. It can however be used as a previous statement for the purposes of corroboration and contradiction of its maker under Section 157 or Section 145 of the Indian Evidence Act. 22. In this case first informant Mangala, who from the tenor of Exh.128 was an eye-witness, is not examined by the prosecution. It is not the case that she was not cited as a prosecution witness or her presence could not have been secured during trial. 23. We have perused the record and proceeding. Part-IV of the record contains various miscellaneous applications which were filed on record during trial. Exh.47 appears to be an application under the signature of Mangala, dated 06.07.2017. In this application, she wrote a request letter to the trial Court that since she is not keeping good health, she is unable to attend the Court and therefore, next date be given to enable her to attend the Court on that date. On the left side of Exh.47, the remark shows that it was granted. From this what is pertinent to note is that the said application was not filed with the concurrence of learned Public Prosecutor, who was in-charge of the brief. Prior to this also, she had moved an application on 13.04.2017 (Exh.45) for the very same reason and it was also granted. From this what is pertinent to note is that the said application was not filed with the concurrence of learned Public Prosecutor, who was in-charge of the brief. Prior to this also, she had moved an application on 13.04.2017 (Exh.45) for the very same reason and it was also granted. No application was filed by the learned Public Prosecutor, in-charge of the brief along with any medical certificate at any time that Mangala was not keeping good health. Be that as it may. The prosecution did not file any application during trial before the learned Judge that for the reason of Mangala not keeping good health, the prosecution will not examine her. 24. In our view, when there is no plausible explanation coming on record for not examining the material witness namely Mangala, the first informant, there was no option for the Court but to draw an adverse inference. 25. Non-examination of first informant at least in this case has its own implications. As per the first information report (Exh.128), not only the first informant names the appellants as assailants, but also it is stated that Divya (PW1) came to her. She disclosed Mangala that some persons are assaulting on deceased Ravi. Thus, Divya (PW1) is also an eye-witness, as per Exh.128. 26. It is the submission of the learned counsel for the appellants that Divya (PW1) is not an eye-witness and she is introduced as an eye-witness. In that behalf, due to non-examination of Managala, the defence is denied its valuable right to cross-examine Mangala. As such non-examination of Mangala not only requires to draw an adverse inference, but also brings the prosecution case under the cloud of doubts about its authenticity in respect of introduction of Divya (PW1) as an eye-witness. Therefore, when the prosecution is keeping back or not allowing the best evidence to come on record, in our view, it gives serious jolt to the prosecution case. Of course, the Court will be examining independently evidence of Divya (PW1). [C] ANALYSIS OF EYE-WITNESS ACCOUNT :- 27. Divya Goswami is examined as PW1. She is the sister of first informant Mangala, whose brother-in-law was the deceased. As per her examination-in-chief, she did state that she was knowing the accused persons. Of course, the Court will be examining independently evidence of Divya (PW1). [C] ANALYSIS OF EYE-WITNESS ACCOUNT :- 27. Divya Goswami is examined as PW1. She is the sister of first informant Mangala, whose brother-in-law was the deceased. As per her examination-in-chief, she did state that she was knowing the accused persons. In her evidence, she did state that she heard hue and cry from the lane of one Gawande and when she went there she noticed that all accused were assaulting Ravi Farkade. According to her evidence, appellant Amol Sarode, Vikky Gole, Akshay Junghare and Niraj Ugale were having Sword and accused Roshan was having stick and when she tried to obstruct them, she sustained injury on her leg by Sword at the hands of Amol Sarode. Her evidence would show that thereafter she informed the incident to Mangala. What is important to note even from the examination-in-chief of this witness is that she did not state Mangala that the appellants are the assailants. She did state in her examination-in-chief as under in that behalf :- “I informed my sister Mangala about the incident that some persons are assaulting Ravi Farkade.” Thus in one breath she is disclosing the names of the appellants however in another she did state that when she informed about the assault to Mangala, she state that some persons were assaulting on Ravi. This assumes importance because as per her evidence, since childhood she was knowing all the appellants and she was knowing them by their names. It will be really hard to believe that a witness who knows the appellants by their names since their childhood and those appellants were assaulting on her near and dear, after witnessing the incident she will be narrating that “some persons” are assaulting, in our view, is a seed in respect of Divya that she is introduced in the prosecution case as an eye-witness. 28. According to the Investigating Officer Rahul Chavan (PW10), when he went to the spot of the incident, he did not make any enquiry with anybody as to whether anybody has seen the incident. His evidence would show that when he reached to the spot, nobody came to him and informed that the appellants were the assailants. According to the evidence of Divya (PW1), she suffered Sword blow on her leg and she was sent to Irwin Hospital for her medical examination. His evidence would show that when he reached to the spot, nobody came to him and informed that the appellants were the assailants. According to the evidence of Divya (PW1), she suffered Sword blow on her leg and she was sent to Irwin Hospital for her medical examination. In her cross-examination, she has stated that she was sent from Police Station to the hospital for her medical examination and at about 11.00 a.m. where she was examined by the Medical Officer. Exh.111 is the injury certificate of Divya (PW1). Perusal of the said document would show that Divya was examined on 03.08.2015 at about 3.35 a.m., whereas in her substantive evidence she claims that she was examined on 03.08.2015 at 11.00 am. Thus, the contemporaneous document about medical examination of Divya (PW1) belies her. Though, Divya (PW1) claims in her evidence that she was assaulted by Sword on her leg, Exh.111, her injury report, shows only abrasion and injury was simple injury. It was not the bleeding injury. The Chemical Analyser’s report (Exh.169) shows that blood group of Divya (PW1) was “B”. During the investigation, Divya (PW1)’s gown was seized. The said was sent to the Chemical Analyser. The Chemical Analyser’s report (Exh.176) shows that on the gown of Divya, there was blood having blood group “B”. It is not explained at all by the prosecution that when there was no bleeding injury on the person of Divya (PW1), how her blood oozed on her gown. Non explanation in this respect is also one of the pointer to the direction that the prosecution case is going in further dark of doubts. 29. In her cross-examination, Divya (PW1) has given further dent to the prosecution case. It would be useful to reproduce herein below her statement in cross-examination - i] “After making phone call immediately police came there. I was present there at that time. 5 to 6 police men came there. Police made enquiry about the incident and about the assailants. At that time, I had not stated as the incident and the assailants were seen by me.” [ii] “At about 4.00 am on the next day, police again came on the spot. I was present there at that time. 5 to 6 police men came there. Police made enquiry about the incident and about the assailants. At that time, I had not stated as the incident and the assailants were seen by me.” [ii] “At about 4.00 am on the next day, police again came on the spot. [According to the witness, police prepared spot panchanama and thereafter recorded her statement.]” (as noted by learned Judge of trial Court while recording her deposition.) From the evidence of Divya (PW1), it is clear that at that time police prepared spot panchanama and recorded her statement. Her cross-examination further states as under :- “There was talk in between me and police. It is correct to say that police asked me that he required eye-witness of the incident. I stated the police that I am willing to give my statement as eye-witness.” In view of these particular admissions given by Divya (PW2) coupled with other aspects which we have recorded in the preceding paragraphs, we have no hesitation in our mind to discard the evidence of Divya (PW1), who claims to be an eye-witness. 30. The prosecution has also examined Naresh Khadsam (PW2) and Nitin Kale (PW3) as eye-witnesses. The learned counsel for the appellants has assailed their evidence and submitted that looking to the quality of their evidence it can not be accepted that they are eye-witnesses. 31. Insofar as evidence of Naresh Khadsam (PW2) is concern, at the time of incident, he was present in his house and was watching TV. That time he heard shouts in loud voice and therefore, he came out of the house to notice that the appellants were assaulting upon deceased Ravi with the weapons in their hand. Mangala (first informant), who is not examined, came there and she tried to separate the quarrel. Thereafter, several persons assembled there and therefore, all the appellants ran away from the spot. He did state that he witnessed the incident in the street lights. As per his evidence on the next day police recorded his statement. No doubt true, in the cross-examination it is brought on record that he did not try to save Ravi, who was his close friend. That itself is not sufficient to discard his evidence as an eye-witness because different persons may react differently to the same situation. As per his evidence on the next day police recorded his statement. No doubt true, in the cross-examination it is brought on record that he did not try to save Ravi, who was his close friend. That itself is not sufficient to discard his evidence as an eye-witness because different persons may react differently to the same situation. However what is important to note is his subsequent conduct after the assailants ran away from the spot. He did state that he did not make any attempt even to offer water to his friend deceased Ravi nor he gave any helping hand to Mangala for bringing injured to his house. It is really unbelievable that when the appellants ran away from the spot and there was no threat, still this witness does not give any helping hand to Mangala nor give even water to Ravi though he was his close friend. From his cross-examination, it is clear that when Mangala made a phone call to police, he was present there. Not only that, it is brought on record through his cross-examination that police came and police made inquiries, still he did not state anything to police. It would be useful to reproduce that part of his cross-examination herein below : “When Mangala made phone call to police at that time I was present there. When Ravi was lying in front of the house of mother of Mangala, I had not made any attempt to given him help. Earlier police van came there and thereafter, after 10 – 15 minutes Ambulance came there. It is correct to say that at that time police made enquiry. At that time I had not narrated incident to police.” 32. Thus, on the spot when police were there and made inquiries with him, still this witness is not disclosing the names of the assailants. Further he admits that he went to hospital along with Ravi. There also police were present, however that time also he did not disclose about the incident. In our view, at the time of assault, a person may be frightened and that is most natural. Further he admits that he went to hospital along with Ravi. There also police were present, however that time also he did not disclose about the incident. In our view, at the time of assault, a person may be frightened and that is most natural. However, after the assailants ran away and when police came there, not only that thereafter when police made enquiry with this witness, still he is not narrating the incident to the police nor disclosing the names of the appellants as the assailants either on the spot or in the hospital. In our view, this particular conduct of this witness cast serious doubt as to whether really the incident was seen by this witness as claimed by him. Therefore, we found substance in the submission of the learned counsel for the appellants that Naresh (PW2) cannot be the eyewitness. Similar, is the evidence of Nitin Kale (PW3). 33. The another witness, who is examined by the prosecution as an eye-witness is Nitin Kale (PW3). His evidence would show that deceased was his close friend. He deposed that prior to the incident deceased informed him that appellant Roshan Gaikwad had given threat to him as he demanded Rs.1,000/-. Similarly as per evidence of this witness appellant Akshay Junghare had also extended threat to the deceased. Nitin (PW3) claims in his evidence that deceased Ravi was in frightened condition due to the threats extended to him by these two appellants. As per the evidence of Nitin (PW3) he knows all the appellants. His evidence shows that even on the date of the incident for whole day till the incident occurred, the deceased was in his company only to part with him at 9.45 p.m. His evidence shows that when he heard shouting he rushed towards Gawande lane to notice appellants assaulting deceased Ravi. His evidence shows that the first informant Mangala came there and tried to rescue Ravi. As per his evidence, he witnessed the entire incident of assault under the light. His evidence shows that he went to hospital also. During his evidence, it is brought on record by way of cross-examination that he did not extend help to the deceased however, the stock answer which he gave for such situation was that he was frightened. As per his evidence, he witnessed the entire incident of assault under the light. His evidence shows that he went to hospital also. During his evidence, it is brought on record by way of cross-examination that he did not extend help to the deceased however, the stock answer which he gave for such situation was that he was frightened. His evidence clearly shows that he was in the company of the police not only at the spot of the incident but also in the hospital, still he did not narrate the incident to police. We have already discarded the evidence of Naresh Khadsam (PW2) by giving elaborate reasons in the preceding paragraphs. In our view, on the same reasons there will be no difficulty for us to discard the evidence of this eye-witness i.e. Nitin Kale (PW3) and accordingly, we are discarding him as a witness to the incident of assault on Ravi. 34. The prosecution has also very heavily relied upon finding of blood on the clothes and weapons which were seized at the behest of the appellants. All the appellants were examined by the learned Judge of the trial Court under Section 313 of the Code of Criminal Procedure. It is not disputed by the learned Public Prosecutor and from reading of the statement of appellant no.1 Amar Sarode that entire C.A. report was not put to him though as per the C.A. report, his shirt and weapon seized at his behest were having blood. Insofar as appellant no.2 Vikky Gole is concerned, question no. 81 refers only the weapon though the blood was found on his shirt and pant. However, the said was not brought to his notice. Similarly, insofar as appellant no.4 Akshay Junghare is concerned, the only incriminating material of noticing blood on the weapon which was seized at his behest was put, however question about noticing blood on his shirt was not put. Further, insofar as appellant no.5 Niraj Ugale is concerned, the only question was put in respect of noticing blood on his shirt and not on weapon, which was seized at his behest. The learned Judge of the trial Court has used the C.A. report as one of the incriminating circumstance against the appellants. Further, insofar as appellant no.5 Niraj Ugale is concerned, the only question was put in respect of noticing blood on his shirt and not on weapon, which was seized at his behest. The learned Judge of the trial Court has used the C.A. report as one of the incriminating circumstance against the appellants. In that behalf, it would be useful to mention the law laid down by this Court in the case of Kiran Ashok Jadhav .vs. State of Maharashtra, reported in 2014 All M.R. (Cri) 3850 ; and in the case of Pralhad S/o Gunwant Madhar and another .vs. State of Maharashtra, reported in 2018 All M.R. (Cri.) 1838, in which this Court has ruled that when the C. A. report is relied upon and if it is not put to the accused while recording their statement under Section 313 Cr. P.C., the incriminating material i.e. C.A. report which was not put to the accused cannot be used against him and must be excluded from consideration. 35. On re-appreciation of the entire prosecution case, we are of the view that the prosecution could not prove its case beyond reasonable doubt against any of the appellants. Therefore, they entitled for benefit of doubt. Resultantly, we pass the following order : ORDER : 1. The Criminal Appeal is allowed. 2. The judgment and order of conviction passed by the learned Sessions Judge, Amravati dated 20.08.2018 in Sessions Case No. 187 of 2015 convicting the appellants for the offences punishable under Sections 302, 323 read with Sections 149, 143 and 148 of the Indian Penal Code and under Section 4 read with Section 25(1-B)(b) of the Arms Act and Section 135 read with Section 37(1) of the Bombay Police Act is hereby quashed and set aside. 3. The appellants – (1) Amar S/o Manoj Sarode, (2) Vikky Niranjan Gole, (3) Roshan Bhaurao Gaikwad, (4) Akshay Balu Junghare, and (5) Niraj Raju Ugale are acquitted of the offences punishable under Sections 302, 323 read with Sections 149, 143 and 148 of the Indian Penal Code and under Section 4 read with Section 25(1-B)(b) of the Arms Act and Section 135 read with Section 37(1) of the Bombay Police Act. 4. The appellants who are in jail shall be released forthwith if they are not required in any other offence.