JUDGMENT S.L. Kochar, J. The appellant Rakesh alias Raka has preferred Cr. A. No. 945/96 while the appellant Gopal has preferred Cr. A. No. 1001/96 challenging their conviction for the offences punishable under sections 148 and 302 read with section 149, Indian Penal Code as also u/s 25(1-b)(B) of the Arms Act and sentences thereunder of R.I. for one year, imprisonment for life and R.I. for one year respectively as passed by the learned VII Additional Sessions Judge, Indore on 16-10-1996 in Sessions Trial No. 27/95. By this common judgment both the aforesaid appeals are being disposed of. In fact five accused persons including the present appellants were prosecuted and tried in the aforesaid Sessions trial, but the learned trial Court did not find the co-accused Narmada Prasad and Jitendra guilty of the offences charged and consequently acquitted them. However, the present appellants were found guilty of the offences charged and they have been convicted and sentenced as indicated hereinabove. The facts of the prosecution case as unfurled before the trial Court are that on 17-10-1994 in the night at about 7.45 PM Madan, his friends Khemchand (PW-2), Ashok (PW-9) and Anil (PW-10) were standing and chit-chating at Kabir Chowk. At that juncture, accused Gopal, Bablu, Rakesh alias Raka, Khemchand alias Khemu, Narmada Prasad alias Pillu and Jitendra alias Jitu reached over there and accused Gopal, called Madan near him and at that moment a dispute arose between them. Kishorilal (PW-4) father of Madan happened to be there and witnessed the incident. At that time Madan ran towards Kazi-Ki-Chawl followed by accused Gopal and other accused persons who were armed with sword and knives. In front of Gopal Doodh Bhandar, all the accused persons encircled Madan and started assaulting him by means of sword and knives. Madan getting seriously wounded fell down on the ground and the accused persons fled away from the spot. On receiving information, Rakesh, brother of Madan also reached at the place of incident. The incident has also been witnessed by Khemchand, Ashok, Anil and Kishorilal. Injured Madan was taken at Sanyogitaganj Hospital. There Dr. Pradip Goyal examined him at 11.00 PM and gave MLC report Ex. P/24. The doctor noted nine incised injuries on the person of Madan. Injured Madan was then sent to Nanda Nagar Hospital for treatment. The incident has also been witnessed by Khemchand, Ashok, Anil and Kishorilal. Injured Madan was taken at Sanyogitaganj Hospital. There Dr. Pradip Goyal examined him at 11.00 PM and gave MLC report Ex. P/24. The doctor noted nine incised injuries on the person of Madan. Injured Madan was then sent to Nanda Nagar Hospital for treatment. At 1.35 AM information with regard to the incident was sent to Police MIG Colony which was written on Roznamcha Sanha No. 1578. ASI R. Yadav went to the hospital and recorded the statements of witnesses Khemchand, Ashok, and Anil and a case under sections 147, 148, 149 and 307, Indian Penal Code was registered. In the night at 3.00 AM Madan breathed his last. Therefore section 302, Indian Penal Code was also added. ASI R. Yadav prepared the spot map Ex. P/2. He seized the control earth and blood stained earth from the spot vide memo Ex. P/19. Requisition for post-mortem examination Ex. P/15 was prepared and the body was sent for post-mortem examination. Dr. Ravindra Choudhary conducted the autopsy on the body of Madan and gave report Ex. P/14. He found in all 17 injuries on the person of deceased Madan. According to Dr. Choudhary, Madan died of shock and haemorrhage as a result of injuries as mentioned in the post-mortem report. The death was homicidal and duration of death was within 24 hours from the time of post-mortem examination. Accused Gopal, Rakesh, Khemchand and Bablu were arrested on 20-10-1994 vide arrest memos Ex. P/28, P/29 and P/30. Accused Narmada Prasad was arrested on 24-10-1994 and Jitendra was arrested on 9-11-1994. At the instance of the accused persons sword and knife were recovered and seized vide seizure memos Ex. P/10, P/11 and P/12. The seized articles including the clothes of the deceased were sent to the F.S.L. whose report is Ex. P/35. After due investigation, the accused persons were charge-sheeted. On being charged, the accused persons abjured their guilt and pleaded that they have been falsely implicated due to enmity. They have examined Dr. Sanjay Bhatnagar (DW-1) in their defence. In order to prove its case, prosecution examined as many as 15 witnesses. The learned trial Court, after hearing both the parties, convicted and sentenced the appellants as mentioned hereinabove. We have heard learned Sr. Advocate Shri H.S. Uberoi assisted by Shri P. Prasad Advocate in Cri. A. No. 1001/96 and Dy. Sanjay Bhatnagar (DW-1) in their defence. In order to prove its case, prosecution examined as many as 15 witnesses. The learned trial Court, after hearing both the parties, convicted and sentenced the appellants as mentioned hereinabove. We have heard learned Sr. Advocate Shri H.S. Uberoi assisted by Shri P. Prasad Advocate in Cri. A. No. 1001/96 and Dy. Advocate General Shri Girish Desai for the State in both the appeals. The appeals were taken up and called repeatedly, but in Cr. A. No. 945/96 none appeared. Both the appeals are of the year 1996 arising out of one and the same judgment which is impugned herein and listed for final hearing several times. Therefore, in view of the Apex Court's judgments passed in the case of Bani Singh and ohters Vs. State of U.P., and Kishore vs. State of U.P., 1996(9) SCC 372 , we have heard these appeals with the effective assistance by Senior Advocate Shri Uberoi and Dy. Advocate General Shri Desai. They have taken us through the entire evidence and material available on record. Shri Uberoi has submitted that the witnesses PW-2 Khemchand, PW-9 Ashok and PW-10-Anil did not lodge the report at police station immediately, which shows that in fact they had not seen the incident and were made eyewitnesses later on being closely related to the deceased and his family. He has also submitted that in the first MLC report of the deceased Dr. Pradip Goyal (PW-14) found only nine injuries on the person of the deceased whereas the autopsy surgeon (PW-6) Dr. Ravindra Choudhary mentioned in the post-mortem report Ex. P/14 17 external injuries on the person of the deceased and this variance has not been explained by the prosecution and that on the basis of the eye-witnesses account, conviction is not sustainable. Learned State counsel Shri Desai, in oppugnation supported the judgment and finding of conviction arrived at by the learned trial Court. According to him, abovementioned three eye-witnesses have explained the circumstances of not lodging the report at the Police Station by them. They were busy in taking the deceased to the hospital and in treatment. The core question that crops up for consideration before us is whether the three eye-witnesses PW-2 Khemchand, PW-9 Ashok and PW-10 Anil have been rightly relied upon by the learned trial Court in the facts and circumstances of the present case. They were busy in taking the deceased to the hospital and in treatment. The core question that crops up for consideration before us is whether the three eye-witnesses PW-2 Khemchand, PW-9 Ashok and PW-10 Anil have been rightly relied upon by the learned trial Court in the facts and circumstances of the present case. According to the First Information Report Ex. P/25 as well as the ocular account given by the witnesses, the incident occurred on 11-10-1994 at about 8.45 PM in the night within the jurisdiction of MIG Police Station, Indore in front of Balbir Dairy shop situated on New Dewas Road Indore at a distance of 2 Kms. from the Police Station. All the three eye witnesses PW-2 Khemchand, PW-9 Ashok and PW-10 Anil have admitted in their statements that from the place of incident Pardeshipura Police Chowki was situated at a distance of 25 paces and the incident occurred on a busy road. The persons were passing on the said road and at the time of incident, about 25 to 30 also assembled there. They have also admitted that the main Police Station of Pardeshipura was situated half a kilometer from the place of incident and MIG Police Station was at a distance of 3/4 Kilometre whereas Tukoganj Police Station was situated also at a distance of 3/4 kilometre. They have also admitted that they did not reach at Police Chowki and did not lodge any report. They had also not called any police official although they were available at the Police Chowki. Khemchand in paras 9, 10 and 11 has also admitted that he had not sent any person out of the people assembled to the Police Station for lodging the report and also did not call them for help to save the deceased. In para 12, this witness has admitted that he is facing two criminal cases, one u/s 307 of the Indian Penal Code (Attempt to commit murder) before the Sessions Court and another u/s 324 of the Indian Penal Code before the Judicial Magistrate First Class. This witness has also admitted that the deceased Madan was his friend and he was having good relations with his family. In this background it was expected of this witness to immediately go to the Police Chowki situated at a distance of 25 paces and lodge the report. This witness has also admitted that the deceased Madan was his friend and he was having good relations with his family. In this background it was expected of this witness to immediately go to the Police Chowki situated at a distance of 25 paces and lodge the report. In examination-in-chief para 3, the say of this witness is that the deceased Madan was taken to the hospital from the scene of occurrence by his father Kishorilal (PW-4) and brother of PW-3 Rakesh in an auto-rickshaw and he went to his house. In this situation, it cannot be said that he was busy in taking care of the deceased. He could very well go to the Police Station and lodge the report. He is a person facing criminal cases, could be well aware of the importance of lodging of the First Information Report, but he did not do so and failed to assign any cogent and reliable reason for this lapse. In para 6, he has expressed his unawareness about pendency of murder case and other criminal cases against deceased Madan and his brother PW-3 Rakesh. In para 9, he deposed that his statement was recorded on the next day at 11.00 AM at the Police Station. He was called by MIG Police. He was confronted with his police statement Ex. D/1 in which several facts are not mentioned that about disclosure of time of incident i.e. 8.30 PM calling of deceased Madan by Gopal near the well and accused persons were saying that they will kill Madan and will not spare him. He has also failed to explain omission of the fact that the deceased Madan escaped from the clutches of the accused persons and ran away. He too was also running away towards the same direction and he was not knowing the names of two persons but was knowing them by face and that deceased was lying unconscious on the place of incident and thereafter taken to the hospital in an auto rickshaw by Kishorilal. In para 15 he has specifically stated that his statement was recorded on the next day of the incident. Looking to all these infirmities as well as highly abnormal conduct of the witness PW-2 Khemchand, we are of the view that it would be hazardous to place reliance on his testimony who is an interested and partisan witness. In para 15 he has specifically stated that his statement was recorded on the next day of the incident. Looking to all these infirmities as well as highly abnormal conduct of the witness PW-2 Khemchand, we are of the view that it would be hazardous to place reliance on his testimony who is an interested and partisan witness. The testimony of other two eye-witnesses namely, PW-9 Ashok and PW-10 Anil also suffers from almost of same infirmities as discussed hereinabove in respect of PW-2 Khemchand. In para 9 PW-9 Ashok has admitted that the place of incident was a busy road and 500 to 1000 persons were passing on the said road. The place was a residential area and 100 to 150 persons were roaming in that locality, but at the time of the incident nobody was there. It was the evening time and everybody was not in his house. In para 11 he has admitted that police chowki was situated from the place of incident at a distance of 200 to 250 feet. In para 13, he has admitted that to cover the distance of MIG P.S from the place of incident it would take about 25 minutes and the distance of PS Tukoganj could be covered within 15 minutes. In para 16 he has given the description of the place of incident that the same was surrounded by the shops and gate of Malwa Mill was at a short distance where police personnel were standing. At the Malwa Mill Square, there was a police chowki. He has also admitted that during the course of incident, he did not raise any cry and also did not go to the police chowki for calling the police officials and when deceased Madan was being taken to the hospital from the place of incident no information was given to the police chowki as well as to the P.S. The say of this witness is that while taking Madan to the hospital, he was conscious and the clothes of this witness also got soiled with blood. Madan fell unconscious when reached the hospital. In para 21 he has admitted that after getting Madan admitted in the hospital, he himself did not go to the Police Station for lodging the report. Madan fell unconscious when reached the hospital. In para 21 he has admitted that after getting Madan admitted in the hospital, he himself did not go to the Police Station for lodging the report. According to him, telephonic message was sent to the Police Station by the doctor and the police reached at the hospital after half an hour. In para 23 he deposed that on the next day between 10 and 11 AM, on call, he went at the Police Station and his statement was recorded. According to this witness also in the night of incident, his statement was not recorded. He has also admitted that he was in the hospital till the dead body of Madan was sent to Banganga (a different place than the hospital where the deceased was admitted). In para 27, he admitted that he did not handover his blood stained clothes to the police and police also did not ask him for the same. PW-10 Anil has deposed in examination-in-chief para 5 that from the scene of occurrence Madan was taken to the hospital by this witness, PW-3 Rakesh, brother of the deceased and PW-9 Ashok. In para 8, the say of this witness is that he was knowing Madan since last three/four years from the date of his examination in Court i.e. 4-7-1996. He was knowing his brother Rakesh and lather Kishorilal as well as his mother. According to this witness, on the next day he was called at the police station between 12 and 1.00 in the noon and he went along with PW-9 Ashok for recording of their statements. In para 1 he was confronted with his case diary statement Ex. D/5 regarding time of incident between 7.00 and 8.00 PM and in the Court he has mentioned the time between 8.00 and 9.00 PM. According to him, Police has wrongly recorded the time of incident between 7.00 and 8.00 PM. In para 16, he has stated about situation of Police Chowki, Police Station MIG, Pardeshipura as well as Tukoganj why he did not try to go to Police Station for lodging the report and on the next day, he was called by the police to give his statement and the same was recorded. There are some omissions and contradictions in his statement. According to the prosecution in the First Information Report Ex. P/25 registered by ASI. There are some omissions and contradictions in his statement. According to the prosecution in the First Information Report Ex. P/25 registered by ASI. RAS Yadav, the time of incident was 8.45 PM and in MIG Police Station for the first time, intimation received from Sanyogitaganj Hospital in the night at 1.35 AM on 18-10-1994. This intimation was recorded in Roznamcha Sanha No. 1578 vide Ex. P/27 proved by PW-15 R.A. Yadav Sub Inspector. This Sanha was recorded by Head Constable Madanlal. Its copy is available in the record vide Ex. P/27-C. After receiving this information at 1.35 AM by the police of PS MIG ASI R.A.S. Yadav went to Sanyogitaganj Hospital. The deceased was not in a condition to speak and he recorded the statements of witnesses Anil, Khemchand and Ashok. There after he returned back to the Police Station and recorded the Roznanmcha Sanha No. 1580. In the First Information Report time of recording of Sanha No. 1578 is mentioned as 18-10-1994 in the night at 1.35 O'clock, this First Information Report all the figures have been written in Hindi language, but while proving this report. P/25 Roznamcha Sanha No. 1578 (Ex. P/27-C) and Roznamcha Sanha No. 1580 (Ex. P/26) PW-15 in his statement wrongly mentioned the date as 17-10-1994. Both the Sanhas were proved by this witness because ASI R.A.S. Yadav had died and he was acquainted with his handwriting. This witness was also acquainted with the handwriting of Head Constable Madanlal. According to both Sanhas P/26 and P/27 as well as the First Information Report Ex. P/25, the information for the first time received on telephone from Sanyogitaganj hospital operator Sharad Kulkarni on 18-10-1994 at 1.35 AM (in the intervening night of 17th and 18th October, 1994). The First Information Report Ex. P/25 is also disclosing the fact that this First Information was registered on 18-10-1994 at 3.00 AM in the night. The prosecution has also adduced Merg Intimation report Ex. P/31-C proved by PW-15 R.A. Yadav and this Merg Intimation report is disclosing the time of the incident on 17-10-1994 at 8.45 PM. The information received on 18-10-1994 at 1.35 in the night and Merg was registered vide No. 84 of 94 as per provisions u/s 174 of the Code of Criminal Procedure on 17-10-1994 at 3.10 in the night. P/31-C proved by PW-15 R.A. Yadav and this Merg Intimation report is disclosing the time of the incident on 17-10-1994 at 8.45 PM. The information received on 18-10-1994 at 1.35 in the night and Merg was registered vide No. 84 of 94 as per provisions u/s 174 of the Code of Criminal Procedure on 17-10-1994 at 3.10 in the night. The contents of this Merg Intimation report is disclosing the fact that, the telephonic message was sent about the death of the deceased Madan at 3.0.0 AM by Telephone Operator of M.Y. Hospital (Maharaja Yeshwant Rao Hospital, Indore) named Sharad Kulkarni. In this Merg, it is also mentioned that the deceased sustained injuries in a quarrel and was admitted in M.Y. Hospital where he died at 3.00 A.M. in the night. The contents of this Merg intimation report are at variance with the contents of the First Information Report Ex. P/25, Sanha report Ex. P/26 and P/27. Regarding receiving information about admission of deceased from Sanyogitaganj Hospital and death of the deceased in Sanyogitaganj Hospital. In the First Information Report Ex. P/25, it is also mentioned that from Sanyogitaganj Hospital the deceased was shifted to Nanda Nagar triple storeyed hospital, but surprisingly enough no MLC report or the documents of treatment have been filed nor any witness has been examined from Nanda Nagar Hospital. In the FIR Ex. P/25 and both the Roznamacha Sanhas Ex. P/26 and P/27, there is absolutely no mention of admission of the deceased in M.Y. Hospital, Indore, which is a well known biggest hospital of the Government, but the prosecution examined two doctors PW-6 Dr. Ravindra Choudhary and PW-14 Dr. Pradeep Goyal who were serving in the M.Y. Hospital Indore at the relevant time. PW-14 Dr. Pradeep Goyal has proved the MLC report Ex. P/24 of the deceased. According to this witness, on 17-10-1994, he was posted in M.Y.H as CMO and in the night at 11.00 PM Rajesh son of Kishorilal came with the patient Madan son of Kishorilal for treatment and disclosed that Madan sustained injuries by knife. On examination, this doctor found 9 incised wounds on various parts of the body of Madan. Condition of the patient was not good, smell of alcohol was coming out from his mouth and breathing. He referred the patient for further treatment to the RSO Surgery. On examination, this doctor found 9 incised wounds on various parts of the body of Madan. Condition of the patient was not good, smell of alcohol was coming out from his mouth and breathing. He referred the patient for further treatment to the RSO Surgery. It is pertinent to note here that the deceased was admitted in the hospital and examined for the first time by this witness in the night at 11.00 PM on 17-10-1994. Up to this time there was no report lodged anywhere at any Police Station or Police Chowki and three Police Stations were situated at a very short distance. Dr. Goyal (PW-14) mentioned only the name of Rakesh (PW-3), brother of the deceased who brought the deceased and for the first time by telephonic message on 18-10-1994 at 1.35 AM MIG Police received telephonic message about admission of the deceased in Sanyogitaganj Hospital. This contradiction or variance about admission of the deceased in the hospital has not been reconciled or explained by the prosecution. The deceased died in MYH and the message was sent to the Police Station MIG on the basis of which Merg Intimation Report Ex. P/31-C was recorded. After the death of the deceased Postmortem was performed by Dr. of M.Y. Hospital, Indore PW-6 Dr. Ravindra Choudhary and on external examination, he found as many as 17 injuries. The injury No. 1 stab wound below the right thumb and incised wounds on right wrist were noted. Injury No. 3 was contused abrasion on left arm, injuries No. 4 to 16 were stitched wounds and injury No. 17 was a haematoma on right parietal region caused by hard and blunt object admeasuring 3 x 3? CMs. He found damage to the left lung due to external injury on chest. In the opinion of this witness, the incised and stab wounds were caused by hard, sharp and pointed object and the deceased died due to shock and excessive bleeding. The death was homicidal in nature. In the instant case, the prosecution has failed to explain where the deceased was kept or admitted after the incident between 8.30 and 11.00 PM on 17-10-1994. For the first time he was attended by PW-14 Dr. Pradeep Goyal. Dr. Goyal has no where mentioned the names of the assailants when he examined the deceased Madan and found a number of knife injuries on his person. For the first time he was attended by PW-14 Dr. Pradeep Goyal. Dr. Goyal has no where mentioned the names of the assailants when he examined the deceased Madan and found a number of knife injuries on his person. He would have certainly asked as to how he sustained the injuries from PW-3 Rakesh, but the non-mention of the names of the assailants in his M.L.C, report as well as in the statement in Court which could be disclosed, if known to PW-3 Rakesh and if eye-witnesses PW-2 Khemchand, PW-9 Ashok and PW-10 Anil would have accompanied the deceased as stated by them. This lapse has given a serious jolt to the prosecution case and it appears that the eye-witnesses did not witness the incident and when information was received for the first time from the hospital by MIG Police on 18-10-1994 at 1.35 AM in the night, only thereafter the eyewitnesses were introduced and their statements were recorded on the next day. If really the deceased was admitted in Sanyogitaganj Hospital, immediately after the incident and was shifted, to Nanda Nagar hospital and the names of the assailants were known to the eye-witnesses, the medical documents of both the hospitals would have certainly filed by the police, but non-filing of medical documents of treatment of the deceased in both the hospitals is indicative of the fact that there were no eye witnesses of the incident and PW-3 Rakesh, brother of the deceased upon receiving information of lying of the deceased in injured condition on the place of incident, went over there and shifted him in Sanyogitaganj Hospital and ultimately the deceased was shifted on 17-10-1994 by Rakesh to M.Y. Hospital, Indore in the night at 11.00 PM and up to that time, he was not knowing the names of the eye-witnesses as well as the assailants, otherwise at least he would have mentioned to the doctor some of the names of the assailants and the doctor would have also inquired from him about the identity of the assailants. The Supreme Court in the case of Rehmat Vs. State of Haryana, observed as under :-- There is also another aspect which goes in favour of the appellant. Admittedly Padamsingh (PW-4) along with Vijaysingh had first gone to the Primary Health Centre for medical help but he did not disclose the name of the assailant to the Doctor. The Supreme Court in the case of Rehmat Vs. State of Haryana, observed as under :-- There is also another aspect which goes in favour of the appellant. Admittedly Padamsingh (PW-4) along with Vijaysingh had first gone to the Primary Health Centre for medical help but he did not disclose the name of the assailant to the Doctor. Ordinarily, in medico legal case, the doctor is supposed to write down the history of the injured but admittedly in this case, medical papers of Padamsingh (PW-4) do not indicate the name of the assailant. It would be apposite to mention here that for the first time the incident was reported to MIG Police on 18-10-1994 in the night at 1.35 AM and in that information also the names of the assailants as also the eye-witnesses do not figure. This shows that up to that time the relations of the deceased and the police were not knowing the names of the assailants and thereafter concocted a case against the appellants for introducing three eye-witnesses namely PW-3 Khemchand, PW-9 Ashok and PW-10 Anil. As discussed above, because of highly unnatural and abnormal conduct by not reporting the matter immediately to the police and not raising alarm to seek help from the persons of locality, though several persons assembled on and near the scene of occurrence, it was a thickly populated locality and a busy road, it would be unsafe to rely on testimony of these so-called eye-witnesses who were the inhabitants of Indore town and PW-2 Khemchand was facing criminal prosecution very well acquainted with the police station and the Court. In the wake of the aforesaid factual and legal analysis of the prosecution evidence, we are of the considered view that the prosecution has failed to prove its case beyond all reasonable doubts. Therefore, appeals of the appellants are allowed. Their conviction and sentences passed by the Court below by the impugned judgment are hereby set aside and they are acquitted of the charges levelled against them. They are on bail, their bail and surety bonds shall stand discharged. Final Result : Allowed