Malik Sharief-ud-Din, J. ( 1 ) THE respondent was charged under Sections302/307/324, Indian Penal Code At trial, the learned Additional Sessions Judge by hisorder dated 8/05/1985, acquitted him of the charges under Sections 302/307, Indian Penal Code Respondent was, however, convicted under Section 324, I. P. C. He was released on probation. Aggrieved against the aforesaid order, thestate has filed this acquittal appeal. ( 2 ) THE brief facts of the case are that one Dharmender, PW-16, whowas a class fellow of the respondent had appeared alongwith the respondentin the 9th class examinations in which Dharmender passed, while the respondent got a compartment. It is alleged that in April, 1984, Dharmender hadborrowed Rs. 8. 50 NP. from the respondent which Dharmender had failedto return despite demand. ( 3 ) ON 21. 6. 83, at about 8. 00 p. m. Dharmender had come out of hishouse to call one Arun, who had visited his house earlier in his absence andwhen he reached near the dispensary of Pocket No. 1, Paschim Puri, he cameacross the respondent who demanded Rs. 8. 50 NP. On his failure to respondto the demand the respondent is alleged to have inflicted a knife injury on hisleft thigh by back side. ( 4 ) DHARMENDER at this stage is alleged to have raised an alarm whichattracted his two brothers, Sunil, deceased, and Anil, to the scene of incident. On seeing them coming towards him the respondent inflicted a knife blowon the chest of Sunil, deceased, and also gave three knife blows to Anil on hisleft cheek, left side of the stomach and on his back. The accused is then statedto have escaped towards his house, which was situated in the same locality. Allegedly at the time of incident, one Vinod alias Lala, and Prabhat, commonfriends of Dharmender and respondent, were present on the spot. After theincident, the mother of the injured together which some neighbours are saidto have reached on spot. Sunil, deceased and Anil were then removed toe. S. I. Hospital, where Sunil was declared as having been brought dead. Dharmender followed them, but he was referred to Willingdon Hospital,by the doctor in E. S. I. Hospital. It is also alleged that on the same nightataboutll. 22p. m. DDNo. 25-A, marked as Ex. Sunil, deceased and Anil were then removed toe. S. I. Hospital, where Sunil was declared as having been brought dead. Dharmender followed them, but he was referred to Willingdon Hospital,by the doctor in E. S. I. Hospital. It is also alleged that on the same nightataboutll. 22p. m. DDNo. 25-A, marked as Ex. PW-13/a, was recordedat Police Station Punjabi Bagh, on the information received from E. S. I. Hospital, about the admission of Sunil, deceased, and his brother Anil. It isalso alleged that on this S. I Sumer Singh, went to E. S. I. Hospital, wherefrom he obtained the MLCs of both these brothers. Anil was declared unfitto make a statement. From there, Sumer Singh, S. I. allegedly went to thewillingdon Hospital. After Dharmender was declared fit to make a statement,s. I. Sumer Singh, is stated to have recorded his statement. Ex. PW-11/a,which forms the basis of FIR. We may note that according to DD No. 25-A,ex. PW-13/a, the SHO soon after recording of the same left for thespot in a jeep, though the Court is told that he took over investigationat 3. 30 a. m. , next morning. SHO recorded the statements of various witnessesand did the remaining investigation like lifting of blood etc. from the spotand also got scene of incident photographed. He also conducted theinquest proceedings regarding Sunil, deceased. ( 5 ) IT is alleged that accused Kulwant was arrested on 22. 6. 83 fromthe District Park, Paschim Puri, and at his instance, the weapon of offencestained with blood was recovered. ( 6 ) AT this stage, we may notice the defence stand taken by the respondent. In his statement, under Section 313, respondent has stated thatdharmender, while sitting on a culvert alonwith Vinod and one Prahlad, tauntedhim for getting compartment, on which there was an altercation. According to him during this altercation, Dharmender picked up a knife from nearbyhandcart containing musk melons and attempted to attack him, but he succeeded in snatching the knife from him and attacked Dharmender in self-defence andthereafter ran away to his house. According to him Sunil, deceased, and Anilthereafter came to his house and during a fight with his two brothers they gotinjured. ( 7 ) THE only material evidence in the case is of the following witnesses:- "pw-3, Dr. Nagesh Kumar Jain, examined Dharmender at 10. 00p. m. on 21. 6. According to him Sunil, deceased, and Anilthereafter came to his house and during a fight with his two brothers they gotinjured. ( 7 ) THE only material evidence in the case is of the following witnesses:- "pw-3, Dr. Nagesh Kumar Jain, examined Dharmender at 10. 00p. m. on 21. 6. 83 with the alleged history of having been stabbed onthe same day. He found a stab injury on upper left lateral part ofthigh caused by a sharp edged weapon. According to him eventhough the general condition of the patient was found to be critical,dharmender left the Hospital against the medical advice. PW-3 hasproved the MLC, Ex. PW-3/a, in respect of Dharmender. " ( 8 ) PW-4, Dr. Narender Ghai, who operated upon Anil has given alist of injuries, he found on his person. We refrain to reproduce the injuriesas these are not in dispute. He has proved his noting Ex. PW-4/a to Ex. PW-4/m. According to. him it is difficult to say if these injuries could becaused by the weapon of offence seized in this case, though he admits that thesehave been caused by the sharp edged weapon. ( 9 ) PW-9,dr. P. N. Hans has stated that on 21. 6. 83 at 8. 20. p. m. ,sunil was brought dead to E. S. I. Hospital by his mother with the allegedhistory of having been stabbed by a neighbour friend, Kulwant of Pocket No. 3, Janta Quarter, Paschim Puri. There is no need to refer to the injuriesfound on the person of deceased as these are not in controversy. He provedthe MLC, Ex. PW-9/a, in respect of Sunil. According to him on the samedate, he examined Anil Kumar again brought by his mother with the similaralleged history as in the case of Sunil, deceased and has proved the MLC, Ex. PW-9/b. He noticed four injuries on the person of Anil Kumar, which weneed not reproduce as there is no controversy about them. Injuries, accordingto this witness, were caused by sharp edged weapon and were dangerous. Healso referred Dharmender injured to Willingdon Hospital, after giving himfirst aid and also informed West Delhi Police Control Room about the injured. According to him, the mother of the injured and Dharmender gave the allegedhistory. ( 10 ) PW-10, Dr. M. S. Yadav, examined Anil Kumar on 22. 6. 83 andopined that he was not fit to make a statement. Healso referred Dharmender injured to Willingdon Hospital, after giving himfirst aid and also informed West Delhi Police Control Room about the injured. According to him, the mother of the injured and Dharmender gave the allegedhistory. ( 10 ) PW-10, Dr. M. S. Yadav, examined Anil Kumar on 22. 6. 83 andopined that he was not fit to make a statement. PW-16, Dharmender Kumar,pw-17, Anil Kumar, both the victims of this incident have supported the prosecutioncase as unfolded in FIR, PW-18, Smt. Bimla, mother of theinjured states that when she reached that spot all the three sons told her thatthey were assaulted by Kulwant Singh. ( 11 ) WE may however, note that PW-16, Dharmender has added thatafter he was given treatment at the Hospital, he was removed from there, bythe police to the scene of incident, after being given to understand that thepolice had taken the permission of the doctor. According to him, the man whorecorded his statement in the hospital was having three stars. He is also awitness to the arrest of the accused which according to him took place at. 6. 00a. m. on 22. 6. 83. He has also stated that the accused made a disclosure statement pursuant to which blood stained knife was recovered at the instance of theaccused. Dharmender PW-16, however, is categorical that S. I. Sumer Singh wasnot among the police officials who came to Willingdon hospital and removedhim from there. After seeing S. I. Sumer Singh in the Court, he categoricallydenied that his statement was recorded by S. I. , Sumer Singh. According to himhe never met Dr. Hans, PW-9, in ESI Hospital. ( 12 ) AS far as PW-17, victim, is concerned his statement was recordedon 24. 6. 83. He has categorically stated that he saw the accused for the firsttime on the date of incident. Obviously he named him in his statement onlyafter being told that Kulwant was the assailant He has no personal knowledgeabout the genesis and sequence of the incident that led to the injuries on theperson of Dharmender. PW-18, Smt. Bimla states that she was told by herthree sons that Kulwant, respondent, had inflicted injuries on their person. She, however, admits that when she reached on the spot, Sunil was unconcious. she also states that while on her way to Hospital, she had asked Chaman Lal,son-in-law of her husband s sister and Nathu Ram to reach thehospital. PW-18, Smt. Bimla states that she was told by herthree sons that Kulwant, respondent, had inflicted injuries on their person. She, however, admits that when she reached on the spot, Sunil was unconcious. she also states that while on her way to Hospital, she had asked Chaman Lal,son-in-law of her husband s sister and Nathu Ram to reach thehospital. It isnecessary to notice at this stage that no such story was unfolded before eitherof these two person, not even by Dharmender, who went to Willingdonhospital in the company of Nathu Ram. ( 13 ) PW-24, Gulshan Kumar is a witness to the disclosure and discovery of blood stained knife and arrest of the accused. According to him thearrest took place at 12. 00 noon, when he was in Madipur Subzi Mandi wherehe had gone to purchase articles for cremation of Sunil. According to him itwas from there that he had joined the police party. Dr. L. T. Ramani, PW-27has conducted the post mortem of deceased Sunil. According to him, the injuryon the person of deceased was caused by sharp edged weapon and was sufficientto cause death in the ordinary course of nature and were anti mortem. Hestates that the injured could remain conscious for a couple of minutes afterreceiving the injuries. ( 14 ) PW-28, Prabhat Kumar has been examined as an independent eyewitness. According to him, he alongwith Vinod, PW-29, were present whenthey heard exchange of abuses between Dharmender and Kulwant. They sawthem grappling and then they heard about stabbing having taken place andthereafter saw Kulwant running away on one side and Dharmender on theother side. He was declared hostile. According to him Kulwant gave knife blowon the left thigh of Dharmender. He further goes to state that after Kulwantand Dharmender ran towards different directions, he also left the place. It isnecessary to notice here that this witness had not been cross examined at allabout the fact that Sunil, deceased and Anil were also inflicted stab wounds bykulwant in this very incident. ( 15 ) PW-29, Vinod Kumar, alias Lala, whose presence on the site ofincidence is even admitted by Dharmender, has made a similar statement asthe preceding witness, PW-28. He has also not subscribed to the story thatdeceased Sunil and Anil were also stabbed by Kulwant in this very incident. ( 15 ) PW-29, Vinod Kumar, alias Lala, whose presence on the site ofincidence is even admitted by Dharmender, has made a similar statement asthe preceding witness, PW-28. He has also not subscribed to the story thatdeceased Sunil and Anil were also stabbed by Kulwant in this very incident. This witness was not at all declared hostile, indicating thereby that there is nochal lenge by the prosecution to the truthfulness of the evidence tendered bypw-28 and PW-29, Prabhat and Vinod respectively. ( 16 ) CONSTABLE Dimag Singh, PW-30, states that he took the copy ofthe FIR, Ex. PW-11/8 to the Ilaqa Magistrate on 22/06/1983, but since themagistrate was sleeping, he left that FIR at his residence at 4. 00 a. m. PW-31,s. I. Sumer Singh has stated that after Anil was declared unfit for making astatement he went to Willingdon Hospital and obtained the MLC and fitnesscertificate of Dharmender and recorded in statement at about 1. 00 a. m. on22. 6. 83. He had also stated that MLCs of Sunil, deceased and Anil, victim werealso procured by him. He has recorded the statements of PW-30, Constabledimag Singh on 10. 9. 83 i. e. after about three months and it was only at thatstage that he was informed by Dimag Singh that since the Magistrate wassleeping, he had left the copy of FIR at the residence of Magistrate. We maynote that there is no such entry in Roznamcha. PW-33, Ram Chander Singh,inspector, SHO, is the person who infact is the main Investigating Officer. Heis also a witness to the arrest, disclosure statement and recovery of the weaponof offence at the instance of accused. According to him the Bushirt and Pant,which the accused was wearing were also seized by him apart from makingother seizures. He has stated that he reached ESI Hospital, for the first time at3. 00 a. m. on 22. 6. 83 in police jeep, which had come to his possession at midnight. According to him it is incorrect to suggest that he brought the victimdharmender from hospital against the advice of doctor and without permission. He, however, admits that Dharmender was with them for investigation. Thesuggestion that the FIR was recorded at his instance after the sun-rise has beenrefuted by him. ( 17 ) THE only defence witness DW-1, P. D. Jharwal, Metropolitanmagistrate has stated that FIR in this case was delivered to him at his residenceat 8. He, however, admits that Dharmender was with them for investigation. Thesuggestion that the FIR was recorded at his instance after the sun-rise has beenrefuted by him. ( 17 ) THE only defence witness DW-1, P. D. Jharwal, Metropolitanmagistrate has stated that FIR in this case was delivered to him at his residenceat 8. 30 a. m. at 22. 6. 83. The learned Additional Sessions Judge has found that theprosecution case suffers from two main infirmities, namely the belated recordingof the FIR which in his opinion was anti timed. Relying upon 1975, Currentlaw Journal, Supreme Court 378, he held that if it is shown that the FIR wasnot recorded at the time shown therein, it demolishes the entire fabric of theprosecution case. The learned Additional Sessions Judge also came to the conclusionthat the prosecution case beyond what is admitted by the accused is not provedbeyond any reasonable doubt. ( 18 ) NOW speaking in a general way, according to the settled law thepower of this Court while hearing appeals against acquittal is not fettered inany manner. This power is as wide as in cases of appeal against conviction. The only requirement is caution and go slow. For reversing an acquittal andsubstituting it by conviction there must be compelling reasons. The endeavourshould be to displace or dispell in a general or specific way, the primary reasonsgiven in support of its views by the Trial Court. The Court is also required toexpell or dispell all the doubts and to nay due regard to the rights of theaccued. The Court has also to keep in mind the credibility of the witnesses andthe value that can be attached to the evidence. Presumption of the innocenceof the accused is the basic guide that should not be lost sight of. ( 19 ) LET us then examine the facts and circumstances of this case andfind out how far, the view taken by the Trial Court is sustainable. The firstversion of incident is given before PW-9, Dr. P. Nagesh who recorded themlcs Ex. PW-9/a and Ex. PW-9/b of deceased Sunil and victim Anil respectively. In these MLCs, the respondent is named as the person responsible forinflicting injuries on them. According to Dr. Hans, this information was givento him by the mother of the injured and Dharmender, though it is not specifically mentioned in these MLCs. As admitted by Dharmender he has not metdr. PW-9/a and Ex. PW-9/b of deceased Sunil and victim Anil respectively. In these MLCs, the respondent is named as the person responsible forinflicting injuries on them. According to Dr. Hans, this information was givento him by the mother of the injured and Dharmender, though it is not specifically mentioned in these MLCs. As admitted by Dharmender he has not metdr. Hans and this information as such could not be furnished by him. In ourview the information to Dr. Hans, therefore, could only be furnished by themother of the victims who was not. an eye witness to the incident. According toher, she was informed by her three sons, but that does not seem to be true assunil, deceased was unconcious when she reached on the spot. In any case, inthe presence of the fact that Anil and Dharmender have been examined aswitness in this case, these enteries are irrelevant. According to Anil he saw theaccused for the first time at the time of incident. His naming the respondentin his statement under Section 161, Cr. P. C. , on 24. 6. 83 can only betreated as an inspired one The least that can be said is that he was told bysomeone interested that it was Kulwant who had stabbed them. In the circumstances of this case we are thus left with the testimony of Dharmender, one ofthe victims. ( 20 ) WHILE examining the truthfulness of the evidence tendered bydharmender, we have to keep in mind a number of circumstances. We are toldby Sumer Singh and Ram Chander Singh, two 10s in this case that the statement of Dharmender was recorded in Willingdon Hospital by S I. Sumer Singhat 1. 00 a. m. on 22. 6. 83. This fact is totally controverted by Dharmender himself. DD-25/a, Ex. PW-13/a recorded at Police Station at 11. 22 p. m. on21. 6. 83 clearly indicates that on receipt thereof, SHO, Ram Chander had leftfor spot in a jeep, though according to Inspector Ram Chander Singh he reached in the jeep to Hospital only on 22. 6. 83 at 3. 00 a. m. One fails to understandas to what Inspector Ram Chander Singh was doing between 11. 30 p. m. to3. 00 a. m. In all probability it seems to us that he had visited the spot and haddiscovered the facts and the place of incident. 6. 83 at 3. 00 a. m. One fails to understandas to what Inspector Ram Chander Singh was doing between 11. 30 p. m. to3. 00 a. m. In all probability it seems to us that he had visited the spot and haddiscovered the facts and the place of incident. But after seeing the MLCs ofdeceased Sunil and also of Anil which indicated it to be one incident he felt thatfor the successs of the case it was necessary to tailor the sequence of events tothe requirements of the MLCs. On the facts of this case we have a feeling thatit was for this reason that he took away Dharmender from thehospital against the advice and without the permission of the doctor. Inspectorram Chander Singh wants the Court to believe that he took the permission ofthe doctor but this fact is controverted by PW-3, Dr. Nagesh Kumar Jain whohas stated that the general condition of Dharmender was critical and he wasadmitted to bed. The Court is told by Inspector Ram Chander Singh thatdharmender was taken for the purposes of investigation, but we find from thefacts of the case that Dharmender participated in the arrest, disclosure andrecovery of knife only, which according to Gulshan Kumar, PW-24, took placeat 12. 00 noon on 22. 6. 83. This surreptitious removal of Dharmender from thehospital thus, assumes importance and goes to show that this was done in allprobability to make out a story that would be in accord with the enteries in themlcs, Ex. PW-9/a and Ex. PW9/b. This fact coupled with the fact that thefir in this case was delivered to the Magistrate at 8. 30 a. m. on 22. 6. 83. goesto show that Dharmender s statement allegedly scribed by S. I Sumer Singh wasnot in existence at 1. 00 a. m. as is asserted by the prosecution. In all probability it came into existence only ofter the removal of Dharmender from Hospitalby the police and it was for this reason that there was a delay in sending thesame to the Magistrate. As already noticed there is no entry in the daily diaryof the Police Station on behalf of constable Dimag Singh, PW-30, that he hadleft the copy of the FIR at the house of the Magistrate. Shri P. D. Jherwal,metropolitan Magistrate, DW-1, has categorically stated that the copy of thefir was delivered to him at 8. As already noticed there is no entry in the daily diaryof the Police Station on behalf of constable Dimag Singh, PW-30, that he hadleft the copy of the FIR at the house of the Magistrate. Shri P. D. Jherwal,metropolitan Magistrate, DW-1, has categorically stated that the copy of thefir was delivered to him at 8. 30 a. m. at his residence. If it were a fact thatthe copy of the FIR had been left by Constable Dimag Singh at his residenceat 4. 00 a. m. , Metropolitan Magistrate would have stated that he had found itat his residence. The expression used by him is "delivered" which means that itwas delivered to him by someone in person. It is for this reason that the Constable Dimag Singh, PW-30, has disclosed this fact for the first time before S. I. Sumer Singh only on 10. 9. 83 i. e. almost nearly three months of the incident. It seems to us that the prosecution was concious of this loophole in the prosecution story and it was only to provide an answer to this loophole that it wasfound necessary to record the statement of PW-30, Constable Dimag Singh, onthis aspect of the case belatedly. ( 21 ) ONE is at loss to understand as to what Inspector Ram Chandersingh, or even S. I. Sumer Singh was doing between 12. 00 p. m. to 3. 30 a. m. Even the inquest of Sunil deceased is not recorded during this period. In ourview, therefore, the learned Additional Sessions Judge was justified in his conclusionthat the FIR in this case was anti timed and it destroys the very fabric of theprosecution case. To our mind the prosecution has totally failed to. establishthat the incident in respect of deceased Sunil and his brother Anil Kumar tookplace in the manner as suggested by it. ( 22 ) IN this view, we are also supported by the evidence tendered bytwo independent witnesses i. e. PW28. Prabhat, and PW-29, Vinod alias Lalawhose presence at time when Dharmender received injuries, is admitted by theprosecution. There is no challenge to this testimony even though these prosecution witnesses were supposed to provide independent corroboration. Both thesewitnesses have belied the prosecution case in respect of the fact that deceasedsunil and his brother Anil Kumar sustained any injury at the hands of Kulwant,in this very incident in which Dharmender has sustained injuries. There is no challenge to this testimony even though these prosecution witnesses were supposed to provide independent corroboration. Both thesewitnesses have belied the prosecution case in respect of the fact that deceasedsunil and his brother Anil Kumar sustained any injury at the hands of Kulwant,in this very incident in which Dharmender has sustained injuries. Both thesewitnesses are categorical that after stabbing Dharmender, both Dharmender aswell as respondent ran towards their houses and they also left the scene ofincident. As already noticed PW-28, Prabhat was declared hostile but was notcross examined regarding the fact that Sunil and Anil were also stabbed byrespondent in this very incident. Vinod, PW-29 was not even declared hostile. Admittedly both these witnesses were present on the spot and have seen theincident but both of them support the prosecution case only to the extent admitted by the accused. There is hardly any reason for us to disbelieve their testimony, particularly when there is no challenge to their veracity. The testimonyof both these witnesses clearly goes to show that deceased Sunil and his brotheranil have not sustained injuries in the manner as put forth by the prosecution. Obviously, the sequence of events leading to the injuries on their person hasbeen suppressed and the sequence in which they received injuries clearly appearsto be different than the one suggested by the prosecution. The testimony ofthese two witnesses also goes to show that the FIR in this case is anti timedand has been prepared after due deliberations with a view to bring it in accordwith the MLCs of deceased Sunil and victim Anil. As already noticed if thiswere the sequence of events, Dharmender would definitely have. told about itto Nathu Ram who admittedly accompanied him to Willingdon hospital fromesi hospital. To our mind in normal course of human behaviour Kulwant afterstabbing Dharmender would run way from the scene rather than stay back toface hostile brothers of Dharmender and their neighbours. From that point alsoto our mind, the version tendered by PW-28 and PW-29 seems to be truthful. ( 23 ) IN this case we are concerned with the truthfulness of the prosecution story and with the fact as to whether the incident in respect of Sunil andanil took place in the manner as suggested by the prosecution and we are notrequired to examine the truthfulness of defence. ( 23 ) IN this case we are concerned with the truthfulness of the prosecution story and with the fact as to whether the incident in respect of Sunil andanil took place in the manner as suggested by the prosecution and we are notrequired to examine the truthfulness of defence. On the facts and circumstancesof this case we are certain that deceased Sunil and his brother Anil have notsustained injuries in the manner as suggested by the prosecution. In this viewwe are also fortified by the testimony of PW-4, Dr. Narender Ghai, when hesays that it is difficult to say that the injuries on the person of the Anil couldbe caused by the weapon of offence seized in this case. He is a Surgeon who hasoperated upon Anil and is far more qualified to state if the injury on the personof Anil could have been caused by the seized weapon of offence. This also goesto show that the weapon of offence used against Anil was not one seized in thiscase. Strangely the opinion of the autopsy surgeon Dr. L. T. Ramani as towhether the injuries on the person of deceased could be caused by the weaponof offence was not sought at all. ( 24 ) WE have also examined the forensic evidence. But it does not leadus anywhere. Even though the seized knife was stated to have human blood butits group could not be determined. Blood group of Anil is o and the piece, ofpaper seized from the scene also contains o group. But since the blood groupof Dharmender was not determined it cannot be said that it was not the bloodgroup of Dharmender. ( 25 ) FROM all that goes on before us, we are of the view that the prosecution has failed to prove that the injuries inflicted on deceased Sunil and hisbrother Anil were inflicted by Kulwant Singh, respondent, in the manner assuggested by it. The learned Additional Sessions Judge was, therefore, right in his view that the prosecution has failed to prove his case.