2004 ALL MR (Cri) 682
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

D.D. SINHA AND P.S. BRAHME, JJ.

Sayyed Amir Sayyad Amanoddin Vs. State Of Maharashtra

Criminal Appeal No.19 of 1999

8th October, 2003

Petitioner Counsel: Shri. M. R. DAGA
Respondent Counsel: Shri. D. B. MIRZA

(A) Evidence Act (1872), S.3 - Appreciation of evidence - Assumptions and presumptions - In criminal law, there is no place for assumptions and presumptions - Fact has to be proved by adducing cogent and convincing evidence. (Para 21)

(B) Evidence Act (1872), S.3 - Appreciation of evidence - Case based on circumstial evidence - Each individual circumstance has a prominent role to play and helps prosecution in completing chain of circumstances, which must ultimately lead to irresistible conclusion to establish guilt of accused beyond reasonable doubt.

When the case is solely based on the circumstantial evidence, in such situation each individual circumstance has a prominent role to play and helps the prosecution in completing the chain of circumstances, which must ultimately lead to irresistible conclusion to establish the guilt of the accused beyond all reasonable doubt. However, when the case is based on the direct evidence and if the direct evidence is found to be worthless, then the situation is other way round. [Para 24]

(C) Criminal P.C. (1973), S.154 - First Information Report - F.I.R. is not the substantive piece of evidence - It can only be used to corroborate statement of maker under S.157 of Evidence Act or to contradict it under S.145 of Evidence Act. Evidence Act (1872), Ss.3, 145, 157.

First Information Report is not the substantive piece of evidence and can only be used to corroborate the statement of maker under Section 157 of the Evidence Act or to contradict it under Section 145 of the Evidence Act. It cannot be used as an evidence against the maker at the trial if he himself becomes an accused or co-accused, nor it can be used to corroborate or contradict other witnesses. In view of the above referred legal proposition, the First Information Report, as per the above referred provisions of the Evidence Act, can only be used for corroborating the substantive evidence adduced by the maker in the Court or for contradicting the same and, therefore it is impermissible to use First Information Report either to corroborate the testimonies of the other witnesses, or to contradict evidence of the other witnesses. On the backdrop of this well settled legal proposition, it was held that the recitals in the oral report cannot be used for corroborating the material particulars of the prosecution case brought on record by the prosecution witnesses, nor their testimonies can be contradicted in this regard and, therefore, it cannot be treated as an evidence in that sense of the term so far as present case of the prosecution is concerned. [Para 26]

(D) Evidence Act (1872), S.101 - Penal Code (1860),S.96 - Burden of proof - Private defence - Prosecution in all cases has to stand on its own legs and is required to prove the complicity of the accused on its own - Burden which rests on prosecution to establish its case is neither neutralised, nor shifted merely because the accused has pleaded right of private defence.

Proposition of law that prosecution in all cases has to stand on its own legs and is required to prove the complicity of the accused on its own. The burden, which rests on the prosecution to establish its case, is neither neutralised, nor shifted because the accused has pleaded the right of private defence. In fact, the prosecution is required to discharge its initial traditional burden to establish the complicity of the accused and till such time, question does not arise whether the accused has acted in self-defence. In fact, the right of self-defence accrues to the accused only on discharging the burden by the prosecution by proving the complicity of the accused in the crime in question. At no point of time, this initial burden is lessened or shifted merely because accused raised the plea of right of private defence. In view of this sound legal proposition, in the instant case merely because the plea of right of private defence is raised by the accused, it does not reduce the traditional burden of proving the complicity of the present appellant in the crime in question. To prove the complicity of the accused in the case of murder, the prosecution shall neither get any benefit in this regard, nor the prosecution can claim that since the incident of assault and participation therein is not disputed by the accused by raising the plea of right of private defence, it should be concluded that the prosecution succeeded in proving the complicity of the appellant in the crime in question. In the instant case, as the prosecution has failed to prove the charge of murder against the appellant by adducing convincing and cogent evidence, the plea of private defence of the accused does not, by itself, improve the prosecution case. [Para 27]

JUDGMENT

D. D. SINHA, J.:- Heard Mr. Daga, learned counsel for the appellant and Mr. Mirza learned Additional Public Prosecutor for the respondent-State.

2. Present criminal appeal is directed against the Judgment and Order, dated 3rd December, 1998, passed by Additional Sessions Judge, Khamgaon, in Session Trial No.16 of 1993, whereby the appellant is convicted for the offence punishable under Section 302, Indian Penal Code, and sentenced to suffer imprisonment for life, and the co-accused Sayyad Amanoddin Sayyad Ajam is acquitted of the offence under Section 302 of the Indian Penal Code.

3. The circumstances, which resulted in the prosecution of the present appellant under Section 302 of the Indian Penal Code, in nutshell, are as follows :-

Deceased Sayyad Nazim was the son of Sayyad Khalil Sayyad Wazir (P.W.5) of village Candur-Biswa. Deceased Sayyad Nazim used to sell fruits and other articles in the running trains between Malkapur and Akola. Accused Sayyad Amir, the present appellant, was also doing the same business. There used to be quarrels between them often on account of their business rivalry. On 5/1/1993, Sayyad Khalil (P.W.5) returned to his house at about 2.00 p.m. from Malkapur. Since he was not keeping well, he stayed at home. Sayyad Afjaloddin was his neighbour. At about 9.30 p.m., Sayyad Khalil heard the voice of co-accused Sayyad Amanoddin, who was waking up Sayyad Afjaloddin and they were saying that they would kill Sayyad Nazim. Sayyad Khalil, therefore, suspected some foul play and came out of his house. He noticed that accused were carrying weapons like "Koyata" and axe respectively, whereas Afjaloddin, Sayyad Vikramoddin and Rahim Rafique joined the accused and all of them went to the side of one hut wherein people used to play cards. Sayyed Khalil followed them up to the said hut. He then heard the shouts of co-accused Amanoddin saying "kill Sayyad Nazim". Sayyad Khalil (P.W.5) got frightened and returned home. On the next day morning, he rushed to the said hut only to see his son Sayyad Nazim lying dead on the road nearby the hut and his right hand was found chopped off. There were injuries to the left palm and head of Sayyad Nazim. Sayyad Khalil rushed to the Police Outpost at village Chandur-Biswa and lodged a report (Exh.43) against all those five assailants including the present appellant and his father.

4. The report (Exh.43) lodged by Sayyad Khalil was forwarded to Police Station Nandura by Head Constable Mansingh. It was received by Head Constable Kalaskar (P.W.10), who registered Crime No.5 of 1993 under Sections 147, 148, 149 and 302 of Indian Penal Code against five assailants and Mr. Akhare (P.W.11), who is the Investigating Officer, took over investigation. Akhare (P.W.11) conducted Inquest Panchanama (Exh.17) and Spot Panchanama (Exh.18) through Police Sub-Inspector Mr. Kankare. He then sent the dead body of deceased Sayyad Nazim for Post-mortem Examination to the General Hospital, Khamgaon. He arrested Sayyad Afjaloddin, Sayyad Vikramoddin and Rahim Rafique. He found the accused Sayyad Amir at the house of his sister. Sayyad Amir had an injury on his right leg and, therefore, Mr.Akhare (P.W.11), Police Station Officer, referred him for treatment initially to Primary Health Centre, Nandura. Dr. Dhanokar (P.W.13) examined the accused and noticed lacerated wound on the right leg below the knee joint of Sayyad Amir. Suspecting a fracture, Dr. Dhanokar referred Sayyad Amir for further treatment to General Hospital, Buldana. Sayyad Amir was discharged from hospital on 27-1-1993. Police Station Officer Akhare arrested him after his discharge from the hospital.

5. Police Station Officer Akhare came to know that the co-accused Sayyad Amanoddin was referred initially to Primary Health Centre at Wadner (Bholji), since he had suffered in incised wound on the right forearm and from there he was referred to General Hospital, Khamgaon and thereafter to Akola. Accused Sayyad Amanoddin was arrested on 11/3/1993 after he was discharged from the hospital.

6. Mr. Akhare, Police Station Officer, during the course of investigation, recorded statements of Tanaji Shegokar (P.W.1), Gajanan Chavan, Saiufullakhan, Vinod Patil and a few others. During the course of interrogation of these witnesses, Police Station Officer Akhare discharged the accused Sayyad Afjaloddin, Sayyad Vikramoddin and Rahim Rafique under Section 169 of Criminal Procedure Code, since there was no evidence against these accused and prosecuted the present appellant Sayyad Amir and his father Sayyad Amanoddin for commission of murder of Sayyad Nazim. Charge was framed against the present appellant and co-accused Sayyad Amanoddin. The accused denied the same and claimed to be tried. The defence of the accused was that Sayyad Afjaloddin, Sayyad Vikramoddin and Rahim Rafique had caused the death of Sayyad Nazim by assaulting him with an axe. The co-accused Sayyad Amanoddin had lodged a report (Exh.56) in Police Chowky, but P.S.O. Akhare carried out one-sided investigation which is apparent from the fact that he discharged accused Sayyad Afjaloddin, Sayyad Vikramoddin and Rahim Rafique under Section 169, Criminal Procedure Code.

7. In the present case, the accused have admitted an Inquest Panchanama (Exh.17) of the dead body of Sayyad Nazim, Spot Panchanama (Exh.18), Post-mortem Examination Report (Exh.19), dated 6/1/2003, a seizure of garments of deceased Sayyad Nazim and visceras in two bottles (Exh.26), an attachment of a petromax from Mohammed Sadique on 7/1/1993 (Exh.27), a seizure of piece of glass of the petromax (Exh.28) and various reports of the Chemical Analyser. Similarly, the accused have not disputed that Dr. Chudhary (P.W.7) noticed as many as twelve extensive injuries on the dead body of Sayyad Nazim including an amputated stump of right forearm, incised wound on the left forearm, incised wound on right parietal region on the right external ear.

8. Mr. Daga, learned counsel for the appellant, contended that in the instant case, the entire prosecution case is based on the testimony of eye-witness Tanaji (P.W.1). It is contended that the testimony of this witness cannot be relied on, since he himself has admitted in the cross-examination that he could not see the incident, i.e., who assaulted whom because of darkness. It is further contended that even as per the prosecution case put forth by Tanaji (P.W.1), it was the deceased Sayyad Nazim who came to the hut where this witness along with accused Sayyad Amir and others were playing cards. At 10.30 p.m., Sayyad Nazim was standing at the door of the hut. Sayyad Amanoddin then lifted the petromax and saw the deceased Sayyad Nazim. Sayyad Amanoddin then told witness and others who were present in the hut that Sayyad Nazim was standing outside the hut with a weapon like "Koyata" (sickle). Sayyad Amanoddin threw the petromax on the person of the deceased Sayyad Nazim. The said petromax fell on the ground and was broken. Mr. Daga states that this witness further deposed that deceased Sayyad Nazim then struck a blow of Koyata on the hand of the co-accused Sayyad Amanoddin and, therefore, Amanoddin shouted and said that deceased Sayyad Nazim had cut his hand. The accused Sayyad Amir (son of Sayyad Amanoddin), who was present in the hut, accosted deceased Sayyad Nazim, snatched Koyata (sickle) from his hand and gave blows and alleged that accused Sayyad Amir gave a blow by means of sickle (Koyata) on the person of deceased Nazim. Mr. Daga, learned counsel, contended that so far as the evidence of this witness in respect of alleged blows of Koyata given on the person of the deceased Nazim is concerned, it is completely shattered in view of the categorical admission given by this witness in his cross-examination that because of darkness in the hut, he could not see who had beaten whom. It, thus, completely shatters the ocular testimony of this witness in respect of actual occurrence in the hut and, therefore,the testimony of this witness cannot be believed. At the same time, the evidence of this witness clearly shows that deceased Nazim came to the hut armed with a weapon like Koyata. It is submitted that the trial court erred in relying on the evidence of this witness, which has resulted in miscarriage of justice.

9. Mr. Daga, learned counsel, further contended that in the present case if the evidence of Tanaji (P.W.1) is not acceptable, then the other circumstances brought on record by the prosecution is inadequate to prove the charge against appellant. It is further contended that in the instant case, in the First Information Report lodged by Sayyad Khalil (P.W.5), the father of the deceased, he has named other three accused along with the present appellant and his father Sayyad Amanoddin as assailants. According to him, all these accused were armed with weapons like sickle and axe and all gave blows with their respective weapons on the person of deceased Nazim. It is contended that since Tanaji (P.W.1), the sole eye-witness, could not witness the incident because of darkness,the prosecution has miserably failed to establish who, in fact, has caused injuries on the person of the deceased as well as who is the author of the injury which resulted in death. In absence thereof, the trial court ought to have acquitted the present appellant.

10. Mr. Daga, learned counsel for the appellant, contended that though the trial court has rightly disbelieved the evidence of Sayyad Khalil (P.W.5) being inconsistent with that of the testimony of Tanaji (P.W.1), however, this witness has not been declared hostile to the prosecution and in the report (Exh.43) lodged by this witness, he has attributed a weapon like axe to Sayyad Afjaloddin, Sayyad Vikramoddin and Rahim Rafique and has not stated accordingly in the trial which really creates a doubt about the material particulars of the prosecution case and, therefore, the trial court ought to have disbelieved the evidence of the sole eye-witness. It is further contended that as far as other evidence adduced by the prosecution in respect of Spot Panchanama, Post-mortem Report, seizure of clothes, viscera, reports of Chemical Analyser is concerned, the same is not disputed by defence. However, these circumstances alone are not sufficient to record conviction of the appellant for the offence punishable under Section 302, Indian Penal Code.

11. Mr. Daga, learned counsel for the appellant, alternatively contended that the accused in his examination under Section 313, Criminal Procedure Code, has taken a specific defence that on 5-1-1993 at about 9.30 p.m., Sayyad Afjaloddin, Sayyad Vikramoddin and Rahim Rafique had beaten deceased Sayyad Nazim in the weekly market. At that time, he was playing cards in the hut. He heard shouts and came out of the hut. His father Amanoddin and he rushed near the place of quarrel and they tried to rescue deceased Sayyad Nazim, in which the appellant and his father got injured. Both then rushed to Police Chowky at Chandur - Biswa and father of the accused, i.e., co-accused Sayyad Amanoddin, lodged a report (Exh.56), wherein it is stated that at the relevant time deceased Nazim had a sickle in his hand and he rushed towards Sayyad Amanoddin and assaulted the co-accused Sayyad Amanoddin on his right wrist with sickle and injured him. The deceased Nazim also injured the present appellant Sayyad Amir by assaulting on his right calf with the sickle. It is further stated in the said report that Sayyad Afjaloddin and other persons, who were also armed with weapons, delivered blows on the person of deceased Sayyad Nazim and injured him. Similarly, the Koyata was snatched from the hand of deceased Nazim by the present appellant Sayyad Amir and he also in his self-defence inflicted some blows on deceased Nazim. It is contended that the prosecuting agency has not prosecuted the other co-accused mentioned in the First Information Report (Exh. 56) lodged by the co-accused Sayyad Amanoddin , father of the present appellant as well as in the First Information Report (Exh.54) lodged by Sayyad Khalil (P.W.5), father of deceased Sayyad Nazim and P.S.O. Akhare (P.W.11) discharged them under Section 169, Criminal Procedure Code and thereby suppressed the very genesis of the crime in question and since the sole eye-witness Tanaji (P.W.1) examined by the prosecution admitted that because of the darkness, he could not witness who has assaulted whom, the prosecution has miserably failed to prove the case of murder of deceased Nazim against the appellant.

12. The Additional Public Prosecutor, on the other had, supported the judgment of conviction recorded by the trial court and contended that the evidence adduced by the prosecution can be categorized in different categories, one of which is ocular evidence. Under this category, the evidence adduced by eye-witness Tanaji Shegokar (P.W.1), Subhash Chambhare (P.W.4) and complainant Sayyad Khalil (P.W.5) needs to be appreciated. Another category of evidence is medical evidence adduced by Dr. Chaudhary (P.W.7) and reports of Chemical Analyser and the third one is circumstantial evidence.

13. Mr. Mirza, learned Additional Public Prosecutor, argued that in the instant case, the sole eye-witness to the incident is Tanaji (P.W.1). It is submitted that Tanaji deposed that at the relevant time, he was playing cards in the hut, i.e., club room, wherein one petromax was burning and in the light of the said petromax, this witness was playing cards along with accused and others. After some time, Govinda Bhoi and Ashok Hiwale left the hut. Gaganan Chavan, Salauddin, Abdul Sayeed, Vinod Patil and both the accused, however, continued to play cards in the hut. This witness further deposed that at about 10-30 p.m., deceased Sayyad Nazim came to the door of the hut. The co-accused Sayyad Amanoddin saw him in the light of the petromax and shouted that deceased Sayyad Nazim had a weapon like "Koyata". Co-accused Sayyad Amanoddin threw the petromax on the person of Sayyad Nazim. In that bid, the petromax broke. The accused Sayyad Amir went towards deceased Sayyad Nazim, felled him down on the ground and snatched Koyata (sickle) from the hand of the deceased and gave blows by sickle on the person of deceased Nazim. This witness has further deposed that accused Sayyad Amir gave a blow on the right palm of deceased Nazim and, therefore, right palm was severed from his hand. Sayyad Amir then gave another blow by means of a Koyata on the left wrist of deceased Sayyad Nazim, because of which the left palm of Sayyad Nazim was also severed from his left hand. This witness further stated that accused Amir thereafter threw the said weapon of offence, i.e., Koayata, lifted deceased Sayyad Nazim and dragged him at some distance and thereafter left. The Additional Public Prosecutor contended that the evidence of this witness clearly proves the material particulars of the prosecution case against the present appellant and further establishes that the injuries found on the person of the deceased Sayyad Nazim are caused by present appellant-accused. It is submitted that the evidence of this witness has rightly been accepted by the trial court by appreciating the contradictions and omissions in the evidence of this witness, which are not material in nature.

14. The Additional Public Prosecutor states that Subhash (P.W.4) is another prosecution witness, who has deposed in his evidence that he had borrowed Rs.20/from deceased Sayyad Nazim prior to 5/1/1993. On 5/1/1993 at about, 7.00 p.m., he had gone to the hut where Tanaji (P.W.1) and accused along with others were playing cards. Tanaji (P.W.1) gave this witness Rs.5/- and asked him to buy Bidis for him. Therefore, this witness went to Vikas Pan Stall and purchased Bidis. While he was returning to the hut, he found deceased Sayyad Nazim standing near the liquor shop of Gausuddin. On seeing this witness, deceased Nazim asked him to repay his amount of Rs.20/-. This witness told him that he had no money and would return Rs.20.00 in the morning. Deceased Nazim abused this witness and insisted that he must repay his money. This witness further deposed that he thereafter started running towards the hut and on reaching the hut, he handed over those Bidis to Tanaji (P.W.1). Deceased Nazim came to the hut and caught hold of Sayyad Amir by neck and he saw scuffle between deceased Sayyad Nazim and Sayyad Amir. The Additional Public Prosecutor, therefore, contended that the evidence of this witness also corroborates the material particulars of the prosecution case.

15. It is further contended that so far as the evidence of Sayyad Khalil (P.W.5) is concerned, he is the author of First Information Report (Exh.43). However, the story put forth by this witness in Exh.43 being inconsistent with that of the evidence adduced by this witness in the Court as well as evidence of Tanaji (P.W.1), the trial court has not given much importance to the evidence of this witness as far as other aspects are concerned. However, it rightly believed the testimony of this witness Khalil so far as it relates to the role played by accused Sayyad Amir and to that extent the report (Exh.43) lodged by this witness was also rightly relied by the trial court in order to prove that the present appellant Sayyad Amir was the assailant.

16. The Additional Public Prosecutor further contended that recovery of weapon at the instance of accused Sayyad Amir is also an incriminating circumstance relied on by the trial court, which corroborates the testimony of this witness. It is contended that Dr. Chaudhary (P.W.7) conducted Post-mortem examination on the dead body of Sayyad Nazim and found multiple injuries on the person of the deceased. Some of them are incised wounds, contusions, abrasions, lacerations, amputation etc. and the said Dr. Chaudhary finally opined that the cause of death was due to head injury and amputation of right hand and injury to left forearm with hemorrhage and intracranial hemorrhage due to fracture of skull as described in Column 19. It is submitted that the Post-mortem Examination Report is admitted by the defence and in the present case medical evidence, therefore, corroborates the testimony of eye-witness Tanaji (P.W.1). The Additional Public Prosecutor, therefore, contended that in the instant case, the prosecution has succeeded in proving the prosecution case for the offence punishable under Section 302, Indian Penal Code, against the appellant and the trial court was justified in recording the finding of conviction for the offence punishable under Section 302 of the Indian Penal Code.

17. We have given our anxious thought to various contentions canvassed by the counsel for the appellant as well as the State, re-considered the evidence adduced by the prosecution and perused the judgment of the trial Court.

18. In the instant case, the evidence adduced by the prosecution will have to be considered from various dimensions, since it is forthcoming in different forms. In this case, there is only one eye-witness to the incident, namely Tanaji (P.W.1) examined by the prosecution. The entire prosecution case, more or less, is based on the testimony of this witness Tanaji (P.W.1). The trial court accepted the evidence of this witness Tanaji as an eye-witness to the incident and since there is a corroboration forthcoming from the medical evidence as well as discovery of weapon of offence, coupled with the evidence of Subhash (P.W.4) and Khalil (P.W.5), the trial court held that prosecution succeeded in proving the case against the present appellant for the offence punishable under Section 302, Indian Penal Code, for causing the death of Sayyad Nazim. It will be appropriate, at this stage, to scrutinize the evidence of Tanaji (P.W.1). It is, no doubt, true Tanaji (P.W.1) has stated in his examination-in-chief that at the relevant time, he was playing cards along with the accused as well as other persons in the hut, which was known as a "club". On the day of incident, at about 10.30 p.m., deceased Sayyad Nazim came to the said hut. Co-accused Sayyad Amanoddin lifted the petromax and saw deceased Sayyad Nazim standing at the door of the hut. Sayyad Amanoddin then told this witness and others that deceased Sayyad Nazim was at the door of the hut with a weapon like Koyata. Sayyad Amanoddin thereafter threw the petromax on the person of Sayyad Nazim. Petromax fell on the ground and was broken and because of that, the flame of petromax was extinguished. It is pertinent to note that this witness further stated in his examination-in-chief that he has seen Sayyad Nazim. Then Sayyad Nazim gave a blow of Koyata on the hand of co-accused Amanoddin, who shouted by saying that deceased Sayyad Nazim had cut his hand. Accused Sayyad Amir went towards deceased Sayyad Nazim, felled him on the ground, snatched Koyata (sickle) from the hand of Sayyad Nazim and thereafter accused Sayyad Amir inflicted blows on the person of deceased Sayyad Nazim by means of a Koyata (sickle). The plain reading of the examination-in-chief of Tanaji (P.W.1) clearly reveals that deceased Sayyad Nazim came to the hut, armed with a weapon of offence, i.e., Koyata, at the time when Tanaji (P.W.1), accused and others were playing cards in the said hut. It also reveals that co-accused Sayyad Amanoddin could identify the deceased Sayyad Nazim in the light of petromax and he threw the petromax on the person of Sayyad Nazim, with the result the petromax fell on the ground, was broken and flame of the petromax was also extinguished. There is nothing on record to show that there was any other light in the hut and since the petromax was broken, obviously there was a complete darkness in the hut and, therefore, at this stage, it will be appropriate to consider the very pertinent admission given by Tanaji (P.W.1) in his cross-examination, which affects the credibility of testimony of this witness adversely. In the cross-examination, this witness has categorically stated that as there was darkness in the hut, he could not see who had beaten whom. This admission in the cross-examination of this witness needs to be understood in the above mentioned sequence of events. The incident of assault by deceased Nazim on co-accused Amanoddin, snatching of Koyata by accused Sayyad Amir from the hand of deceased Nazim and giving of blows by accused Amir on the person of deceased Sayyad Nazim had taken place after the petromax was broken and the flame thereof was extinguished and, therefore, there was complete darkness in the hut and because of darkness, this witness has admitted in the cross-examination that he could not see who had beaten whom. This admission, in our considered view, completely destroys the ocular testimony of this witness, and the veracity of the ocular testimony of this witness has been completely shaken.

19. The admission of Tanaji (P.W.1) in the cross-examination that he could not see who had beaten whom because of the darkness is very much consistent with the sequence of events referred to hereinabove and brought on record by Tanaji (P.W.1) in his examination-in-chief. We have already observed that there is nothing on record to show that there was any other light available in the hut other than the light of the petromax. It is also not in dispute that the alleged incident of assault either by deceased Nazim on the person of co-accused Sayyad Amanoddin or by accused Sayyad Amir on the person of deceased Sayyad Nazim had taken place after the petromax was broken and the flame or light of the same was extinguished and, therefore, admission of Tanaji (P.W.1) in the cross-examination that he could not see who had beaten whom because of darkness is totally consistent with the facts and circumstances brought on record by the prosecution in the examination-in-chief of Tanaji (P.W.1) itself. If there was a complete darkness in the hut, the question of witnessing the incident by Tanaji (P.W.1), which had taken place in the hut, does not arise. This witness has, in no uncertain terms, accepted this fact and, therefore, we have no hesitation to hold that this witness could not see the incident in question because of darkness in the hut. Consequently, the ocular testimony of this witness cannot be relied on. As such we have no hesitation to hold that Tanaji (P.W.1) has not witnessed the incident of assault at all.

20. The trial Court treated this admission of Tanaji (P.W.1) in a very casual manner by observing that in the opinion of the trial court, such a stray admission during cross-examination cannot be attached more importance when Tanaji (P.W.1) specifically stated that accused Amir gave blows of Koyata on the head and both the hands of Sayyad Nazim. Appreciation of evidence of Tanaji (P.W.1) done by the trial court, in our view, is completely perverse and misconceived. We have already observed that in the light of the sequence of events brought on record by the prosecution in the examination-in-chief of Tanaji (P.W.1), the admission of Tanaji (P.W.1) in the cross-examination that he could not see who beat whom because of darkness is completely consistent with the sequence of events, which also goes to the root of the testimony of this witness and destroys the ocular testimony of this witness completely and renders the same unacceptable. The trial court, in our considered view, has erred in accepting the version of this witness of giving blows by accused Amir on the person of deceased Nazim, when this witness himself is very specific and categorical about the fact that he did not see who beat whom. Therefore, the finding recorded by the trial court in this regard is misconceived and devoid of substance.

21. So far as the evidence of Subhash (P.W.4) is concerned, the same does not corroborate the material particulars of the prosecution case, since the incident of scuffle between Sayyad Nazim and Sayyad Amir, as narrated by this witness in his deposition, had taken place around 7.00 p.m. on the day of incident, i.e., 5/1/1993, which is an independent occurrence and, therefore, the evidence of this witness cannot be treated as a corroborative piece of evidence to the main incident of assault which had taken place at 10.00 p.m. Hence the finding of the trial court in this regard also is unsustainable in law. In the Criminal Law, there is no place for assumptions and presumptions. The fact has to be proved by adducing cogent and convincing evidence, and, therefore, merely because there was some incident of scuffle having taken place on the date of incident between deceased Nazim and accused Sayyad Amir at 7.00 p.m., it cannot be presumed that since there was enmity between the deceased and accused Sayyad Amir, there must have been another incident which had taken place at 10.00 p.m., near the hut between deceased Sayyed Nazim and accused Sayyad Amir, wherein deceased Nazim was assaulted by Sayyad Amir. We have already observed that the Court cannot either assume or presume happening of the fact one way or the other unless there is a cogent and convincing evidence adduced by the prosecution to that effect in order to prove the said fact. In absence thereof, the evidence of Subhash (P.W.4) by itself is of no consequence to the case of the prosecution.

22. The prosecution, in the present case, has examined Sayyad Khalil (P.W.5), father of deceased Sayyad Nazim, in order to prove the oral report (Exh.43) lodged by this witness against the accused on 6/1/1993 at the Police Outpost. It is pertinent to note that in the oral report (Exh.43), this witness has stated that there was enmity between his son deceased Sayyad Nazim and the appellant-accused Sayyad Amir and other co-accused Sayyad Amanoddin over the issue of business. In the report, this witness has further stated that at about 9.30 p.m., on 5/1/1993, when he was at his house, he heard the co-accused Sayyad Amanoddin loudly saying to Sayyad Afjaloddin, who was residing by the side of his house, that Sayyad Nazim had quarreled with accused Sayyad Amir and, therefore, he should be taught a lesson. After hearing these words, this witness has further stated in Exh.43 that he came out of his house and saw Sayyad Amanoddin, Sayyad Afjaloddin, Sayyad Vikramoddin, Rahim Refique, Sayyad Amir and other persons rushing towards weekly Market. Sayyad Afjaloddin, Sayyad Vikramoddin and Rahim Rafique were armed with weapons like axe. At that time, his son deceased Sayyad Nazim was standing near the weekly Market. All of them delivered blows on his son Sayyad Nazim by means of weapons like axe and Koyata (sickle), due to which his son Sayyad Nazim fell down. This witness apprehended that the accused persons might assault him, he left the place and returned to his house. It is, therefore, evident that according to this witness, deceased Nazim was assaulted not only by the present appellant Sayyad Amir, but by all other persons referred to hereinabove, by means of a weapon like axe or Koyata, with the result Sayyad Nazim died on the spot. It is interesting to note that the witness Khalil (P.W.5) gave an altogether different version of incident in his deposition before the Court. In the examination-in-chief, this witness has stated that on the day of incident at about 9.30 p.m., while he was at home, co-accused Sayyad Amanoddin came there, who was accompanied by his son, the present appellant, Sayyad Amir and two others. According to this witness, the co-accused Sayyad Amanoddin had an axe and his son present appellant Sayyad Amir had a Koyata in his hand. Sayyad Afjaloddin, Sayyad Vikramoddin and Rahim Rafique had no weapons in their hands. All of them rushed in the direction of the hut, which was known as a "Gambling Den." At that time, this witness was standing by the side of the said hut and heard that the co-accused Amanoddin was shouting and asking his son Sayyad Amir to kill Sayyad Nazim. His son deceased Sayyad Nazim was also talking loudly. This witness has further deposed that on hearing the above conversation, he got frightened and returned home and on the next day morning, he found his son deceased Sayyad Nazim lying dead on the road near the hut. His right palm was amputated and there were injuries to his left palm and head. He rushed to the Police Station and lodged Exh.43. The close scrutiny of the evidence of this witness would reveal that this witness has given completely a contradictory version in his evidence than what he has stated in the First Information Report (Exh.43). In Exh.43, he claims to have seen the assault on his son deceased Sayyad Nazim by the present appellant along with acquitted co-accused Sayyad Amanoddin as well as Sayyad Afjaloddin, Sayyad Vikramoddin and Rahim Rafique by deadly weapons like axe and Koyata, due to which he fell down and died on the spot. However, in the examination-in-chief of this witness Khalil (P.W.5), he claims that at the relevant time only co-accused Amanoddin and present appellant Sayyad Amir had an axe and Koyata (sickle) respectively, and so far as Sayyad Afjaloddin, Sayyad Vikramoddin and Rahim Rafique are concerned, they had no weapons in their hands. In his examination-in-chief, this witness further claims that he only heard the co-accused Amanoddin asking his son the present appellant Sayyad Amir to kill his son deceased Sayyad Nazim. However, after hearing this conversion, he got frightened and went home. This witness is, therefore, very positive in is evidence that he did not see the incident of assault on his son deceased Sayyad Nazim committed by anybody, including the present appellant. Perusal of recitals in the oral report (Exh.43) lodged by this witness highlights that he is implicating the present appellant as well as co-accused Amanoddin and other persons referred to hereinabove in the offence in question, whereas in his deposition before the Court, he has completely given a different story and does not also claim to be an eye-witness to the incident of assault by any of the accused on his son deceased Sayyad Nazim. It is, therefore, evident to us that this witness has contradicted all the material particulars of the prosecution case mentioned in the oral report (Exh.43) in his ocular testimony before the Court. The contradictions are of material nature and destroy the very fibre of the ocular testimony of this witness. Testimony of this witness Sayyad Khalil (P.W.5), in our considered view, creates a serious doubt about the material particulars of the prosecution case so far as it relates to the assault on deceased Sayyad Nazim by the present appellant. The evidence of this witness needs to be discarded completely and no portion of his deposition can be relied on. The trial court has completely misread the evidence of this witness and recorded totally misconceived finding that the evidence of this witness has succeeded in proving the fact that the appellant Sayyad Amir and co-accused Sayyad Amanoddin were the assailants and they assaulted deceased Sayyad Nazim. The finding is completely incorrect and totally perverse. The evidence of this witness needs to be rejected in to to for the reasons stated hereinabove.

23. The prosecution in the present case has examined Dr. Chaudhary (P.W.7) to prove the Post-mortem Examination Report. It is, no doubt, true that the Post-mortem Report, which is an admitted document by the defence, reveals that deceased Sayyad Nazim suffered multiple injuries, out of which some are incised wounds, abrasions, lacerated wounds, amputation of right forearm and some superficial abrasions on the body of the deceased. However, the medical evidence only establishes the injuries suffered by the victim and does not prove the author of the injuries and, therefore, unless there is a convincing and cogent evidence adduced by the prosecution, in order to prove who is the author of the injuries, the medical evidence by itself does not further the case of the prosecution even though the Post-mortem Examination Report is admitted by the accused.

24. In the instant case, it is, no doubt, true that the defence has admitted Inquest Panchanama (Exh.17) of the dead body of Sayyad Nazim, Spot Panchanama (Exh.18), seizure of clothes of deceased Nazim, various reports of Chemical Analyser. However, this is a corroborative evidence and is not the substantive piece of evidence. In the instant case, as the prosecution is based on the direct evidence of Tanaji (P.W.1) and the evidence of this witness is already rejected by us in view of the admission of this witness in the cross-examination wherefrom it is apparent that this witness could not see the incident of assault because of darkness, the other corroborative circumstances referred to hereinabove by themselves are not sufficient to record the conviction against the present appellant for the offence charged, particularly when the evidence of the eye-witness is wholly untrustworthy and misleading. We must express that when the case is solely based on the circumstantial evidence, in such situation each individual circumstance has a prominent role to play and helps the prosecution in completing the chain of circumstances, which must ultimately lead to irresistible conclusion to establish the guilt of the accused beyond all reasonable doubt. However, when the case is based on the direct evidence and if the direct evidence is found to be worthless, then the situation is other way round.

25. In the instant case, there are other factors which need our consideration and we are also required to find out whether recitals in the oral report (Exh.56) lodged by the co-accused Sayyad Amanoddin (acquitted) can be used against the present appellant as well as the plea of right of private defence raised by the learned counsel for the accused supports the case of the prosecution.

26. In the instant case, the other co-accused Amanoddin (father of the present appellant), acquitted by the trial court, lodged a report Exh.56 in the Police Station, which is earlier to Exh.43 in point of time, wherein it is stated that the co-accused Sayyad Amanoddin, his son present appellant - Sayyad Amir, Sayyad Afjaloddin, Sayyad Vikramoddin and Rahim Rafique and some other persons were standing in the Weekly Market at about 10.00 or 11.00 p.m., on 5/1/1993. At that time, deceased Sayyad Nazim and Sayyad Khalil (P.W.5) rushed towards him and inflicted blows on his right wrist with Koyata (sickle) and injured him. At that time, the appellant Sayyad Amir came to save him, but he also was injured on his right calf by the said weapon Koyata. It is further stated in Exh.56 that the present appellant snatched away Koyata (sickle) from deceased Sayyad Nazim's hand and delivered its blow on him. Sayyad Afjaloddin and other persons, who were with them, delivered axe blows on Sayyad Nazim and injured him. It is also the case of the prosecution that the present appellant Sayyad Amir as well as co-accused Amanoddin had injuries on their persons, which is evident from the evidence of Dr. Shelgenwar (P.W.12), who examined the co-accused Amanoddin as well as evidence of Dr. Devidas Dhanokar (P.W.13), who examined the present appellant Sayyad Amir. Now, the question before us is whether the recitals in the oral report (Exh.56) are admissible and can be used against the present appellant in the present crime. It is a well settled proposition of law that First Information Report is not the substantive piece of evidence and can only be used to corroborate the statement of maker under Section 157 of the Evidence Act or to contradict it under Section 145 of the Evidence Act. It cannot be used as an evidence against the maker at the trial if he himself becomes an accused or co-accused, nor it can be used to corroborate or contradict other witnesses. In view of the above referred legal proposition, the First Information Report, as per the above referred provisions of the Evidence Act, can only be used for corroborating the substantive evidence adduced by the maker in the Court or for contradicting the same and, therefore it is impermissible to use First Information Report either to corroborate the testimonies of the other witnesses, or to contradict evidence of the other witnesses. On the backdrop of this well settled legal proposition, we have no hesitation to hold that the recitals in the oral report (Exh.56) cannot be used for corroborating the material particulars of the prosecution case brought on record by the prosecution witnesses, nor their testimonies can be contradicted in this regard and, therefore, it cannot be treated as an evidence in that sense of the term so far as present case of the prosecution is concerned. Consequently, Exh.56 does not further the case of the prosecution.

27. In the instant case, the appellant has raised a plea of right of private defence and, therefore, in such situation, the question before us is whether it can be inferred that the accused has admitted his complicity in the crime. It is again a well settled proposition of law that prosecution in all cases has to stand on its own legs and is required to prove the complicity of the accused on its own. The burden, which rests on the prosecution to establish its case, is neither neutralised, nor shifted because the accused has pleaded the right of private defence. In fact, the prosecution is required to discharge its initial traditional burden to establish the complicity of the accused and till such time, question does not arise whether the accused has acted in self-defence. In fact, the right of self-defence accrues to the accused only on discharging the burden by the prosecution by proving the complicity of the accused in the crime in question. At no point of time, this initial burden is lessened or shifted merely because accused raised the plea of right of private defence. In view of this sound legal proposition, in the instant case merely because the plea of right of private defence is raised by the accused, it does not reduce the traditional burden of proving the complicity of the present appellant in the crime in question. To prove the complicity of the accused in the case of murder, the prosecution shall neither get any benefit in this regard, nor the prosecution can claim that since the incident of assault and participation therein is not disputed by the accused by raising the plea of right of private defence, it should be concluded that the prosecution succeeded in proving the complicity of the appellant in the crime in question. In the instant case, as the prosecution has failed to prove the charge of murder against the appellant by adducing convincing and cogent evidence, the plea of private defence of the accused does not, by itself, improve the prosecution case.

We, after due deliberations and careful re-appreciation of the evidence of the prosecution, are of the view that in the instant case, the prosecution failed to prove its case against the appellant-accused Sayyad Amir for the offence punishable under Section 302 of the Indian Penal Code for causing murder of Sayyad Nazim. The Judgment and Order, dated 3/12/1998, passed in Sessions Trial No.16 of 1993 by Additional Sessions Judge, Khamgaon, is hereby quashed and set aside. Appeal is allowed.

Appeal allowed.