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2022 DIGILAW 1877 (BOM)

Kiran Arjunsingh Rathod v. State of Maharashtra

2022-08-12

G.A.SANAP

body2022
JUDGMENT : 1. Heard. 2. This appeal is preferred against the judgment and order dated 01.01.2020 passed by the learned Additional Sessions Judge, Yavatmal in Sessions Trial No.100 of 2014, whereby the learned Additional Sessions Judge, convicted the appellants for the offences punishable under Sections 307 and 324 r/w Section 34 of the Indian Penal Code. The appellant No.1 is convicted for the offence punishable under Section 506 of the Indian Penal Code. The sentence awarded to them on different counts is as under: (i) Appellant Nos.1 to 3 are sentenced to suffer Rigorous Imprisonment for 5 (five) years and to pay fine of Rs.1,000/- (Rs.One Thousand only) each, and in default to suffer Simple Imprisonment for 3 (Three months) under Section 307 r/w of the Indian Penal Code. (ii) Appellant Nos.1 to 3 are sentenced to suffer Rigorous Imprisonment for 2 (Two) years and to pay fine of Rs.500/- (Rs.Five hundred only) each and in default to suffer Simple Imprisonment for 3 (Three) months under Section 324 r/w of the Indian Penal Code. (iii) Appellant No.1 is sentenced to suffer Rigorous Imprisonment for 2 (two) years and to pay fine of Rs.1,000/-(Rs.One Thousand Only) and in default to suffer Simple Imprisonment for 3 (Three) months under Section 506 of the Indian Penal Code. 3. The facts relevant for the decision of this appeal may be stated in brief. : PW-1 Ramesh Shankarrao Thakre, is the informant. The incident occurred on 28/06/2014 at around 6.30 p.m. Akshay is the son of the informant. It is the case of the prosecution that on 28.06.2014, in the afternoon, Akshay gave a push in a fun to the auto of the appellant No.1. The appellant No.1, objected for the same. On that count, a quarrel took place between Akshay and appellant No.1. The appellant No.1, at that time beat Akshay and extended the threat to kill him. Akshay narrated the said incident to his mother. The informant returned back from his work at 6.30 p.m. Durga, wife of the informant, narrated the incident to the informant. The informant went to the house of the appellant No.1 and gave understanding to him. At that time, the appellant No.1 abused the informant and threatened to kill him. The informant came back to his house. 4. The informant returned back from his work at 6.30 p.m. Durga, wife of the informant, narrated the incident to the informant. The informant went to the house of the appellant No.1 and gave understanding to him. At that time, the appellant No.1 abused the informant and threatened to kill him. The informant came back to his house. 4. It is stated that after some time, around 7.30 p.m., all the appellants gathered in front of the house of the informant and started abusing the informant and his family members. The informant, his wife Durga and his sons Akshay and Vicky came out of the house and tried to pacify the appellants. They tried to give understanding to the appellants and requested them not to quarrel with them. It is the case of the prosecution that at that time, appellant No.1 inflicted a blow with a knife on the chest of the informant below armpit. Durga, Akshay and one Suresh Hajare came to rescue the informant. Appellant Nos.2 and 3 inflicted the blows with the sticks on the head of Akshay and Suresh Hajare. They sustained injuries. Appellant No.1 assaulted Durga with a knife on her abdomen. Durga Sustained grievous injury. After hearing the hue and cry, the people gathered on the spot. The appellants, therefore, fled from the spot. 5. The informant, Akshay and Durga were taken to the Police Station in the injured condition by an auto. The Police Officer immediately sent them to the Government Hospital, Yavatmal. They were medically examined. The injury sustained by Durga was serious and therefore she was operated. The informant thereafter went to the Police Station Yavatmal City and lodged the report. The Police registered crime bearing No.402 of 2014 against the appellants under Section 307, 504, 506 r/w 34 of the Indian Penal Code. 6. Initially, the investigation, was conducted by PW-11 PSI, Anup Wakde. He visited the spot and prepared the spot panchnama. He collected the blood samples from the spot. He also seized the wooden log and one towel stained with blood from the spot. Further investigation was conducted by PW-12 Chandrashekhar Kadu. He arrested the appellants. During the course of the investigation, the knife was recovered at the instance of the appellants. The wooden log was seized. He forwarded the samples to Chemical Analyser, Amravati. He also seized the wooden log and one towel stained with blood from the spot. Further investigation was conducted by PW-12 Chandrashekhar Kadu. He arrested the appellants. During the course of the investigation, the knife was recovered at the instance of the appellants. The wooden log was seized. He forwarded the samples to Chemical Analyser, Amravati. On completion of the investigation, he filed charge-sheet in the Court of Judicial Magistrate, First Class, Yavatmal. 7. The learned Additional Sessions Judge, on committal of a case, framed the charge against the appellants vide Exh.17. The appellants pleaded not guilty and claimed to be tried. Their defence is of total denial and false implication in the case. 8. In order to bring home the guilt of the appellants, the prosecution examined in all twelve witnesses. On analysis and consideration of the evidence, the learned Additional Sessions Judge, found the appellants guilty and sentenced them as above. Being aggrieved by the judgment and order, the appellants have come before this Court in appeal. 9. I have heard learned Advocate Mr. Saurabh Yerawar for the appellants and the learned APP Mr.A.R.Chutke, for the State. Perused the record and proceedings. 10. The learned Advocate for the appellants submitted that the evidence of PW Nos.1, 2, 3 and 4 is not reliable inasmuch as they are interested witnesses. The learned Advocate submitted that, the oral evidence of the injured witnesses is contradictory to the medical evidence. In the submission of the learned Advocate for the appellants, the contradictions are material and therefore go to the very root of the matter. The learned Advocate submitted that if the contradictions are appreciated in proper perspective, the same would make the evidence of the injured witnesses doubtful. The Learned Advocate further submitted that the evidence of recovery of a knife at the instance of the appellant No.1, sought to be relied upon by the prosecution, is not at all believable. The learned Advocate submitted that the panch witness in whose presence the so called statement was made and which led to the discovery of the knife has not been examined. The learned Advocate submitted that there is inconsistency on the point of the detection of the blood on the knife. The learned Advocate took me through the contents of the CA report and submitted that the CA report categorically states that the blood was not detected on the knife. The learned Advocate submitted that there is inconsistency on the point of the detection of the blood on the knife. The learned Advocate took me through the contents of the CA report and submitted that the CA report categorically states that the blood was not detected on the knife. It is therefore submitted that this fact would falsify the evidence of the witnesses, who have stated that the knife was stained with blood. The learned Advocate further submitted that the learned Additional Sessions Judge has convicted and sentenced the appellants under Section 324 of the Indian Penal Code without framing charge against them. The learned Advocate took me through the judgment and pointed out that no reasons have been recorded for convicting the appellants under Section 324 r/w Section 34 without framing the charge. The learned Advocate submitted that in this case not a single panch witness has been examined to prove the seizure and recovery of the samples and weapons. In the submission of the learned Advocate the evidence is not believable and therefore, deserves to be discarded. 11. The learned APP submitted that PW-1, 2 and 3 are the injured eye witnesses to the incident and therefore, in the absence of a cogent material on record their evidence can not be discarded. The learned APP submitted that the so called contradictions/discrepancies, sought to be relied upon, are not material so as to make the evidence of the injured eye witnesses PW-1, 2 and 3 unreliable. The learned APP submitted that the evidence of the injured eye witnesses, PW-1, 2 and 3 has been corroborated on material aspects by the evidence of PW-4. The learned APP took me through the cross-examination of the witnesses and submitted that no iota of material has been elicited in their cross-examination to doubt the veracity and credibility of these witnesses. The learned APP submitted that the oral evidence of the injured witnesses has been fully corroborated by the medical evidence. The learned APP submitted that the learned Additional Sessions Judge has recorded the reasons in support of his findings. As far as the recovery of a knife at the instance of the appellant No.1 is concerned, the learned APP submitted that the failure on the part of the prosecution to examine the panch witness by itself would not be sufficient to discard and disbelieve the recovery of a knife. As far as the recovery of a knife at the instance of the appellant No.1 is concerned, the learned APP submitted that the failure on the part of the prosecution to examine the panch witness by itself would not be sufficient to discard and disbelieve the recovery of a knife. The learned APP submitted that evidence of the injured witnesses proved beyond doubt that the knife produced in the Court was used by the appellant No.1 for assaulting them. 12. In order to appreciate the rival submissions, I have minutely perused the record and proceedings. The prosecution has mainly relied upon the evidence of the injured witnesses PW Nos. 1, 2 and 3 to prove the incident and complicity of the appellants in the commission of the crime. The prosecution relied upon the evidence of PW-4 to prove a part of the incident. PW Nos.1, 2 and 3 sustained injuries in the incident. They were examined by the Medical Officers. It is to be noted that the injured in the incident of assault is the stamp witness, whose presence at the spot of the incident creates no doubt. The injured witness, being a victim of a crime, will not leave a real assailants and substitute them with innocent persons. This is the general presumption. This presumption can be rebutted on the basis of the strong material and evidence. While appreciating the evidence of the injured witnesses, the material brought on record in their cross examination, needs to be evaluated properly. On evaluation of the material elicited in the cross-examination of the injured eye witnesses, if this Court comes to the conclusion that the evidence on the point of the incident and the involvement of appellants creates a doubt, in that event only the same can be discarded. With this, it would be necessary to appreciate the evidence of the eye witnesses. PW -1 is the husband of Durga [PW-2] and father of the PW-3. It has come on the record that they sustained injuries in the incident. It has come on record that the injury sustained by PW-2 on her abdomen was a serious injury. The Medial Officer has stated that the injury was grievous and would be sufficient in the ordinary course of nature to cause death. It has come on the record that they sustained injuries in the incident. It has come on record that the injury sustained by PW-2 on her abdomen was a serious injury. The Medial Officer has stated that the injury was grievous and would be sufficient in the ordinary course of nature to cause death. In their evidence, PW Nos.1, 2 and 3 have narrated in great detail the incident occurred in the noon, where PW-3 Akshay and the appellant No.2 were involved. It has come on record that there is no previous enmity between the appellants and the informant and his family members. It has come on record in their evidence that informant went to the house of the appellants to inquire about the incident occurred in the noon and gave them understanding. The appellants abused him and threatened to kill him. It has come on record in their evidence that, when the informant came back to his house, the appellants gathered in front of the house of the informant and started abusing them. They have stated that the informant tried to pacify them by giving them an understanding. He requested them not to quarrel with them. They have stated that at that time, appellant No.1, who had carried the knife, inflicted the blows with the knife on the informant. It has come on record in their evidence that PW Nos. 2,3 and Vickey another son of the informant came to rescue the informant. The appellants inflicted blows with the sticks as well as knife on their person. PW-1 informant has deposed about the injury sustained by him. They have deposed about the injury sustained by Durga PW-2. They have categorically stated that the appellant No.1 gave knife blow on the chest of the informant below armpit. The appellant No.2 inflicted blow with a stick on the head of Akshay PW-3. The appellant No.3 inflicted blow with the stick on the mouth of Suresh Hajare, who had tried to intervene in the quarrel. They have stated that the appellant No.1 inflicted the knife blow on the stomach of Durga. It has come on record that there was profuse bleeding from the injury and as a result of the injury, PW-2 Durga fell down and became unconscious. They have stated that the appellant No.1 inflicted the knife blow on the stomach of Durga. It has come on record that there was profuse bleeding from the injury and as a result of the injury, PW-2 Durga fell down and became unconscious. The evidence of PW Nos.-1, 2 and 3 on the occurrence of the incident, the use of weapon by the appellants and the injuries sustained by them is consistent. 13. They have further deposed that injury on the stomach of Durga was tied with a towel by Sudhakar PW-4. From the spot, they went to the Police Station to report the matter to police by auto of Sudhakar. They have stated that the police immediately referred them to the Government Hospital, Yavatmal with lady constable. It has come on the record in their evidence that PW-2 Durga was admitted in the hospital and she was operated. PW-1 informant and PW-3 Akshay were treated in the hospital for the injuries sustained by them. The report was lodged by PW-1. It is at Exh.46. The First Information Report is at Exh.47. The perusal of the First Information Report would show that it presents vivid account of occurrence, the involvement of the appellants and the weapons used by each of them for causing the injuries. I have minutely perused their cross-examination. Perusal of their cross-examination would show that no material has been elicited in their cross-examination to discard and disbelieve their evidence on the point of the occurrence of the incident, the complicity of the appellants in the incident, the use of the weapons in the incident by the appellants and the injuries sustained by PW Nos. 1, 2 and 3 at the hands of the appellants. The perusal of their cross-examination would show that no probable cause for false implication has been put to these witnesses. The perusal of the evidence of these eye witnesses in entirety would show that there is no iota of material and reason to discard and disbelieve their evidence. They have narrated the incident with precision. It is to be noted that narration of the incident with such a precision is not possible by a tutored witness. In my opinion, this is an important aspect in this matter and which would reflect upon the credibility and trustworthiness of the injured witnesses. The appellants and the informant are neighbours. There was no previous enmity. It is to be noted that narration of the incident with such a precision is not possible by a tutored witness. In my opinion, this is an important aspect in this matter and which would reflect upon the credibility and trustworthiness of the injured witnesses. The appellants and the informant are neighbours. There was no previous enmity. The evidence would show that the informant did not behave in an unnatural way and manner to the house of the appellants, to give understanding to them about the quarrel of the appellant No.1, with PW-3 in the noon. It is not the defence of the appellants that the informant and his family members assaulted them on account of the incident occurred in the noon between appellant No.1 and Akshay. In my opinion, this would be the another important reason to come to a conclusion that the evidence is worthy of credence. On the basis of the evidence of PW Nos.1, 2 and 3, the cause for the incident, the actual incident, the involvement of the appellants in the incident and the injuries sustained by them with the weapons carried by the appellants has been proved. These witnesses identified the knife and sticks in the Court. I do not see any reason to doubt, discard and disbelieve their evidence. The injuries sustained by them have been proved. It is true that as far as the actual injuries sustained by PW-1, the informant and Akshay, the PW-3 are concerned, there is discrepancy in their evidence on one hand and the evidence of the Medical Officer on the other hand. The submissions advanced by the learned Advocate on this part would be dealt with separately after considering the evidence of the Medical Officers. 14. PW-4 is an independent witness. It is undisputed that there was one more injured person in the incident. He has not been examined. However, failure to examine the said witness would not cause any dent as such to the case of the prosecution and to the evidence of the PW Nos.1, 2 and 3. Perusal of the evidence of PW-4 would show that this witness is not a planted witness by the prosecution. It is to be noted that if he had been planted by the prosecution, the prosecution would have expected him to narrate the entire incident from beginning to the end. Perusal of the evidence of PW-4 would show that this witness is not a planted witness by the prosecution. It is to be noted that if he had been planted by the prosecution, the prosecution would have expected him to narrate the entire incident from beginning to the end. In my opinion, this would be the most important aspect to reflect upon the credibility of the evidence of PW-4. PW-4 is neighbour of appellants as well as the informant. He has stated that on 28/06/2014 at about 7.30 p.m., when he was present at his house, he heard the noise of quarrel from the side of the house of the informant. He has stated that therefore, he came out of his house. He has categorically stated that he saw the appellant No.1 was carrying knife and the appellant Nos.2 and 3 were carrying sticks. He has stated that they were running from the spot of the incident. His evidence would show that he did not witness the incident, but after the assault, he saw the appellants fleeing from the spot. His further conduct would be very relevant, in the context of the gravity of the incident. He has stated that he found that Durga PW-2 was lying on the ground with a bleeding injury to her stomach. He has stated that he tied the injury with a towel. He has stated that thereafter, he took the informant, Akshay and Durga by his auto to Police Station. He has stated that from Police Station, the police sent them to the hospital, along with a lady constable. He has further stated that in the hospital, doctor operated PW-2 Durga. He has categorically stated that the towel, which had tied around the stomach of Durga, was seized by the police from him. The knife and the sticks were shown to the witnesses in the Court. The witness identified those weapons in the Court. The perusal of the cross-examination of PW-4, would show that no material has been brought on record in his cross- examination to doubt his presence on the spot and the further acts stated to have been done by him. It is to be noted that PW-4 being the neighbour of the appellants and the informant, is the natural witness. In his evidence, he has categorically stated the injury sustained by PW-2 Durga. It is to be noted that PW-4 being the neighbour of the appellants and the informant, is the natural witness. In his evidence, he has categorically stated the injury sustained by PW-2 Durga. Perusal of the evidence of PW Nos.1, 2, 3 and 4 would show that there is hardly any denial about the injuries sustained by PW-1, 2 and 3, in the cross-examination of these witnesses. On the basis of the evidence of PW-1, 2 and 3, the weapons used by the appellants in the crime have been proved. In my view, this fact would be very relevant while appreciating the submission advanced by the learned Advocate for the appellants on the point of failure of the prosecution to examine the panch witness to the memorandum panchnama and discovery of knife at the instance of the appellant No.1. 15. It would be necessary to consider the evidence of the Medical Officers, who had examined the injured witnesses. PW-6, Dr.Darshna Fulmale had examined PW-2 Durga and PW-1 informant Ramesh Thakare. Exh.66 is the Memo received by PW-6 from PI, Police Station Yavatmal City for examination of Durga. Exh.67 is the medical certificate. The injury sustained by Durga has been mentioned in the certificate. PW-6 has categorically stated that on examination of Durga, she found that she had sustained a stab wound of size 12 X 4 cm on anterior abdominal wall and lumber region. She has stated that the intestine was coming out from the wound. She has further stated that the injury was fresh and might have been caused by hard and sharp object like knife or sword. She has stated that immediately for expert management she was referred to surgeon on duty. 16. She has stated that on the same day, she had examined informant Ramesh Thakare. On examination, she found two contused lacerated wounds of size 1 X 0.5 X 0.5 over left hand ring finger. She referred him to surgeon on duty. Medical certificate is at Exh.68. In her cross-examination, she has stated that Durga did not disclose the names of the assailants. She has further stated that the injury to Durga could be possible due to fall on the sharp wooden object. A suggestion was put to her that the injury sustained by Durga could not be possible by knife Article 5. She has denied the suggestion. She has further stated that the injury to Durga could be possible due to fall on the sharp wooden object. A suggestion was put to her that the injury sustained by Durga could not be possible by knife Article 5. She has denied the suggestion. It is to be noted that she examined Durga and Ramesh at 8.00 p.m. on 28.06.2014. She has categorically stated that the injuries were fresh. The evidence of Medical Officer would therefore corroborate the oral evidence of the injured witnesses PW Nos. 1 and 2, on the point of the injury sustained by them. It is to be noted that the doctor PW-6 did not notice any injury on the chest below the armpit of the PW-1. However, this fact alone would not be sufficient to discard the evidence of injured witness. The evidence would have to be discarded provided, the Medical Officer had not found any injury on his person on examination. The evidence of the Medical Officer would show that on examination of Ramesh, she found contused lacerated wound and its size was mentioned. The evidence of PW-6 therefore corroborates the evidence of the injured witnesses PW Nos.1 and 2. 17. PW No.9 Dr. Vijay Dattatray Pote had examined Akshay PW-3 on 29.06.2014. The medical certificate is at Exh.91. PW-9 has deposed that on examination, he found incised wound over his right upper arm and over scalp over occipital region. He had also examined another injured witness Suresh Motiram Hajare, who has not been examined in this case. The evidence of Akshay and the evidence of Medical Officer Dr.Pote PW-9 has been assailed on the ground that there is inconsistency in their evidence vis-a-vis the actual injuries stated to have been sustained by Akshay and the actual injury found on his person by PW-9. It is true that, PW-3 and the remaining eye witnesses PW Nos.1 and 2 have consistently stated that appellant No.2 gave a blow with a stick on his head and therefore, he sustained injury. PW Nos.1, 2 and 3 are silent about sustaining any incised wound on the upper arm of Akshay. It is to be noted that Akshay was examined and treated by PW-9. The incised wound found by PW-9 was on upper arm. As far as the wounds over head, occipital region is concerned, the evidence is consistent. PW Nos.1, 2 and 3 are silent about sustaining any incised wound on the upper arm of Akshay. It is to be noted that Akshay was examined and treated by PW-9. The incised wound found by PW-9 was on upper arm. As far as the wounds over head, occipital region is concerned, the evidence is consistent. It is to be noted that, the incident, as can be seen from the record, went on for 5 to 10 minutes. In the incident, Durga had sustained serious stab injury. It has come on the record in the evidence of doctor that intestine had come out from stomach. In the backdrop of the evidence on record, it is to be presumed that the priority of PW Nos.1 and 3 would have been to save life of Durga. In the process, PW-1 might have missed the injury sustained on the upper arm by PW-3. It is therefore, pertinent to note that the evidence of doctor that he had sustained incised wound on the right upper arm can not be disbelieved. It is further pertinent to note that the knife was used in the assault. If the knife or sharp weapon had not been used in the assault, then the presence of this incised wound over the right arm of Akshay would have been the most important circumstance in favour of the appellants and against the case of the prosecution. Therefore, in my view, on this count, this discrepancy cannot go to the root of the matter and make the foundation of the case of the prosecution shaky and unbelievable. The evidence of the Medical Officer, corroborates the evidence of the eye witnesses in material particulars. The evidence of Medical Officer cannot be discarded. The Medical Officers have no reason to implicate the appellants. The oral evidence of the injured witnesses coupled with the evidence of the Medical Officer, in my opinion, is sufficient to prove the complicity of the appellants in the commission of crime. The learned Additional Sessions Judge has not accepted the defence of the appellants that there was a quarrel between the family members and in the quarrel the appellants fell on a sharp object and sustained injuries. In my view, in the totality of the facts, circumstances and evidence, the defence is not at all probable. The learned Additional Sessions Judge has not accepted the defence of the appellants that there was a quarrel between the family members and in the quarrel the appellants fell on a sharp object and sustained injuries. In my view, in the totality of the facts, circumstances and evidence, the defence is not at all probable. In the teeth of the evidence placed on record, such defence does not appeal to the reasoning. 18. It has come on record that the clothes of the injured and the clothes of the appellants were sent to the chemical analyzer, Amravati for analysis. The CA report is of no help to corroborate the case of the prosecution. On the basis of the CA report it has been established that on the clothes of Durga, the blood of “A” group was detected. Admittedly, as per the CA report the blood group of Durga is “A”. The blood group of appellants could not be determined. The CA report would corroborate the case of the prosecution that the blood of “A” group was detected on the clothes of Durga. It is further pertinent to note that the appellants had not sustained injury. Therefore, there was no question of presence of their blood either on their clothes or on the clothes of the injured witnesses and Durga. 19. It would be necessary to consider recovery of a knife. The prosecution has not examined panch witness in whose presence the appellant No.1 made a confession and expressed his desire to point out the place, where he had concealed the knife and the actual recovery of the knife at his instance. The only evidence relied upon by the prosecution is of the Investigating Officer PW-12. Before I appreciate the evidence of Investigating Officer, on this aspect it would be necessary to mention that on such an important point prosecution should have examined the panch witness. The prosecution has not placed on record the plausible explanation for non-examination of the panch witness. The question is whether failure on the part of the prosecution, to prove this part of the case of prosecution would be sufficient to discard the evidence of injured witnesses PW Nos. 1,2 and 3. It is to be noted that the evidence of discovery of article of weapon pursuant to the confession of the appellants, can be used as a corroborative piece of evidence. 1,2 and 3. It is to be noted that the evidence of discovery of article of weapon pursuant to the confession of the appellants, can be used as a corroborative piece of evidence. It is the cardinal principle of law that in the absence of the concrete and cogent evidence of a material fact, the evidence of discovery of a weapon or article cannot be made a basis to prove the case of the prosecution and basis of conviction. In my opinion, therefore, even if this evidence eschewed from consideration, it would not cause any dent to the case of the prosecution. Besides, the evidence on record would be sufficient to establish that the knife, which was recovered by the Investigating Officer during the course of the investigation, was identified by PW-1, 2 and 3 being the same knife used by the appellant No.1. They have categorically stated about the same. It is further pertinent to mention, at this stage, that the knife and the wooden sticks were sent to the Medical Officer PW-6 by the Investigating Officer. The Investigating Officer had raised queries and called the opinion of the Medical Officer to those queries. 20. Exh.85 is the requisition letter with a queries to the Medical Officer. The perusal of this letter would show that the medical certificates of the injured were sent with the weapons to the Medical Officer. The Medical Officer on examination of the weapons opined that the injuries respectively sustained by the witnesses could be caused by the respective weapons alleged to have been used in the assault. The evidence of witnesses, would further fortify the case of the prosecution that on or before 6th of August 2014, the knife was seized by the Investigating Officer. In my opinion, this would be another important piece of evidence to fortify the evidence of the injured witnesses as well as the aspect of the recovery of knife during the course of the investigation by the Investigating Officer. PW-12 is the Investigating Officer, who has narrated in his evidence in detail the confessional statement made by the appellant No.1 and the recovery of a knife pursuant to the said confession. It is to be noted that there is no bar under law to accept the evidence of the Investigating Officer on the aspect of the confession made by the accused leading to the discovery of the article/weapon. It is to be noted that there is no bar under law to accept the evidence of the Investigating Officer on the aspect of the confession made by the accused leading to the discovery of the article/weapon. The corroboration necessitated to such an evidence is by way of a precaution and by invoking rule of prudence. It is not a rule of law. It is to be not ed that the sole testimony of the Investigating Officer can be relied upon to prove a particular fact, provided the said testimony does not suffer from inconsistencies and shadow of doubt. Therefore, generally by applying the rule of prudence, the corroboration to the testimony of the Investigating Officer is insisted. It is to be noted that the Court has to see the quality, not the quantity of the evidence. In order to place implicit reliance on the testimony of the police officer the evidence must be found to be sterling quality. Be that as it may, in this case, the knife was recovered before it was sent to the Medical Officer. Similarly the knife was sent to the CA for examination. It therefore cannot be said that the knife in this case was not at all recovered during the course of the investigation. The identification of the knife by the injured witnesses and the Medical Officer, who had examined the same could be the most important piece of evidence and circumstance in favour of the case of the prosecution. 21. On minute perusal and appreciation of evidence, I am fully convinced that the evidence is credible, cogent, concrete and reliable. No dent has been caused to the evidence of the eye witnesses during the cross-examination to disbelieve and discard the said evidence. The case for the appellants is further compounded by the injuries sustained by PW Nos.1, 2 and 3. There was no reasons for the witnesses to falsely implicate the appellants in this crime. There is no probable defence placed on record to probalise the false implication for one reason or the other. The oral evidence of injured witnesses has been fully corroborated. I do not see any reason to disbelieve and discard the same. The perusal of the judgment of the learned trial Judge would show that learned Judge has properly appreciated the evidence. The learned Judge has recorded the reasons in support of his findings. The oral evidence of injured witnesses has been fully corroborated. I do not see any reason to disbelieve and discard the same. The perusal of the judgment of the learned trial Judge would show that learned Judge has properly appreciated the evidence. The learned Judge has recorded the reasons in support of his findings. I, therefore, do not see any reason to disturb the said findings. 22. The learned Judge has sentenced the appellants to undergo rigorous imprisonment for 5 years in case of the offence punishable under Section 307 of the Indian Penal Code. I have given thoughtful consideration to the submissions advanced by the learned Advocate appearing for the appellants on the quantum of sentence. The learned Judge before awarding the sentence had heard the appellants and taken into consideration the relevant circumstances. He found this sentence proportionate to the gravity of the crime in this case. I do not see any reason to modify the sentence. PW-3 Durga, was seriously injured. The appellant No.1 took the advantage of her helplessness and stabbed her. She had not played any part either in the quarrel that took place in the noon or at the time of the actual incident. The innocent lady was brutally attacked. This would show the diabolic state of mind of the appellant No.1. Fortunately for the family, Durga survived. It is to be noted that the sentence must be proportionate to the gravity of the crime committed by the accused. The disproportionate sentence not only sends discouraging message to the victim of the crime but to the society as well. Leniency in the sentence in the facts situation would not send appropriate message to the appellants and to the society. Therefore, I do not see any reason to interfere with the sentence. The appeal is therefore dismissed. 23. It is seen on perusal of Judgment and order that the learned Judge had convicted and sentenced the appellants under Section 324 r/w 34 of the Indian Penal Code. The perusal of the record would show that no charge was framed against them for the said offence. The accused cannot be convicted without framing the charge for any offence. The learned Judge has not recorded the reasons in the judgment, that failure to frame charge would not prejudice the appellants in any manner. The perusal of the record would show that no charge was framed against them for the said offence. The accused cannot be convicted without framing the charge for any offence. The learned Judge has not recorded the reasons in the judgment, that failure to frame charge would not prejudice the appellants in any manner. Therefore, in my view, the conviction and sentence under Section 324 of the Indian Penal Code is required to be set aside. 24. The conviction and sentence for the offences punishable under sections 307,506 r/w 34 of the Indian Penal Code is maintained. The conviction and sentence under Section 324 r/w 34 is set aside. 25. The trial Court to take steps to execute the sentence.