JUDGMENT

Mukherjee, J.-These two appeals, filed under Section 2 of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970, are directed against the judgment and order dated August 16, 1991 of the Bombay High Court in Criminal Appeal No. 294 of 1996 whereby it set aside the acquittal of Rajya @ Raju (hereinafter referred to as A-1 ) and Raju @ Rajendra (hereinafter referred to as A-2 ) of the charge under Section 302/34 I.P.C. recorded in their favour by the Sessions Judge, Wardha and convicted and sentenced them thereunder.

Briefly stated the prosecution case is as under :

(a) On March 14, 1985 at or about 6 P.M. A-1 and A-2 went to the house of Ramkrishna (the deceased), who lived in their neighbourhood, and took into him to the house of Ganesh (P.W.3) where all of them consumed liquor. Thereafter they proceeded towards Ramnagar along the Rashtrabhasha Road. When they reached the Ganesh temple situated on that road A-1 and A-2 started beating Ramkrishna: the former with a hockey stick and the latter with a stone. When, owing to such beating he fell down they took him behind the house of one Timande in a rickshaw and dumped him there. In the meantime two boys had gone to the house of Ramkrishna and told his father Yadaorao (P.W.1) about the incident. P.W.1 immediately rushed to the spot and found his son lying in a rickshaw, but its puller was not there. While he was making arrangement to remove his son to the hospital a police van arrived there. In that van he took his son, first to the police station and from there to the General Hospital, Wardha. After admitting him there P.W.1 came back to the police station and lodged a report about the incident at 8.30 P.M. On that information a case was registered under Section 307/34 I.P.C. and investigation taken up.

(b) In that night at or about 11 P.M. Ramkrishna succumbed to his injuries. After inquest his dead body was sent for post-mortem examination. Dr. Moon (P.W.7) held the autopsy and found twelve injuries on his person including fractures of his left arm and left side of the mandible.

(c) On the following morning (15.3.1985) Inspector Patil (P.W.6) went to the scene of offence and seized a hockey stick, a stone and some earth under a panchnama.

(d) On March 15, 1985 both the appellants were arrested and their wearing apparels which were blood stained, were seized. Those clothes along with the articles seized from the scene of offence and the wearing apparels of the deceased were sent for chemical examination. After receipt of the report of such examination and completion of investigation police submitted charge-sheet against the appellants.

3. The appellants pleaded not guilty to the charges framed against them and contended that they had been falsely implicated.

4. To sustain the charge levelled against the appellants the prosecution relied upon the ocular evidence of Raju (P.W.4) and Gulab (P.W.12), and its corroboration by the medical evidence and the recoveries of blood stained hockey stick and stone from the scene of offence and of blood stained clothes from the persons of the appellants at the time of their arrest, Besides, the prosecution led evidence through P.W.1 to prove that sometime before the incident the appellants came to his house and took the deceased out with them.

5. On consideration of the evidence adduced by the prosecution (no witness was examined by the defence) the trial Court held that P.W. 4 and P.W.12 could not be relied upon: firstly, because they were change witnesses and, secondly, because they did not disclose the fact of their having seen the incident to anybody till they were examined by the Investigating Officer in the afternoon of May 15, 1985. It further observed that in view of the admission of P.W.12 that the two appellants were not known to him from before it was the incumbent duty of the Investigating Agency to have a test identification parade held