Charanjit Talwar ( 1 ) THIS is an appeal in which the case propertyincluding the weapons of offence has not been produced before us duringarguments and thue we have been deprived from fully assessing it on merits. During the course of arguments, Mr. G. S. Sharma, learned counsel for thestate, made the following statement on 14/04/1988 : "the case property including the weapon of offence is no longeravailable as it was auctioned. "in support of his statement, Mr. Sharma filed the report of the Districtnazir of the Deputy Commissioner s Office which report has been placedon record. ( 2 ) MRS. Anjana Gosain, learned counsel for the appellant, submittedthat non-production of the case property is a serious infirmity which mustbe held to be fatal to the prosecution case and on that ground alone thethree appellants are entitled to be acquitted. We would, however, advert tothis aspect after noticing the facts. ( 3 ) RAJIV Kumar, his brother Purshottam and their brother-in-law,namely. Ram Chander, challenge their conviction for the offence undersection 302 read with Section 34 of the Indian Penal Code. They werefound guilty vide judgment dated the 29/08/1983. They further seeksetting aside of the order dated the 30/08/1983 of the Additionalsessions Judge sentencing them to life imprisonment and a fine of Rs. l,000. 00each. In default of payment of fine, the appellants were directed to undergosimple imprisonment for a period of six months each. ( 4 ) THE allegation against the appellants was that in furtherance oftheir common intention on 13/08/1982 at about 10. 15 p. m. , theycaused bodily injuries to one Prem, alias Kuckoo, which injuries weresufficient in the oridinary course of nature to cause his death. The occurrence took place near the Blocks 20 and 21 of Service Officers Enclave ons. P. Marg, New Delhi. The injured was immediately removed to themilitary Hospital by Surgeon Lt Commander Mrs. V A. Khandekar, whowas occupying flat No. 568 in Block No 21. However, Prem was declareddead by Capt. Raja Gopal, the Medical Officer on duty. ( 5 ) MRS. Khandekar has appeared as P. W. 1. She is not an eyewitness to the occurrence but was admittedly the first person to havereached the spot where Prem was lying. She stated that on 13/08/1982 at about 10. 20 pm. she was told by her daughter that there was a lotof noise on the road outside their flat. Khandekar has appeared as P. W. 1. She is not an eyewitness to the occurrence but was admittedly the first person to havereached the spot where Prem was lying. She stated that on 13/08/1982 at about 10. 20 pm. she was told by her daughter that there was a lotof noise on the road outside their flat. When informed about the noise, shewas in her bathroom. She came out and from her balcony saw that oneperson was lying on the ground. She look a torch and along with herhusband came down the stairs and went to the spot. She could not recognisethe injured person but with the help of torch light saw ableading woundon his head. That person was lying on the ground with his face downwards. She felt his pulse which was very "fast and thready". She is a doctor; shewanted that person to be taken to the hospital immediately and, therefore,came back to her flat and rang up the clinic for sending the ambulance,which arrived within about five minutes. The injured was put in that166 ambulance and she followed it in her car. It seems that the very time whenshe got into her car, she found Ram Chander, one of the appellants presentat the place of incident with a cut on his left arm. According to her, he wasalso in need of first aid and as she knew him. she took him to the clinicin the car. Dr. S. Raja Gopal examined the injured who had been taken inthe ambulance and declared him to be dead; the time was about 11. 00 p m. Ram Chander who had been taken in the car was given first aid. ( 6 ) P. W. 1, Mrs. V. A. Khandekar, knew all the three accused. Hermaid servant. Rani, is the sister of the two appellants Purshottam and Rajivkumar. Ram Chander is their brother-in-law. On arrival at the clinic,mrs. Khandekar rang up the Chanakya Puri Police Station and after sometime, according to her. S. I. Hosbiar Singh reached there. He searched thepockets of the deceased and found out a paper which contained his nameand address. It was from that paper that the witness (P W. 1) came to knowthe name of the injured as Prem and also his address. ( 7 ) ACCORDING to the prosecution, the eye witnesses to the occurrence are:1. Brig. V. P. Airys,p. W. 2. He searched thepockets of the deceased and found out a paper which contained his nameand address. It was from that paper that the witness (P W. 1) came to knowthe name of the injured as Prem and also his address. ( 7 ) ACCORDING to the prosecution, the eye witnesses to the occurrence are:1. Brig. V. P. Airys,p. W. 2. who was occupying flat No 570 inblock No. 21 of the Officers Enclave, S. P. Marg, New Delhi. 2. Commander R. K. Sharma, P W. 8, who was residing at Flatno. 563, Block No. 20, Officers Enclave, S. P. Marg, Newdelhi. 3. Smt. Savitri Devi, P. W. 13, mother of the deceased. 4. Shri Hari Singh, P. W. 7, who is a brother of Smt. Savitri Devip. W. I 3. Brig. V. P. Airys, P. W. 2, occupied his present flat, i. e. No 570 in Blockno. 21 on 5/08/1982. The incident occurred eight days thereafter,that is, on 13/08/1982. On that date. according to him, between10. 00 to 10. 15 pm, he heard a lot of noise/shouts outside his flat. Herushed out to see what was happening. From his balcony he observed threeboys beating another boy. It is appropriate at this stage to quote fromhis testimony:"i found a boy was lying on the ground and three boys werebeating him. I shouted ye Kaya Ho Raha Hai . Out of those threeboys who were healing the person who was lying on the ground,one of them was armed with a hockey and the second one wasarmed with an iron rod. I did not notice any weapon being carriedby the third boy. Those three boys were beating the person lyingon the ground and were giving blows with their respective weaponson various parts of his body like head, leg and back etc. Wheni shouted at those boys who were beating one of them caughthold of the injured with his leg and dragged him to a distance ofabout 15 feer. I hereafter they left the injured on the road andstarted going towards the rear side of the block where servantquarters are situated. I shouted at those boys as to why they werequarrelling. Wheni shouted at those boys who were beating one of them caughthold of the injured with his leg and dragged him to a distance ofabout 15 feer. I hereafter they left the injured on the road andstarted going towards the rear side of the block where servantquarters are situated. I shouted at those boys as to why they werequarrelling. One of them replied that the person who was lying on 167the ground was a Gunda and he had come to them to pick up aquarrel I then asked them as to why they were quarrelling andwhy they were not lodging the report with the police. Lady Doctorkhandekar alongwith others arrived there and she called theambulance and took the injured and one of the accused (The witness pointed out towards Ram Chander) to the clinic. I identify allthe three accused persons present in the court and are the samewho were present on that day and were giving beating to theperson who was lying on the ground. Accused Purshottam washaving a hockey, accused Ram Chander was armed with an ironrod accused Rajiv was not having any weapon with him. Accusedpurshottam and Ram Chander had dragged the injured to a distanceof about 15 feet as referred above. Later on, I came to know thename of the injured as Prem and he was also a resident of servantquarter situated on the back side of Block No. 21. The incident occurred in between blocks No 20 and 21. After a short timemother of the victim had also arrived there and she was weeping. I also came to know later on from the arrival of Dr. Khandekarfrom the clinic that injured Prem hadexpired. "the above quotation brings out the salient features of the prosecution case. In cross-examination, this witness admits that he saw the occurrence withthe help of a torch light from his balcony. The torch was a powerful onewith four battery cells. He further admitted that "it was not possible forme", again said "it may not be possible for me to identify the accussdpersons without the help of the torch light. " ( 8 ) IT is to be noticed that the admitted case of the prosecution isthat there was no identification parade of the accused held during theinvestigation The plea raised on behalf of the appellants was that as Public Witness 2,brig. " ( 8 ) IT is to be noticed that the admitted case of the prosecution isthat there was no identification parade of the accused held during theinvestigation The plea raised on behalf of the appellants was that as Public Witness 2,brig. Airys, in his statement did not allege that he knew the three accused,the identification of the accused in court by him was of no value. To crosscheck the above version we have gone through the vernacular record alsoand we find that in the witness statement it is recorded that he knew theaccused (Jaanta hoan ). We presume that being asenior Army Officer,he was deposing in English In the English record he said that he identifiedthe accused. In his words, "i identify all the three accused persons presentin the Court". It is possible that the word "identify" was translated as"jaanta Hoon" (Know) instead of Pehchanta Hoon" (identify) by thereader of the court (the official who takes down the testimony in vernacular ). We are emphasising this fact as on his own assertion. Brig. Airyshad occupied the flat only eight days prior to the incident and none of theaccused were working for him. Normally, in that short span he would nothave been able to know even by the face all the persons living in theservants quarters block Purshottam and Rajiv Kumar were admittedlyresiding in the servant quarters. ( 9 ) AFTERCLOSE scrutiny of the testimony of Brig. Airys, we are ofthe opinion that it cannot be held that he knew the accused from before thedate of the incident. The other eye witness to the occurrence, P W 8commander R. K. Sharma, also identified the three accused in court. According to him, the accused present in court on the date his depositionwas recorded were the assailants. He pointed out towards accused Ram168 Chander as the one who had iron rod and was giving beating to the personlying on the ground with it. He also identified accused Purshottam as theperson who was giving blows with hockey stick. While pointing out to Rajiv,the third accused, the witness stated that he was the one who was givingkicks and first blows to the victim (Prem ). In his cross-examination, headmitted that "i was not in the knowledge about the name of the assailantsas well as the injured and their place of residence". While pointing out to Rajiv,the third accused, the witness stated that he was the one who was givingkicks and first blows to the victim (Prem ). In his cross-examination, headmitted that "i was not in the knowledge about the name of the assailantsas well as the injured and their place of residence". To another question,he affirmed that prior to the occurrence he did not know that Purshottamand Rajiv were residing in the servant quarters. At one stage, the admittedthat "i had seen the accused persons present in the court on the date ofoccurrence and thereafter I had seen them today in the court. " ( 10 ) WE agree with Ms, Gosain, counsel for the appellants, thatthere can be no doubt about the fact that this witness did not know theassailants, i. e. the appellants herein, prior to the occurrence. In any case itwas for the prosecution to specifically bring on the record byquestioningthe said two witnesses that they knew the accused from before. Thus, theinfirmity that there was no identification parade during the investigation toenable the participation of the said two eye witnesses is to be borne in mindwhile assessing the prosecution case. However, before adverting to themerits, another submission of Ms. Gosain needs consideration. She submitted that Hari Singh, Public Witness 7, and Savitri Devi, Public Witness 13, were not eyewitnesses to the occurrence. Shri Hari Singh, Public Witness 7, who emphaticallysubmitted that he bad seen the occurrence is belied by the prosecutionevidence itself, it is urged. ( 11 ) HARI Singh, after deposing to the facts of assault by the accusedas stated by Public Witness 2, Brig. Airys, whose testimony we have quoted above,averred that he was the one who had taken his nephew Prem in an injuredcondition to Military Hospital were be was declared dead. The plea is thatthis part of the testimony that he was the one who had accompanied theinjured is not borne out from the record. The driver of the ambulance. Sitaram Pandey, has been produced as Public Witness 10. In his testimony he is silentregarding Hari Singh accompanying him in his ambulance bearing No. SC 32955 from the place of occurrence to the hospital. Capt. Raja Gopal,p W. 9, who had declared Prem to be dead on arrival at hospital in hismedico-legal certificate (M. LC) (Exhibit P. W. 9/a) noticed that the saidperson was unidentified . In his testimony he is silentregarding Hari Singh accompanying him in his ambulance bearing No. SC 32955 from the place of occurrence to the hospital. Capt. Raja Gopal,p W. 9, who had declared Prem to be dead on arrival at hospital in hismedico-legal certificate (M. LC) (Exhibit P. W. 9/a) noticed that the saidperson was unidentified . He affirmed this fact in his testimony by saying"one person whose name was not known (was) brought dead". It does notstand to reason that if Hari Singh had accompanied the body to the hospital,he would not have informed the doctor about the name of the dead person. The driver of the vehicle, Sita Ram Pandey, would have also noticed thepresence of Hari Singh in the ambulance, in case he had accompanied theinjured as claimed by him. in the other M. L. C. Exhibit P. W. 9/b) relatingto Ram Chander prepared by Dr. Raja Gopal (P. W. 9), the name of theinjured is mentioned and under the clinical Note it is stated "brought to theclinic by Capt. (Mrs.) Khandekar at 2300 hours". It is thus dobutful tohold that Hari Singh had accompanied the injured to the hospital asdeposed to by him. ( 12 ) ACCORDING to Hari Singh he had gone to meet his sister at about 5. 30p. m. on 13/08/1982, i. e. the date of occurrence. From his testimony,it appears that in those days be was living in a village. When he was about 169to go home at about was about 7. 00 p. m. , his sister insisted that he shouldhave his dinner. And, after meals, he was asked to stay at her house as itwas getting late. At about 10. 15 p. m. , he heard some noise of bachaobachao . On hearing that, he along with his sister, came down from her flatwhich was on third floor of the servant quarters and saw his nephew lyingon the ground near Block No. 21 of the officers flats. He went on tosay that he saw the accused Purshottam with a hockey stick in his hand,and accused Ram Chander wielding a Sariya (iron rod ). He assigns theroles to the three accused as stated by Brig. Airys and Commander R. K. Sharma. According to the witness, when the as sailants saw the witness theythrew their weapons, that is, hockey stick and sariya (iron rod) and rantowards their house. He assigns theroles to the three accused as stated by Brig. Airys and Commander R. K. Sharma. According to the witness, when the as sailants saw the witness theythrew their weapons, that is, hockey stick and sariya (iron rod) and rantowards their house. Many persons had collected there including somemilitary Officers. Thereafter, he stated that with the help of some Militaryofficers, he took Prem in an injured condition to the hospital and on theway Prem expired. ( 13 ) THE testimony of this witness that he was present at the spot ornear about the place of occurrence cannot be accepted as Public Witness 1, Lt. Commander Mrs. V. A. Khandekar. who was admittedly the first person toarrive at the spot, did not see any other person there. She is positive thatwhen the injured was taken to the clinic there was only an ambulanceassistant in the van along with the injured and the driver. Even at that time,i. e. about 5 to 10 minutes after the occurrence, she did not find Hari Singhpresent there. Thus we have no doubt in our mind that Hari Singh is notan eye witness to the occurrence. He must have been called later on to thehospital and, possibly, accompanied the body to the mortuary from there ashis signatures are found on the various memorandums prepared at themortuary. ( 14 ) AS we have noticed above, the presence of Savitri at the post ornear about the place of occurrence at the time when her son was given beating has also been challenged. From the testimony of Brig. Airys, which wehave quoted, it is apparent that he did not find her when he reached thespot. He has stated that he came to know the name of the injured as Premlater on. He went on to state that "after a short time mother of the victimbad also arrived there and she was weeping". It is not possible to pin pointthe exact time when the mother of the victim arrived at the spot or was seenthere by the military officers, but, according to this witness (P. W. 2) whenhe reached there the injured was being put into the ambulance. As we havenoticed above, the ambulance had reached the spot within 5-10 minutes ofthe telephonic message by Dr. Mrs. V. A. Khandekar. According to Public Witness 10,shri Sita Ram Pandey, the driver of the ambulance, he was directed atabout 10. As we havenoticed above, the ambulance had reached the spot within 5-10 minutes ofthe telephonic message by Dr. Mrs. V. A. Khandekar. According to Public Witness 10,shri Sita Ram Pandey, the driver of the ambulance, he was directed atabout 10. 30 p. m. by Dr. Raja Gopal to proceed to the flat of Dr. Khandekar. Brig. Airys when he says that after a short time mother of thevictim had arrived at the spot, implies that she reached after a short time ofhis reaching. He reached at the time when the injured was being removed tothe hospital in the ambulance. This would mean that she was spotted atabout 10. 45 p. m. Savitri Devi (P. W. 13) if she had been present at the timeof occurrence, would have in the normal course told the said Army Officersthat the injured was her son, Prem. Lt. Commander Mrs. V. A. Khandekarcame to know of the name of the injured from a chit which was recoveredfrom his person by the Police Officer at the Military Hospital. Public Witness 2,brig. Airys, came to know of the of injured s name later on, that is, after hehad been removed to the hospital in an ambulance. 170 ( 15 ) THE testimony of the other eye witness, Commander R. K. Sharma (P. W. 8) seems to be at variance with the statement of Dr. Mrs. V. A. Khandekar and also that of Brig, Airys on this aspect. According to thiswitness, he had seen the occurrence from the balcony of his flat which is onfourth floor of block No. 20 at about 10. 15 pm. The role assigned by himto the three assailants is exactly the same as deposed to by Brig. Airys. Hehowever, says that he shouted from his balcony to the three boys to leavethe injured alone and, thereafter, he straightaway proceeded to. he groundfloor, but on his way, he asked Commodore Adityoo (P. W. 14 ). who liveson the same floor, to inform the police that "some persons were beating achap". When he reached the spot, he found Brig. Airys already present. The injured was lying on the ground with his face downwards and he foundthat "one lady was also crying there and I later on came to know that shewas the mother of the injured and few other persons had also reached there. When he reached the spot, he found Brig. Airys already present. The injured was lying on the ground with his face downwards and he foundthat "one lady was also crying there and I later on came to know that shewas the mother of the injured and few other persons had also reached there. After some time the ambulance was called and the injured was taken tothe hospital in the ambulance. Lady Dr. Khandekar bad accompanied theinjured in that ambulance". In his cross-examination, he said that it wasafter about 15 to 20 minutes of his arrival at the spot that the ambulancehad reached there. But, he did not remember whether the injured "prmwas removed to the hospital in a private car or in the ambulance", Hefurther admitted that before the arrival of the ambulance he had gone backto his flat for a couple of minutes but again came to the spot. He is definitethat he came to know the name of the injured person later on. ( 16 ) WE are of the view that this witness, possibly an eye witness tothe occurrence, has not been able to recollect the proper sequence of events. According to Brig. Airys the injured was being removed in the ambulancewhen he reached the spot. Commander Sharma admits that Brig Airys wasalready there but stated that the ambulance was called after about 15 to 20minutes of his (Sharma s) reaching there. The time when the ambulancereached the spot is more or less certain. That was about 10. 40 pm. Itarrived at the hospital with the injured at about 11. 00 p. m. Public Witness 1, Lt. Commander Mrs. V. A. Khandekar was the first one to reach the spot andthat was about 10. 25 p. m. Commander Sharma could not have reached thespot 15 to 20 minutes earlier than the arrival of the ambulance. The testimony of Public Witness 1 and Public Witness 2 on this aspect is clearer and straightforward. Commander Sharma left the spot, according to him, for a few minutes to goio his flat. Most probably, he found the mother of the injured at the spoton his second visit but it was only after the ambulance had left the place ofoccurrence. Apparently he has not been able to recollect the correct sequence. However, what is to be considered is whether Public Witness 13 (Savitri Devi)hadseen the occurrence as deposed to by her. Most probably, he found the mother of the injured at the spoton his second visit but it was only after the ambulance had left the place ofoccurrence. Apparently he has not been able to recollect the correct sequence. However, what is to be considered is whether Public Witness 13 (Savitri Devi)hadseen the occurrence as deposed to by her. There is no doubt that she reachedthe spot after sometime of removal of her son. We have noticed above, thatp. W. 1, Lt. Commander Dr. Mrs. Khandekar did not find her at the spot. Neither did Public Witness 2. Brig. Airys when he reached there. These eye witnessescame to know of the name of the injured much later as admitted by them. The injured, who died on his way to the hospital, was described as an"unidentified person" by Public Witness 9, Dl. Raja Gopal in the M. LC. (Exhibitp. W. 9/a ). All these facts go to show that Smt. Savitri Devi (P. W 13) mostprobably was not an eye witness to the occurrence. ( 17 ) NOW, adverting to the stabbing incident as seen by the witnessesfrom their respective flats. Public Witness 1 Lt. Commander Mrs. Khandekar was171residing in flat No. 568 of block No, 21. Public Witness 2, Brig. Airys, was also residing on that very floor of the said block in flat No. 570. Mrs. Khandekar wasinformed at about 10. 20 p. m. on 13/08/1982 about the noise on theroad outside her house. Brig. Airys stated that it was about 10. 15 p. m. when after hearing lot of noise he rushed to his balcony. Public Witness 8 Commandersharma who was residing in the block opposite, i. e. block No. 20 in flatno. 563 also gives approximately the same time, i. e. 10. 15 p. m. when heheard noise Public Witness 1 only saw a person lying on the ground but the othertwo witnesses say that they saw the actual assault from their respectivebalconies. Brig. Airys claims to have witnessed it with the help of torch light. Commander Sharma was able to see the same as near the place of occurrencethere were two street lights. We rind from the site plan. Exhibit Public Witness 2a,that distance from the Blocks to the place of occurrence, which has beenmarked as "c" has not been shown. The distance between the blocks hashowever been shown. It is 26 metres. Commander Sharma was able to see the same as near the place of occurrencethere were two street lights. We rind from the site plan. Exhibit Public Witness 2a,that distance from the Blocks to the place of occurrence, which has beenmarked as "c" has not been shown. The distance between the blocks hashowever been shown. It is 26 metres. Near Block No. 20 is an electric pole,which has been marked as "a" and the one on the side of Block No. 21 hasbeen marked as "b". On a rough calculation of the various distancesmarked in that site plan. it appears that electric pole nearer block No. 20 wasat a distance of about 17 metres from it. Electric pole at the place marked"b" would also bs at the same distance from Block No. 21. The place ofoccurrence is however nearer block No. 21 it is about 10 metres from electricpole "a" and about 181 metres from electric pole "b". It appears that Brig. Airys although further away distant wise from Commander Sharma was ableto see the occurrence not only because of the street lights, he also hadadvantage of having a torch light. All the three witnesses reside on the fourthfloors of their respective blocks. Public Witness 1. at about 10. 20 p. m. , saw the injuredfrom her balcony while he was lying motionless at the place marked "e" inthe site plan, five minutes earlier, i. e. at 10. 15 p. m. Brig. Airys as well ascommander Sharma claim to have see. the assault which was taking placeat the place marked "c" and also the dragging of the injured after theassault upto the place marked "e" The distance between those points in thesite plan is about 6. 7 metres. By the lime Brig. Airys had reached the pointmarked "e", on his own admission, the injured was being moved into theambulance by Mrs. Khadekar and by the time Commander Sharma reachedthat place, Brig. Airys was already there. The two witnesses had practicallysimultaneously seen the occurrence, and, thereafter, rushed to the spot. Commander Sharma said that on his way he asked Commodore Adityoo toring up the police. We have no hesitation in accepting the testimony in totoof Lt. Commander Mrs. Khandekar; she was the one who reached thehospital at about 11. 00 p. m. with the injured. The two witnesses had practicallysimultaneously seen the occurrence, and, thereafter, rushed to the spot. Commander Sharma said that on his way he asked Commodore Adityoo toring up the police. We have no hesitation in accepting the testimony in totoof Lt. Commander Mrs. Khandekar; she was the one who reached thehospital at about 11. 00 p. m. with the injured. That time cannot be questioned at all as it has been mentioned in the M. L. C. (Exhibit Public Witness 9/a) bydr. Raja Gopal. The time the ambulance left the hospital for the spotcannot be doubted as the driver, Shri Sita Ram Pandey. is categorical thatat about 10. 30 p. m. he was asked to proceed to the spot by Dr. Raja Gopal. P. W. I stilted that the ambulance reached within 5 minutes of her telephonecall. As ws have held earlier. Commander Sharma s recollection seems to behazy, The sequence of events as deposed to by him is not borne out fromthe record. The statement regarding the timings given by Brig. Airys alsodoes not aspire confidence. He stated that after remonstrating with theassailants from his balcony, he immediately rushed to the spot. But at thattime he found not only Public Witness 1 but also the ambulance there. It could nothave taken him twenty five minutes to rush down. In any view of the case,we are of ths opinion that from their respective fourth floors it could not172 have been possible for the witnesses to identify the assailants, specially whenthey did not know them from before. Probably, these witnesses did see theoccurrence from their balconies, but their assertion that they immediatelycame downstairs cannot be accepted. These two witnesses heard the noise andcame out on their respective balconies at about 10. 15 p. m. to investigate. According to Brig. Airys, he saw near his flat (at point "c" in the site plan)three boys giving beating to another boy. He shouted ye KYA HORAHAHAI". On his remonstration, those three boys dragged the victim to adistance of about 15 ft. , i e. upto the point marked "e" on the site plan. Wemay notice that in his earlier statement under Section 161 of the Criminalprocedure Code, there is no mention about the particular short or aboutthe reply given by the boys. However, the witness stated that it look himabout 8 to 10 minutes to reach the spot after bearing the noise. Wemay notice that in his earlier statement under Section 161 of the Criminalprocedure Code, there is no mention about the particular short or aboutthe reply given by the boys. However, the witness stated that it look himabout 8 to 10 minutes to reach the spot after bearing the noise. That wouldmean that, according to him, he reached the spot before 10. 25. p. m. Thisis not correct as by then the ambulance which he claimed to have seen hadnot arrived. Similarly. Public Witness 8 Commander Sharma must have reached thespot at about 10. 25 p. m. as he had also heard the noise at 10. 15 pm. Thebeating and the dragging, most probably, was over by 10. 20 p. m. , the timeby which Mrs. Khandekar came out from her bathroom to her balcony. From the sequence of events and their timings discussed above, we are ofthe view that Public Witness 2 and Public Witness 8 did come to the spot but much later than10. 25 p. m. By the time Brig. Airys arrived, the ambulance had reached thespot. Their testimony in its entirity cannot, thus, be accepted. ( 18 ) FROM the statements of Brig. Airys and Commander Sharma, theprosecution can take support only to prove that these two witnesses badwitnessed three boys beating another boy. As we have held earlier, thesewitnesses did not know the assailants from before. Therefore, their identification in court at least of the two accused, namely, Purshottam and Rajiv, inthe absence of the identification parade during investigation, is of no value. ( 19 ) THERE is yet another aspect. Both these officers say that theywitnessed the hockey stick in the hands of Purshottam and an iron rod in thehands of Rajiv. In his cross-examination. Brig. Airys stated that the ironrod was about 3 ft. long. It was round in shape and its diameter was over"3/8 x inches. The three accused persons after dragging the victim startedrunning towards back side of his flat on his shouting. The witness furtherstated "accused persons threw the weapons to the one side when they weregoing to the back side of our block. I have not seen the iron rod and thehockey when I came to the victim. However, they were recovered by thepolice later on. I saw the accused persons throwing the aforesaid weapon withthe help of light of my torch. I have not seen the iron rod and thehockey when I came to the victim. However, they were recovered by thepolice later on. I saw the accused persons throwing the aforesaid weapon withthe help of light of my torch. I was having a torch containing four dry cellsat that time. I could notice the iron rod being thrown but I had not seen itfalling on the ground. Similarly, I could witness the hockey being thrown bythe accused and I did not see the same falling on the ground. " (italics added) ( 20 ) IT is the admitted case of the prosecution that police had arrivedat the spot at about 11. 30 p. m. on 13/08/1982. The eye witness werequestioned by them. Brig. Airys abmits that the police remained at the spotupto 8. 00 a. m. next morning. According to him he went back to his houseat about 3. 45 a. m. and again came at the spot at about 6. a. m. He did notspecify in his statement as to when the police recovered the weapons, but itis obvious that during investigation this witness must have informed the 173police not only about the weapons but also their having been thrown. Inany case he admitted those were recovered by the police. The prosecution,however, wanted the court to believe that the weapons were recovered afterthe accused had made disclosure statements on 14/08/1982. Thedisclosure statement made by Purshottam Lal, is Exhibit Public Witness 7/g andthe are made by Ram Chander is Exhibit Public Witness 7/h. These two statementsare attested by Hari Singh, Public Witness 7, unless of the deceased. The pointingout memo leading to the recovery of hockey stick is Exhibit P. W. 7/e andthe one leading to the recovery of the iron rod is Exhibit Public Witness 7/f. Thoseare also attested by Hari Singh, Brig. Airys while staling that the weaponswere recovered by the police did not specifically state that those wererecovered in his presence. But since he supports the fact of recovery (although he is not an attesting witness) it has to be presumed that on beinginformed by this witness, the police officers searched for those weapons. The weapons were thrown in the vicinity of the officers blocks, and thepolice, thus, must have recovered the same or at least knew their whereabouts. But since he supports the fact of recovery (although he is not an attesting witness) it has to be presumed that on beinginformed by this witness, the police officers searched for those weapons. The weapons were thrown in the vicinity of the officers blocks, and thepolice, thus, must have recovered the same or at least knew their whereabouts. The formal recovery of those weapons after the disclosure statementand on the pointing out by accused is worthless as it is obvious from thestatement of Public Witness 2 that the police bad already "recovered" those weapons. Neither the disclosure statement nor the seizure memos have been signed bybrig. Airys or by Commander Sharma or by any of the other officers whowere available. The only public witness that signed them is Hari Singh. Weare of the view that those recovery memos made on the pointing out by theappellants have to be discarded. ( 21 ) NOW the injuries alleged to have been inflicted on the deceasedby those weapons may be noticed. Dr. L. T. Ramani, Medical Officer of thepolice hospital, who conducted the post mortem examination on the bodyof Prem found the following :"external injuries:-1. Abrasion 1 incu X 1 inch on the right zygoma (cheek bone ). 2. Abrasion 1 X 1 inch on the right cheek. 3. Abrasion 3x 1 inch on the right mandibular border. 4 CLW 1 X inch into skin deep surrounded by abrasions onthe left side of forehead. 5. Abrasions 1 inch X 3/4 inch on the right sub clavicular region. 6. Tiny abrasion scattered on the front of chest right side. 7. Abrasion 1 inch X inch over left cheek. 8. CLW 1 inch x inch into scalp deep over left paritaleminance. 9. Bruise 6x1 inch on the right shoulder and scapular area,margins were bright red in colour. 10. Two abrasions x inch each on the right shoulder. 11. Bruise redish in colour 8 x 1 inch on the middle part of theback oblique. 174 12. Bruise 4 inches X 1 inch on the lower part back of right side. 13. Bruise 3 inches X 3/4 inches on the back of left knee. 14. CLW inch X inch X muscle deep with abrasions on theback of right elbow. 15. Two bruises 4 inches X 3/4 inch each on the front of left thigh. 16 Bruise 4 inches X 1 inch on the right thigh medial aspect. 13. Bruise 3 inches X 3/4 inches on the back of left knee. 14. CLW inch X inch X muscle deep with abrasions on theback of right elbow. 15. Two bruises 4 inches X 3/4 inch each on the front of left thigh. 16 Bruise 4 inches X 1 inch on the right thigh medial aspect. 17. Abrasion inch X inch on the front of both knee. 18. Abrasion inch X inch over leftgreat toe. 19. Abrasion 1 inch X 1 inch on the back of left elbow. Internal examination reveals:haemotoma under the scalp. Skullbones were intact, there wasthick sheet of generalised subdural haemorrhage extending upto thebase of skull. Neck tissues were normal. Hyoid bone was intact. Ribs were intact. Lungs were partially adherant to the chest wallleft lung showed bruising, heart was normal, stomach containedabout 4 ounces of semidigested food. whole lice particles could beidentified. Stomach mucosa was pale, bowels were normal, bladdercontained clear urine. There were spleen kidneys were pale. Ractumwas empty, there was blood clot under subcutaneous tissues underbruses all over. "according to the doctor all the injuries were caused by blunt weapons Theinjuries over the skull were sufficient to cause death in ordinary course ofnature. The autopsy was conducted at 12. 30 pm. on 14/08/1982. The doctor found the time since death was about 12 hours. ( 22 ) FOR assessing whether any of the injuries caused on the skullcould be inflicted by a rod of the dimensions referred to Brig. Airys and. particularly, with a view to verify whether he could have been able to judgefrom a distance the measurements of that rod, which rod, we may notice,is being termed as Sariya (twisted steel) by the Investigating Officer, wewanted to have a look at it. As noticed in the beginning, the weapons havenot been produced before us as they have been auctioned. In our view, fromthe fourth floor of the building, it would not be possible for Brig. Airys tostate categorically whether the weapon being wielded by one of the assailantswas of iron or was just an ordinary stick. And for him to have noticedthe dimension also seems to be not very probable. He must have seen thoseweapons when they were recovered by the police during investigation, butprior to recording of the disclosure statements of Purshottam and Ramchander. We may note that Purshottam was arrested on 14/08/1982at 3. And for him to have noticedthe dimension also seems to be not very probable. He must have seen thoseweapons when they were recovered by the police during investigation, butprior to recording of the disclosure statements of Purshottam and Ramchander. We may note that Purshottam was arrested on 14/08/1982at 3. 20 a. m. and could have only made the statement thereafter whichallegedly led to the discovery of the weapons, the existence and whereabouts of which were already known to the police officers. ( 23 ) THE case of the prosecution further is that Purshottam andramchander after committing the assault had gone to their houses and hadinflicted on themselves cut injuries to enable themselves to have a defence 175version. Ram Chander, as we have seen above, was noticed by Mrs. Khandekar to be present at the spot. She had found that he was bleeding,and, therefore, took him to the hospital for first aid. Although accordingto the doctor who had examined them in the police hospital the accusedhad admitted to have inflicted self injuries with blades, but that statementhaving been made in the presence of the Police Officers who had escortedthem is to be ignored from consideration. The theory propounded by theprosecution regarding the self inflicted injuries does not seem to be cogent. particularly. in view of the fact that Ram Chander was found at the spotwhen Mrs. Khandekar was going to the hospital. Thus, if the statement ofthe accused recorded by the doctor in the presence of the police officer isignored, the injuries to Ram Chander and Purshottam remain unexplainedby the prosecution. ( 24 ) FOR the reasons stated above, we are of the view that the prosecution has not b;en able to prove the charges against the appellants herein. We allow the appeal and set aside the convictions and sentences imposedon the appellants. We are informed that during the pendency of the appealthe sentence imposed on Purshottam was suspended and he is on bail. Hispersonal bond and the surety bond are discharged. The other two appellantsare directed to be set at liberty forthwith.