JUDGMENT :

S. S. Shinde, J.

1. Keeping in view the law laid down by the Supreme Court, we have heard and considered this Appeal preferred by the Appellant/State against acquittal of the Respondents/Accused of the offence punishable under Section 302 r/w 34 of the Indian Penal Code by the judgment and order dated 08/10/2002 passed by the learned Additional Sessions Judge, Mumbai in Sessions Case No.1382 of 1998.

2. The case of the prosecution, in brief, can be stated thus :-

One Mr. Krishna Govind Choudhari, the Asstt Police Sub Inspector then attached to Aarey Sub Police Station, Moracha Pada Unit No.30, Aarey Colony, Goregaon (East) Mumbai 65, is the complainant. On the date of incident i.e. on 16/09/1998 at about 00.5 hrs in the night or so, he along with other police constables were on patrolling duty. They stopped their mobile van at Dinkarrao Desai Marg, Picnic Point near Aarrey Colony Chowk and started checking and verifying in-coming and out-going cars in the street light. At that time, the complainant had seen one car coming from Unit No.25 towards Dinkarrao Desai Road. At that time the road was lonely and therefore he decided to stop the said car. Accordingly he stopped the said car for checking. It was a white colour Fiat car bearing No.MH-01-U-7457. The person who was sitting on the driver seat gave his name as Jayashankar Mishra and the person sitting on the rear seat gave his name as Ramraksha Chhatadhari Singh. On inquiry, both of them told the police that they had gone to their relatives. In the mean time police naik Mr.Rane brought to the notice of police officer Choudhari i.e. the complainant that there was blood on the floor of the rear side door of the said car. Therefore Police Officer Choudhari suspected and asked both the persons to get down from the car. They got down. At that time, the complainant had seen blood stains on the shirt of Ramraksha Singh, who was sitting on the rear side of the car, so also he had seen the blood lying on the floor of the car. Therefore, the complainant passed on a message to North West Control Room. Accordingly Station House Officer of Aarey Sub Police Station Mr. Desai and Night Asstt. PI Mr. Pathan came to the spot i.e. Picnic spot. The said police officers made detailed inquiry with both the persons. They told the police officers that they had murdered one person by name Shinde and they had thrown away the dead body of Shinde in the forest of Aarey colony. Thereafter police called two panchas and recorded memorandum of Ramraksha Singh (Accused No.1) in the presence of panchas. Thereafter, accused No.1 led police party and panchas to the spot and pointed out a dead body lying on the left side of the road on western side in the bushes. A clutch wire of the motor-cycle was seen around the neck of the dead person by police officer Mr. Desai. He had also seen blood stains on the mouth and clothes of the deceased. Thereafter police removed the body of the said person Shinde and sent to Cooper Hospital where the doctor on duty declared the said Shinde as dead after examining him before admission. Therefore, the complainant passed on a message regarding the death of said Shinde to North West Control Room and asked them to send police officers to Cooper Hospital. The then police sub Inspector Mr. Rajendra Laxman Desai (PW-10) was on duty as a station house officer in the intervening night of 15/09/1998 and 16/09/1998. Upon receiving the telephonic message from North West Control Room, he had gone to Picnic Point along with police officer Pathan, and after the injured Shinde was sent to Cooper Hospital in mobile van with the police officer choudhari (PW-1), he had drawn the spot cum seizure panchanama. Thereafter he along with police officer Pathan came to police station. At that time he received a phone from Cooper Hospital that the injured succumbed to the injuries before he was admitted to the hospital. Thereafter he and API Pathan went to Cooper Hospital, where he recorded the com