JUDGMENT
P.V. Hardas, J.
1. The appellants in both these appeals, who on being convicted by the Additional Sessions Judge, Sangamner, by judgment dated 30-4-2003, in Sessions Case No. 1 of 2002, and sentenced to imprisonment for life and to pay a fine of Rs. 2,000/- each, in default to undergo simple imprisonment for three months for an offence punishable under Section 302 read with Section 34 of Indian Penal Code by these appeals challenge their conviction and sentence.
2. Such of the facts as are necessary for the decision of these appeals can briefly be stated as under :–
P. W. 9 P.S.I. Vijay Shinde, who was attached to Sangamner Police Station recorded the complaint of P. W. 1 Chandrabhaga at Exh. 18 on 25-10-2001. On the basis of the said complaint an offence vide Crime No. I. 168 of 2001 came to be registered and information in respect of the offence was sent to P.W. 11 P. I. Bhagat and to the Superintendent and Deputy Superintendent of Police. P.W. 10 A.S.I. Argade was handed over the investigation of the crime and he immediately proceeded to the place of the incident and drew the scene of the offence panchanama at Exh. 20 in the presence of P.W. 2 Gautam. The scene of the offence was shown by P. W. 1 Chandrabhaga. The place of the incident was by the side of a stream towards its western side. Blood stained sample of soil mixed with blood came to be drawn. Two pairs of Chappal, one of red colour and the other of black colour, came to be seized. The investigation thereafter was handed over to P.W. 11 P. I. Bhagat. P. I. Bhagat (P.W. 11) on being handed over the investigation on 25-10-2001, arrested accused No. 1 at about 9.30 p.m. The clothes of the accused comprising of pant and shirt came to be seized vide arrest panchanama and seizure memo at Exh. 29 in the presence of panch witness P. W. 6 Vijay. Since there was injury on the left palm of the accused No. 1 and towards the right ear, he was referred for medical examination along with the requisition at Exh. 43. Though the accused was medically examined, the medical certificate of the accused was not placed in the charge sheet. Accused No. 1 is alleged to have made a disclosure memorandum at Exh. 35 in the presence of P.W. 8 Kadushah, expressing his willingness to point out the place where he had hidden a knife. The accused had accordingly taken the police and the panch in a police jeep to his house. A knife which was hidden in the rafters of the roof was taken out by the accused which came to be seized vide panchanama at Exh. 36. The said knife is article-I. A police constable had produced the clothes of the deceased Ramji which came to be seized at seizure memo Exh. 25 in the presence of P.W. 3 Bhausaheb. The blood sample was requested to be drawn vide requisition at Exh. 44. vide Exh. 45 the sealed blood sample of the accused was received. The seized property was referred to the Chemical Analyser by a requisition at Exh. 46. Accused No. 2 came to be arrested on 29-10-2001. The reports of the Chemical Analyser are at Exh. 47, 48 and 49. Dead body of deceased Ramji was referred for post mortem examination and the post-mortem was carried out by P.W. 12 Dr. Dere. P.W. 12 Dr. Dere noticed the following external injuries on the person of deceased Ramji.
1. Incised wound of 1.05 x 0.3 cms. over lower lip on left side.
2. Stab wound of 4 x 2 x 14 cms. elliptic at 9 O’Clock position from left nipple, 3 cm. lateral to left nipple wound is directed medially, downwards and oblique purcing plural and myocardium.
3. Stab of 4 x 1 cm. with tailing on left side in the mid clavicle line 7 cms. below the left nipple.
4. Stab elliptical of 3 x 11/2 x 4 cm. over left mid auxiliary line just below the place of injury No. 3 wound directed medially downwards and oblique rupturing the left dome of diaphragm.
5. Stab of 21/2 x 1 x 2 cms. elliptical just 1 cm. lateral to espigastrium on right side.
6. Stab of 4 x 11/2 x 6 cms. over right iliac fossa 1 cm. above the anterior superior ilia spine with a part of small intestine emerging out wound directed medially, oblique and downward.
7. Incised wound of 4 x 0.5 x 0.2 cms. over right side of chest horizontal at 7 O’clock position 2 cms. below the right nipple. Incised wound of 3 x 0.5 x 0.2 cms. just below the above injury.
The post-mortem report is at Exh. 54. According to P.W. 12 Dr. Dere, cause of death was haemorrhagic shock due to cardiac rupture as a result of stab injury over heart. According to P.W. 12 Dr. Dere, injuries Nos. 2, 4, 5 and 6 were not possible by the knife seized during investigation. The rest of the injuries, namely injuries Nos. 1, 3 and 7 were possible by the knife. Exh. 50 is a sketch map drawn of the scene of the incident. The scene of the incident is situated in between a stream and a road. The house of deceased Ramji was on one side of the stream while the place of incident is on the other side of the stream. A pump house and a well are shown to be near the place of incident. As per the report of the Chemical Analyser, knife was found to be stained with blood of B group, while the group of blood found on the clothes of the accused could not be determined. The clothes of deceased Ramji were found to be stained with blood of B group. The blood group of accused No. 1, however, could not be determined as per the Chemical Analyser’s report at Exh. 49. The results were inconclusive. Further to the completion of investigation, a charge sheet against the accused came to be filed.
3. On the case being committed to the Court of Sessions, the trial Judge vide Exh. 7 framed a charge against the appellants for an offence punishable under Section 302 read with Section 34 of the Indian Penal Code on the allegation that they had committed the murder of deceased Ramji on 24-10-2001 at 10.00 p.m. Both the appellants denied their guilt and claimed to be tried. Prosecution in order to establish the offence against the accused examined 12 witnesses.
4. P.W. 1 Chandrabhaga states that deceased Ramji was her husband. She along with her husband was residing in the field which is nearly one km. away from Chanegaon village. About 7 to 8 months prior to the incident, there was a quarrel between her husband and accused No. 1 in the village. On the day of the incident, deceased Ramji had gone to Chanegaon village at about 11.00 a.m. and had returned home at about 9.00 to 9.30 p.m. Deceased Ramji had informed Chandrabhaga that there was a quarrel between accused No. 1 and one Sarjerao and Ramji had taken the side of Sarjerao and separated accused No. 1 and the said Sarjerao. Ramji had further informed P.W. 1 Chandrabhaga that due to this the accused No. 1 had given a “dash” to him. Chandrabhaga told Ramji to take his dinner. Suddenly, there was a cry “Tatya Tatya” from the side of the stream. The time was about 10.00 p.m. Deceased Ramji was also known in the village as “Tatya”. Ramji came out of the house followed by Chandrabhaga. The said stream is located towards the rear of the house of deceased Ramji and is at a distance of 30 ft. from the house. According to Chandrabhaga both the accused were standing on the other bank of the stream along with Sarjerao. She states that she along with her husband went near them after crossing the stream. Accused No. 1 abused Ramji and said that he had assaulted him in the village. Ramji also abused accused No. 1. Accused No. 1 caught the neck of Ramji. Chandrabhaga and Sarjerao attempted to separate deceased Ramji and accused No. 1. However, accused No. 1 pushed Chandrabhaga aside. Then accused No. 2 caught Ramji and accused No. 1 gave two to three blows of knife on the abdomen of Ramji. Accused pushed Ramji in the stream and ran away. Sarjerao also ran away with the accused. She took her husband out of the stream and meanwhile Sarjerao also returned and gave water to Ramji P.W. 4 Bhausaheb son of cousin of deceased Ramji came there and Chandrabhaga asked him to arrange for a vehicle from the village. Her nephew Dilip brought a vehicle and Ramji was taken in the said jeep to Loni Hospital where Doctors on examining Ramji pronounced him dead. At about 3.00 to 3.30 a.m. on the next day Chandrabhaga came to Sangamner Police Station and lodged the complaint. According to Chandrabhaga there was a light burning in the house of one Madhav Joshi near the stream, the illumination of which helped her in seeing the incident. She has stated that there was light near the well. In cross-examination she has denied the suggestion that Ramji was addicted to consuming liquor. She has admitted that on both sides of stream, there are thick bamboo trees. She has further admitted that the house of Madhav Joshi is at a distance of 50 ft. from the well. She has also admitted that Sarjerao is her relative. She has admitted that Loni village is at a distance of 15 to 16 Kms. from Chanegaon and 30 to 45 minutes are required to go to Loni village by jeep. She has admitted “Doctor only told me when there was such a big incident, where I was.” She has admitted that Doctor made enquiry how Ramji had received the injury. She has admitted that there is a police station at Loni Hospital. Loni Police Station is nearly one and one-half Kms. away from the hospital. She has admitted that she along with Dilip, brothers of her husband and their wives and her mother-in-law and P.W. 4 Bhausaheb had come to the hospital by jeep. She has also admitted that Sarjerao had come to the hospital in the morning. She has also admitted that they remained near the dead body of Ramji for the whole night. She has admitted that in the morning the inquest panchanama was drawn by Police and at that time police had made enquiry with them regarding the incident. She has also admitted that when dead body was taken for autopsy that time the police had made enquiry with them. She has admitted that the dead body was brought in an ambulance to Chanegaon. She has admitted that relatives had gathered in her house and the last rites took place on the bank of the river. She has admitted that the river is one Km. away from her house and then they all returned back to her house. She has admitted that Sangamner is at a distance of 45 Kms. from Chanegaon and she had come to Sangamner by bus for lodging the complaint. She has admitted that she along with P.W. 4 Bhausaheb, Sanjay, Ashok had come to Sangamner Taluka Police Station and were in the Police Station from 12.00 noon to 4.00 p.m. She has denied the suggestion that Ramji had not returned home upto 11.00 to 11.30 p.m. and therefore she had gone searching for Ramji and had found him in an injured condition on the road. She has denied the suggestion that out of spite, she had lodged a false complaint against accused No. 1. In cross-examination on behalf of accused No. 2 she has denied the suggestion that at the time of the incident accused No. 2 was passing by the road on a motorcycle and she had requested the accused No. 2 to take her husband to the hospital but as the accused No. 2 did not do so, therefore, out of suspicion she had lodged a complaint against him. She has admitted “before lodging the complaint, I narrated the incident to others. I narrated the incident to Doctor and the Police in Loni-Pravara Hospital.” She has admitted as true that from the time of inquest panchanama till the last rites of her husband were performed, she was near his dead body.
5. From the perusal of the complaint at Exh. 18, it is apparent that Exh. 18 came to be lodged in the Sangamner Police Station on 25-10-2001 at “15.35 hours”. P. W. 11 P. I. Bhagat has admitted that Accidental Death No. 0 of 2001 was registered in the Loni Police Station. He has also admitted that if an A. D. (Accidental Death) is registered and a number is given, then it means that the police record the statements of the relatives of the deceased. He has admitted that he had not made any inquiry with Loni Police Station regarding the investigation of the A. D. because it was registered as 0 of 2001. P.W. 10 A.S.I. Argade has admitted that scene of the offence panchanama was completed at 5.45 p.m. and after that statements of seven witnesses were recorded. He has admitted that the last rites on the dead body of Ramji took place at about 3.30 to 3.45 p.m. at Chanegaon. He has further admitted that by a State Transport Bus, one can reach Chanegaon within 40 to 45 minutes. He has admitted not to have received any paper from Loni Police Station. P.W. 9 P.S.I. Shinde has admitted that complaint at Exh. 18 was recorded by Police Constable Khan on 25-10-2001 at 3.35 p.m. The inquest panchanama at Exh. 21 was drawn from 10.00 a.m. and completed at 10.50 a.m. on 25-10-2001. The inquest panchanama was drawn by Police Constable attached to Loni Police Station. As per the evidence of P.W. 12 Dr. Dere, the autopsy of the dead body of deceased Ramji commenced at 11.50 a.m. and was completed at 1.15 p.m.
6. Mr. Chatterjee, the learned Counsel appearing on behalf of the appellant in criminal Appeal No. 379 of 2003 has urged before us that in view of the discrepancy in the evidence of P. W. 1 Chandrabhaga, Chandrabhaga cannot be relied upon. We see considerable force in the submissions advanced by Shri Chatterjee on behalf of the appellant. According to P.W. 1 Chandrabhaga she along with P. W. 4 Bhausaheb and Ors. had taken deceased Ramji to the hospital where deceased Ramji was declared dead. Though she has admitted that police Station Loni is only at a distance of 1 and 11/2 Km. from the hospital, her not going to the Police Station and lodging a report immediately is understandable in view of the trauma which she must have suffered on account of death of Ramji. However, she states that she along with other persons who had accompanied Ramji to the hospital remained in the hospital with the dead body. P. W. 4 Bhausaheb who claims to be an eye witness was also amongst those who was present in the hospital. Yet no report appears to have been lodged. Since the inquest panchanama of the dead body of Ramji was done on the next day from 10.00 to 10.50 a.m. in the hospital, it is curious that no information was communicated by either P.W. 1 Chandrabhaga or by P.W. 4 Bhausaheb who claims to be an eye witness. P.W. 1 Chandrabhaga has stated that P.W. 5 Sarjerao another eye witness to the incident had also come to the hospital in the morning. Chandrabhaga has admitted that the Doctor and the police had made enquiry with her regarding the incident. However, whatever information may have been communicated by Chandrabhaga and Ors. has been suppressed by the Police. It is inexplicable that the Police Officers would feign ignorance and display complete lackadaisical attitude in not soliciting any information from the Loni Police Station. In fact, if any information would have been communicated by the eye witnesses to the Loni Police Station, the same would have been forwarded by the Loni Police Station to the Sangamner Police Station along with the inquest panchanama. Since no information is placed on record along with the charge sheet, it appears that whatever information may have been communicated by the witnesses was not advancing the prosecution case and therefore it has been suppressed. P.W. 1 Chandrabhaga claims to have lodged a report at about 3.00 to 3.30 a.m. on 25-10-2001. However, the report at Exh. 18 bears the time of 15.35 i.e. 3.35 p.m. The Police Officers have admitted that the last rites on the dead body of Ramji were performed in between 3.30 p.m. to 3.45 p.m. on 25-10-2001. It is unbelievable that P.W. 1 Chandrabhaga at that time would be in the police station. In fact, she has admitted that she was with the dead body of Ramji right from drawing of inquest panchanama till the last rites were performed. She has admitted thereafter she had returned home along with other relatives. Therefore, it is clear to us that a report at Exh. 18 came to be lodged after the funeral was performed and not at 3.00 a.m. as is claimed by P.W. 1 Chandrabhaga or at 3.35 p.m. as suggested by the prosecution.
7. P. W. 4 Bhausaheb states that the house of deceased Ramji is at a distance of 50 to 60 ft. from his house. Deceased Ramji was his uncle. According to him on the day of the incident i.e. on 24-10-2001 he was present in the house along with his sister and parents. His mother was serving food to his father and the time was about 10.00 p.m. He had heard words “Tatya – Tatya” and thereafter he had heard cry of Chandrabhaga “run run my husband is being assaulted”. After hearing the wail of Chandrabhaga P.W. 4 Bhausaheb came out of the house and went towards Ramji, he saw that accused No. 2 had caught Ramji and accused No. 1 had given blows by means of knife on the abdomen of Ramji. Ramji was thrown in the stream. When he went near Ramji, Chandrabhaga told him to call brothers of Ramji from the village. According to him, Sarjerao, P. W. 5 was also present there. Sarjerao ran after accused No. 1. He went to the village and narrated the incident to brothers of Ramji. A Driver brought a jeep to the house of Ramji and Ramji was removed in the said jeep to Loni Hospital. He states that he had not gone to the hospital. In cross-examination he has admitted that he had not stated in his statement that house of Ramji was at a distance of 50 to 60 ft. away. Omission has been duly proved that he had not stated in his statement that he was present in the house along with his parents and sister and his mother in law was serving food to his father. Omission has been duly proved that he had not stated that he had heard the wail of Chandrabhaga “run-run my husband is being assaulted”. Omission has also been duly proved that he had not stated in his statement that hearing the wail of Chandrabhaga he had gone towards the house of Ramji. Omission has also been duly proved that he had not stated that Sarjerao chased the accused. Omission has also been proved that he had not stated that he had not accompanied Ramji to the hospital. He has denied to have stated portion marked “A” in his statement that he had gone to the Pravara Hospital, Loni. In cross-examination on behalf of accused No. 2 he has admitted that he had no occasion previously to meet accused No. 2. He has admitted that Sarjerao P.W. 5 is his relative. He has denied the suggestion that Chandrabhaga had asked accused No. 2 who was on the motorcycle to remove Ramji to the hospital. He has admitted that accused No. 2 thereafter left the place on his motorcycle towards the village. He has admitted that funeral of Ramji was performed at about 3.30 p.m.
8. In respect of this witness, Mr. Chatterjee, the learned Counsel appearing on behalf of the appellant has urged before us that taking into consideration the material omission in the evidence of this witness and particularly his conduct, the evidence of this witness is not reliable. P.W. 1 Chandrabhaga in no uncertain terms has stated that P.W. 4 Bhausaheb had accompanied her and others when Ramji was taken in a jeep to the hospital. She has admitted that P.W. 4 Bhausaheb was in the hospital. Police personnel from Loni Police Station had drawn the inquest panchanama on the morning of 25-10-2001. It is therefore inexplicable as to why P.W. 4 Bhausaheb, who was available and claiming to be an eye witness, did not give communicate any information to the police by way of F.I.R. or why his statement was not recorded by the Loni Police. None from Loni Police Station has been examined by the prosecution. We, therefore, find it extremely difficult to place any reliance on the testimony of P.W. 4 Bhausaheb. There are material omissions in the evidence of P.W. 4 Bhausaheb regarding hearing wail of Chandrabhaga and his rushing to the scene on hearing the wail of Chandrabhaga. He states that accused No. 2 went away on motorcycle while the evidence of P. W. 1 Chandrabhaga is silent on the aspect of accused No. 2 going on the motorcycle. According to her, both the accused ran away from the scene. P. W. 4 Bhausaheb makes no reference to the existence of any light in the vicinity of the scene of the offence.
9. P. W. 5 Sarjerao states that deceased Ramji was his brother-in-law. He admits that he had borrowed Rs. 35/- from accused No. 1 about 18 days prior to the incident. According to him on the date of the incident i.e. 24-10-2001 at about 9.00 p.m. he had come to Chanegaon village for work and accused No. 1 had met him and requested him to return the amount immediately. P. W. 5 Sarjerao told accused No. 1 that he would return the amount within 2 to 4 days. Accused No. 1 slapped Sarjerao on his cheek. Deceased Ramji who was standing by the side of Sarjerao came and separated Sarjerao and accused No. 1. Accused No. 1 pushed Ramji. According to Sarjerao accused No. 2 was also present there and took Ramji to one side and accused No. 2 to the other side. Then Ramji went home and both the accused followed Ramji. Sarjerao states that he thought the accused were intending to assault Ramji, and therefore, he followed accused Nos. 1 and 2. Accused went to the stream near the house of Ramji and accused No. 1 called Ramji by saying “Tatya Tatya”. Ramji came out of his house followed by his wife P.W. 1 Chandrabhaga. Both of them crossed the stream to the other side. Accused No. 1 had asked why he had assaulted him in the village and accused No. 1 caught the neck of Ramji. Accused No. 2 caught Ramji from behind and accused No. 1 took out a knife and stabbed Ramji on his abdomen. Ramji fell on the ground. According to Sarjerao he was present there. There was a light burning in the house of one Joshi and Tagad and he had seen the incident in the illumination of the light. According to him he chased accused No. 1 and 2, then returned back where Ramji had fallen. According to him he and Chandrabhaga told P.W. 4 Bhausaheb to bring jeep from the village. Ramji was removed to the hospital in the jeep and he had also accompanied them to the hospital. According to him they had received the dead body at about 11.00 p.m. and the last rites were performed at about 3.00 to 4.00 p.m. on the next day i.e. on 25-10-2001. He has admitted that his statement was recorded by the Police in the house of Ramji. In cross-examination on behalf of the accused omission has been duly proved that he had not stated that in the earlier quarrel Ramji had separated Sarjerao and accused No. 1. He has admitted that it was not specifically mentioned in his statement that Ramji was followed by his wife Chandrabhaga when he came out of his house. Omission has been duly proved that he had not stated that accused No. 2 had caught Ramji from behind. He has admitted that it was not specifically stated that accused No. 1 took out a knife. Omission has been duly proved regarding his not stating about the light which were burning in the house of Joshi and Tagad and Sarjerao having witnessed the incident in the illumination of the light. He states that though he intended to save life of Ramji he did not make any effort to that effect. He admits that a thought came to his mind when he was following both the accused who were proceeding toward the stream. He has stated that accused No. 2 had not come on his motorcycle to Chanegaon village on that day and Sarjerao had not gone to Bazar on Wednesday. He has stated that there are no bushes of babool tree on the banks of the stream. He has admitted that he had not informed either the Doctor or the Police or any one regarding the incident. He has admitted that Police Officer Bhagat recorded his statement at Chanegaon on 25-10-2001 at about 5.00 p.m.
10. In respect of this witness, Mr. Chatterjee, learned Counsel appearing on behalf of the appellants has urged before us that the evidence of this witness is incredulous and deserves to be disbelieved. Sarjerao had been following the accused and had apprehended that they would cause some injury to Ramji, yet when the accused gave a blow to Ramji Sarjerao made no efforts to either forewarn or raise cries to help Ramji. It is true that the conduct of P.W. 5 Sarjerao is extremely unnatural. He states that he had been stalking accused No. 1 right from the place of the earlier quarrel to the stream as he had apprehended that the accused would cause some harm to Ramji. His apprehension must have proved to be justified when the accused gave a call to Ramji. Yet this witness hid himself and made no efforts to either go near the accused or forewarn Ramji. He continued standing rooted to the same place witnessing a ghastly incident of stabbing Ramji and thereafter claims to have gone and chased the accused. All this according to us is wholly unbelievable. Coupled with this, P.W. 1 Chandrabhaga has admitted that Sarjerao had visited the hospital in the morning. Sarjerao admits not to have informed either Doctor or the police or any one regarding the incident till his statement came to be recorded in the evening on 25-10-2001. Undisputedly, Sarjerao is a relative of deceased Ramji. Sarjerao states that deceased was his brother in law. It is unbelievable that despite the fact that Ramji was closely related to P.W. 5 Sarjerao, Sarjerao would not make any effort to avert any harm to Ramji and would continue to remain a silent spectator throughout the incident. It is difficult to digest that he would not inform either the police or the Medical Officers till his statement came to be recorded. The only irresistible inference that can be drawn is that P.W. 5 Sarjerao was not an eye witness to the incident and has stepped into the witness box in order to assist the prosecution.
11. Another aspect which renders the version of three eye witnesses having witnessed the incident is absence of proper illumination. Assuming, that there were lights burning in the house of Joshi and Tagad, the lights were at far distance and illumination of those lights would not render it possible for the witnesses to have witnessed the incident. It appears to us that the suggestion put by the accused in the cross-examination to P. W. 1 Chandrabhaga that since Ramji had not returned home, she had gone in search of Ramji and had found him lying in an injured condition appears to be probable. The silence of Chandrabhaga fortifies an inference that she had not witnessed the incident but had found Ramji lying in an injured condition.
12. The other circumstance against the accused consists of evidence of P.W. 8 Kadushah who is a panch witness to the discovery memorandum alleged to have been made by accused. According to him, he had been called to the police station Sangamner on 25-10-2001 and P. I. Bhagat had informed him that the murder of Ramji had been committed and the accused would produce the knife. He states that accused No. 1 “made the statement that he would produce the knife which was kept in his house at Chanegaon.” He states that thereafter the police and the panchas were taken by accused No. 1 to his house in a police jeep. The accused No. 1 got down from the jeep and led them to the roof of his house and removed it from the roof. In cross-examination he states that he had some work in the police station and therefore had gone to the police station. He states that he was present in the police station when P.I. Bhagat had given him the information. He has admitted that the accused No. 1 at that time was in handcuffs. He has denied the suggestion that accused No. 1 had not made any disclosure statement. P. W. 11 P. I. Bhagat states that in pursuance to the memorandum of accused No. 1 at Exh. 35, knife article-I came to be seized vide panchanama at Exh. 36. In cross-examination he has denied the suggestion that he told the panchas regarding the statement of the accused. According to us the evidence in respect of discovery of knife article-I at the instance of the accused No. 1 does not inspire confidence as P.W. 8 Kadushah has admitted that before the accused had actually made a statement P. W. 11 P. I. Bhagat had informed the panchas that the accused would be producing the knife. Thus the police were aware about the statement which was to be made by the accused and as such according to us no importance can be attached to the disclosure memorandum at Exh. 35 and the consequent recovery of the knife pursuant thereto.
13. After giving our anxious consideration to the submissions advanced before us and after careful scrutiny of the evidence tendered by the prosecution, we are of the opinion that the prosecution has miserably failed to prove the offence against the accused beyond reasonable doubt. Mere recovery of blood stained knife from the house of the house by itself is not sufficient. We have already discarded the evidence in respect of disclosure memorandum alleged to have been made and even if it is assumed that the knife was seized on being produced by accused No. 1, the said circumstance by itself is incapable of sustaining the conviction. Therefore, according to us, the appellants-accused are entitled to be given the benefit of doubt in the face of such lackluster evidence of the prosecution.
14. In the result, Criminal Appeals are allowed. The conviction and sentence passed on the appellants is hereby quashed and set aside and the appellants are acquitted of the offences with which they were charged and convicted. Fine, if paid, be refunded to the appellants. Since the appellant in Criminal Appeal No. 379 of 2003 is in jail, he be released forthwith, if not wanted in any other case. The bail bonds of accused Sahebrao, appellant in Criminal Appeal No. 437 of 2003 are cancelled.