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Madhya Pradesh High Court · body

2008 DIGILAW 852 (MP)

Deepak S/O Gokuldas v. State Of M. P.

2008-07-10

MANJUSHA P.NAMJOSHI, S.K.KULSHRESTHA

body2008
JUDGMENT : S. K. KULSHRESTHA, J. The above appeals have been filed against the judgment dated 24-1-1997 passed by the learned IInd Additional Sessions Judge, Indore in Sessions Trial No. 70/1993 whereby the appellants have been convicted for offence under section 148 and each has been sentenced to R.I. for one year as also under section 302 read with section 149 of the Indian Penal Code and sentenced to imprisonment for life and fine of Rs. 500/-. Since both the appeals arise from the very judgment, the appeals are being decided by this common order. 2. The unfortunate incident dates back to the night intervening 9/10-10-1992 at 12.30 in the mid night of which report was purportedly made at 1.15 A.M. by P.W.1 Charanjeetsingh. The matter relates to the trade rivalry between two liquor vendors. The prosecution alleges that deceased Gurvindersingh @ Pappu s/o Rajendra Singh had a Bar in the name and style of 'Chandragupta' Hotel. In the close vicinity of this Beer Bar, the accused were having a small Bar and as per the motive alleged, enraged by the fact that the deceased had also got license and had become a sizable competitor the accused persons assaulted him at about 12.30 mid night with knife. It was stated that the deceased was at his Hotel in the company of Charanjeetsingh, Ayub, Jagdish and others. Accused Narsingh came to his Hotel and informed him that he has been asked to come to the neighbouring Hotel. Immediately after the deceased left, cries were heard which attracted the attention of Ganesh, Jagdish, Ayub and Charanjeetsingh who sprinted to the place of the incident and witnessed that the accused persons, and the deceased accused viz. Jairam, were assaulting Gurvindersingh. Seeing that the witnesses were approaching, the accused persons fled away and took refuge in their Hotel. Gurvindersingh was carried to the Police Station and from Police Station, he was sent to M.Y. Hospital along with the requisition for his examination. C.W.-1 Dr. Sunil Kumar examined the injuries and recorded it in Ex.P/18-A. The injuries found in the initial examination by the said Doctor read as extracted hereunder :- Incised wound over neck (Rt.) 1" x ½" x ½". Incised wound over (Rt) face 1" x ½" x ½". Incised wound over front of neck 1 ½" x ¼" x ¼". Incised wound over left arm front laterally 1" x ½" x ½". Incised wound over (Rt) face 1" x ½" x ½". Incised wound over front of neck 1 ½" x ¼" x ¼". Incised wound over left arm front laterally 1" x ½" x ½". Incised wound over left palm dorsal aspect 1" x ½" x ½". Incised wound over left belly 1" x ½", omentum coming out. Incised wound over left chest mid clavicular line 1½ " x ½". Incised wound over left belly post axillary line 1" x ½" muscle deep. Incised wound over Lt. Chest mid axillary line 1" x ½" x ½". Incised wound over Lt. Chest ant. axillary line 7th space 1"x ½" x ½". 3. After the injured was sent to the Hospital, P.W.1 Charanjeet Singh lodged the report Ex.P/1 and proceeded to the Hospital. However, Gurvindersingh succumbed to the injuries at 10 A.M. while under treatment. On learning about the homicidal death of Gurvindersingh, the Investigating Officer P.W.7 Roopsingh Bhojak proceeded to the Hospital and held inquest in the presence of witnesses of which inquest memo was prepared. The blood stained clothes of Gurvindersingh (deceased) were seized vide Ex.P/2. Spot-Map Ex.P/23 was prepared and the aluminium sheets which had been stained with blood, were seized vide Ex.P/24. The witnesses acquainted with the facts of the case were examined. On 13-10-1992, the accused persons were arrested and on their making disclosure about the weapons used in the commission of the offence, the same were recovered at their instance. Weapons were forwarded to the Hospital for the opinion of the expert as to whether the injuries could have been caused by the said weapons to which the opinion was received in the affirmative. The seized articles were sent to the Forensic Science Laboratory for opinion but though the report of the Laboratory Ex.P/27 was received, report from the Serologist was not received to show that any of the articles sent to the Laboratory were stained with human blood. 4. After the death of Gurvindersingh and inquest conducted by the Police, the requisition for Post-Mortem Examination of the deceased was sent and, accordingly, the Autopsy Surgeon conducted Post-Mortem and gave Autopsy Report Ex.P/18. In the Autopsy Report, the external injuries found on the body have been described as under :- 1) Stab wound through and through on left neck. 4. After the death of Gurvindersingh and inquest conducted by the Police, the requisition for Post-Mortem Examination of the deceased was sent and, accordingly, the Autopsy Surgeon conducted Post-Mortem and gave Autopsy Report Ex.P/18. In the Autopsy Report, the external injuries found on the body have been described as under :- 1) Stab wound through and through on left neck. The upper wound is situated 1 cm below the mid part of body of mandible left side, oblique 3 cm x 0.7 cm directed downwards, forward and medially, margins are clean cut, except at broader medial anterior end. Posterior, lateral end is sharp and narrow. The wound is tapering internally and the track is echymosed leading to the wound which is situated lower down and on left side of neck 1 cm left lateral to mid line. All margins are clean cut 2 cm x 0.5 cm, is anterior and medial and contused. Wound is in subcutaneous and muscle plane and 4 cm long. 2) Stab wound 4.0 cm (of which 1.5 cm is extended) x 0.7 cm x 10 cm deep on right side of neck 1 cm below and parallel to the body of right side mandible, oblique directed to left, downwards and slightly forward margins are clean cut except at broader upper externally taperred. The track is echymosed, on clots and ends behind the trachea in oesophagus. Size of the wound is 0.8 x 0.4 cm into lumen deep. 3) Stab wound left anterior chest lower part, 9 cm below level of nipple (Lt) and 4 cm medial to left mid clavicular 3 cm (1 cm is extended) x 0.5 cm x 4 cm deep in subcutaneous, plane, oblique, margins are clean cut except upper end lumen is slightly contused, directed from left to below, upwards and anterior to posterior. 4) Stab wound on left lower chest laterally (6th space) 11 cm below the left nipple 2.5 cm x 0.5 cm x 5 cm deep, oblique, upper end broader and contused margin clean cut, directed anterior and slightly below upwards. 4) Stab wound on left lower chest laterally (6th space) 11 cm below the left nipple 2.5 cm x 0.5 cm x 5 cm deep, oblique, upper end broader and contused margin clean cut, directed anterior and slightly below upwards. 5) Stab wound - 2.5 cm x 0.5 cm x 4½ " on left lower part of chest in anterior axillary plane and 14 cm below anterior axillary fold, oblique margins clean cut except that upper border contused posterior and blood is lying in subcutaneous and muscle plane, directed from left to right, backward in the same plane. 6) Incised wound - 1.5 cm x ½ cm x 1.5 cm oblique vertical on left lower lateral chest in mid axillary plane, 12 cm below axillary pit, margins are sharply cut. 7) Wound - on left lateral chest 8th inter costal space 3 cm x 0.8 cm x 11 cm deep up to spleen, vertical end broad and contused, lower end sharp and narrow directed from left to right, slightly towards on same plane, reaching to spleen where there is vertical through and through wound on posterio lateral surface of the spleen on the outer wound is 2 cm x 0.7 cm x through and through (2 cm) inner end is 1.4 cm x 0.5 cm wound track is echymosed taperring internally. Abdominal cavity contains about 1000 cc blood and clots. 8) Wound - Left lateral lower chest 8th inter costal space posterior to wound No. (7), vertical 3 cm x 0.8 cm x 3 cm deep upto left lung lower lobe. Margins are clean cut except at border and contused, upper end wound is taperring internally, echymosed, track is skin subcutaneous tissue, inter costal muscles left hemi diaphragm, left diaphragmatic plane and then to left lung interior surface where size is 0.7 x 0.3 cm directed from below upwards from left to right and forward. 9) Stab wound - 3 cm x 0.8 cm x 15 cm., left side of abdomen, lumber region lateral 1 cm left lateral to and in the plane of the umbilicus obliquely vertical margins are clean cut, except at border cover which is contused. Track is echymosed and taperring internally, left (decending) through and through the left kidney on the lateral wall of its lower pole, here size is 1 cm x 0.3 cm x 0.5 cm. Track is echymosed and taperring internally, left (decending) through and through the left kidney on the lateral wall of its lower pole, here size is 1 cm x 0.3 cm x 0.5 cm. The wound is directed from left to right, anterior to posterior and slightly upward. 10) Incised wound 3 cm x 0.7 cm x 2 cm, oblique, on back left lumber region margins are clean cut. 11) Incised wound 3 cm below and medial to wound No. 10 left lumber and iliac region, oblique, 1.5 cm x ½ cm x ½ cm. Margins are clean cut. 12) Abrasion - on right upper back running medially and won to of back 17 cm x 2 cm., red. 13) Incised wound - right posterior axillary fold 2.5 cm x 0.7 cm x 2 cm oblique, lower end is anterior, left thoracic cavity contains about 700 cc of blood of clots, left lower lobe is collapsed. A cut mark present on the pant on left side back blood stained. 14) Incised wound - Left hand dorsum, vertical, 4 cm subcutaneous deep, directed downward (lower end is shallower). 15) Stab Wound - On lower part of left upper arm, oblique vertically present on outer aspect 2.7 cm x 0.7 cm x 10 cm through and through. Caused internally through subcutaneous tissue, muscles, taperring gradually internally and leads to the wound on inner aspect of mid third of left upper arm is 1.8 cm x 05 cm oblique, vertical. Directed from below upwards, from lateral to medial side and posterior anteriorly. 16) Incised wound - above right lateral 6 cm x 15 cm x subcutaneous deep tender exposed upper end posterior and lower end is anterior margins are clean cut, soft tissue is echymosed, all wound show presence of blood clots. 5. After completion of the investigation, accused persons were prosecuted. 6. On charges having been framed, the accused denied having committed any offence and stated that they had been falsely implicated. However, the learned Additional Sessions Judge found them guilty and convicted and sentenced the appellants as stated hereinabove. It is against this conviction and sentence that these two appeals have been filed by the convicted accused. 7. 6. On charges having been framed, the accused denied having committed any offence and stated that they had been falsely implicated. However, the learned Additional Sessions Judge found them guilty and convicted and sentenced the appellants as stated hereinabove. It is against this conviction and sentence that these two appeals have been filed by the convicted accused. 7. Learned Counsel for the appellants have severely criticized the testimony of P.W.1 Charanjeetsingh, P.W.2 Ganesh, P.W.3 Jagdish and P.W.4 Ayub Khan, examined as eye-witnesses by the prosecution, on the ground that their evidence is unnatural and replete with improbabilities and inconsistencies and even their presence on the spot is doubtful on account of telling circumstances. It is further submitted that the prosecution has suppressed evidence which would have helped the case of the defence particularly the scribe of the FIR Ex.P/1 who had also sent the requisition Ex.P/18-A for examination of injuries. No explanation has been given by the prosecution with regard to the omission to examine a material witness and non-explanation of such witness, adversely reflects upon the testimony of the witnesses, particularly P.W.1 Charanjeetsingh. In view of requisition Ex.P/18-A, learned Counsel has expressed doubt about the injuries having been inflicted by swords and has thus submitted that the story projected by the prosecution is not trustworthy. Learned Counsel for the appellant Narsingh has further pointed out that though it was stated that Narsingh had gone to call the deceased and the incident occurred thereafter, the evidence adduced in this behalf is discrepant. He has invited attention to the testimony of P.W.1 Charanjeetsingh in paragraph 39, P.W.4 Ayub who has been duly confronted with his section 164, Criminal Procedure Code statement that Deepchand had come to call him and also P.W.3 Jagdish whose testimony in paragraphs 14 and 17 cannot be believed much less acted upon. 8. Learned Dy. Advocate General, per contra, has submitted that immediately when the deceased had raised an alarm, the witnesses, whose presence was natural, rushed to the place and they have rendered the ocular account of the incident which is corroborated by the prompt FIR Ex.P/1 made by P.W.1 Charanjeetsingh and the other circumstances including the injuries corroborating the ocular testimony. 9. We have heard the learned Counsel for the appellants and the learned Dy. Advocate General, for the State. 10. The parties have not disputed the homicidal death of Gurvindersingh. 9. We have heard the learned Counsel for the appellants and the learned Dy. Advocate General, for the State. 10. The parties have not disputed the homicidal death of Gurvindersingh. Even otherwise the testimony of P.W.7 Roopsingh Bhojak, Station House Officer and Investigating Officer, shows that on learning about the death of Gurvindersingh in the morning at 10 A.M. on 10-10-1992, he had proceeded to the Hospital and prepared inquest memo. Pursuant to the said memo, requisition was sent to the Hospital for Post-Mortem Examination of the deceased and in pursuance thereof the Autopsy Report Ex.P/18 was received. The eye-witnesses have also deposed to this fact and, therefore, we need not dwell further on the question about the homicidal death of Gurvindersingh. The core question that arises in the present case for our consideration is as to whether on the basis of the testimony of the four eye-witnesses and the other circumstances, the conviction of the appellants is proper or unsustainable. 11. The prosecution has examined in all seven witnesses. Insofar as the medical evidence is concerned, the same has been adduced through the testimony of P.W.6 Dr. Suresh Mundara and C.W. 1 Dr. Sunil Kumar and their reports Ex.P/18 and Ex.P/18-A. P.W.5 Rakesh is Panch of arrest and Memo under section 27, Evidence Act. From amongst the eye-witnesses, P.W.1 Charanjeetsingh is the brother of the deceased, P.W.2 Ganesh is a person who has a Tea Stall near the place of the incident, P.W.3 Jagdish was a servant in the Bar and P.W.4 Ayub Khan, a used two wheeler dealer, who according to him, had come to strike a deal with P.W.1 Charanjeetsingh with regard to a bullet Motorcycle. 12. In the above frame of factual matrix, it is first essential to consider the ocular testimony. The most important witness according to the prosecution is P.W.1 Charanjeetsingh, brother of the deceased. Charanjeetsingh has deposed that on the fateful night while he along with his brother deceased Gurvindersingh and Ayub were sitting in their Beer Bar along with Jagdish and their father Rajendrasingh, Narsingh arrived to call Gurvindersingh. His brother, therefore, left for Pasand Beer Bar while they went inside the Hotel. Immediately thereafter, cries were heard and Ganesh P.W.2, who has a Tea Stall, also came rushing. His brother, therefore, left for Pasand Beer Bar while they went inside the Hotel. Immediately thereafter, cries were heard and Ganesh P.W.2, who has a Tea Stall, also came rushing. When they came out of their Hostel, they witnessed that Gurvindersingh was being assaulted in front of Pasand Beer Bar by the accused persons and deceased accused Jairam. Narsingh was armed with a Knife and the other accused persons with Swords which they had liberally used in causing injuries to the deceased. They witnessed the incident as the place was illuminated by the tube light. He has further stated that he along with Ganesh and Jagdish took the deceased in a Rickshaw while Ayub P.W.4 and their father followed in a Car. The Car was parked a short distance away from the Police Station. At the Police Station, since Gurvindersingh was severely injured, he could not speak and the report Ex.P/1 was lodged by this witness. He has stated that on the date of the incident they had got the Bar license and it was on fear of imminent competition with the accused that they had assaulted the deceased. He has stated that the clothes of his brother were seized and after the report was taken down, he had gone to the M.Y. Hospital where, next day, his brother died. 13. The learned Senior Counsel has pungently criticized the testimony of P.W.1 Charanjeetsingh. He has pointed out that though Charanjeetsingh had carried the injured along with others and put him in a Rickshaw, still he has claimed that his clothes were not soaked in blood notwithstanding that a large number of injuries had been inflicted. He has also admitted that his clothes were not seized by the Police. According to the learned Counsel, the witness has resiled on a material aspect of the matter. Had Charanjeetsingh been present at the time of the incident, and handled the injured, there would have been no reason why his clothes would not get soaked in blood. If this aspect was examined in juxtaposition with the testimony of P.W.3 Jagdish who has also stated that he had handled the injured and taken him in the Rickshaw, he has clearly admitted that his clothes were soaked in blood. Even his clothes were not seized. 14. If this aspect was examined in juxtaposition with the testimony of P.W.3 Jagdish who has also stated that he had handled the injured and taken him in the Rickshaw, he has clearly admitted that his clothes were soaked in blood. Even his clothes were not seized. 14. If the statement of P.W.3 Jagdish is believed, the statement of P.W.1 Charanjeetsingh insofar as he alleges that he had taken the body but still he had not sustained any blood stains on his clothes, becomes doubtful. The doubt becomes graver as the Police did not take any steps to seize the clothes of P.W.3 Jagdish in order to establish that Jagdish was involved in bringing the injured to the Police Station. We may also record that in the fact situation where the brother of P.W.1 Charanjeetsingh was lying injured in a pool of blood, it is inconceivable that only P.W.3 Jagdish will handle the body. Since the injured was to be taken in the Rickshaw and he was not in a position to speak, one can easily assume that the body was kept in a very small space and contact with the body was unavoidable. 15. The sanctity of the statement of Charanjeetsingh P.W.1 has also been assailed on the ground that although he states that in respect of the incident which occurred at 12.30, the report was made at 1.15, the Head Constable who was the scribe of the report was not examined. He has further stated that Police Out Post was just a length away from the place of the incident but still the report was made at the Police Station and not at the Police Out Post for which the explanation that none was found at the Police Out Post does not appear plausible. Reference has also been made to the requisition Ex.P/18-A sent by the Head Constable which contains recital to the effect that the injuries had been caused only by Knife. Since the Head Constable has not been examined, the learned Senior Counsel contends that the said document, insofar as it helps the case of the accused can be taken into consideration even without any formal proof. Reliance has been placed on the decision of a Division Bench of this Court in Lallusingh vs. State of M. P. 1996 MPLJ 452 . Reliance has been placed on the decision of a Division Bench of this Court in Lallusingh vs. State of M. P. 1996 MPLJ 452 . His testimony has also been attacked insofar as in paragraph 60 of his deposition, he states that Ayub had come to purchase his motorcycle, while the version of Ayub P.W.4 was to the contrary. 16. Coming to the first contention about his clothes not having been soaked in blood, we are of the view that the statement of this witness does not inspire confidence as it is inconceivable that while handling the body of the injured who had 16 stab wounds and incised wounds, his clothes would not become blood stained. These circumstance creates a doubt about his presence at the time of the incident. However, the criticism that he had not lodged the report at the Out Post is not justified. He has explained that at the Police Out Post, none was available and, therefore, they had rushed to the Police Station. The circumstance with regard to his having taken the body in Rickshaw though his father followed in a Car also appears strange. It does not appeal to common sense that when a vehicle having more space is available for taking the injured to the Police Station and to the Hospital, the witness would prefer to take him in a Rickshaw along with two others. While it is not impossible for so many persons to travel in a Rickshaw, the fact that Car was following and all of them took the injured in Rickshaw does create a doubt about the sanctity of his deposition. 17. The main thrust of the argument of the learned Senior Counsel about the unreliability of this witness is with reference to the FIR Ex.P/1 in support of contention that report Ex.P/1 was brought into being subsequently and has been ante-dated and ante-timed. In the FIR Ex.P/1 there is though mention of the incident and the offence has been registered under the provisions of sections 147, 148, 307 read with section 149, the General Diary Serial Number has not been mentioned which adds to the doubt about the FIR having been lodged at 1.15. Learned Counsel has also stated that FIR was recorded by Head Constable but the said Head Constable has not been examined. Learned Counsel has also stated that FIR was recorded by Head Constable but the said Head Constable has not been examined. Reference has also been made to the letter (requisition) Ex.P/18-A sent by the Police to the Hospital in support of the contention that though it was stated in the said requisition that the injuries had been caused by Knife, the FIR which, according to the prosecution, preceded the said requisition, contains recital to the effect that only Narsingh was armed with Knife while others with Swords. Learned Counsel submits that had it been so that the FIR had already been lodged anterior to the requisition Ex.P/18-A, it could have borne recital to that effect and the fact that only injury having been caused by Knife finds mention, creates serious doubt about the existence of the FIR at the time the requisition was sent. Learned Counsel has submitted that this witness has admitted that he had protested that injured be first sent to the Hospital and it is quite conceivable and natural that he must have proceeded along with the injured and the FIR was lodged later. 18. Insofar as the proof with regard to the FIR is concerned, P.W.7 Roopsingh Bhojak has testified to the signature of Police Officer Yadav on the FIR and it is not stated that he was not acquainted with the same. The reliance placed on the requisition Ex.P/18-A is misplaced as the said document has not been proved by the person who purportedly sent it. Even otherwise, the requisition for material examination of necessity, has to be concise and is not required to be and an encyclopaedia. However, the learned Senior Advocate has further submitted that compliance of section 157, Criminal Procedure Code having not been made, the FIR becomes discrepant and unreliable. Roopsingh Bhojak P.W.7 has stated that the report as required under section 157 is sent per Dak Book and receipt of the Jurisdictional Magistrate or the person authorised, is obtained. He has however, admitted that no evidence has been placed on record to show that the report as required had been sent to the Jurisdictional Magistrate. Roopsingh Bhojak P.W.7 has stated that the report as required under section 157 is sent per Dak Book and receipt of the Jurisdictional Magistrate or the person authorised, is obtained. He has however, admitted that no evidence has been placed on record to show that the report as required had been sent to the Jurisdictional Magistrate. Reference has been made to the decision of the Supreme Court in Ganesh Bhavan Patel and another vs. State of Maharashtra, AIR 1979 SC 135 in support of the contention that information about the commission of cognizable offence must be recorded in accordance with section 154 and inordinate delay in registration of FIR renders the prosecution case suspicious. The argument has been advanced on the footing that the FIR has been ante timed as it was on the next day that at about 11 A.M. that the statement of the witnesses were recorded after the death of the injured. Learned Counsel has also referred to the decision in Bir Singh and others vs. State of U. P., AIR 1978 SC 59 that FIR must be proved like any other fact and is not a matter of which judicial notice can be taken. Attention has also been invited to the decision of the Apex Court in Kunju Muhammed @ Khumani and another vs. State of Kerala, (2004) 9 SCC 193 that where the FIR reached the Jurisdictional Magistrate after 36 hours of the incident, and the delay was not explained and the Court was close to the Police Station, it created a serious doubt about the prosecution case. Learned Counsel submits that it is an admitted position that no document was placed on record to show dispatch of the report and its receipt. Since the compliance of section 157, Criminal Procedure Code is required to be proved as a fact, the prosecution has miserably failed in showing that the FIR was lodged on the date and the hour on which it purports to have been lodged. Under these circumstances, it is not a case where the FIR has been lodged promptly and suspicion about the sanctity of prosecution case naturally creeps in. 19. We may point out that where there is evidence that the Report reached the Jurisdictional Magistrate late, there is no difficulty in repelling such an argument if the delay has been satisfactorily explained. Under these circumstances, it is not a case where the FIR has been lodged promptly and suspicion about the sanctity of prosecution case naturally creeps in. 19. We may point out that where there is evidence that the Report reached the Jurisdictional Magistrate late, there is no difficulty in repelling such an argument if the delay has been satisfactorily explained. In the present case however, compliance of section 157, Criminal Procedure Code was totally absent, the case of the prosecution as regards the first version given by P.W.1 Charanjeetsingh becomes suspicious. It would, therefore, be perilous to proceed on the version of P.W.1 Charanjeetsingh without corroboration from other circumstances on record. 20. The prosecution has also placed strong reliance on the testimony of P.W.4 Ayub Khan. P.W.4 Ayub Khan has stated that while he was busy in striking a deal with regard to the Motorcycle with Charanjeetsingh, Narsingh had come to him with Gurvinder stating that Deepak had called him as he had some urgent work. About five minutes later, Ganesh shouted that Bhaiya was being assaulted with the result they rushed to the place and found that Narsingh was armed with Knife and the other accused with Swords and they were assaulting the deceased. He has stated that when accused persons left, Ganesh and Jagdish took Gurvindersingh in a Rickshaw. This casts a serious doubt about the statement of P.W.1 Charanjeetsingh that he had taken the injured to the Police Station. 21. Statement of this witness was recorded under section 164 of the Criminal Procedure Code. He was duly confronted by the said statement to the effect that he could not say that whether Pappu (deceased) had been caught. He has stated that he had gone to the Chandragupta Hotel on his Motorcycle which he wanted to sell and he was demanding Rs. 18 to 19 thousand for the same. If this statement is examined apposite the testimony of P.W.1 Charanjeetsingh in para 39 the falsity of his statement is exposed. P.W.1 Charanjeetsingh has stated that Ayub had come at about 11.30 to purchase his Motorcycle. While Ayub says that it was his Motorcycle that he wanted to sell, the version of P.W.1-Charanjeetsingh that he had come to purchase his Motorcycle contradicts him. One of them is, therefore, lying on a material fact introduced to show the presence on the spot, of P.W.4 Ayub. While Ayub says that it was his Motorcycle that he wanted to sell, the version of P.W.1-Charanjeetsingh that he had come to purchase his Motorcycle contradicts him. One of them is, therefore, lying on a material fact introduced to show the presence on the spot, of P.W.4 Ayub. The grounds stated by P.W.4 Ayub for his chance presence itself being shaky, it becomes doubtful that Ayub was present at the time of the incident while we are not suggesting that at the time of the incident at about 12.30 in the night a person can be present for some valid reason, the reason advanced by P.W.4 Ayub and directly contradicted by P.W.1 Charanjeetsingh does not confirm the presence of this witness as a chance witness. It appears that the story about the presence of P.W. 4 has been concocted to suppress the case of the prosecution. It is perhaps for this reason that his statement under section 164, Criminal Procedure Code was got recorded. Another significant fact about the enthusiasm of this witness to support the case of the prosecution is that accused Ramesh and Deepchand are engaged in the vending of fruits and so also father of the deceased. It cannot, therefore, be said that the witness is an independent witness. Thus, implicit faith cannot be reposed so far as this witness is concerned. 22. Coming to the other two eye-witnesses, P.W.2 Ganesh has a Tea Stall near the place of the incident. He has admitted that he always, without exception, puts the shutter down at 11.30 in the night and goes home for food. He has stated that the said day when the incident took place was the first exception to his daily routine and he was having meals in the Hotel at the time of the incident. He has admitted that he caters to the requirement of Charanjeetsingh P.W.1 whenever the tea is required in the Hotel, and has substantial income therefrom. Though he has stated that he had witnessed the incident of assault in which the appellants were involved but his mysterious presence for the first time on that day at that doubt about his credibility. Having admitted that even on the date of the incident he closed his shop at 11. Though he has stated that he had witnessed the incident of assault in which the appellants were involved but his mysterious presence for the first time on that day at that doubt about his credibility. Having admitted that even on the date of the incident he closed his shop at 11. 30, it is strange that he went to the Hotel for the first time to have meals and remain till the hour the incident took place. He has not ascribed any reason for making a departure from his daily routine. He has though explained that after closing the shop at 11.30, he cleans the shop which takes one hour, it does not stand to reason that a person would clean the closed shop. It is only a pretext to show that his presence at the scene of the occurrence was natural specially when for no ostensible reason he had meals in the Hotel for the first time at an hour when Hotels are normally closed. He has admitted that his clothes were soaked in blood. He has been confronted with his section 164 statements and also the statement Ex.D/2 given to the Police in which he has not mentioned that he cleans his shop for an hour after he closes shop at 11.30 PM. There is no evidence to suggest that his blood soaked clothes were seized for confirmation of his presence. 23. The last eye-witness is P.W.3 Jagdish. Jagdish is the servant in the Bar which belonged to the deceased. It is very strange that he preludes his deposition by referring to the deal between Gurvindersingh and P.W.4 Ayub which fact we have already adverted to above. It has already been held, while P.W.1 says that Ayub had come to purchase his Motorcycle, Ayub states to the contrary. It is not a fact which can be attributed to evaporation of memory and, therefore, the attempt of the witnesses to indicate their presence as natural appears quite artificial and false. Under these circumstances, it is doubtful that this witness was present at the time of the incident. This apart, he was the servant of the deceased and he had also faced a few cases under the Excise Act for having been in possession of liquor without the requisite licence. He had been convicted in some cases and some more cases were pending. This apart, he was the servant of the deceased and he had also faced a few cases under the Excise Act for having been in possession of liquor without the requisite licence. He had been convicted in some cases and some more cases were pending. He has also stated that he had handled the injured while putting him in his Rickshaw and his clothes had also become blood stained. The clothes having not been seized and sent for examination, the doubt about his presence on the spot is further strengthened. 24. From the above discussion it is manifest that although the prosecution has examined these witnesses viz. P.W.1 Charanjeetsingh, brother of the deceased, P.W.2 Ganesh, Tea Vendor, having business from P.W.1, Charanjeetsingh, P.W.3 Jagdish, servant in the Hotel of the complainant side and P.W.4 Ayub Khan, their testimony suffers from serious infirmities and renders the same wholly unreliable. We may reiterate that insofar as P.W.1 Charanjeetsingh, brother of the deceased is concerned, the fact that he did not get any blood on his clothes while handling the body of the injured, the doubt about the FIR on account of its copy having not been sent to the Jurisdictional Magistrate, contradiction with regard to the body having been taken by him or by the other witnesses, the artificiality introduced for creating presence of Ayub and there being some mystery about their motive against Ramesh and Deepchand who are vegetable vendors residing behind the Hotel, his testimony requires corroboration which is not available from the testimony of other eye-witnesses. As a matter of fact, each eye-witness contradicts the other and the improbabilities and inconsistencies introduced in the testimony and there being an attempt and overzealousness to implicate the appellants due to rivalry between the two parties, we find it extremely hazardous to act on their testimony. 25. Learned Senior Counsel has also referred to the injury report and the Post-Mortem Report Ex.P/18 and Ex. P.18-A. Learned Counsel submits that if the length and depth of the injuries is examined, it transpires that the said injuries, though incised and stab wounds, could not have been caused by Swords. We have recorded this argument only to reject it. The injuries found in the Post-Mortem Report clearly spell out that they could have been caused by Knife as also by Sword. P.W.6 Dr. Suresh Mundara has also been emphatic in this behalf. 26. We have recorded this argument only to reject it. The injuries found in the Post-Mortem Report clearly spell out that they could have been caused by Knife as also by Sword. P.W.6 Dr. Suresh Mundara has also been emphatic in this behalf. 26. The testimony of P.W.7 Roopsingh Bhojak, Station House Officer, is as regards the steps taken in investigation. 27. The testimony of the witnesses being unreliable, unnatural and replete with inconsistencies and improbabilities, the conviction of the appellants cannot be sustained. Accordingly, this appeal is allowed. The conviction of the appellant under sections 148, 302, 302/149 is set-aside and the sentences passed thereunder are set-aside. The accused are acquitted of the charges against them. The accused are on bail. Their bail bond shall stand discharged.