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2023 DIGILAW 924 (GUJ)

Akshay Arunkumar Borade v. State Of Gujarat

2023-08-03

A.Y.KOGJE, HASMUKH D.SUTHAR

body2023
JUDGMENT : (PER : HONOURABLE MR. JUSTICE A.Y. KOGJE) 1. These are the four appeals under Section 374 of the Code of Criminal Procedure against the judgment and order dated 22.08.2019 by the Sessions Judge, Vadodara in Sessions Case No.103 of 2018. By the aforesaid judgment, the appellants were convicted for offences under Sections 302, 506(2) and 114 of the Indian Penal Code (for short “IPC”) read with Section 135 of the Gujarat Police Act. 2. Pursuant to such conviction, all the four appellants have been inflicted with rigorous imprisonment for life and fine of Rs.25,000/- under Section 302 of IPC. 2.1. All the appellants have also been imposed punishment for three years of rigorous imprisonment under Sections 506(2) of IPC and for offence under Section 135 of the GP Act, fine of Rs.100/- is imposed. 3. The incident was registered as offence being C.R. No.-I-55 of 2018 with Panigate Police Station, Vadodara and was thereafter committed as Sessions Case No.103 of 2018. The record indicates compliance of necessary provisions of Code of Criminal Procedure, particularly Section 209 insofar as procedure of trial is concerned. 3.1. The incident was reported of 26.03.2018 at about 11:30 P.M.. The informant-Jaydeepbhai Vishnubhai Thakkar alongwith his friends Vicky Kishorbhai Kanojiya (deceased) accompanied by other friends went to play cricket at an open ground at Gomtipura area. 3.2. While the play was in progress, the convicts arrived at the scene of offence armed with swords and inflicted sword injury on vital part of the body and when informant tried to intervene, he was also assaulted and threatened because of which he ran way from the spot and later on came to know that Vicky who was severely injured was taken to Global hospital for treatment, but the said Vicky succumbed to the injuries. 3.3. 3.3. The appellants were charged vide Exh.7 where the complainant Jaydeepbhai Vishnubhai Thakkar and his friend–Vikki Kishorbhai Kanojiya were playing cricket with other friends on 26.03.2018 at 23:30 o’clock near the corner of Gajrawadi, Gomtipura and at that time, one of the accused–Vishal @ Langdo Rajubhai Pawar saw deceased Vikki Kanojiya playing cricket over there and informed his father–accused No.1-Raju @ Balkrushna Shivajirao Pawar and accused no.3–Dhaval and also stated that deceased scuffled and quarreled over the rash driving of motorcycle at the time of previous Holi festival and the deceased had beaten accused–Dhaval Pawar in the said quarrel, bearing grudge thereof, as the appellant Vishal informed appellants Raju, Dhaval and Akshay that the deceased is playing cricket, all the convicts armed with the swords in order to kill the deceased, the convict no.2 by Aviator No.GJ-06-LH-8235 and convict Akshay Arunbhai Borade by Motorcycle No.GJ-06-EK-4316 reached where the accused was playing cricket, kept vehicles across, the accused Raju Pawar and Vishal inflicted sword on the deceased and as the deceased brought hand in order to save himself, grave injury was caused on the hand, cut the fingers. When the complainant tried to defend Vikki, convict no.1 assaulted the complainant with sword and to kill him, the deceased ran to save his life, however, the accused chased the deceased with swords and inflicting indiscriminate blows of sword, causing his death on the spot, the convict no.4 ran on his motorcycle with Raju Pawar and Dhaval and Vishal also fled away leaving his Aviator vehicle at the scene of offence and thus, all the accused abetted each other in the said offence. 4. Learned advocates Mr. Pratik Barot and learned advocate Mr. Alkesh Shah appearing for appellants in Criminal Appeal Nos. 126 of 2020, 152 of 2020 and 157 of 2020 and Criminal Appeal No.2091 of 2019 respectively. 5. Learned advocates for the appellants have jointly submitted that though the case of the prosecution is based on the evidence of five witnesses, who are projected as eyewitnesses, but the inconsistency in the version of each of these eyewitnesses itself is indicating that these witnesses are not the real eyewitnesses, but have given deposition as per their understanding of the offence, to secure conviction. 5.1. In this regard, it is submitted that just to support each other to be eyewitnesses, these eyewitnesses have referred each other’s name in the deposition. 5.1. In this regard, it is submitted that just to support each other to be eyewitnesses, these eyewitnesses have referred each other’s name in the deposition. However, none of these witnesses who claimed to be the friends have come forward to rescue the deceased from the assault. The informant Jaydeep Thakkar, who claimed that he is an eyewitness has projected himself as injured eyewitness who has received injury on his hand however, there is nothing to support this fact as no medical treatment papers of this witness have been exhibited. Not only that these witness has deposed to have ran away from the spot and has not even taken his friend to the hospital for the treatment. It is submitted that there is also inconsistency in their respective version as to how many vehicles and how many persons arrived at the scene of offence and are responsible for the assault. Some witnesses have deposed that two persons had arrived with the sword and two persons were standing on motorcycle at some distance. Some witnesses have deposed that two convicts have carried the assault while other witnesses have deposed that only one person carried the assault and yet another set of witness indicating that four have carried the assault. 5.2. It is further submitted that there is also inconsistency with regard to six accused arriving at the scene of offence on three vehicles and the case of the prosecution that four convicts arrived on two vehicles and therefore, there is scope of over implication or false implication of convicts. 5.3. This is to be appreciated in view of the fact that for the incident which took place at 11:30 PM on 26.03.2018, FIR came to be registered belatedly on 09:30 AM on second day and therefore, after the deliberation, the FIR came to be registered. It is submitted that even if the homicidal death is established by the prosecution, but the role of each of the appellants is not established beyond reasonable doubt. Moreover, presence of the convict-Akshay Arunkumar Borade and Dhaval Rajubhai Pawar is also doubtful and that they were implicated in the offence only on account of their relationship with the appellant No.1. 5.4. Learned advocates submitted that each of the witnesses have deposed that they were playing cricket which was watched by several people around when the incident took place. Moreover, presence of the convict-Akshay Arunkumar Borade and Dhaval Rajubhai Pawar is also doubtful and that they were implicated in the offence only on account of their relationship with the appellant No.1. 5.4. Learned advocates submitted that each of the witnesses have deposed that they were playing cricket which was watched by several people around when the incident took place. Therefore, the investigation ought to have examined such independent witnesses, but have deliberately examined only interested witnesses who are the friends of the deceased. It is submitted that even as per the case of the prosecution, the incident took place in two parts, first being at the cricket pitch which is attributed to the convict-Rajubhai @ Balkrushna Shivajirao Pawar and Vishal @ Langdo Rajubhai Pawar, where no role of Dhaval Pawar and Akshay Borade revealed. Second place is the spot where the deceased had fallen down after running to escape where again he was assaulted by swords. The witnesses deposed that Dhaval Pawar and Akshay Borade arrived later on at the second spot and therefore, insofar as the presence of the Dhaval Pawar and Akshary Borade is also doubtful. 5.5. Learned advocates submitted that witnesses are not consistent in identification of all the accused persons that they may have identified Raju Pawar, Vishal Pawar and Dhaval Pawar. One of the witnesses has neither named nor identified Akshay Borade who has been referred to as relative of Raju Pawar. The aforesaid fact is required to be viewed that all these witnesses have consistently deposed about all the four convicts assaulting the deceased with swords, but during the course of investigation, only three swords have been discovered at the behest of Raju Pawar, Vishal Pawar and Dhaval Pawar. This fact puts in doubt the version of these eyewitnesses that all the four convicts have assaulted. Therefore, there is a scope of false implication at least convicts Dhaval Pawar and Akshay Borade. It is submitted that though discovery Panchnama is given exhibit number, but the panch witnesses have turned hostile and the deposition of the Investigating Officer also does not narrate the content of the panchnama to treat that the panchnama is proved and therefore, even discovery of the weapon is not proved beyond reasonable doubt. Therefore, the appellants deserve to be benefited. 5.6. Therefore, the appellants deserve to be benefited. 5.6. Learned advocates further submitted that the nature of investigation is doubtful to a great extent from the fact that all the three swords discovered were smeared with blood stain. However, to show that the weapons were used in the offence, but in fact, the sample drawn from the body of the deceased was 50 ML of blood which had lied in the police station for a period of two months and when sent to the FSL, serological report with regard to the 50 ML sample drawn from the deceased was found to be dried and no blood group was ascertained and therefore, the investigation has utilized 50 ML blood sample drawn to smear the swords with the blood stains. This aspect be taken into consideration alongwith the fact that the clothes worn by the convicts at the time of offence, three of the convicts’ clothes were not found with any blood stain. The panch witnesses of all these clothes have also supported the case of the prosecution. 6. As against this, learned Additional Public Prosecutor has submitted that the FIR with regard to the incident was immediately registered without any delay ruling out the scope of manipulation. It is submitted that the incident has taken in two parts, where assault has taken place at two points approximately 100 meters from each other. The perusal of deposition of five witnesses indicates consistent version comes on record about the presence of all the convicts at the scene, fact of all the accused being armed with weapon sword, sequence of arrival of the accused at the scene of offence and attack on the deceased at two points. 6.1. Learned Additional Public Prosecutor submitted that the argument made regarding the inconsistency is required to be discarded as these are the minor discrepancies which cannot be said to destabilize the theory of prosecution as the eyewitnesses got sufficient corroboration in the form of discovery of weapon panchnama which is proved by the Investigating Officer, the FSL report indicating the presence of the blood stains on the swords. 6.2. The fact that all the convicts, as per the version of the witnesses, were present at the scene of offence, the conviction of all the convicts under Section 302 of IPC with the aid of Section 114 of the IPC is justified. 6.3. 6.2. The fact that all the convicts, as per the version of the witnesses, were present at the scene of offence, the conviction of all the convicts under Section 302 of IPC with the aid of Section 114 of the IPC is justified. 6.3. Learned Additional Public Prosecutor submitted that considering the medical evidence particularly Postmortem note, the prosecution is able to establish the serious injuries caused on the vital part of the body of the deceased, thereby establishing homicidal death beyond reasonable doubt. It is lastly submitted that in their further statement under Section 313 of the Code of Criminal Procedure, no explanation is offered to the circumstances/evidences placed by the prosecution before the trial Court. Hence, the prosecution has established the case beyond reasonable doubt. 7. In rejoinder, learned advocates appearing for the convicts submitted that the homicidal death is not disputed at all however, combined perusal of the deposition of the so called five witnesses would indicate that these witnesses are deposed only to prove the prosecution theory and are therefore, engineered eyewitnesses. For this, it is submitted that the informant-Jaydeepbhai Vishnubhai Thakkar, who claims to have been injured, none of the other eyewitnesses have supported this aspect. Not only that, these eyewitnesses who were friends of the deceased were more in numbers than the assailants, still none of them have deposed about their effort to intervene and therefore, such conduct is unnatural conduct by the witnesses to doubt their credibility. It is submitted that though the Sessions Court has invoked aid of Section 114 of IPC for convicting all the convicts under Section 302 of IPC, but there is no evidence or discussion in the impugned judgment and order as to how Section 114 of the IPC has been invoked. 8. Learned advocates have relied upon the decision of Jaikam Khan v/s. State of Uttar Pradesh, reported in, (2021) 13 SCC 716 to submit that five witnesses examined by the prosecution fall in the category of interested witnesses and therefore, their testimony is required to be scrutinized with care. These witnesses would fall in the category of neither wholly relevant or wholly unreliable and therefore, the Court is expected to look for corroboration in material particular and therefore, when the independent witnesses, even as per the case of the prosecution, are available, examining only interested witnesses should cast doubt upon the case of the prosecution. 9. These witnesses would fall in the category of neither wholly relevant or wholly unreliable and therefore, the Court is expected to look for corroboration in material particular and therefore, when the independent witnesses, even as per the case of the prosecution, are available, examining only interested witnesses should cast doubt upon the case of the prosecution. 9. Learned advocates then relied upon the decision in case of Arshad Hussain vs. State of Rajasthan, reported in (2013) 14 SCC 104 and submitted that the prosecution has suppressed the genesis to the incident as the prosecution has not been able to establish any motive behind this as none of the witnesses have stated anything about the motive and that the prosecution has also been established the exact manner in which the incident has taken place namely overt act attributed to each of the convicts in assaulting the deceased. 10. Learned Additional Public Prosecutor has relied upon the decision in the case of Ravasaheb alias Ravasahebgouda and others v/s. State of Karnataka, reported in (2023) 5 SCC 391 in support of her argument that the conviction can be relied upon a sole eyewitness even if the witness is related to the deceased. For this principal, she has also relied upon the decision in case of Mallikarjun and others v/s. State of Karnataka, reported in (2019) 8 SCC 359 . 11. The Court has heard learned advocates for the parties and perused the documents placed on record. The prosecution has examined PW-2 Dr. Vinayakrao Vasudevrao Patil at Exh.19, who is the postmortem performing doctor and in his deposition, he has indicated 23 injuries on the body of the deceased and particularly 8 injuries on the vital part of the body i.e. on the head. This witness has opined that the injuries found on the body of the deceased were sufficient to cause death. This witness has also shown the muddamal articles Nos.16, 17 and 18 which were three swords and this witness has opined that the injuries sustained on the body of the deceased are possible by use of this weapon. In the cross examination, the questions were put by separating the injuries whether independently such injuries could cause death to which this witness has replied that some of the injuries on non-vital part of the body were not sufficient to cause death. However, the injury Nos.5 to 10 were fatal to cause death. In the cross examination, the questions were put by separating the injuries whether independently such injuries could cause death to which this witness has replied that some of the injuries on non-vital part of the body were not sufficient to cause death. However, the injury Nos.5 to 10 were fatal to cause death. However, he has maintained his opinion with regard to the cause of death because of the injuries sustained. The argument therefore, advanced by learned advocates for the appellants that if the injuries are such which were not likely to cause death then the offence ought to have been treated as a offence under Section 307 of the IPC is not accepted. The prosecution has successfully proved the homicidal death. 12. The Court proceed to appreciate the evidence of eyewitnesses who are the friends of the deceased. PW-1-Jaydeepbhai Vishnubhai Thakkar at Exh.14 has deposed that while they were playing cricket in Gomtipur area, Raju Pawar, Dhawal Pawar, Vishal Pawar and Akshay Borade came on bike and Activa with swords directly on the pitch where the game was in progress. Vishal Pawar and Raju Pawar came first to the pitch and started abusing Vicky Kanojiya and thereafter, Dhaval Pawar and Akshay Borade also came there. Vicky Kanojiya tried to save himself by snatching a bat from a co-players when Raju Pawar assaulted by sword to Vicky, who defended himself by use of bat, but because of the sword blow, his fingers were cut. At that time, Dhaval Pawar and Akshay Borade came from the other side and Vicky Kanojiya started running and fell down on road and all the four started assaulting Vicky Kanojiya with sword. He has deposed that at that time, Dhawal Pawar and Vishal Pawar also assaulted him, as a result of which he received injury on his right hand. He also deposed that when Dhaval Pawar, Vishal Pawar and Akshay Borade came towards him he ran away. He has identified three swords as well as the accused persons in the Court. 12.1. The evidence of this witness firstly is in-consistence with the other witnesses, who are also eyewitnesses. The inconsistency is with regard to arrival of the persons together at the cricket pitch and assaulted by all. He has identified three swords as well as the accused persons in the Court. 12.1. The evidence of this witness firstly is in-consistence with the other witnesses, who are also eyewitnesses. The inconsistency is with regard to arrival of the persons together at the cricket pitch and assaulted by all. It is pertinent to observe that this witness claims that he was injured in the process, but the same is not established as there is no medical evidence about the injury sustained by this witness when the offence was being committed. The Investigating Officer at Exh. 58 has deposed and confirmed question in the cross-examination that the fact of Jaydeep received injury in the assault is not supported by co-witnesses namely Anil Mali, Thakor Jayanti and Ankit Machhi. 13. The Court also finds this witness not to be a truthful witness as this witness himself has deposed that when the accused persons threatened him, he ran away from the spot and thereafter, has not participated in removing the injured Vicky to the hospital like the other witnesses and therefore, the Court deems if fit to consider this witness not to be wholly reliable on whose deposition, the conviction can be recorded. 14. The Court has taken into consideration the deposition of PW-3- Anil Ramanbhai Mali at Exh.23. This witness in his deposition in chief has deposed that while they were playing cricket in Gomtipur area, at that time, Vishal Pawar and Raju Pawar arrived on Activa with sword and after verbal alternation, they removed the sword from the vehicle and assaulted Vicky Kanojiya who tried to defend himself with the bat, but because of the assault by Raju Pawar and Vishal Pawar, three right hand fingers were cut and out of fear, Vicky Kanojiya started running and fell down near the speed breaker, where Akshay Borade and Dhaval Pawar caught Vicky Kanojiya and thereafter, Raju Pawar and Vishal Pawar came running there and assaulted Vicky again on neck and head. This witness has clearly deposed in no uncertain terms that Akshay Borade and Dhaval Pawar came on bike later on. This witness has thereafter taken the injured to the Global Hospital. 15. This witness has clearly deposed in no uncertain terms that Akshay Borade and Dhaval Pawar came on bike later on. This witness has thereafter taken the injured to the Global Hospital. 15. PW-4-Ankit Arvindbhai Machhi at Exh.25 has deposed that while they were all playing cricket at Gomtipura area, at that time, one Activa/Aviator type scooter came on which Raju Pawar and Vishal Pawar came and from the front side, Dhaval Pawar and an unknown person came. These persons had come with sword and the people who came there also carrying sword. Thereafter, Raju Pawar assaulted Vicky with sword because of which his fingers were cut and thereafter, Vicky started running. At that time, on the front side one vehicle came which was driven by Dhaval Pawar and after running 10-15 feet, Raju Pawar again assaulted Vicky. At that time, the assault was made on the head and thereafter, he was taken by this witness to the hospital. This witness has not named Akshay and is also not identified him before the Court. 16. The Court has taken into consideration the evidence of PW-5- Nitin Shankarlal Kanojiya at Exh.26. This witness has deposed that he was playing cricket alongwith other friends, at that time, Raju Pawar came on two wheeler with his son, who is identified as “Langado” (Vishal Pawar) with swords and Raju Pawar assaulted Vicky with the sword because of which he received injuries on the hand and three fingers were cut. From there, Vicky started running, at that time another two wheeler came on which two persons were riding namely Akshay Borade and Dhaval Pawar. Vicky fell down on the road and at that time, Raju Pawar and his son “Langado” (Vishal Pawar) ran after him and assaulted Vicky with sword and these people ran away. This witness has thereafter, alongwith other co- witnesses has taken the deceased to the hospital. 17. PW-6-Manojbhai Rajendrabhai Kanojiya at Exh.29 has deposed that they were all playing cricket in Gomtipur area, at that time, Raju Pawar and Vishal Pawar on Activa/Aviator came there and at that time, at the Naka he saw two people namely Dhaval Pawar and Akshay Borade. Raju Pawar and Vishal Pawar came near Vicky and Raju Pawar assaulted Vicky by sword, as a result, two-three fingers of Vicky were cut and therefore, Vicky started running. Raju Pawar and Vishal Pawar came near Vicky and Raju Pawar assaulted Vicky by sword, as a result, two-three fingers of Vicky were cut and therefore, Vicky started running. At that time, Akshay Borade and Dhaval Pawar came from opposite side and thereafter, Raju Pawar inflicted injury on Vicky and thereafter, they ran away. This witness also alongwith other co-accused took the injured to the hospital for treatment. This witness, in his cross examination, has deposed that in the assault, the appellant was also assaulted. He has deposed that it is not true that the assault was carried out by all the people together, but the assault was carried out by Raju Pawar and Vishal Pawar. With regard to the arrival also, this witness has deposed that it is not true that all the four persons had arrived together and they have arrived from one direction. He has also deposed that it is not true that all the four persons have assaulted Vicky. With regard to his deposition about Akshay Borade and Dhaval Pawar coming from the opposite direction and assaulted by sword, this witness has deposed that in his police statement, he has not stated that Akshay Borade and Dhaval Pawar had come from opposite direction and assaulted with sword. This portion is an improvement which is admitted by this witness. 18. The combined reading of the evidences of these witnesses, who have been at the scene of offence till the last and they have taken this injured to the hospital for treatment can be treated to be witnesses, who are not wholly reliable or wholly unreliable, but the combined appreciation of evidences of these witnesses would indicate that Raju Pawar and Vishal Pawar have arrived on two wheeler at the place where the deceased and the witnesses were playing cricket. They halted at the cricket pitch, entered into verbal alternation with the deceased and assaulted the deceased by removing sword from their two wheeler. In the first assault, Vicky tried to defend himself by using bat, but his hand was injured and his three fingers were cut. Thereafter, Vicky tried to ran away and fell down when Raju Pawar and Vishal Pawar ran after him and thereafter, again assaulted with sword. 19. In the first assault, Vicky tried to defend himself by using bat, but his hand was injured and his three fingers were cut. Thereafter, Vicky tried to ran away and fell down when Raju Pawar and Vishal Pawar ran after him and thereafter, again assaulted with sword. 19. From the combined reading of the evidences of these witnesses, role of Raju Pawar and Vishal Pawar is explicit, consistent and from beginning to end, the entire assault has been attributed these two accused persons. 19.1. Therefore, the Court finds that ocular evidences as all the eyewitnesses have sufficiently established the offence against Raju Pawar and Vishal Pawar. There is also corroboration to the ocular evidence on the basis of Medical evidence which has come on record where the injuries sustained on the body of the deceased and the opinion of the Medical Dr. that the injuries can be caused by the weapons attributed to the appellants Raju Pawar and Vishal Pawar. over and above the discovery of the weapons which are blood stained . 20. Insofar as the role attributed to Akshay Borade and Dhaval Pawar is concerned, from the combined reading of all the evidences, it emerges that there is inconsistency with regard to arrival of these two persons at the scene of offence as none of the witnesses have indicated that these two accused persons had arrived alongwith two who arrived earlier. The deposition also indicates that if at all the arrival is to be believed, then also, these two persons had arrived and that too they were at a distance. Witness Anil-PW3 has clearly deposed that Akshay Borade and Dhaval Pawar, both arrived later on the bike. Similarly, PW-4 Ankit Arvindbhai Machhi has deposed that two persons had come from the other side on which Dhaval Pawar was there and other persons who is not identified. This witness has deposed has neither named or identified Akshay Borade. Similarly, PW-5 Nitin Shankarlal Kanojiya, he has deposed that when Vicky ran, at that time, two persons came on two wheeler i.e. Akshay Borade and Dhaval Pawar. PW-6 Manojbhai Rajendrabhai Kanojiya has deposed that on the corner he could see two persons who were Dhaval Pawar and Akshay Borade. This witness has deposed has neither named or identified Akshay Borade. Similarly, PW-5 Nitin Shankarlal Kanojiya, he has deposed that when Vicky ran, at that time, two persons came on two wheeler i.e. Akshay Borade and Dhaval Pawar. PW-6 Manojbhai Rajendrabhai Kanojiya has deposed that on the corner he could see two persons who were Dhaval Pawar and Akshay Borade. The case of the prosecution has been that the present assault was on account of the previous altercation regarding rough driving, the witnesses are the friends of the deceased, therefore there is always a scope of over implications as also wrong implication. in such cases there is tendency to rope in as many persons as possible, therefore the inconsistencies in the version of the eye witnesses in so far as Dhawal Pawar and Akshay Borade and the consistency of these very eye witnesses in so far as role of Raju and Vishal is concerned, this court is of the view that benefit of doubt can be given to Dhawal Pawar and Akshay Borade. 21. Therefore, the combined reading of evidences of these eyewitnesses would indicate that assault has been attributed to Raju Pawar and Vishal Pawar and thereafter, mere reference is given about the presence of Dhaval Pawar and Akshay Borade. Evidences of none of these witnesses can be considered to be of sterling quality for attributing any overt act or their presence of Akshay Borade and Dhaval Pawar at the scene of offence. The fact that one of the witnesses has not even identified Akshay Borade and has not even named him in his deposition. 22. The Court has taken into consideration the evidence of Investigating Officer PW-16 Narsinhbhai Vaghela, who in his deposition has categorically deposed that in para-25 of the cross examination that during his investigation, no weapon was recovered at the behest of Akshay Borade and it is true that during his investigation, the statements of Thakor Tushar, Ankit Machhi and Manoj Kanojiya do not indicate that Akshay Borade has inflicted any injury by sword to the deceased. 22.1. PW-8-Vinod Fatehsinh Rao Rajput and PW-9 Avkash Shantilal Sarvaiya, who are the panch witnesses for drawing the panchnama of blood samples from the deceased. This panchnama is Exh.33 which is the panchnama for recovery of the clothes of the deceased and the blood sample. However, these panch witnesses have not supported the case of the prosecution. 22.2. 22.1. PW-8-Vinod Fatehsinh Rao Rajput and PW-9 Avkash Shantilal Sarvaiya, who are the panch witnesses for drawing the panchnama of blood samples from the deceased. This panchnama is Exh.33 which is the panchnama for recovery of the clothes of the deceased and the blood sample. However, these panch witnesses have not supported the case of the prosecution. 22.2. The blood samples were placed before the FSL. The samples which were collected on 27.03.2018 were received by the FSL on 28.05.2018 (Exh.70). The FSL has undertaken the examination of the articles sent of which sample No.A-7 is the blood sample of the victim Vicky Kanojiya. Parcel No.A-7 at Exh.72 indicates that 50ML of blood in liquid form was sent as sample however, the analysis report of the FSL dated 10.10.2018 Exh.72 would indicate that the sample A-7 was in disintegrated form. This will have to be viewed that the fact that three swords which were discovered were having stains of blood group ‘A’ of the deceased. Therefore, there appears to be a disconnect in the blood samples collected during the course of investigation of the victim and when it reached the FSL, it was in disintegrated form which is not explained by the prosecution. 23. PW-8-Vinod Fatehsinh Rao Rajput and PW-9 Avkash Shantilal Sarvaiya are also the panch witnesses in the panchnama at Exh.34 which is for the recovery of the clothes worn by the accused persons at the time of offence and produced before the police at the police station. These witnesses have not supported the case of the prosecution and the FSL report at Exh.72, wherein the clothes worn by all the accused are given muddamal articles Nos.8, 9, 10, 11, 12, 13, 14 and 16, no blood stains have been found by the FSL. 24. The panchnama of discovery of weapon is at Exh. 39 which is a joint panchnama of accused Raju Pawar, Vishal Pawar and Dhaval Pawar. The weapons sword which were allegedly used in the offence were discovered from the place in the front side of his house. Firstly, the panch witnesses have not supported the discovery of the weapon panchnama. Moreover, the Investigating Officer PW-16 has referred to the drawing of the panchnama with the initial part of the panchnama being written in the police station, where willingness is expressed by the accused persons to discover the weapon. Firstly, the panch witnesses have not supported the discovery of the weapon panchnama. Moreover, the Investigating Officer PW-16 has referred to the drawing of the panchnama with the initial part of the panchnama being written in the police station, where willingness is expressed by the accused persons to discover the weapon. If this panchnama at Exh.39 is perused, the same does not disclose as to which of the accused has shown willingness, but in casual manner all the accused have been addressed jointly. Thereafter, in second part, the joint discovery is attributed to accused Raju Pawar, Vishal Pawar and Dhaval Pawar. The Investigating Officer in his deposition has not narrated the contents of the panchnama insofar as accused Dhaval Pawar is concerned and therefore, the discovery of the weapon is also not proved qua Dhaval. 25. The Court has taken into consideration the decision of the Apex Court in case of Mallikarjun and others (Supra), which is relied upon by the learned Additional Public Prosecutor to establish the discovery of the weapon in the present case. However, if para-23 of the aforesaid judgment is taken into consideration, then the Apex Court was dealing with the panchnama at the behest of two panch witnesses, who had turned hostile and thereafter, the panchnama was proved by the Investigating Officer and therefore, the Court did not accept the argument that the panchnama was not proved as the panch witnesses had turned hostile. However, this observation is made while the Apex Court was dealing with the panchnama of recovery of the weapon and not discovery of the weapon as is contemplated under Section 27 of the Evidence Act. However, in this very decision on facts, the Apex Court has observed as under:- “24 The learned senior counsel for the appellants contended that in the case registered under Section 302 IPC, only the Circle Inspector of Police is authorised to conduct investigation and PW-17-PSI has no authority to conduct the investigation and the prosecution case is vitiated on account of the investigation done by PW-17-PSI who had no authority to conduct the investigation. If the Circle Inspector was not available in the police station or on other duty, PSI who was in- charge of the police station had the power to proceed with the initial investigation. If the Circle Inspector was not available in the police station or on other duty, PSI who was in- charge of the police station had the power to proceed with the initial investigation. In his evidence, PW-17-PSI had clearly stated that in the absence of Circle Inspector, he has powers to investigate the cases registered including the one under Section 302 IPC. When a grave crime is registered, the PSI who is in-charge of the police station cannot wait for the arrival of the Circle Inspector or wait for the instruction to commence the investigation. 25. From the evidence of PW-5 and PW-7, the prosecution has proved the overt act of accused Nos.1 and 2 and the same is corroborated by the corresponding injuries as spoken by PW- 12-Dr.H.R. Kumar. Accused No.4 was then stated to be working as teacher at Balichakra who is said to have attacked the deceased with the wooden handle of the axe (MO-3) on the back of deceased. By perusal of post-mortem certificate (Ex.- P11), there is no injury corresponding to the alleged overt act of accused No.4. As seen from the FIR, in the complaint, PW-5 stated that at the time of attacking, the accused stated that “this bastard is having illicit relationship with our mother”. The above words stated in the FIR prima facie indicate the presence of accused Nos.1 and 2 and the absconding accused No.3 only who have attacked the deceased. Serious doubts arise as to the presence of accused No.4 and the benefit of doubt has to be given to accused No.4 and the conviction of accused No.4 cannot be sustained. The conviction of accused No.1-Mallikarjun and accused No.2-Ravi are based upon proper appreciation of evidence and the reasonings are well balanced and we do not find any reason warranting interference with their conviction.” 26. Therefore, the Court is of the view that evidences of these witnesses are not sufficient to bring home the charge of Section 302 of IPC against Askhay Borade and Dhaval Pawar. 27. Therefore, the Court is of the view that evidences of these witnesses are not sufficient to bring home the charge of Section 302 of IPC against Askhay Borade and Dhaval Pawar. 27. The court has perused the Impugned Judgment and award which has assigned proper reasons to record the convictions however, has committed an error in appreciating the evidences of the Eye witnesses in connection with the two accused persons Namely Dhaval Pawar and Akshay Borade, the evidences of the eye witnesses does not establish the presence of the accused at the scene of offence and an overt act beyond reasonable doubt. To that extent the impugned Judgment and Order is required to be interfered with. 28. The Court therefore, considering the evidence of all the eyewitnesses and the other corroborative pieces of evidences, arrives at a conclusion that insofar as accused Nos.1-Rajubhai @ Balkrushna Shivajirao Pawar in Criminal Appeal No.126 of 2020 and accused No.2-Vishal @ Langado Rajubhai Pawar in Criminal Appeal No.152 of 2020 are concerned, accepts the case of the prosecution and confirms the judgment and order. 29. In the result, the Criminal Appeal No.126 of 2020 qua Rajubhai @ Balkrushna Shivajirao Pawar and Criminal Appeal No.152 of 2020 qua Vishal @ Langado Rajubhai Pawar fail and are dismissed. The impugned judgment and order of conviction and sentence dated 22.08.2019 passed by the Sessions Judge, Vadodara in Sessions Case No.103 of 2018 stands confirmed. Bail and bail bonds of the accused, if any, stands discharged. 30. In view of the aforesaid especially upon appreciation of evidence of eyewitnesses, the Court is of the view that accused Nos.3-Dhaval Rajubhai Pawar in Criminal Appeal No.157 of 2020 and accused No.4-Akshay Arunkumar Borade in Criminal Appeal No.2019 of 2019 are entitled to the benefit of doubt and therefore, Criminal Appeal No.157 of 2020 qua Dhaval Rajubhai Pawar and Criminal Appeal No.2091 of 2019 qua Akshay Arunkumar Borade are allowed. Accordingly, qua Dhawal Rajubhai Pawar in Criminal Appeal No.157 of 2020 and qua Akshay Arunkumar Borade in Criminal Appeal No.2091 of 2019, impugned judgment and order of conviction and sentence dated 22.08.2019 passed by the Sessions Judge, Vadodara in Sessions Case No.103 of 2018 is hereby set aside. The appellant-Dhawal Rajubhai Pawar and Akshay Arunkumar Borade are therefore, directed to be set free, if not required in any other offence. 31. Record and Proceedings be sent back to the trial Court.