ORDER

V.G. Palshikar. J. - Being aggrieved by the judgment dated 12-101999 passed by the Additional Sessions Judge. Pune in Sessions Case No. 303 of 1995 convicting the appellant accused under Section 302 of Indian Penal Code to suffer rigorous imprisonment for life this appeal is filed on the ground as mentioned in the memo of appeal as also verbally canvassed by the learned Counsel appearing on behalf of the appellant accused.

2. The prosecution story stated briefly is that:

On 27-3-1995 around 11.45 p.m. near Jan Mohamed Street. Lashkar Pune the accused Raju launched a murderous attack on deceased. Razak Makbul Maniyar by knife as a result of the injuries the victim died in the hospital. On a complaint being filed which was registered as First Information Report investigation was commenced and the accused was prosecuted for the offence of murder. The prosecution examined witnesses to prove its case. The investigating Officer and other police involved have also been examined amongst those witnesses to prove various documents executed in the presence of witnesses by the police.

3. The learned trial Judge on appreciation of oral as well as documentary evidence came to the conclusion of guilt and accordingly convicted the accused as aforesaid. It is this order which is impugned in this appeal on the grounds mentioned in the memo of appeal as also canvassed by the learned Advocate Mrs. Agarwal for the appellant. With the assistance of the learned Counsel for the appellant and the learned Public Prosecutor we have scrutinized the record and reappreciated the evidence. The submissions made by Mrs. Agarwal to put in nutshell are that (I) the prosecution has not led the correct version of the entire incident before the Court and therefore the evidence is not complete and cannot therefore form basis for such conviction; (ii) the eyewitnesses on which reliance has been placed by the learned Judge are wholly unreliable because of contradictions which were pointed out of her; (Iii) even if the prosecution evidence is considered carefully it will be seen that eyewitnesses could not have seen the assault at all and therefore reasonable doubt arises as to who was the assailant. In the absence of any concrete proof that the accused was the assailant conviction is unsustainable in law.

4. PW 3-Abdul Maniyar who is an eye-witness who has described the assault according to the learned Counsel is liable to be disbelieved because his entire conduct is unnatural. He is related to the deceased and it is highly improbable that such relation would simply walk away from the scene of assault leaving the injured to suffer. If the evidence of this witness is ignored there remains no evidence on record on which the conviction can be sustained because PW 6-Mehboob Qureshi is obviously a chance witness or got-up witness. For all these reasons learned Counsel submitted that the judgment of conviction is liable to be set aside. These arguments were countered by learned Public Prosecutor who pointed out from evidence of PWs 3 and 6 that the eye-witness account given by PW 3 is duly corroborated by PW 6 and the blood collection test etc. prove that the oral testimony of these eyewitnesses is liable to be accepted as correct. It was therefore submitted by learned Public Prosecutor that the judgment is correct.

5. We have to appreciate rival contentions in the light of evidence as reappreciated by us. PW 1 Dr. Shrikant Chandekar is Doctor who conducted post-mortem. proved post-mortem report. He has proved homicidal death of the victim. There can be no doubt that the death of the victim was homicidal. The only question which consequently remains is whether that homicidal death was committed by accused only. PW 2 Prakash Yadav is Panch witness but he has turned hostile. He has stated that he has only signed the Panchanama and has denied everything stated in toto. He was Panch to spot Panchanama. However nothing turns on proof of spot Panchanama. Even if it is prov