JUDGMENT 1. - These three appeals are directed against the judgment dated. January 11, 1996 passed by learned Additional Sessions Judge, Kota, whereby the appellants Hanif, Akku @ Sazid and Raoof have been convicted for the offence under section 302/34 Indian Penal Code and sentenced to undergo imprisonment for life and a fine of Rs.200/ - in default to further undergo three months Rigorous Imprisonment. 2. Brief facts of the prosecution case are that PW1 Haroon submitted a written report Ex.P1 at Police Station Gumanpura, Kota City on June 19,1993 at 8.30 P.M. It was, interalia, stated in the written report that today at 8.30 P.M. he, Abid and Ismail - had arrived at' Akash Talkies' to see movie 'Sangram'. When they were standing near Betel-shop situated in the premises of Akash Talkies, Sazid, Hanif, Daljeet Singh and Raoof armed with weapons entered inside the premises from main gate of the Talkies. Hanif was having 'Chhura' and others were having knives in their hands. It was also stated in the written report Ex.Pl and Arjoo @ Anwar Hussain son of Mukhtyar Bhai, resident of Bhistipada, Chhawani, Kota who was his neighbour, was selling cinema tickets in black market. Having entered into the premises of the Talkies Hanif caused an injury with 'Chhura' on the head of Arjoo. Thereafter Arjoo ran towards the office of Ashok Transport Company and Vishal Haryana Transport Company. The accused chased him and caught hold of him near the office of transport company. Thereafter, Raoof, Daljeet Singh and Sazid inflicted injuries with knives on the abdomen of Arjoo. Hanif caused injury on his forehead. Arjoo fell down and thereafter the accused filed-away. It was also stated by Haroon (Ex.P1) that they could not intervene because the accused were armed with deadly weapons. Arjoo died at the spot after ten minutes. Police jeep reached at the spot. They (Haroon, Abid and Ismail) took Arjoo to M. B.S. Hospital, Kota in police jeep where doctor declared him dead. Arjoo was murdered because of enmity. On the basis of this report, SHO Police Station Gumanpura, Kota City registered a case under section 302/34 Indian Penal Code and investigation commenced. Formal first information is Ex.P2. Prem Shankar, I.O., reached on the spot and prepared site plan Ex.P4. Blood-smeared soil and control soil was seized and sealed vide Ex.P.6. Arjoo was murdered because of enmity. On the basis of this report, SHO Police Station Gumanpura, Kota City registered a case under section 302/34 Indian Penal Code and investigation commenced. Formal first information is Ex.P2. Prem Shankar, I.O., reached on the spot and prepared site plan Ex.P4. Blood-smeared soil and control soil was seized and sealed vide Ex.P.6. One button was also seized from the spot and the I.O. sealed it and prepared seizure memo Ex.P15. Inquest report Ex.P7 of the dead body of Arjoo was prepared, Autopsy of the dead body was conducted by PW3 Dr. G.S. Vishnar, Medical Jurist, MBS Hospital, Kota on June 20,1993 at 9.40 P.M. and he prepared postmortem report Ex.P8. Statements under section 161 Criminal Procedure Code were recorded. All the four accused were arrested. On the information given in the police custody and at the instance of Hanif 'Chhura' was recovered from his house which was seized and sealed by Prem Shankar, l. O. vide recovery memo Ex.P22. On the information and at the instance of the remaining accused knives were recovered which are alleged to have been used in the alleged incident. Clothes of all the accused were also seized by the I.O. and he prepared recovery memos and seizure memos of all these articles. On completion of investigation a chargesheet was laid against the appellants and Daljeet Singh in the Court of Judicial Magistrate No. 1, Kota (South who committed the case to the court of Sessions Judge, Kota. On transfer file was received by learned Additional Sessions Judge. Learned trial Judge framed charge under section 302/34 Indian Penal Code against the appellants and Daljeet Singh, which was denied by them and they claimed trial. 3. The prosecution examined as many as 18 witnesses in support of its case. During trial Daljeet Singh expired. In their statements recorded under section 313 Criminal Procedure Code the appellants claimed innocence and stated that witnesses deposed against them because of enmity. In defence three witnesses were examined. 4. Learned trial Judge after hearing the final submissions convicted and sentenced the appellants as indicated hereinabove. 5. We have heard learned counsel for the appellants Hanif and Akku @ Sazid, Public Prosecutor and have gone through the material on record. None has appeared for the appellant Raoof. 6. In defence three witnesses were examined. 4. Learned trial Judge after hearing the final submissions convicted and sentenced the appellants as indicated hereinabove. 5. We have heard learned counsel for the appellants Hanif and Akku @ Sazid, Public Prosecutor and have gone through the material on record. None has appeared for the appellant Raoof. 6. There is no dispute that the deceased Arjoo met with homicidal death and this fact is established by the medical-evidence on record. PW3 Dr. G.S. Vishnar, Medical Jurist, MBS Hospital, Kota, stated that on June 20, 1993 he conducted the post mortem report examination of the deceased Arjoo and found following injuries on his dead body.EXTERNAL INJURIES 1. Incised wound 3" x 1/2" x bone cut Tr. elliptical in shape on forehead with soft blood clot. 2. Incised wound 3" x 1/2 x bone deep occipitoparietale scalp. 3. Incised wound 1" x 1/2 x CD. vertically placed two inch above umbilical (Ante-mortem injuries). 4. Incised wound 11/2"x 1/2" x C.D. just below umbilical. 5. Incised wound 21/2" x l" x C.D. Tr. on mid auxiliary line ⅓ of chest right lateral. 6. Incised wound 1" x 1/4" x M.D. obliquely posterior auxiliary line, right lateral chest upper l/3rd. 8. Incised wound 1/2" x 1/4" x MD anterior auxiliary line M/3 of P.L. Lateral chest M/3 obliquely placed. 9. Abrasion 1/2" x 1/2" right knee. 10. Abrasion 1/2" x l/4"Tr.Lt.knee. 11. Abrasion 1/2" x 1/2" thinner reg. of Lt. hand (palmar surface). INTERNAL INJURIES: (1) Fracture of frontal bone. (2) Punctured wound underline peritoneum, injury to abdomen. (3) Injury to omentum just below umbilical region, blood was oozing out. (4) Punctured wound l" x l/2"x 11/2" at superior margin of lever. 7. Dr. G.S. Vishnar also stated that the cause of death was hemorrhagic shock as a result of injuries on skull, chest and abdomen. He prepared the post-mortem report Ex.P8. Injury No.5 was sufficient in the ordinary course of nature to cause death. Death occurred within 24 hours prior to the post mortem examination. 8. Learned counsel for the appellants did not challenge the veracity of Dr. Vishnar As he is an independent and impartial witness reliance can be placed upon his testimony and we have come to the conclusion that the prosecution has succeeded in proving that the deceased Arjoo met with homicidal death. 9. 8. Learned counsel for the appellants did not challenge the veracity of Dr. Vishnar As he is an independent and impartial witness reliance can be placed upon his testimony and we have come to the conclusion that the prosecution has succeeded in proving that the deceased Arjoo met with homicidal death. 9. PW/1 Haroon, PW2 Abid Hussain and PW4 Ismail are said to be the eyewitnesses of the occurrence. They stated that on the date of incident they went to Akash Talkies to see movie 'Sangram'. They also stated that when they were standing near Betel shop the appellants Hanif, Raoof, Akku @ Sazid & Daljeet Singh entered into the premises of Akash Talkies. The accused was armed with weapons. First of all Hanif inflicted injury on the head of the deceased Arjoo who was selling cinema tickets in black market. Having sustained this injury Arjoo ran towards the office of transport company. The accused chased him and near the office of transport company they caused injuries with knives, 'chhura' etc. on the person of deceased Arjoo. Thereafter, they fled-away. They also stated that after some time police party reached on the spot in its jeep and took the deceased to the hospital where Arjoo was declared dead by the doctor. They accompanied the police party. 10. Now the question arises whether the testimony of the aforementioned witnesses is reliable or not. Learned counsel for the appellants contended that the FIR Ex.P1 was submitted to SHO Police Station Gumanpura on June 20,1993 at about 8.30 PM as stated by PW1 Haroon. It was not submitted on June 19, 1993 at 9.30 P.M. as alleged by the prosecution. Therefore, the FIR Ex.Pl being antedate creates doubt in the prosecution story. Learned counsel also contended that PW1 Haroon, PW2 Abid Hussain and PW4 Ismail were not the eye-witnesses to the occurrence. They are neighbours of the deceased and reside in the locality in which the deceased was residing. The deceased was known to them Actually they were called by the SHO on June 20, 1993 in the morning and a false written report (FIR) Ex.P1 was obtained from PW1 Haroon. Learned counsel also contended that about the alleged incident at 8.45 P.M. on June 9, 1993, the police received a telephonic message to the effect that a young man was lying in the injured condition in front of Ashoka Transport Company. Learned counsel also contended that about the alleged incident at 8.45 P.M. on June 9, 1993, the police received a telephonic message to the effect that a young man was lying in the injured condition in front of Ashoka Transport Company. In that telephonic message nobody was named as accused. Learned counsel contended that in view of that telephonic message it is clear that the incident was not seen by PW1 Haroon, PW2 Abid Hussain and PW3 Ismail. It was also contended by learned counsel that there are material contradictions in the statements of PW1 Haroon. PW2 Abid Hussain and PW4 Ismail which prove that they had not seen the incident. Learned PP contended that the testimony of all these three eye-witnesses is reliable and the prosecution has proved its case beyond reasonable doubt. 11. We have given our thoughtful consideration to the submissions made by both the parties. 12. It was. alleged by the prosecution that a written report Ex.Pl was submitted by PW1 Haroon at Police Station Gumanpura on June 19,1993 at 9.30 PM and on this basis a case was registered against the appellants and Daljeet Singh and investigation was taken up. But in his statement PW1 Haroon stated that report Ex.Pl was written by Mohd. Rafiq on the next day of the incident at 8.30 AM. It was also stated by him that Ex.Pl was written after the accused were brought at the police station. It was also stated by him that the report Ex.P1 was written by Mohd. Rafiq on his dictation. Thus it is clear that the FIR (written report) Ex.Pl was submitted to SHO Police Station Gumanpura at about 8.30 AM on June 20,1993 and not on June 19,1993 at 9.30 PM. The incident took place in Kota City itself where courts are located but the FIR was sent to the Magistrate concerned on June 21, 1993 at 11.30 AM. If Ex. PI was submitted on June 19,1993 then why FIR was sent to the concerning Magistrate after two days. This fact also shows that written report was not submitted on June 19, 1993. In view of that, we come to the conclusion that the FIR, being antedate, creates serious doubt in prosecution story. 13. Besides the FIR being antedate, there are material contradictions in the statements of the alleged eye-witnesses which prove that they had not seen the incident. This fact also shows that written report was not submitted on June 19, 1993. In view of that, we come to the conclusion that the FIR, being antedate, creates serious doubt in prosecution story. 13. Besides the FIR being antedate, there are material contradictions in the statements of the alleged eye-witnesses which prove that they had not seen the incident. On close scrutiny we have found the following contradictions, inconsistencies and falsity in their statements: (i) PW1 Haroon stated that they had reached at the Akash Talkies at 7.30 PM. PW 2 Abid Hussain stated that they had arrived at 8.30 PM whereas PW4 Ismail stated that they had reached' at the Akash Talkies between 7.00 PM and 7.15 PM. (ii) PW1 Haroon stated that he purchased three tickets from the deceased Arjoo at 8.00 PM whereas PW2 Abid Hussain and PW4 Ismail stated that cinema tickets were purchased by PW4 Haroon from ticket window. (iii) PW 1 Haroon stated that at 6.00 PM he, Abid Hussain and PW4 Ismail had assembled at the hotel of Babu Khan and thereafter they came to the Akash Talkies directly from the hotel. PW2 Abid Hussain stated that he came to the Betel shop of Ashok and stayed there till 8,00 PM Arjoo and Ismail also came there. From the shop they went to the house of Wahida and thereafter came at the Akash Talkies whereas PW4 Ismail did not state that before coming to the Talkies they had gone to the house of Wahida. As per his statement they came directly at the talkies from Betel Shop of Ashok. (iv) PW1 Haroon stated that before the incident he had a talk with the deceased and Abid Hussain and Ismail were with him. PW2 Abid Hussain stated that they did not have a talk with the deceased before the incident. (v) PW1 Haroon stated that he submitted the written report Ex.Pl of the incident on next morning whereas PW4 Ismail stated that the report was lodged at the police station on the night of the incident. (vi) PW1 Haroon stated that they remained in the hospital for 10 minutes only. Thereafter, they returned to their house. They reached at the police station in the midnight and remained there till morning. He also stated that PW2 Abid Hussain and PW4 Ismail were with him throughout. (vi) PW1 Haroon stated that they remained in the hospital for 10 minutes only. Thereafter, they returned to their house. They reached at the police station in the midnight and remained there till morning. He also stated that PW2 Abid Hussain and PW4 Ismail were with him throughout. PW2 Abid Hussain also stated that they reached at the police station at 11.00 PM and stayed there till morning whereas PW4 Ismail stated that they were dropped by the police at their houses at about 1.30 AM in the night and he did not go to the police station again in the morning. (vii) In his cross-examination recorded on December 22,1993 PW1 Haroon stated that the cinema tickets were purchased by him but in his further cross-examination recorded on May 7, 1994 he stated that the tickets were purchased by Abid Hussain. (viii) PW1 Haroon stated that they took Betel from the shop of Rafiq situated in the premises of Akash Talkies whereas PW2 Abid Hussain stated that they did not take Betel but took a cigarette. (ix) In his statement PW1 Haroon stated that after taking Betel and smoking they went inside cinema-hall and took their seats in balcony, whereas PW2 Abid Hussain and PW4 Ismail did not depose that before or after the incident they had gone inside the cinema-hall. 14. In view of the aforesaid material contradictions we are of the opinion that PW1 Haroon, PW2 Abid Hussain and PW4 Ismail were not the eye-witnesses to the occurrence and they have deposed against the appellants because they are neighbours of the deceased Arjoo. There are other grounds also to disbelieve their testimony. As per statement of PW4 Ismail, their clothes became stained with blood in the alleged incident. These clothes were shown to the police but the clothes were not seized by the I.O. to produce them in the court during trial. The alleged eye-witnesses are the neighbours of the deceased. Had they seen the occurrence they would have intervened and made attempt to rescue the deceased Arjoo but no such attempt was made by them and it shows their unnatural conduct. As per their statements police party took them with the deceased Arjoo to the hospital where the deceased was declared dead by the doctor. PW1 Haroon and PW2 Abid Hussain also stated that they remained at the police station throughout the night. As per their statements police party took them with the deceased Arjoo to the hospital where the deceased was declared dead by the doctor. PW1 Haroon and PW2 Abid Hussain also stated that they remained at the police station throughout the night. They went to the house of the deceased from the hospital and informed the family members of the deceased about the incident but no FIR was lodged by any of the alleged eye-witnesses or any member of the deceased's family promptly and without delay. As already stated the FIR (written report Ex.Pl) was submitted on June 20,1993 at about 8.30 AM as proved by the statement of PW1 Haroon. In telephonic message which was received at the police station just after the incident at 8.45 PM, no-one was named as culprit. 15. For the reasons stated above, we are of the opinion that PW 1 Haroon, PW2 Abid Hussain and PW4 Ismail were not the eye-witnesses to the occurrence and their testimony is wholly unreliable. No other eye-witness of the incident has been produced by the prosecution. No weapon of offence allegedly used by the appellants and recovered on their information, has been produced in evidence by the prosecution. Clothes of the appellants allegedly stained with blood also have not been produced and tendered in evidence by the prosecution. No FSL report to prove that the above mentioned articles were stained with blood, has been produced by the prosecution. 16. Looking to the aforesaid facts we come to the conclusion that the prosecution has utterly failed to prove its case beyond reasonable doubt against the appellants and the appeals of the appellants deserve to be allowed. 17. Consequently, all the appeals of the appellants Raoof, Akku @ Sazid; and Hanif s/o Hazari Khan are allowed. The judgment and order of their conviction and sentence dated 11.1.1996 passed by Additional Sessions Judge No.3, Kota is set-aside. The appellants Raoof, Akku @ Sazid, and Hanif s/o Hazari Khan are acquitted of the charge under section 302/34 Indian Penal Code. They are in jail. They shall be set at liberty forth with, if not required in any other case.Appeals allowed. *******