JUDGMENT : Sanjay K. Agrawal, J. 1. Since both the above criminal appeals have arisen out of one and same judgment dated 28-4-2018 passed by the learned Additional Sessions Judge, Bhatapara in Sessions Trial No.H-21/2016 and since common question of fact and law is involved in both the appeals, they have been clubbed together, heard together and are being disposed of by this common judgment. 2. These two criminal appeals have been preferred by the accused/appellants under Section 374(2) of the CrPC against the impugned judgment convicting and sentencing them as under: - Saraswati (A-1) Conviction Sentence Section 302 read with Section 34 of the IPC Imprisonment for life and fine of Rs.1,000/-, in default additional rigorous imprisonment for six months Ghanaram @ Julwa (A-2) Conviction Sentence Section 302 of the IPC Imprisonment for life and fine of Rs.1,000/-, in default additional rigorous imprisonment for six months 3. Appellant in Cr.A.No.706/2018 namely, Ku. Saraswati Yadu (A-1) and appellant in Cr.A.No.752/2018 namely, Ghanaram @ Julwa Yadu (A-2) have assailed their conviction for offence under Section 302/302 read with Section 34 of the IPC by way of these appeals. 4. Case of the prosecution, in brief, is that appellant Ku. Saraswati Yadu (A-1) is the daughter of appellant Ghanaram @ Julwa Yadu (A-2) from his first wife namely Vimla Bai. Further case of the prosecution is that on 18-2-2016 at 3.00 p.m. under Police Station Simga at Village Duldula, in furtherance of their common intention, the two appellants herein assaulted Rajaram Yadu by farsa and lathi by which he suffered grievous injuries and died on the spot which is said to have been witnessed by Om Prakash Yadu (PW-1) & Kanhaiya Yadav (PW-2). It is also the case of the prosecution that thereafter, Om Prakash Yadu (PW-1) informed to Police Station Bhatapara (Gramin) that on 18-2-2016 at 11.00 a.m., he had gone for grazing cattle and while grazing cattle at Duldula Khar near factory, Rajaram (deceased), who belongs to his village, was also grazing cattle near the field of Shriram Sahu, then at about 3.00 p.m., accused/appellant Ghanaram @ Julwa Yadu (A-2) armed with farsa and accused/appellant Saraswati (A-1) armed with lathi came on the spot on the motorcycle and abused and assaulted deceased Rajaram Yadu. Om Prakash Yadu (PW-1) informed to Kanhaiya Yadav (PW-2) who also came and both have seen the incident. Om Prakash Yadu (PW-1) informed to Kanhaiya Yadav (PW-2) who also came and both have seen the incident. Thereafter, Ghanaram (A-2) fled away from the spot in the motorcycle driven by Saraswati (A-1) and Om Prakash Yadu (PW-1) went to his Village Duldula and informed to Liluram Yadu (PW-3) & Ramesh Yadu (PW-4) – sons of deceased Rajaram. 5. Morgue was registered vide Ex.P-1 and FIR was registered vide Ex.P-2. Thereafter, panchnama was conducted vide Ex.P-6. Dead body of the deceased was sent for postmortem which was conducted by Dr. Aditya Verma (PW-14) vide Ex.P-16 and cause of death was reported to be brain damage and blood loss and death was homicidal in nature. Spot maps were prepared vide Exs.P-3 & P-5 and memorandum statement of Ghanaram (A-2) was recorded on 22-7-2016 vide Ex.P-9 pursuant to which iron farsa without handle on which blood-like stains were present, one bloodstained vest and one old blanket were seized vide Ex.P-10. One motorcycle was seized from accused Saraswati (A-1) vide Ex.P-11. Seized articles were sent for forensic examination to the FSL, Raipur from where reports Exs.P-24 & P-29 were received. According to the FSL report Ex.P-29, no blood was found on the articles seized from accused Ghanaram (A-2) i.e. farsa and other articles, however, according to the FSL report Ex.P-24, blood was found on the articles (A1, A2, A3, A4 & A5) seized from the body of the deceased. 6. Statements of the witnesses were recorded under Section 161 of the CrPC. Thereafter, after usual investigation, the appellants were charge-sheeted before the jurisdictional criminal court for offence under Section 302 read with Section 34 of the IPC and the case was committed to the Court of Sessions from where the Additional Sessions Judge received the case on transfer for hearing and disposal in accordance with law. 7. In order to bring home the offence, the prosecution has examined as many as 17 witnesses and brought on record 31 documents Exs.P-1 to P-31. The accused/appellants abjured the guilt and entered into defence by stating that they have not committed the offence and they have been falsely implicated. They have examined two witnesses Nandlal Yadav (DW-1) & Balil Kujur (DW- 2) in support of their defence and also exhibited five documents Exs.D-1 to D-5C. 8. The accused/appellants abjured the guilt and entered into defence by stating that they have not committed the offence and they have been falsely implicated. They have examined two witnesses Nandlal Yadav (DW-1) & Balil Kujur (DW- 2) in support of their defence and also exhibited five documents Exs.D-1 to D-5C. 8. The trial Court after appreciating oral and documentary evidence, convicted and sentenced the appellants under Section 302/302 read with Section 34 of the IPC in the manner mentioned in the opening paragraph of this judgment against which these appeals have been preferred. 9. Mrs. Indira Tripathi, learned counsel appearing for appellant Ku. Saraswati Yadu (A-1) in Cr.A.No.706/2018, would submit as under: 1. Om Prakash Yadu (PW-1) & Kanhaiya Yadav (PW-2) are not natural eye-witnesses, therefore, their testimonies have to be discarded. 2. Seizure of motorcycle is insignificant as nothing incriminating has been found in the seizure of motorcycle as it belongs to accused Saraswati (A-1) herself who used to do her own business as milk-vendor. 3. Dr. Aditya Verma (PW-14) has clearly stated that the lathi allegedly used by accused Saraswati (A-1) was never produced before him for query report and no injury was found over the body of the deceased caused by lathi, whereas the prosecution was obliged to place the lathi before the medical witness and invite his opinion in view of the decisions of the Supreme Court in the matters of Kartarey and others v. The State of U.P., (1976) 1 SCC 172 and Ishwar Singh v. State of U.P., (1976) 4 SCC 355 . Furthermore, there is no incriminating evidence against the present appellant, therefore, her conviction is liable to be set aside. 10. Mr. Furthermore, there is no incriminating evidence against the present appellant, therefore, her conviction is liable to be set aside. 10. Mr. Pragalbha Sharma, learned counsel appearing for appellant Ghanaram @ Julwa Yadu (A-2) in Cr.A.No.752/2018, would submit that Kanhaiya Yadav (PW-2) is not the eye-witness as he came to the spot after the alleged incident as it appears from the statement of Om Prakash Yadu (PW-1) and the testimony of Om Prakash Yadu (PW-1) is so shaky and improper that without further corroboration it would be unsafe to convict the appellant for offence under Section 302 of the IPC, particularly when in the alleged FSL report, no blood much less human blood has been found on the articles seized from the possession or at the instance of the present appellant and therefore recovery of alleged articles is of no use in view of the decisions of the Supreme Court in the matters of Balwan Singh v. State of Chhattisgarh and another, (2019) 7 SCC 781 and Amar Singh and others v. The State (NCT of Delhi), AIR 2020 SC 4894 . Therefore, the appeal deserves to be allowed. 11. Mr. Anmol Sharma, learned Panel Lawyer appearing for the State/respondents, opposing the submissions advanced on behalf of both the appellants and supporting the impugned judgment, would submit that the prosecution has been able to bring home the offence against the appellants, therefore, they have rightly been convicted and sentenced. He would further submit that Om Prakash Yadu (PW-1) & Kanhaiya Yadav (PW-2) are natural eyewitnesses, they have witnessed the incident. So far as seizure of articles from Ghanaram (A-2) is concerned, though no blood has been found on the said articles as per the FSL report Ex.P-29, but direct evidence is available in view of the testimony of Kanhaiya Yadav (PW-2), therefore, conviction is not questionable. 12. We have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the original records of the trial Court with utmost circumspection and carefully as well. 13. We will take-up the two appeals in hand one by one and firstly, we will take-up the appeal of appellant Ku. Saraswati Yadu (A-1). 14. It is the contention on behalf of the learned counsel for appellant Ku. Saraswati Yadu (A-1) that appellant Ku. 13. We will take-up the two appeals in hand one by one and firstly, we will take-up the appeal of appellant Ku. Saraswati Yadu (A-1). 14. It is the contention on behalf of the learned counsel for appellant Ku. Saraswati Yadu (A-1) that appellant Ku. Saraswati Yadu (A-1) is not involved in the commission of offence and she has been falsely implicated merely on the basis of the statements of Om Prakash Yadu (PW-1) & Kanhaiya Yadav (PW-2), who have not witnessed the incident. Even there is no corroboration from independent source and lathi has not been seized from the possession of appellant Saraswati (A-1) and it was not sent for query report inviting the medical opinion of Dr. Aditya Verma (PW-14) who has clearly stated before the Court that deceased Rajaram has no injury which could be caused by the said lathi and as such, there is no evidence against appellant Saraswati (A-1). Om Prakash Yadu (PW-1) is stated to be an eye-witness and he has stated before the Court that Ghanaram (A-2) assaulted deceased Rajaram by farsa and Saraswati (A-1) assaulted him by lathi by which he suffered injuries and died. He has further stated that appellants Ghanaram (A-2) & Saraswati (A-1) both started running from the spot, then he shouted and then Kanhaiya Yadav (PW-2) came on the spot upon which he told Kanhaiya Yadav that appellants A-1 & A-2 have assaulted the deceased. 15. Appellant Saraswati (A-1) is said to have assaulted the deceased by lathi. Admittedly, lathi has not been seized either from the memorandum statement of appellant Saraswati (A-1) or otherwise, from the possession of Saraswati (A-1) and even it has not been produced before Dr. Aditya Verma (PW-14) seeking his medical opinion. 16. The Supreme Court in Kartarey (supra) has held that it is important to connect the injuries with the weapon and therefore there is necessity for seeking the opinion of the medical witness, who had examined the injuries of the victim for the proper administration of justice, and observed in paragraph 26 as under: - “26. 16. The Supreme Court in Kartarey (supra) has held that it is important to connect the injuries with the weapon and therefore there is necessity for seeking the opinion of the medical witness, who had examined the injuries of the victim for the proper administration of justice, and observed in paragraph 26 as under: - “26. We take this opportunity of emphasising the importance of eliciting the opinion of the medical witness, who had examined the injuries of the victim, more specifically on this point, for the proper administration of justice, particularly in a case where injuries found are forensically of the same species, e.g. stab wounds, and the problem before the Court is whether all or any of those injuries could be caused with one or more than one weapon. It is the duty of the prosecution, and no less of the Court, to see that the alleged weapon of the offence, if available, is shown to the medical witness and his opinion invited as to whether all or any of the injuries on the victim could be caused with that weapon. Failure to do so may, sometimes, cause aberration in the course of justice. ...” 17. Furthermore, the principle of law laid down by the Supreme Court in Kartarey (supra) has been followed by their Lordships of the Supreme Court in Ishwar Singh (supra) and further followed very recently in Amar Singh (supra). As such, it was the obligation of the prosecution to seize lathi from the possession of the appellant and to produce it before the doctor inviting his opinion whether the injury suffered by the deceased could have been caused by the material object/weapon of offence by which the appellant is said to have caused injury to the deceased. For the reasons best known to the prosecution, neither it has been seized nor it has been produced before Dr. Aditya Verma (PW-14) inviting his medical opinion which is apparent from paragraph 16 of the statement of Dr. Aditya Verma (PW-14) who has clearly stated that no such lathi has been produced by the police before him seeking his query. Not only this, the doctor has further stated that there was no injury on the body of the deceased which could have been caused by the said lathi. 18. Next remains the motorcycle seized from the possession of appellant Saraswati (A-1). Not only this, the doctor has further stated that there was no injury on the body of the deceased which could have been caused by the said lathi. 18. Next remains the motorcycle seized from the possession of appellant Saraswati (A-1). It was the motorcycle owned by appellant Saraswati (A-1) herself on which she used to do the job of milk vending and in modern days, it is not unusual to have a motorcycle by villagers for personal and professional purposes in the villages also, as it has become the necessity of the day for a person to have a two wheeler to transact their day-to-day affairs. Even otherwise, mere recovery of motorcycle from the possession of appellant Saraswati (A-1) pursuant to her memorandum statement would not connect her with the offence in question as the five golden principles which constitute the panchsheel of the proof of a case based on circumstantial evidence laid down by the Supreme Court in the matter of Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 for proving an offence against the accused person in a case based on circumstantial evidence have not been established by the prosecution beyond reasonable doubt. Therefore, it would be unsafe to convict appellant Saraswati (A-1) for offence under Section 302 of the IPC, particularly when she is the daughter of Ghanaram (A- 2) out of his first marriage and it appears from the record that she was living separately and involved in the business of milk vending for earning her livelihood. Though conviction can rest on the sole testimony of an eye-witness and there is no legal impediment for convicting a person on the sole testimony of eye-witness, but if there is doubt about the testimony, Court will insist on corroboration. It is the case of the prosecution that appellant Saraswati (A-1) assaulted the deceased by lathi, but since no injury caused by lathi has been found on the body of the deceased and since no lathi has been seized from her possession and furthermore, the alleged lathi has not been sent for opinion of the medical witness, who had examined the injuries of the deceased, seeking his medical opinion, we are of the opinion that it would be unsafe to convict appellant Saraswati (A-1) only on the basis of the testimony of eye-witness Om Prakash Yadu (PW-1). Even for Section 34 of the IPC, the prosecution has not led any evidence to show that there was meeting of mind between the two appellants A-1 & A-2 to attract Section 34 of the IPC. Therefore, conviction and sentences of appellant Ku. Saraswati Yadu (A-1) for offence under Section 302 read with Section 34 of the IPC is liable to be set aside. 19. Now, we will take-up the case of appellant Ghanaram @ Julwa Yadu (A-2) who has been convicted on the basis of the testimonies of Om Prakash Yadu (PW-1) & Kanhaiya Yadav (PW-2). 20. Om Prakash Yadu (PW-1) in his statement before the Court has clearly stated that on the fateful day he was in Duldula Khar for grazing cow & buffalo, at that time, deceased Rajaram was also grazing his buffaloes in the nearby place and both the appellants came in the motorcycle of Saraswati (A-1) and Ghanaram (A-2) armed with farsa was abusing Rajaram and assaulted Rajaram on his head by which he fell down and thereafter, both the appellants A-1 & A-2 tried to abscond from the spot then he (this witness PW- 1) shouted and informed Kanhaiya (PW-2), who was present in the next field watching the agricultural produce, that A-1 & A-2 are assaulting Rajaram whereupon Kanhaiya (PW-2) came and noticed that the deceased suffered injuries on head and then the matter was informed to the police. Om Prakash Yadu (PW-1) has been subjected to lengthy cross-examination and nothing has been extracted from him to hold that appellant Ghanaram (A-2) has not assaulted the deceased by farsa. 21. Kanhaiya Yadav (PW-2) though has been cited as eye-witness, but according to Om Prakash Yadu (PW-1) after deceased Rajaram was assaulted and after he fell down, Om Prakash Yadu (PW-1) shouted and informed Kanhaiya Yadav (PW-2) that both the appellants (A-1 & A-2) are assaulting deceased Rajaram, thereafter, Kanhaiya Yadav (PW-2) came and then he noticed that Rajaram had suffered injuries on head, but Kanhaiya Yadav (PW-2) has stated that he has seen the incident. In paragraph 8 of his statement Kanhaiya Yadav (PW-2) has clearly stated that when he reached to the spot, both the appellants are running away from the spot after assaulting the deceased. He has clearly stated before the Court that before the cry was made by Om Prakash Yadu (PW- 1), he did not see the incident. In paragraph 8 of his statement Kanhaiya Yadav (PW-2) has clearly stated that when he reached to the spot, both the appellants are running away from the spot after assaulting the deceased. He has clearly stated before the Court that before the cry was made by Om Prakash Yadu (PW- 1), he did not see the incident. Thus, it is quite vivid that only Om Prakash Yadu (PW-1) is the eye-witness and Kanhaiya Yadav (PW-2) reached after the assault was made by appellant Ghanaram (A-2) and Kanhaiya Yadav (PW-2) has only seen one of the appellants running away from the spot in question. As such, Om Prakash Yadu (PW-1) is the eye-witness and he has seen the appellant Ghanaram assaulting the deceased. 22. Not only this, pursuant to the memorandum statement of appellant Ghanaram (A-2), farsa was seized and according to the postmortem report Ex.P-16, injury on the head of the deceased was measuring 8” x 2” x 1” and the doctor has clearly opined that the injury suffered by the deceased on head could have been caused by the farsa seized from the possession of the appellant. Thus, the medical opinion confirms that the injury caused to the deceased could be caused by the weapon seized from the possession of the appellant. Though the said farsa seized was sent for query on 1-8- 2016 to the doctor after some delay, but nothing has been brought out to hold that it was deliberately sent with delay or for any ulterior motive, it was not sent for query report and the query report of the medical officer is dated 1-8-2016 (Ex.P-17). The clothes & farsa recovered from the possession of appellant Ghanaram (A-2) were sent for forensic examination to the FSL, Raipur and the FSL report is Ex.P-29 according to which no blood has been found on farsa, vest and blanket recovered from the possession of Ghanaram (A- 2), but eye-witness Om Prakash Yadu (PW-1) has seen the incident assaulting the deceased by farsa and farsa has been medically examined by the doctor who has clearly opined that the injuries sustained by the deceased could have been caused by the said farsa. Though the memorandum & seizure witness has turned hostile, but considering the statement of I.O. Ramesh Kumar Markam (PW-16), it cannot be held that the farsa recovered from the possession of appellant Ghanaram (A-2) pursuant to his memorandum statement has not been proved in accordance with law. As such, the trial Court is absolutely justified in convicting appellant Ghanaram (A-2) for offence under Section 302 of the IPC. 23. Accordingly, we are of the considered opinion that the trial Court is unjustified in convicting appellant Ku. Saraswati Yadu (A-1) for offence under Section 302 read with Section 34 of the IPC. Consequently, conviction and sentences awarded to her under Section 302 read with Section 34 of the IPC are hereby set aside and she is acquitted of the said charge. She is in jail and we direct that she be released forthwith if not required any other case. Cr.A. No.706/2018 is thus allowed. However, conviction and sentences imposed upon appellant Ghanaram @ Julwa Yadu (A-2) are hereby affirmed and his appeal (Cr.A.No.752/2018) is dismissed.