The appeal is directed against the judgment and order dated 3rd February, 2009 passed by the learned Additional Sessions Judge, Mumbai in Sessions Case No.943 of 2007, convicting the appellants for in furtherence of their common intention committing murder of one Anwar Ahmed Hussain, husband of appellant no.1 on 21st August, 2007, in the house of deceased and appellant no.1, at mezzanine floor of Room No.156, Maharashtra Nagar, Compound No.1 [West] and sentencing each of them to suffer imprisonment for life.According to prosecution, deceased Anwar along with his wife, appellant no.1 and two children were residing at the said mezzanine floor of room no.156 Maharashtra Nagar, Compound No.1, Bandra (W), in which offence in question was committed.He was earning livelihood by hawking and selling spectacles near Bandra Railway Station.The appellant no.2 was assisting in said business and was also visiting the house of the deceased.The said visit turned in love affair in between the appellants.The deceased warned the appellant no.2 not to come to his house.However, the appellants went on meeting each other.::: Downloaded on - 27/08/2013 21:07:42 :::"Doctor's Chemist" run by PW5 Izaz Abdul Gaffur, purchased sleeping pills, "Restil" and administered it to the deceased.She then called appellant no.2 at her house on the pretendance of deceased being sick.2.2 At about 7 to 8 p.m. after occuring noise in the house of the deceased, blood mixed with the water drip on the husband of landlady PW 2 Smt. Anwari Begum Isla Uddin, residing beneath the house of deceased on the mezzanine floor.PW2, having not received any response to call given to appellant no.1 from the staircase, asked her neighbour Shamim to find out the happenings.2.3 On the next day i.e. on 22nd August, 2007 at about 9 to 9.30 a.m. both the appellants along with the children of deceased and the appellant no.1 came down the mezzanine floor after locking the room and left the house with appellant no.2 carrying a big bag and thereafter did not return.::: Downloaded on - 27/08/2013 21:07:42 :::reported matter to Bandra Police Station.PW14 PSI Kudapkar on PSO duty along with Police Constable PW1 Brid and other police staff went to the said place.PW2 informed them that deceased, appellant no.1 and their children, were residing on the mezzanine floor and odour was emitting from the said room.::: Downloaded on - 27/08/2013 21:07:42 :::PW1, after going upstairs found that room was locked.As the neighours and the landlady were not having key of the said lock, they broke open the lock and entered the room and found that decomposed corpse of deceased was lying on a bed-sheet spread on the floor with one black ribbon strangulated tightly round his neck giving an impression that deceased was murdered by strangulating with said ribbon.PW14 registered Crime No.349/2007 thereon for offence under Section 302 of the Indian Penal Code against unknown person.He drew inquest and scene of offence panchanama Exh.20 and 21 in presence of panch PW7 Mohd. Hassain and another.He seized blood stained knife Article 21, chopper Article 22 and steel hammer Article 24 kept below suit case and so also blood stained salwar Article 20 found in the said room.PW14 also seized a quilt Article 14 and sando baniyan Article 15 stained with the blood and dropped from the loft, produced by landlord of the deceased at the Police Station, by drawing panchanama Exh.18 in presence of panch PW6 Vasim and another.On 25th August, 2007 PW14 seized clothes of the deceased Article 16 and Article 18 and a navy colour underwear brought by Police Constable Salve at the Police Station from the Cooper Hospital, by drawing panchanama Exh.40 in presence of panchas PW7 and one another.2.6 PW15 PI Sawant investigating the said crime received the clue of commission of the offence by the appellants and sent PW9 API Badgujar and the staff to Mirath (U.P.) for nabbing appellant no.2 hailing from the said place.PW15 on 6.9.2007 sent them to the medical examination.::: Downloaded on - 27/08/2013 21:07:42 :::According to the prosecution, the appellant no.2 gave the confession to PW11 Dr. Shinde on 6.9.2007 while examining him 5 of 33 ::: Downloaded on - 27/08/2013 21:07:42 ::: 6 apeal 234.09.bom.doc by giving history that he had killed one Anwar Husain Sibiti Hasan (deceased) on 21.8.2007 at about 8 p.m. and at that time during the incident he sustained injury.According to the prosecution, the appellant no.1 also gave the confession to PW11 Dr. Shinde on 6.9.2007 while examining her by giving history that she killed her husband Anwar Husain with the help of appellant no.2 Mohd. Imran Najir Ansari on 21.8.2007 at about 8 p.m. and at that time during the incident she sustained injuries.::: Downloaded on - 27/08/2013 21:07:42 :::According to the prosecution PW15 on 7.9.2007 as a sequel to the statement made by appellant no.1 leading to the discovery of the medical shop at which she had purchased sleeping pills, went to the medical shop of PW5 Izaj Gafoor to which appellant no.1 had led panchas and Police and Exh.42 is the memorandum and discovery panchanama of the said events drawn by him.PW15 after bringing the said articles to the Police Station, kept them for drying and thereafter again sealed said clothes by drawing panchanama Exh.26 in presence of same panchas i.e. PW3 Rashid Mujawar and another.PW15 vide forwarding letter Exh.43 sent muddemal articles ig seized to Chemical Analyser for examination.::: Downloaded on - 27/08/2013 21:07:42 :::At the conclusion of the investigation, PW15 submitted charge-sheet against the appellants for in further of their common intention having murdered deceased , in the court of 9th court of Additional Chief Metropolitan Magistrate, Bombay.The appellant pleaded not guilty to the charge (Exh.3) framed against them for such offence by the Court of Sessions, after the case was committed to the said Court.The prosecution examined in all '15' witnesses at the trial i.e. above referred witnesses and additionally PW4 Haji Mohammaed Sharif regarding appellant no.2 assisting deceased and appellant no.1 in their business, PW8 P.C. Suresh Salve regarding handing over navy blue colour underwear Article 16 and the ribbon Article 18 7 of 33 ::: Downloaded on - 27/08/2013 21:07:42 ::: 8 apeal 234.09.bom.doc on the corpse to PW14, PW12 Abida M. Qureshi regarding room in question was locked when Police had been at the said room and PW13 Mohammad A. Mansuri regarding the appellant no.2 visiting shop on 21.8.2007 and taking Rs.500/- from him on the pretext of his mother being sick and then he was frightened and collecting his articles and leaving with the bag.The prosecution also placed reliance upon the other documentary evidence, which was prepared during the course of investigation.::: Downloaded on - 27/08/2013 21:07:42 :::The defence of both the appellants was that of total denial and of false implication by Police.The appellant no.1 though admitted that deceased was her husband and they were residing on mezzanine floor and appellant no.2 was visiting place of business claimed that he was not visiting her house and was her brother.The appellants did not examine any witness in support of their defence.The trial court after appreciation of the prosecution evidence came to the conclusion that by the said evidence the prosecution has established the various circumstances discussed in the judgment and the said circumstances considered in light of non- explanation on the part of the appellant leading to the conclusion of sole inference of the guilt of the appellants for in furtherance of their common intention having committed murder of husband of 8 of 33 ::: Downloaded on - 27/08/2013 21:07:42 ::: 9 apeal 234.09.bom.doc appellant no.1 by cutting his throat.In consonance with said conclusion arrived, the trial Court convicted and sentenced the appellants as narrated hereinabove.::: Downloaded on - 27/08/2013 21:07:42 :::Mr. Priytosh Tiwari, the learned counsel for the appellant by taking us through the evidence of each of the prosecution witnesses strenuously contended that the prosecution evidence by and large pertains to establish certain circumstances relied by the trial Court.It was urged that though the appellants are not disputing of deceased having met homicidal death, or that his body was found in the room in question, still evidence miserably fails to establish that room in question was locked as claimed by the witnesses, as the prosecution has failed to produce the broken lock before the Court corroborating their evidence and hence the said circumstance cannot be said to be firmly established .It was urged that the further circumstance of the appellants having made the confession to PW11 Dr. Shinde being inadmissible in law cannot be taken into consideration against the appellants.It was urged many of the remaining circumstances relied as pointed out by him are either not firmly established or the said circumstance within themselves failed to establish a complete chain of circumstances leading to the sole inference of the guilt of the appellants.It was thus contended the order of conviction and sentence cannot be legally sustained and is liable to be quashed and set aside and the 9 of 33 ::: Downloaded on - 27/08/2013 21:07:42 ::: 10 apeal 234.09.bom.doc appellants deserve to be acquitted or at least deserve to be given benefit of doubt as suspicion even of grave nature cannot be made basis for conviction.::: Downloaded on - 27/08/2013 21:07:42 :::Gambhir .vs.Shivappa .vs.Bheemal .vs.Sanjay .vs.Koki Prabhakara Reddy .vs.Ranjit Singh .vs.Kavinder .vs.Joyram Ingty .vs.Naval Singh 10 of 33 ::: Downloaded on - 27/08/2013 21:07:42 ::: 11 apeal 234.09.bom.doc .vs.State of Rajasthan .vs.Asraf Sk.State of Maharashtra .vs.Surender Singh .vs.State of Delhi: LAWS (DHL)-1989-12-13 regarding effect of non-attestation of dying declaration.::: Downloaded on - 27/08/2013 21:07:42 :::::: Downloaded on - 27/08/2013 21:07:42 :::Thoughtful considerations were given to the submissions advanced by both the sides and record of the case was carefully examined in order to ascertain the merit from the submissions canvassed.At the first blush, it can be said that since there is no eye- witnesses for the crime in-question and the case has been rested upon the circumstantial evidence as per the settled legal position regarding such type of cases, we find it necessary to assess the prosecution evidence to ascertain whether the circumstances relied by the trial Court were duly established by the evidence adduced 12 of 33 ::: Downloaded on - 27/08/2013 21:07:42 ::: 13 apeal 234.09.bom.doc and thereafter to ascertain whether the said circumstances within themselves form a formidable chain leading to sole inference of the guilt of the appellant.::: Downloaded on - 27/08/2013 21:07:42 :::The evidence of Dr. Kachare and particularly the injuries noted by him on the corpse i.e. amongst other cut throat injury on the neck and cause of death given by him "as death due to cut throat injury"itself establishes the deceased having met with homicidal death.The same is apparent as pointed out in the further part of the judgment regarding the other evidence by which the prosecution has established that corpse of the deceased was found in a room on the mezzanine floor of room no.156 in Maharashtra Nagar.The perusal of the evidence of panch PW7 of spot panchanama and that of PW14 PSI who had drawn the said spot panchanama clearly excludes any possibility of deceased having received the said injury for any other reason other than himself being assaulted, as after careful scrutiny of the evidence of above referred witnesses, we do not find any embellishment therein for coming to the conclusion 13 of 33 ::: Downloaded on - 27/08/2013 21:07:42 ::: 14 apeal 234.09.bom.doc that the said facts were not established by their evidence, will lead to a conclusion of the prosecution by the said evidence has established the deceased having met with homicidal death.::: Downloaded on - 27/08/2013 21:07:42 :::With regard to the second circumstance of the blood stained water having dripped from the mezzanine floor in the house of PW2 landlady on 21st August, 2007 at 8 a.m. and the third circumstance of corpse of the deceased was found in a room which was locked and the fourth circumstance of both the appellants along with the children of appellant no.1 and deceased having left the room on the next day i.e. on 22.08.2007 at about 9 a.m. The reference to the evidence of PW2 landlady, PW1 Brid, PW12 Abida M. Qureshi, evidence of panch witness PW7 for spot and inquest panchanama and the evidence of PW13 Mohammad A. Mansuri reveals that by their evidence prosecution duly establishes the said circumstances.Without detailing every facets of the evidence of the aforesaid witnesses, it can be said that the evidence of PW2 in terms reveals that on the day in question at about 8 a.m. she heard noise from the mezzanine room rented to appellant no.1 and on her inquiry, the appellant no.1 replied that it was due to falling of water pot.It reveals that thereafter as the blood dripped on the cloth of her husband lying on the bed was noticed, she called appellant 14 of 33 ::: Downloaded on - 27/08/2013 21:07:42 ::: 15 apeal 234.09.bom.doc no.1 from the staircase as the room was closed.It reveals that due to non-response on part of the appellant no.1, she called Shamim and asked him to see the happenings in the room of the appellant no.1 and thereon Shamim gave call to the appellant no.1 and thereon appellant no.1 opened the door and replied that while cutting mutton, she sustained injury and the blood might have dripped down.PW2 further deposed about the appellant no.1 coming to her house and showing her finger tied with cloth.Her deposition reveals that on next day, both the appellants along with the children of the appellant no.1, left the room by telling that they were going to Millat Nagar and inform accordingly to anyone who comes for inquiry and appellant no.2 was carrying big bag.It reveals that thereafter they did not return and on third day, i.e. on 23.08.2007 aggressive odour emitted from the room and her husband told that it might be due to decomposition of rat and they were not able to sleep in the room.It reveals that thereafter PW2 find drop of liquid of decomposed body falling in the room and she informed the neighbours about it and one of the neighbours Hasan informed to Police.It reveals that the Police came on the spot and broke open the lock of the room.::: Downloaded on - 27/08/2013 21:07:42 :::After careful scrutiny of the cross-examination of the PW2, we do not find anything brought on the record except that she 15 of 33 ::: Downloaded on - 27/08/2013 21:07:42 ::: 16 apeal 234.09.bom.doc was not present when the Police broke the lock of the door of the mezzanine room.Even accepting the said admission as it is, it does not shatter her evidence regarding the room being locked, as the said facet relates to herself being not present at the time of the Police breaking the lock and does not relate to the fact of herself having seen the lock on the said room.Thus her evidence considered in proper perspective establishes of the above referred circumstances.We further add that hardly there is any challenge to her evidence on the part of the appellants of the room being locked after the appellant and the children left the room or for the fact of themselves having left with the bag as deposed by her.::: Downloaded on - 27/08/2013 21:07:42 :::The due corroboration to the relevant part of evidence of PW2 for the aforesaid circumstance is found from the evidence of Police personnel PW1 and PW14 who had been to the spot after receiving the information of emission of odour from the neighbours.The evidence of PW1 in terms reveals that door was locked from the outside and they had broken the lock of the room.The evidence of PW1 is well corroborated by complaint Exh.10 to such effect lodged by him.Even the evidence of PW14 regarding the same is not different.It also reveals the room being locked and they had opened it by breaking the lock.Evidence of both the witnesses further reveals that after entry, the decomposed body of the deceased was found in the room.They have deposed in 16 of 33 ::: Downloaded on - 27/08/2013 21:07:42 ::: 17 apeal 234.09.bom.doc consonance with the prosecution case narrated earlier regarding the situation in which the body was found.The perusal of their depositions do not reveal that such aspect of their evidence were shattered during the cross-examination.In addition to the aforesaid evidence, the reference to the evidence of PW12 reveals that the appellant no.2 was visiting the house of the appellant no.1 during the absence of the deceased.It reveals that she had sent Shamim and Hasan to the Bandra Police Station after the neighbours have told that odour was coming.She specifically deposed that when the Police came, the room of deceased and the appellant no.1 was locked and the lock was opened by the Police and the body of deceased was found in the said room.We find that her evidence has remained totally unshattered during the cross-examination.Though suggested that she had deposed falsely, hardly anything was brought during the cross-examination for giving any credence to the suggestion given.The evidence of PW12 as well as of the earlier referred evidence of PW2, do not reveal any reason for them for entertaining any animus against the appellant for staking such a claim.::: Downloaded on - 27/08/2013 21:07:42 :::In the same context, the reference to the evidence of PW13 reveals that he was serving as a Tailor at Bandra and the appellant no.2 was working with him as well as residing at his work place for a period of two months and as such he was well 17 of 33 ::: Downloaded on - 27/08/2013 21:07:42 ::: 18 apeal 234.09.bom.doc acquainted with him.The further part of his deposition reveals that appellant no.2 absented for work on 21.8.2007 and 22.08.2007 at about 7 to 8 p.m. , the appellant came to his workshop and asked for Rs.500/- on the count that his mother was sick and he was then in frightened.He gave him Rs.500/- and thereafter appellant no.2 collected his articles from his shop and left with a bag.We find that the said evidence of PW13 has remained unshattered in spite of the cross-examination.As a matter of fact, we find that except giving suggestion to PW13 that he deposed falsely and denied by him, no other effort was made on the part of the defence to challenge his said evidence.Needless to add that the said evidence duly corroborates prosecution case of the appellants trying to flee away from the place probably due to the commission of the crime as claimed by the prosecution.::: Downloaded on - 27/08/2013 21:07:42 :::The reference to the evidence of PW7 also reveals some what identical story.The evidence of PW7 reveals that on the relevant day he has acted as a panch along with another when he 18 of 33 ::: Downloaded on - 27/08/2013 21:07:42 ::: 19 apeal 234.09.bom.doc was called at the mezzanine room by the Police.His evidence reveals in detail that the body of the deceased wasfound in the said room and the condition of the said body, as well as the articles seized by the Police i.e. blood stained salwar, chopper, knife and hammer from the said room.His evidence is also found corroborating the evidence of the Police personnel PW1 and PW14 referred hereinabove, who had entered in the said room.::: Downloaded on - 27/08/2013 21:07:42 :::The learned counsel for the appellants by harping upon the evidence of PW7 submitted that his evidence only reveals that the Police had opened the door.It was urged that his evidence fails to reveal that Police had broken lock on the room.It was contended that PW7 being independent panch, his evidence run contrary to the evidence of earlier referred witnesses as the same fails to depict that the room was locked.It was thus contended that prosecution has failed to establish the circumstance of, room in question being locked.After carefully considering the evidence of the aforesaid witnesses and the sequence in which the events had occurred, we are unable to give any significance to said submissions canvassed.The aforesaid evidence duly reveals that the Police had been to the said spot as odour was emitting out of the room in question.The evidence of PW2 reveals that her husband has felt that it might 19 of 33 ::: Downloaded on - 27/08/2013 21:07:42 ::: 20 apeal 234.09.bom.doc have been due to decomposition of rat.It reveals that till then nobody had suspected of any foul play.The evidence denotes that the Police opened the lock for ascertaining the reason behind the said foul smell.It reveals that thereafter the body of the deceased was found in the said room.Thus considering from the said angle, PW7 would have been called only after noticing the dead body for recording the further events and situation prevailing at the spot and for drawing inquest panchanama.Hence in all probability PW7 being called lateron after the lock was opened, it would be unreasonable to accept himself deposing about the said events occurred prior to his arrival.::: Downloaded on - 27/08/2013 21:07:42 :::Similarly looking the matter from another angle and even assuming that PW7 was accompanying the Police since the beginning or after noticing the lock on the room, then also carefully considering his evidence, we do not find that his evidence reveals that the said room was not locked.Such a conclusion is inevitable as PW7 has deposed of the door being open.The perusal of the cross-examination does not reveal any position brought on the record that it was not locked.Thus even from the said angle, the criticism or the circumstances pointed out from the evidence of PW7 cannot be given any undue significance.We are of such a view as in the event of the door being not locked, PW2 and her husband would have well entered in said room for ascertaining as 20 of 33 ::: Downloaded on - 27/08/2013 21:07:42 ::: 21 apeal 234.09.bom.doc to what was the reason behind smell.Such an inference is obvious as appellant no.1 and deceased were tenants and not strangers.However, instead of occurring of any such event of themselves entering the room, giving a call to the Police clearly denotes that the room then must have been locked.Furthermore the evidence of PW2 considered in proper perspective also denotes that she was told by the appellant no.1 while leaving the room that they were going away to Millat Nagar and informing accordingly to anybody who comes for inquiry.The said facet of her evidence considered in a proper perspective also denotes in all probability room being locked.Needless to add that it would be insensible to imagine in Bombay persons leaving the room by keeping it open.::: Downloaded on - 27/08/2013 21:07:42 :::The learned counsel for the appellants further contended that the prosecution having not produced the lock at the trial, also denotes that the said room was not locked.We are unable to accept the said submission as in reality the same relates to nature of evidence required to be adduced for establishing a fact.In the event of, fact of room being locked being established by the prosecution, through the cogent evidence of PW2 , PW1, PW14 and PW13, it cannot be gainsaid that it was incumbent for prosecution to produce the said lock for establishing the relevant facet.At least the inference as suggested by learned counsel for the appellants, cannot be drawn on the said isolated circumstance ignoring 21 of 33 ::: Downloaded on - 27/08/2013 21:07:42 ::: 22 apeal 234.09.bom.doc otherwise convincing cogent and evidence of the above referred witnesses.In the light of the aforesaid discussion, we find that the prosecution has duly established the circumstances under consideration.::: Downloaded on - 27/08/2013 21:07:42 :::Now with regard to the fifth circumstance of the appellants being found in one room at Shajah Nagar Mirath, the evidence of PW9 API Badgujar reveals that PW15 P.I. Sawant had sent him along with the Police Party at Mirath, Uttar Pradesh for nabbing the appellants.It reveals that at the address of the appellants given to them, nobody was found and hence they had halted for 3-4 days.It reveals that after receipt of information that appellants were residing at Shajah Nagar, Mirath, on 2.9.2007 along with Nisarigate Police, he had been to the said Police Station and found both the appellants in one room.It reveals that on the basis of the photograph of the appellants given to him, he identified and arrested them by drawing panchanama Exh.28 in presence of panchas.It reveals that thereafter he had obtained transit remand and brought them to Bombay.After perusal of the cross- examination, we do not find that except giving the witness suggestion that he has deposed falsely, any significant material was brought on the record for not accepting his evidence.Though there is substance in the submission of prosecution having not examined panch witnesses, still we find it difficult to accept the submission that on the said count the evidence of PW9 is liable to be rejected.We are of such a view a it is fairly settled legal position that the presumption of truth available for the evidence of any witness recorded on oath is equally available for the evidence of the honest Police Officer and their evidence is not liable alone on the count of themselves being from the Police Department.::: Downloaded on - 27/08/2013 21:07:42 :::ig Having regard to the same and after carefully considering the evidence of PW9, we find that the same is free from doubt, embellishment or any interestedness.Now considering the sixth circumstance relied by the prosecution of appellant no.1 having purchased sleeping pills on the day in question and administered the same, the trial Court had held that initial part of the said circumstance was duly established by the prosecution i.e. purchase of sleeping pills on the basis of the evidence of PW5, but not the latter aspect, as no evidence has surfaced regarding the same and even the medical evidence 23 of 33 ::: Downloaded on - 27/08/2013 21:07:42 ::: 24 apeal 234.09.bom.doc adduced having not established such a tablet was administered by PW1 to the deceased for making them easy to commit crime in question due to thereby there would have been least resistance on part of the deceased.In the said context, the prosecution has also adduced the evidence of PW15 Investigating Officer for establishing that statement made by appellant no.1 of showing the place at which she had purchased the said pills for the purpose as stated by him and having led the panchas and Police to the shop of PW5 and the panchanama Exh.42 regarding the same.Since we find there is a failure of the prosecution to establish discovery of the shop in pursuance to the statement made can be said to be an incriminating fact or even otherwise giving all latitudes to the prosecution with certainty having established, the nexus of the tablets purchased with the crime in question, we find it difficult to place much reliance upon the said evidence for any significant purpose.However, thereby we do not intend to convey that the entire evidence of PW5 would be liable to be discarded as the fact of appellants having purchased such pills from his shop has been duly established from his evidence.::: Downloaded on - 27/08/2013 21:07:42 :::With regard to seventh circumstance of the appellant 24 of 33 ::: Downloaded on - 27/08/2013 21:07:42 ::: 25 apeal 234.09.bom.doc no.2 possessing the knowledge regarding the place at which the blood stained clothes and gunny bag used by appellant no.1 for cleaning the room were kept concealed and thereby nexus of appellant no.2 with the crime.The prosecution has also adduced the evidence of PW3 and PW15 regarding the statements made by appellant no.2 leading to the discovery and seizure of a bag containing the clothes which were used by appellant no.1 for cleaning the room and the same being seized from the place shown by the appellant no.2 at Bandra creek.However, reference to the evidence of PW3 reveals that he had not supported the prosecution and the learned APP had cross-examined him by obtaining permission of the Court.Hence prosecution as well as the trial Court had relied only upon the evidence of PW15 and C.A. report received regarding the said clothes indicating that human blood was found on the said clothes seized from the bag which was taken out from the sea water and sent to C.A. Thus considering limited significance of the said circumstance, we do not propose to indulge in detail dilation about it except stating that considering the place at which the said recovery was made i.e. clothes kept in a bag and thrown in a creek water , the said evidence would not be liable to be discarded as tried to canvass by the learned counsel for the appellants on the count of the recovery being from an open place accessible to all.It is indeed true that the recoveries of such a nature are found to be insignificant in view of knowledge regarding 25 of 33 ::: Downloaded on - 27/08/2013 21:07:42 ::: 26 apeal 234.09.bom.doc the same can be possible to any particular person for the said reason other than himself being a culprit and thus for the said reason significance of such a recovery from the open place being reduced.However, in the instant case, considering the evidence of PW15 in proper perspective and the manner in which the said clothes used for cleaning the human blood in the room, were thrown at a place in a sea which though open, still considering the peculiarity attached with it, we find it difficult to accept submission canvassed for the simple reason that the said facets denote that knowledge of such articles being at such place could not have been gathered by anybody else other than the person linked with the said recovery.Similarly we also do not find substance in the criticism canvassed that panch witness PW3 having not supported the prosecution, the entire evidence pertaining to the said recovery is liable to be discarded.We reject the said submission for the same reasons for which we have earlier not found in favour of the submission canvassed qua the evidence of PW9 API Badgujar on the count of non-examination of panch witnesses.Needless to add by establishing human blood on the said clothes, gunny bag vide C.A. report Exh.44, the prosecution has established nexus of the said clothes with the crime in question and particularly due to non- explanation about all the said aspects on part of any of the appellant.Similarly in absence of any suggestion of tampering of the seals of the said articles sent to C.A. , we are unable to give any 26 of 33 ::: Downloaded on - 27/08/2013 21:07:42 ::: 27 apeal 234.09.bom.doc credence to the submission canvassed that on the said count the said evidence is worthless.Resultantly we find that though for limited purpose the said evidence deserves to be taken into consideration for adding assurance to the conclusions arising out of the other established circumstances.::: Downloaded on - 27/08/2013 21:07:42 :::::: Downloaded on - 27/08/2013 21:07:42 :::::: Downloaded on - 27/08/2013 21:07:42 :::Now considering to the last eighth circumstance relied by the trial Court regarding the extra judicial confession made by the appellants to PW11 Dr. Shinde i.e. statements made by both the appellants while giving history about the injuries sustained by them when they were sent for medical examination by PW15 to the said Doctor on 6.9.2007 i.e. the matter contained in Exhs.35 and 36, we are unable to place any reliance upon the said apparently inadmissible evidence.We are of such a view as after considering the evidence of PW15, it is apparently clear that both the appellants were then in Police custody.The evidence of PW15 that he sent both the appellants for such an examination itself denotes that both the appellants were then in his custody.In the said context the reference to the provisions of Section 26 of the Evidence Act which runs as under:-::: Downloaded on - 27/08/2013 21:07:42 :::whilst he is in the custody of a police officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person."Admittedly the appellants being in custody when they had given the said history, in the event of same being of any confessional nature as canvassed, same would be wholly inadmissible in law and the prosecution would be debarred to prove the purported confessions against the appellants, all such evidence thereto adduced by the prosecution will be required to be left out of consideration