Mahinder Narain ( 1 ) THESE three appeals are directed against an order dated 5. 12. 1987, of Shri S. C. Jain, Additional Sessions Judge, Delhi (as his lordship then was), whereby he held the appellants Chhotu, Rishi Pal and Gian Chand guilty of having committed murder of Chhotey Lal. By the order of sentence dated 8. 12. 1987, the appellants were sentenced to undergo imprisonment for life under Section 302 read with Section 34 I. P. C. The appellants were also sentenced to undergo rigorous imprisonment under Section 394/34 read with Section 397 Indian Penal Code They were also sentenced to undergo rigorous imprisonment for five years under Section 436/34 I. P. C. They were also ordered to pay a fine of Rs. 500. 00, each, and in default of payment of fine, to further undergo rigorous imprisonment of one month each. With reference to the offence under Section 302/34 I. P. C. , the appellants were also ordered to pay a fine of Rs. 500. 00 each, and in default of payment of fine, to undergo rigorous imprisonment for one month each. It was directed that all the sentences shall run concurrently. It was also ordered that the appellants are entitled to the benefit of Section 428 Cr. P. C. ( 2 ) THE case of the prosecution was that on 19. 10. 1984, at about 8. 50 p. m. the appellants, in furtherance of their common intention, had voluntarily caused hurt of Shri Pal, committed robbery of Rs. 5. 500. 00from the cash box of Chhotey Lal and his sons. While committing robbery, they used deadly weapons, consisting of knives and hockey sticks and caused injuries to Shri Pal, and further that they Caused wrongful loss or damage to the property of Chhotey Lal his sons of more than Rs. 50. 00, committed mischief by fire, intending to cause or knowing it to be likely that they would thereby cause destruction of the tea stall/dhaba which was ordinarily used as a place for the custody of property by Chhotey Lal and his sons, and they caused death of Chhotey Lal. ( 3 ) THE story of the prosecution further is that the accused Gian Chand, Rishi Pal, Raj Singh and Chhotu used to come to Chhotey Lal s shop/tea stall for taking meals and tea etc. ( 3 ) THE story of the prosecution further is that the accused Gian Chand, Rishi Pal, Raj Singh and Chhotu used to come to Chhotey Lal s shop/tea stall for taking meals and tea etc. The accused Gian Chand and Rishi Pal did not pay for the meal and tea several times earlier and threatened Chhotey Lal when he made demand for the money. ( 4 ) IT is the prosecution story that on 19. 10. 1984 at about 8. 50 p. m. Chhotey Lal deceased was at his tea stall/dhaba, where his son Sunder Lal (P. W. 4), Shri Pal (P. W. 5), Davinder (P. W. 6) and grandson Ravinder (P. W. K) were also present. It is further the prosecution story that Chhotey Lal was taking his meals at the dhaba. The four accused persons had come to the dhaba/tea stall from the side of railway line. Rishi Pal and Gian Chand were armed with open knives, whereas Chhotu and Raj Singh were armed with hockey sticks. Rishi Pal accused caught hold of Chhotey Lal by his neck and put his knife on the abdomen of Chhotey Lal, and Gian Chand accused tried to open the cash box which was lying on the chair and when he could not open he demanded the key of the same from Chhotey Lal. When Chhotey Lal did not hand over the key to him Gian Chand accused threatened him with open knife and demanded key, whereupon Chhotey Lal pointed out where the keys were lying, and Gian Chand accused thereafter opened the cash box with the help of the keys, and removed the cash amounting to Rs. 5,500. 00, which was lying in the cash box at that time. When Chhotey Lal tried to intervene, Chhotu accused who was sitting behind Chhotey Lal, deceased, struck him with the hockey on his head which he was holding, and the front portion of the hockey broke down and fell on the ground. Gian Chand tried to attack Chhotey Lal with knife and Chhotey Lal ran towards village Nangali Rajapur and Gian Chand accused chased him with open knife in his hand. Rishi Pal accused over-turned the "karahi" which was on the "bhatti" and he also followed Chhotey Lal with the knife which he was having. Chhotu accused also gave beatings to Shri Pal with the hockey. Rishi Pal accused over-turned the "karahi" which was on the "bhatti" and he also followed Chhotey Lal with the knife which he was having. Chhotu accused also gave beatings to Shri Pal with the hockey. When Chhotey Lal reached in front of the shop of Daya Ram. (halwai ). Rishi Pal and Gian Chand accused caught hold of him and stabbed him on his stomach and back. Chhotey Lal raised alarm "bachao bachao", and fell down on the ground bleeding profusely. After that the accused persons set on fire the dhaba/tea stall of Chhotey deceased and then they ran away towards the railway line. Chhotey Lal succumbed to his injuries on the spot. ( 5 ) IT is further story of the prosecution that the police control room received information at about 9. 15 that there was a right with respect to the above incident. This information is recorded in Daily Diary No. 15-A. ( 6 ) THE above incident had taken place in village Nangali Rajapur, near Nizamuddin railway station. ( 7 ) ACCORDING to the prosecution, the eye-witnesses to the incident are the family members of Chhotey Lal deceased. They are Shri Pal (P. W. 5), son of Chhotey Lal, who was aged about 17 years at the date of incident ; Devinder (P. W. 6), son of Chhotey Lal, who was aged about 13 years at the date of incident : Sunder Lal (P. W. 4), son of Chhotey Lal, who was aged about 22 years at the date of incident, and Ravinder (P. W. 8) gran-son of Cbhotey Lal, who was a minor at the date of incident. About this witness, the Court observed that he is a minor, and be even does not know his age. He is not a competent witness to depose on oath and cannot be examined on oath. The Court discharged this witness. ( 8 ) THE sketch map of the place where the incident has taken place, has also been filed, which is Ex. Public Witness 2/a and Ex. Public Witness 2/b. According to the sketch map, Chhotey Lal had two establishments, one was a tea stall; and another at a distance therefrom separated by a passage, was a dhoba. ( 8 ) THE sketch map of the place where the incident has taken place, has also been filed, which is Ex. Public Witness 2/a and Ex. Public Witness 2/b. According to the sketch map, Chhotey Lal had two establishments, one was a tea stall; and another at a distance therefrom separated by a passage, was a dhoba. It is the case of the prosecution, and also indicated on the sketch map, that Chhotey Lal on being attacked, ran from the place where he was taking his meals and was attacked by knives again in front of a halwai shop at a distance of 150 yards from the tea stall and dhaba, and it is at this place where Chhotey Lal had died. ( 9 ) THERE are photographs on record also which indicate the state of the body and its position, and specifically they are indicative of the part from where blood came out, and how it flowed from the mouth and from the injuries sustained by Chhotey Lal, which caused his death. The other important piece of evidence is post-mortem report, which reads as under :- Department of Forensic Medicine All-India Institute of Medical Sciences, New Delhi-110029. Post Mortem Report No. 1298/84. Body identified also by : 1. Sunder Lal s/o Sh. Chote Lal, r/o Shop tea, Nangli Rajapur, New Delhi. 2. Shanker s/o Dal Chand, r/o Palajim Mehar Chand village, Sarai Kale Khan, New Delhi. Alleged to have stabbed on 10. 10. 1984 at about 9. 00 p. m. and died on the spot. Date and Hour of Receipt of Body : 20. 10. 84 at 12. 10 p. m. Date and Hour of Receipt of Inquest Papers : -do- Date and Hour of Starting Autopsy : 20. 10. 1984 at 12. 15 p. m. Date and Hour of concluding Autopsy : 20. 10. 84 at 1. 15 p. m. Body brought and identified by : P. C. Randhir Singh No. 964/sd P. C. Sri Bhagwan No. 2102/sd Time since death : About 15 hours. "schedule OF OBSERVATION" A-GENERAL 1. Name : Chhotey Lal, s/o Sh. Lal Singh 2. Address : Village Arthala, P. S. Mohan Nagar, U. P. 3. Height : 156 cms. Weight : about 70 kgs. Physiques Good 4. Nutrition: Good 5. Special identifying features : Identified body. Post-mortem changes present rigormortis present in all the four (extent of rigor mortis, post limbs. Name : Chhotey Lal, s/o Sh. Lal Singh 2. Address : Village Arthala, P. S. Mohan Nagar, U. P. 3. Height : 156 cms. Weight : about 70 kgs. Physiques Good 4. Nutrition: Good 5. Special identifying features : Identified body. Post-mortem changes present rigormortis present in all the four (extent of rigor mortis, post limbs. P. M. staining present on the mortem lividity and putre-factive back of chest and abdomen. No signs; stained blood vessels, greenish, signs of decomposition seen. Mouth discoloration, odour softening closed, eyes closed, pupildilated, of eye balls, exudation cornea vazy. from nose and mouth, ova of flies, moving naggots, blebs over body, peeling of cuticle losening of hair thorax and abdomen burst, soration of sutures of skull, eye change adipoceremummification External appearance condition of limbs, eyes, ears, mouth, anus, vagina and urethra. Injuries briefly but accurately describe all (state whether injuries are antemortem with reasons ). 1. Spindle shaped stab wound with sharp regular clean cut margins placed 10 cms. below and left to sternal angle and 5 cms right to the left nipple in 4th inter costal space of size 3. 5 cm. x 0. 5 cm. X 6. 5 cm. directing downwards medially and backwards cuttings deep fascia intercosal muscles, pleura and then the left ventricle of the heart. The stab wound of the heart was of the size of 3 cms. X. 2 cm. into heart cavity deep. Haemopericarium present about 250 cc of partly clotted blood was present. 2. Oblique spindle shaped stab wound with clear cut margin placed over anterior abdomen and right to umblicus 23 cms below and left to right nipple going towards left side horizontal within the abdominal wall. Size 2 cm. x. 8 cm. x 10. 5 cm. 3. Incised wound of size 2. 0 X 0. 8 X 10. 5 cms. present on the right side of black 21 cms. from posterior axillary downwards and 30 cms. from umblicus. 4. Incised wound on back on right side of size 1 X 0. 3 x 3. 5 cms. , six cms. below nape of back and 22 cms. from post axilary placed obliquely. 5. Incised wound of size 2x 0. 8x 0. 7 cms. adjacent to the aurical left ear 1. 8 cm above the tragus of left ear and 8 cms, from outer angle of left eye. 6. Incised wound of size 2. 5 cms. , six cms. below nape of back and 22 cms. from post axilary placed obliquely. 5. Incised wound of size 2x 0. 8x 0. 7 cms. adjacent to the aurical left ear 1. 8 cm above the tragus of left ear and 8 cms, from outer angle of left eye. 6. Incised wound of size 2. 4 x 0. 7 X 1. 5 cms exterior surface of left forearm 12 cms below and left olecranon and 16 cms above the right wrist joint. 7. Incised wound of size 2. 5x1x2. 5 cms. placed over left wrist joint on extensor surface. 2. Orbital, Nasal and aural cavities (examined if special indications present: N. A. D. 3. Mouth, tongue and pharynx. N. A. D. 4. Neck, larynx, thyroid and other neck structures: N. A. D. C-CHEST (THORAX) 1. Ribs and chest wall as mentioned 2. Diaphragm N. A. D. 3. Mediastinum and thymus N. A. D. 4. Oesophagus N. A. D. 5. Traces and bronchi N. A. D. 6. Pleural cavities Lt. pleural cavity is filled with blood about 2000 cc of blood is present in clotted and liquid form. 7. Lungs-Right 400 gms. pale Left 360 gms. pale 8. Heart and pericardial sac 9. Large blood vessels : N. A. D. D-ABDOMEN 1. Abdominal wall as mentioned 2. Peritoneal cavity N. A. D. 3. Stomach and contents: Wt. 1600 gms. , mucosa N. A. D. 4. Small intestine N. A. D. 5. Large intestine, vermiform appendix and mesentry N. A. D. 6. Liver, gall bladder, biliary passages Wt. 1480 gms. , N. A. D. 7. Pancreas N. A. D. 8. Spleen Wt. 100 gms. , N. A. D. 9. Kidney, renal pelvis, ureters Wt.-200 gms. , pale 10. Adrenals N. A. D. 11. Pelvic Walls N. A. D. 12. Urinary bladder and urethra N. A. D. 13. Genital organs N. A. D. E-SPINAL COLUMN 1. Spinal column and spinal cord (the spinal cord need only be opened and the cord examined if special indications are present) : Not opened Cloths preserved and sealed -one lungi -one shirt and handed over to the concerned police. F-MUCOS BONES As mentioned. G-ADDITIONAL REMARKS Nil 1. Post mortem report, inquest papers and dead body handed over to Police Constable. 2. Viscera, clothes and articles, if any Name: Randhir Singh No. 964/s. D. P. S. Nizamuddin on 20. 10. 84 at 2. F-MUCOS BONES As mentioned. G-ADDITIONAL REMARKS Nil 1. Post mortem report, inquest papers and dead body handed over to Police Constable. 2. Viscera, clothes and articles, if any Name: Randhir Singh No. 964/s. D. P. S. Nizamuddin on 20. 10. 84 at 2. 00 p. m. H. Specimens removed for chemical analysis. Sl. Nature of specimen 1. Stomach with contents -- 2. Small intestine and contents -- - 3. Sample of liver -- 4. Kidney (one) (half of each) - 5. Spleen 6. Sample of blood-Preserved and duly sealed along with sample of seal and handed over to the concerned police. 7. Other viscera - - 8. Preservative used -- K. Opinion as to the cause of death (a) Approximate time of death ; About 15 hours ago (b) Reserved pending report of (c) The cause of death, to the best of my knowledge and belief: is shock as a result of internal haemorrhage due to stab injury of heart i. e. (injury No. 1) which is antemortem in nature, and caused by a sharp edged weapon and sufficient to cause death in ordinary course of nature. Sd- (Dr. S. K. Verma) Deptt. of Forensic Medicine All India Institute of Medical Sciences, Ansari Nagar, New Delhi 110029. ( 10 ) THE post-mortem on the body of Chhotey Lal was conducted by Dr. S. K. Verma and Dr. T. D. Dogra, Department of the Forensic Medicine, All India Institute of Medical Sciences, New Delhi. The body was received on 20. 10. 1984 at 10. 10 p. m. The autopsy was commenced within 5 minutes of the receipt of the body, i. e. at 12. 15 p. m. , and was completed in one hour, i. e. at 1. 15 p. m. Dr. Dogra who along with Dr. S. K. Verma conducted the post-mortem, was also examined as a witness in the case as Public Witness 16, who opined that injury No. 1 was sufficient to cause death in the ordinary course of nature. Dr. Dogra was not cross-examined regarding the deposition made, or regarding the post-mortem report. The same was, therefore accepted by all concerned. ( 11 ) IT is significant that injuries Nos. 1 and 2 are both spindle shaped stab wounds. Spindle shaped wounds would occur only when the weapon of offence which caused injury, is sharp on both its edges. Dr. Dogra was not cross-examined regarding the deposition made, or regarding the post-mortem report. The same was, therefore accepted by all concerned. ( 11 ) IT is significant that injuries Nos. 1 and 2 are both spindle shaped stab wounds. Spindle shaped wounds would occur only when the weapon of offence which caused injury, is sharp on both its edges. In other words the weapon or weapons which were used to cause injuries Nos. 1 and 2 were double edged. ( 12 ) THE spindle shaped wounds occur when double edged weapons used find mention in the Medical Jurisprudence by Jhalla and Raju at page 315, wherein it is stated as follows :- The edges of the wound have their own importance If the injury is inflicted with a single-edged weapon, the injury is wedge shaped. If the weapon is double edged, the wound is spindle shaped with clear edges. If the weapon is round like a poker, the would be circular. If the weapon is square, the wound would be crucial If the complete length of the weapon is thrust up to the hilt one edged becomes bruised. In such cases, if the exact depth of the wound can be assessed, the weapon of offence can be safely identified and incriminated. ( 13 ) ANOTHER significant statement in the post-mortem report in part-D relating to abdomen. Item No. 3 thereof reads as under : "3. Stomach and contents ; Wt. 1600 gms, mucosa" ( 14 ) THIS indicates that the weight was found by the doctor to be 1600 gms. , and that its contents were "mucosa". Mucosa means mucous membrane, which refers to mucus-secreting membrane that lines body cavities this means that the stomach was devoid of food. What is significant about this is that the stomach did not contain any undigested food or undigested food particles, in other words, prior to his death Chhotey Lal had not ingested any food. ( 15 ) YET another significant part of the post-mortem report is contained in the Schedule of Observations part A-General, wherein against item No. 6 relating to post-mortem changes are mentioned. It is stated that rigormortis present in all the four limbs. Post-mortem staining present on the back of chest and abdomen. The post-mortem staining happens on that part of the body on which the body lays after death. From the photographs Ex. It is stated that rigormortis present in all the four limbs. Post-mortem staining present on the back of chest and abdomen. The post-mortem staining happens on that part of the body on which the body lays after death. From the photographs Ex. Public Witness 3/b-1 to Ex. Public Witness 3/b-12 which are on record, it is apparent that Chhotey Lal was lying on his back, therefore, the presence of stain on the back of the chest. ( 16 ) AS regards the stain on the abdomen, it is unexplained. There is no photograph on record which shows Chhotey Lal was lying on his abdomen. There is no deposition that Chhotey Lal was found laying on his abdomen. There is no statement that when the body of Chhotey Lal was carried to mortuary, he was positioned in such a way that the body lay on the abdomen. Therefore, staining of the abdomen has remained an unexplained circumstance in this case. ( 17 ) AS the photographs have been mentioned, it is desirable to mention another feature of the photographs. The photograph Ex. Public Witness 3/b-I I indicates that the body of Chhotey Lal was lying next to the wheel of a motor vehicle. That motor vehicle is not visible in all the photographs of the body. There is no explanation from any witness regarding the position of the body vis-a-vis the motor vehicle wheel next to which the body of Chhotey Lal was lying. Apparently, the motor vehicle was removed after the photographs showinig the body next to the wheel of the motor vehicle, have been taken, and therefore some of the exhibited photographs do not indicate the presence of any motor vehicle. ( 18 ) THE above said matter is set out in order to detail that these are the post-mortem facts and not controverted. ( 19 ) THERE is another significant factor which must be stated, i. e. regarding the so-called eye witnesses to the incident. All of the eye witnesses are members of the family of Chhotey Lal, the eldest of who was 22 years of age. He is Sunder Lal Public Witness 4. The next is Siri Pal, Public Witness 5 who was 17 years of age, and the next is Devinder, Public Witness 6, who is was 13 years of age at the time of the incident. He is Sunder Lal Public Witness 4. The next is Siri Pal, Public Witness 5 who was 17 years of age, and the next is Devinder, Public Witness 6, who is was 13 years of age at the time of the incident. The another witness Ravinder, Public Witness 8, being, was not examined by the Trial Court as the Court found the witness not competent to depose on oath. ( 20 ) ALL these witnesses are sons of Chhotey Lal. All of them have deposed about the incident, the manner of its occurrence is more or less the same terms. All the eye witnesses being members of the family of Chhotey Lal, their testimoney has to be scrutinized carefully. ( 21 ) ALL the eye witnesses have stated that Chhotey Lal was having his meals at the time when he was attacked by the accused. All of them have deposed that the deceased Chhotey Lal was bit on his head by hockey sticks. Chhotey Lal was hit with hockey sticks so hard that the hockey sticks broke. All the eye witnesses deposed that the accused used to come in the "dhaba", eating place, run by Chhotey Lal, and have their meals and after eating, refused to pay. and when the money was demanded, the accused threatened Chhotey Lal with dire consequences. ( 22 ) ALL the eye witnesses have deposed that the accused have come to the place of occurrence from the side of the railway line (according to Ex. Public Witness 2/a and Ex. Public Witness 2/b, the site-plan prepared by the prosecution. There is a passage between the tea stall and the "dhaba"); that they came with open knives; that they demanded the keys of the cash box which was lying on the chair; that the knife was used by the accused to extract the location of the keys from Chhotey Lal; that Chhotey Lal was attacked with knife and hockey sticks; that money was removed from the cash box which amounted to Rs. 5,500. 00 the collection of the entire month; that on being attacked by hockey sticks and knives, Chhotey Lal started running; that despite being hit by hockey sticks and by knife, and having sustained knife, wounds, he kept on running; that he ran for 150 yards till he was caught by the accused in front of a shop of halwai, and was stabbed again. He fell and he died there. ( 23 ) THE post-mortem report which is reproduced above, does not indicate that Chhotey Lal suffered any injuries which could be attributed to the hockey sticks. The doctor in his deposition attempted to say that there was one bruise on the head of Chhotey Lal, but as such a bruise is not mentioned in the post-mortem report, it cannot be accepted. This is the aspect on which the doctor was cross-examined by the accused. It is difficult to believe that Chhotey Lal was hit on the head by the hockey sticks, as is alleged by the eye witnesses. One hard blow of hockey stick on the head is sufficient to make a person unconscious if not in a daze, and for a person who has also been inflicted some knife injuries, it would be practically impossible to run for about 150 yards, especially since the injuries which are found to be spindle shaped wounds, are deep injuries and one of the injuries has penetrated the heart. No one including the prosecution, has suggested to the doctor that any person with stab injury in the heart can run for 150 yards. In case of stab injuries to the heart, which the doctor has said in his post-martem, will be sufficient in the ordinary course to cause death, it is doubtful whether the person who has suffered such injuries will have the time to run. Death with the punctured stabbed heart, would be virtually instantaneous. ( 24 ) THE post-mortem report itself indicates that the haemorrhage as a result of first two injuries, was massive, the photographs on the record particularly Ex. Public Witness 3/b8 and Ex. Public Witness 3/b-9 indicate great deal of bleeding through the mouth. The blood from the mouth appears to flow in a direction which is in consonance with the position of the body, that is to say the body being on its back, blood flowing from the mouth towards the earth on which Chhotey Lal laid, as the life ebbed out of him when the punctured heard stopped beating. ( 25 ) IT has been elicited from the statement of the witnesses that between the "dhaba" and the place where the body of Chhotey Lal was found, there is no trail of blood. ( 25 ) IT has been elicited from the statement of the witnesses that between the "dhaba" and the place where the body of Chhotey Lal was found, there is no trail of blood. Anybody who has been bit with hockey sticks, and anybody who has been stabbed and who is running for 150 yards, would leave some spots of blood of the injuries sustained, to justify the existence of a trail of blood, if the incident had happened according to the prosecution story. ( 26 ) IN a recent case reported as Bhimappa Jinnappa Naganur v. The State of Karnataka, JT 1993 (2) S. C. 168 Yogeshwar Dayal, J. , speaking for the Supreme Court commented upon the absence of trail of blood and disbelieved the story, as deposed to by the witnesses, and was one of the factors which was considered to be sufficient for the purposes of acquitting the accused in that case. It was observed by the Supreme Court that :- Though there were more than bleeding injuries on the head and face of the deceased yet there was on trail of blood or blood from the house of the deceased right till the gutter on the road side from where the body was found after travelling for about 400 feet. ( 28 ) IN the instant case there is no dispute that there is no trail of blood from near the "dbaba" or near the tea stall to the shop of Daya Ram halwai, which is located at a distance of 100-150 yards from the "dhaba"/ tea stall of Chhotey Lal. ( 29 ) IN view of thejudgmentofthesupremecourtmentionedabove, the absence of trail of blood in the instant case, and Chhotey Lal allegedly allege having received 6-7 hockey blows, and also number of stab injuries assumes great deal of significance for the purpose of the credibility of the story of the prosecution and the testimony of the sons of Chhotey Lal who have repeated the prosecution story. ( 30 ) IN thelight of the these findings of post-mortem of the deceased Chhotey Lal, the criticism about the nature of testimony given by the prosecution witnesses, particularly the eye witnesses, by Mr. I. U Khan, Counsel for the accused becomes significant. ( 30 ) IN thelight of the these findings of post-mortem of the deceased Chhotey Lal, the criticism about the nature of testimony given by the prosecution witnesses, particularly the eye witnesses, by Mr. I. U Khan, Counsel for the accused becomes significant. According to the Counsel for the accused, the alleged eye witnesses testimony should not be belted because of varies reasons; (,) the conduct of the eye witnesses is such that indicates that they were probably not present at the site; (ii) all the alleged eye witnesses were sons of the deceased, so it would not be expected of them to be silent spectators while the attack on Chhotey Lal by hockey sticks and open knives was on; (iii)the alleged eye witnesses have admitted that in the "dhaba" they had an iron poker-rod, used for the purposes of stocking in coal fire. This could easily have been ued as a weapon by the alleged eye witnesses to defend not only themselves, but Chhotey Lal against the attack which was only by knife and hockey sticks. None of the alleged eye witnesses stated that they used the iron pocker/rod as a weapon of defence ( 31 ) IT is contended by Mr. I. U. Khan that the eye witnesses did not raise any hue and cry. It is not in dispute that the premised is closer t area where residential premises are also located hue and cry would have gathered a lot of people, and it would have made it difficult for the alleged attackers to escape without being challenged, ( 32 ) IT is alos clear form the testimonyof the alleged eye witnesses that no attempt was made to apprehend the accused, which is very strange, inasmuch as the person attacked was none other than their father. them so"s ^^ ^^^^ ^^^^" ^-- ^ ^ -t rem^ed i. ^ u ^ ^ " ^^ ^ ^^ s "g that despite the fact that Chhotev Lal 0^1^^^^^^^ --^ ^^ ^^^^tf 362 also strange that statements were not made to the police immediately; that there was delay in registration of the case. The case was registered only at 11. 00 A. . M. , whereas the incident had actually occurred at 8. 50 p. m. 37. The case was registered only at 11. 00 A. . M. , whereas the incident had actually occurred at 8. 50 p. m. 37. It is also strange circumstance that no person who can be termed as disinterested witness, was examined by the prosecution in support of its case. This is despite the fact that according to the evidence given by the alleged eye witnesses in Court, there were a number of peoplehaving their dinner at the "dhaba", and despite this, none of them had intervened in the incident, and none of them were examined as witness. 38. It is also strange that no passersby while the incident having taken place at 8. 50 P. M. , were associated with the investigation, nor anyone from nearby house associated. According to Mr. I. U. Khan, Ex. PW21/b, which the site-plan at page 343 of the record, shows that shops existed in the area, FO did the residential houses. 39. Mr. I. U. Khan states that the police did not take the witnesses to the residence of the accused, who live quite close by, i. e. in Sarai Kaley Khan itself, regarding recovery of knife. 40. Mr. I. U. Khan also states that the photographs which have been filed in the case, do not evidence any mayhem which had allegedly taken place in the form of assault by hockey sticks and knives. 41. Mr. I. U. Khan says that the alleged eye witnesses not only contradict the statement of the police, but they are also inconsistent with each other s deposition, and the medical evidence does not conform with the eye witnesses accounts, and for all these reasons, he says that the alleged eye witnesses are not reliable. 42. Mr. I. U. Khan says that P. W. 4 Sunder Lal mentions Rishi Pal accused as one of the persons who attacked Chhotey Lal with a knife. However, the police report does not state so. Only in oral deposition in Court, he says so. The only criticism levelled by Mr. I. U. Khan against the testimony of Dr. Dogra who carried the post-mortem and appeared in Court as P. W. 16, is that according to the post-mortem report there was no blunt injury on the body of Chhotey Lal, whereas in Court Dr. Dogra deposed that there was one injury. To that extent the testimony should not be accepted. Mr. I. U. Khan against the testimony of Dr. Dogra who carried the post-mortem and appeared in Court as P. W. 16, is that according to the post-mortem report there was no blunt injury on the body of Chhotey Lal, whereas in Court Dr. Dogra deposed that there was one injury. To that extent the testimony should not be accepted. Mr. I. U. Khan says that whereas according to the post-mortem the deceased had received seven knife injuries, the deposition in Court only speaks of four injuries, whereas the post-mortem report says that there are no blunt injuries on the body of the deceased, P. W. 4 Sunder Lal says that Chhotey Lal had received 6-7 hockey blows. 43. As regards the weapon of offence, this is Ex. P. I. This is a fish shaped knife with a button. When the button is pressed the blade comes out and locks. It has got a metal handle and a single edged metal blade. There is a drawing of this knife on record. According to the story of the prosecution, this knife was recovered from Raj Singh on 9-11-1984. This was recovered on the basis of an alleged disclosure statement made by Rishi Pal to the effect that the knife had been given to Raj Singh. This is on the basis of Ex. PW 21/g. However, according to Ex. PW21/f, the supplementary disclosure statement of Rishi Pal, the said knife was thrown in bushes. Mr. I. U. Khan points out that these two statements are, therefore, in conflict. 363 ( 44 ) MR. I. U. Khan also points out that it is clear from the Central Forensic Science Laboratory report that no blood was found on the knife in question. It is also in the statement of the witnesses that the alleged eye witnesses did not identify Ex. P. 1 as the weapon of offence. Nor was it connected with the crime by the eye witnesses, as having been used in the commission of the offence, having caused the injuries on Chhotey Lal. Being a single edged, in view of what is stated in the post-mortem report, and in view of the statement made in the Medical Jurisprudence by Jhalla and Raju, reproduced here in above, it is not possible to believe that Ex. P. W. I was used in the commission of the crime. Being a single edged, in view of what is stated in the post-mortem report, and in view of the statement made in the Medical Jurisprudence by Jhalla and Raju, reproduced here in above, it is not possible to believe that Ex. P. W. I was used in the commission of the crime. A single edged weapon cannot cause spindle shape injuries. A single edged weapon would only cause an injury which is usually caused by double edged weapon if a single edged weapon is inserted into the wound second time with so much accuracy and care that a second wound attributable to the second entry of the knife is not created. This is practically an impossibility in a circumstance when a person is about to be knife, and he is either attempting to ward off the blow or running away trying to escape injury being caused. For the aforesaid reasons, it is not possible to accept that Ex. P. 1 is the knife which inflicted the wounds. ( 45 ) EX. P. 1 is the fish-shaped "rampuri" knife which according to the prosecution, is the weapon with which the deceased Chhotey Lal was stabbed. It was this fish shaped knife which caused the fatal injury No. 1 which penetrated the heart of the deceased Chhotey Lal which resulted in his death. This fish shaped "rampuri" knife is a very common knife, and so I was familiar with the fact that it has only one sharp cutting edge. It is not a double edged weapon. It is also my familiarity with the fish shaped "rampuri" knife. It is also my familiarity with the medico legal text like Raju and Jhalla Medical Jurisprudence, which dealt with deep injuries inflicted with double edged weapons that made the story of the prosecution that the fish shaped "rampuri" knife was used as a weapon of offence, stinked and one started to scrutinise the evidence of the alleged eye witnesses who are all relations of Chhotey Lal with greater care and caution. The post-mortem re port about the existence of spindle shaped injury on Chhotey Lal which caused his death, is unchallenged. The prosecution seems to be blissfully unaware of the consequence of the post-mortem report regarding the spindle shaped injuries. As stated above, spindle injuries can be caused only by double edged weapons. The post-mortem re port about the existence of spindle shaped injury on Chhotey Lal which caused his death, is unchallenged. The prosecution seems to be blissfully unaware of the consequence of the post-mortem report regarding the spindle shaped injuries. As stated above, spindle injuries can be caused only by double edged weapons. I venture to suggest that all doctors who have obtained their M. B. B. S. , have to go through their course of surgery. All medical practitioners, therefore, and each person who is specialised in surgery thereafter, would be automatically able to identify what kind of weapon would cause what kind of injury on what part of the body, and statement ot such skilled persons should be accepted unless there are some very special circumstances. ( 46 ) THE clothes of the accused are Ex. P. 16 and Ex. P. 17 in terms of recovery memo Ex. PW9/d. It is pointed out by Mr. I. U. Khan that no blood stains are found on these clothes. The fact that no blood stains are found on the clothes being worn by the alleged persons who caused the stab injuries which punctured the heart, itself shows that the alleged attackers did not in fact, attack, that the alleged accused are the persons who have not participated in the commission of the offence. ( 47 ) AS regards the place of incident, it is clear from the testimony of witnesses that the attack with knives and hockey sticks did not take place at or near the "dhaba", or at or near the tea stall, inasmuch as no blood stains 364 were found at that place. It is, however, clear from the testimony from the police witnesses that the body of Chhotey Lal was found opposite the shop of Daya Ram halwai. Apparently it was lying on its back. Apparently, it was closed to the tyre of a matador which was not to be found in all the photographs. ( 48 ) COUNSEL for the appellants also attacked the prosecution story regarding the place of incident. It is stated by Mr. Apparently it was lying on its back. Apparently, it was closed to the tyre of a matador which was not to be found in all the photographs. ( 48 ) COUNSEL for the appellants also attacked the prosecution story regarding the place of incident. It is stated by Mr. I. U. Khan that the fact that despite of alleged knife attack, and an alleged hockey stick attack on three or lour persons, there is no blood to be found at the "dhaba" or in front of the tea stall, which itself is sufficient to indicate that the incident did not happen, as it is alleged to happen near the "dhaba" and/or the tea stall. According to [he appellants, the murder of Chhotey Lal has probably taken place ai the halwai shop, and the alleged eye witnesses, sons of Chhotey Lal deceased, even if they were at the tea stall and/or "dhaba", they could not have been the eye witnesses to the incident for the reason that the halwai shop is not visible from the tea stall or from the "dhaba". Besides, in view of the nature of the injuries sustained by Chhotey Lal including the stab wound which has punctured his heart, and in the absence of trail of blood from tile place where the body wasfound nowhere else including the "dhaba", by itself shows that Chhotey Lal did not move after being attacked. He probably died very quickly after the stab wound has punctured his heart, and the fact that the alleged eye witnesses do not have any blood on their clothes, indicates that they never attempted to touch Chhotey Lal who was bleeding; they never attempted to intervene when Chhotey Lal was being attacked, and, therefore, they are not even eye witnesses. ( 49 ) BESIDES this, Mr. I. U. Khan states that the investigation in the instant case is biased, and is tainted by delay. He urges that it is apparent from the record of the case, especially from the post-mortem report, that the body was received in the All India Institute of Medical Sciences at 12. 15 p. m. on the next day of the incident which happened on 19-10-1984. He urges that it is apparent from the record of the case, especially from the post-mortem report, that the body was received in the All India Institute of Medical Sciences at 12. 15 p. m. on the next day of the incident which happened on 19-10-1984. Had the body been sent immediately as it ought to have been, as Sarai Kaley Khan village Nangali Rajpur, is near to Nizamuddin Railway Station, which is at a distance of only about 7 or 8 kms. from the All India Institute of Medical Sciences, then the body would have been received within 20 minutes of the incident that is to say by about 9. 15 or 9. 30 p. m. , the police having reached there at 9. 30, the body would have reached by 9. 45 p. m. or 10 o clock, instead the body reached the hospital at 12. 15 p. m. ( 50 ) BESIDES that it is in evidence of the alleged eye witnesses that the Investigating Officer was investigating till 4. 00 a. m. From the record of the case it stands established that the incident took place at about 8. 50 p. m. The police reached the place of incident at about 9. 30 P. M.