Judgment ( 1. ) FEELING aggrieved by the judgment of absolvitor dated 13/6/1993 passed by learned 5th Additional Sessions Judge, Bhopal in S. T. No. 214/92 acquitting respondent no. 1 from the charges punishable under section 302 IPC and under section 25 (1b) of the Arms Act and also acquitting respondent no. 2 from the charges punishable under sections 201 and 212 IPC the State of Madhya pradesh has preferred this appeal after obtaining leave to file appeal. ( 2. ) IN brief the case of prosecution is that on 15/2/1992 at 9. 45 a. m. complainant mohd. Ashfaq alias Bablu was going from his house to purchase meat, at that juncture from Bhadbhuja Ghati one scooter was coming which was being driven by Anjum. On the said scooter Adeeb (hereinafter referred to as the deceased)was a pillion rider. As, soon as the said scooter reached ne. arby the house of vegetable vendor Rafique Miyan, respondent no. 1 stopped the scooter and dragged the deceased, Thereafter, a long knife which was wiped on his waist was taken out by him and in order to kill the deceased dealt its blow on his abdominal region. When respondent no. 1 tried to inflict second blow of the said knife, deceased caught hold of the weapon, as a result of which his fingers were cut. Thereafter, respondent no. 1 dealt knife blow on the neck region of the deceased, as, a result of which his neck was chopped and blood started oozing. It is the further case of prosecution that deceased was screaming and requesting respondent no. 1 not to kill him, but respondent no. 1 mercilessly dealt several knife blows and ultimately fled from the place of occurrence. ( 3. ) COMPLAINANT Mohd. Ashfaq alias Bablu thereafter went to Police Station talaiya and lodged the FIR. On lodging of the FIR the criminal law was triggered and set in motion. The FIR was registered; investigating agency started investigation and in pursuance to its investigation arrived at the spot; prepared spot map; prepared inquest of the dead body and sent it for post-mortem; seized ordinary and blood stained earth from the place of occurrence; recorded the statement of the witnesses; arrested respondent no. 1 on 19/2/1992 and seized a knife which was used as a weapon in the commission of offence from his possession; arrested respondent no. 1 on 19/2/1992 and seized a knife which was used as a weapon in the commission of offence from his possession; arrested respondent no. 2 Rahat Warsi on 1/3/1992 and seized blood stained clothes of respondent no. 1 which were washed, from him. The investigating agency in furtherance to its investigation send blood stained articles for chemical and serological examinations. ( 4. ) AFTER the investigation was over a charge-sheet was submitted in the committal Court which on its turn committed the case to the Court of Session from where it was received by the trial Court for its trial. ( 5. ) LEARNED trial Judge on the basis of the evidence placed on record came to the conclusion that charges under section 302 IPC and under section 25 (1b) of the Arms Act against respondent no. 1 as well as charges under sections 201 and 212 IPC against respondent no. 2 are not proved, as a result of which acquitted both of them by the impugned judgment. ( 6. ) IN this manner the State of M. P. has come up in this appeal after obtaining leave to file appeal. ( 7. ) THE contention of Shri T. K. Modh, Dy. Advocate General appearing for the appellant/state is that there are as many as 3 eyewitnesses to the incident; they are Mohd. Tazim (PW-2), complainant Mohd. Ashfaq alias Bablu (PW-3) and anjum (PW-6) and all these witnesses in a singular voice have stated that respondent no. 1 dealt knife blows on the person of the deceased as a result of which he had died. By inviting our attention to the evidence of Autopsy Surgeon dr. C. S. Jain (PW-11) and his post-mortem report Ex. P-18, it has been contended by learned State, counsel that the evidence of eyewitnesses ib also medically corroborated and there is no scintilla of doubt that it was respondent no. 1 who stabbed the deceased and dealt umpteen knife blows on his person, as a result of which he died at the spot and, therefore, learned trial Judge has erred in acquitting respondent no. 1 from the charges punishable under section 302 IPC as well as under section 25 (1b) of the Arms Act. ( 8. ) BY putting deep dent on the finding of learned trial Judge acquitting respondent no. 1 from the charges punishable under section 302 IPC as well as under section 25 (1b) of the Arms Act. ( 8. ) BY putting deep dent on the finding of learned trial Judge acquitting respondent no. 2 Rahat Warsi from the charges punishable under sections 201 and 212 IPC it has been argued that since there is overwhelming evidence of the prosecution against him, therefore, learned trial Judge erred in acquitting him from these charges. ( 9. ) PER contra, Shri Vijay Nayak, learned counsel for the respondent no. 1 argued in support of the impugned judgment and has submitted that presence of alleged eyewitness Mohd. Tazim (PW-2) and his name has not been stated in the fir by the author of the FIR Mohd. Ashfaq alias Bablu (PW-3), who has also been cited as an eyewitness by the prosecution. Learned counsel has drawn our attention to various paragraphs of the statement of this witness in this regard. It has also been contended by learned counsel that presence of this witness has also not been stated by another eyewitness Anjum (PW-6 ). ( 10. ) BY attacking on the evidence of Mohd. Ashfaq alias Bablu (PW-3), who is also the author of the FIR, it has been contended by the learned counsel that testimony of this witness is not at all reliable and further submitted that if his evidence, particularly para 9, is considered in proper perspective it is difficult to hold that he has seen the incident and thus, according to learned counsel, the FIR (Ex. P-2) which has been lodged by this witness appears to be ante dated and ante time. By inviting our attention to the evidence of this witness in para 13, it has been contended by learned counsel that as per the case of prosecution the inquest report was prepared at the spot, but in Court this witness is saying that in the. mortuary it was prepared, therefore, the evidence of this witness cannot be placed reliance. By inviting our attention to the spot map (Ex. P-3), it has been contended that though this witness is signatory of this document, but despite he has been posed as an eyewitness by the prosecution, for the reasons best known to the investigating agency, the place where this witness was standing has not been shown in the spot map. By inviting our attention to the spot map (Ex. P-3), it has been contended that though this witness is signatory of this document, but despite he has been posed as an eyewitness by the prosecution, for the reasons best known to the investigating agency, the place where this witness was standing has not been shown in the spot map. In support of his contention learned counsel for respondent no. 1 has placed heavy reliance on the decision of the Supreme Court State of U. P. v. Bhagwan and others (1997) 11 SCC 19 . ( 11. ) ANOTHER submission of learned counsel for the respondent no. 1 is that there is non-compliance of provisions of section 157, Cr. P. C. and, therefore, for this reason case of prosecution becomes highly doubtful. In support of his contention, learned counsel has placed reliance on two decisions of the Supreme Court; they are Mehraj Singh (L/nk.) v. State of U. P. (1994) 5 SCC 188 and Thanedar Singh v. State of M. P. (2002) 1 SCC 487 . On the same point learned counsel has also placed reliance on the Division Bench decision of this Court Chhakki v. The State of Madhya Pradesh 1990 MPJR 736 . ( 12. ) BY inviting our attention to the testimony of Autopsy Surgeon Dr. C. S. Jain (PW-11), it has been contended that post-mortem was conducted at 11. 45 a. m. and as per prosecutions own case the incident had taken place at 9. 45 a. m. which would mean that within two hours the post-mortem was conducted, but autopsy surgeon found rigor mortis on the entire body of the deceased and if that is the position, according to learned counsel, the incident must have taken place at least 7-8 hours earlier to the time of performing the post-mortem and in this context he has placed heavy reliance on the decision of the Supreme Court Kunju Muhammed alias Khumani and another v. State of Kerala (2004) 9 SCC 193. ( 13. ) BY attacking the testimony of Mohd. Tazim (PW-2), it has been contended by learned counsel that this witness has stated that he has also received injuries in the same incident, but since this witness did not produce himself for medical examination in order to corroborate his statement about receiving injuries in the same incident, his evidence becomes highly suspicious. ) BY attacking the testimony of Mohd. Tazim (PW-2), it has been contended by learned counsel that this witness has stated that he has also received injuries in the same incident, but since this witness did not produce himself for medical examination in order to corroborate his statement about receiving injuries in the same incident, his evidence becomes highly suspicious. In this context learned counsel has placed reliance on the decision of the Supreme Court Gorle S. Naidu v. State of A. P. and others (2003) 12 SCC 449. It has been argued by learned counsel for the respondent no. 1 that conduct of Mohd. Tazim (PW-2) is highly unnatural as he did not state the incident to the family members of the deceased nor he lodged any FIR and, therefore, he is not at all a reliable witness. In this context learned counsel has placed heavy reliance on the decision of the Supreme Court State of Maharashtra v. Raju Bhaskar Potphode (2007) 11 SCC 261 . ( 14. ) BY questioning the hallmark of the evidence of Anjum (PW-6 ). who is another eyewitness it has been argued that conduct of this witness is highly unnatural, because despite he saw the incident he did not inform about the incident to the family members of the deceased, nor he lodged any report and, therefore, conduct of this witness also becomes highly unnatural. It has also been putforth by learned counsel that the Investigating Officer Daulat Singh (PW-12) has stated that statement under Section 161 Cr. P. C. of this witness was recorded in the evening while according to this witness, the same was recorded in the night and therefore, presence of this witness at the spot becomes highly doubtful. On these premised submission it has been contended by learned counsel for respondent no. l that learned trial judge after scanning the entire gamut of the matter has taken the view that prosecution has utterly failed to prove its case beyond all reasonable doubts and therefore rightly acquitted the respondent no. 1. According to learned counsel in an appeal against acquittal, if sound reasonings have been assigned by learned trial judge acquitting the accused, same should not normally be disturbed in appeal, particularly when appellate court comes to the conclusion that another view is also possible. ( 15. ) SHRI Satyam Agrawal, learned counsel appearing for respondent no. 1. According to learned counsel in an appeal against acquittal, if sound reasonings have been assigned by learned trial judge acquitting the accused, same should not normally be disturbed in appeal, particularly when appellate court comes to the conclusion that another view is also possible. ( 15. ) SHRI Satyam Agrawal, learned counsel appearing for respondent no. 2 by inviting our attention to the findings recorded by learned trial judge in para 39 to 43 of the impugned judgment has submitted that cogent reasons have been assigned while acquitting respondent no. 2 from the charges punishable under. Section 201 and 212 IPC. By inviting our attention to the testimony of prosecution witnesses it has been contended by learned counsel that the house from where washed blood stained clothes of respondent no. l were seized is of respondent no. 2, this fact has not at all been proved. Further it has been contended that there is no evidence on record in order to prove that this respondent washed the blood stained clothes of respondent no. l so that the evidence against respondent no. l may disappear and therefore, learned trial judge did not commit any error in acquitting this respondent from the charges punishable under Sections 201 and 212 IPC. ( 16. ) IN reply Shri Modh, learned Deputy Advocate General submitted that FIR is not a substantive piece of evidence and it can be used only for contradiction and corroboration. He has also cited the decision of the Supreme Court Abdul Gani and others v. State of Madhya Pradesh AIR 1954 SC 31 . ( 17. ) BY replying argument of learned counsel for respondent no. 1 it has argued by learned State counsel that FIR (Ex. P-2) was lodged within 25 minutes at 10:10 a. M. and immediately thereafter the investigating agency came into action and prepared the spot map at 11:00 A. M. and in the spot map Crime No. 87/92 has been mentioned. By inviting our attention to Ex. P-18 which is an application addressed to District Hospital to perform the postmortem, the summary description of the incident has been mentioned and the name of respondent no. l has also been mentioned causing injury to the deceased and, therefore, according to learned state counsel although there is compliance of Section 157 Cr. By inviting our attention to Ex. P-18 which is an application addressed to District Hospital to perform the postmortem, the summary description of the incident has been mentioned and the name of respondent no. l has also been mentioned causing injury to the deceased and, therefore, according to learned state counsel although there is compliance of Section 157 Cr. P. C. but even for the sake of argument if it is held that there is non compliance, it will not be fatal to the prosecution in the peculiar facts and circumstances of the case. ( 18. ) BY replying the argument of learned counsel for respondent no. l in regard to the presence of rigor mortis on the dead body of the deceased it has been contended by learned State counsel that it varies person to person and in this context he has placed heavy reliance on the decision of the Supreme Court tanviben Pankajkumar Divetia v. State of Gujarat AIR 1997 SC 2193 . Learned state counsel has also invited our attention to paras 7 to 9 and 13 of the statement of Autopsy Surgeon Dr. C. S. Jain (PW-11) in this regard. In respect to the conduct of the eyewitnesses, learned State counsel has placed heavy reliance on two decisions of the Supreme Court State of U. P. v. Brahma Das AIR 1986 SC 1769 and Rana Pratap and others v. State of Earyana AIR 1983 SC 680 . ( 19. ) SO far as not showing the place where eyewitness complainant Mohd. Ashfaq @ Bablu (PW-3) was standing in the spot map (Ex. P-3) is concerned, learned state counsel submits that Mohd. Ashfaq @ Bablu (PW-3) is the signatory of the spot map also, therefore, it was not necessary for the Investigating Officer to point out the place where this witness was standing in the spot map. Apart from this, it has been putforth by learned State counsel that this infirmity at the most indicates that investigation was defective, but on the basis of defective investigation the benefit will not go to the accused. if the charges are otherwise proved from the evidence. In this context learned State counsel has placed reliance on the decision of the Supreme Court Allarakha K. Mansuri v. State of Gujarat (2002)3 scc 57 . ( 20. if the charges are otherwise proved from the evidence. In this context learned State counsel has placed reliance on the decision of the Supreme Court Allarakha K. Mansuri v. State of Gujarat (2002)3 scc 57 . ( 20. ) HAVING heard learned counsel for the parties we are of the view that this appeal deserves to be allowed in part. ( 21. ) WE shall first deal with the judgment of learned trial judge acquitting respondent no. 1 Habib Ahmed. The prosecution has taken pains to examine three eyewitnesses, they are Mohd. Tazim (PW-2), Complainant Mohd. Ashfaq @ Bablu (PW-3) and Anjum (PW-6 ). Before we scan the testimony of Mohd. Tazim (PW-2) and Complainant Mohd. Ashfaq @ Bablu (PW-3) we would like to put emphasis on the evidence of eyewitness Anjum (PW-6 ). According to this witness, on the fateful day he was driving his scooter and the deceased was the pillion rider on that scooter. According to him after travelling a particular distance by the said Scooter, he found that respondent no. 1 was holding one boy later on he came to know the name of that person to be Tazim. Needless to say that Mohd. Tazim (PW-2) is also an eyewitness. According to PW-6 when his scooter reached nearby the place where respondent no. l was standing, the accused Habib brandished knife to him as a result of which he brought the scooter nearby the brim of the road and thereafter deceased alighted from the scooter. At that juncture respondent no. 1 came nearby the deceased and conversation started in between them. According to this witness respondent no. l was scolding on the deceased by saying that he should not try to become a hero. Thereafter accused dealt knife blow on the abdominal region of the deceased. When he tried to give another blow, the deceased caught hold of the knife. On seeing the incident this witness became astonished and palpitated as result of which he ran away from the place of occurrence and came to the house of Atique. He also called Atique and without waiting for his arrival he ran away from the house of Atique and again came back to the place of occurrence where he found the deceased to be dead and the mob was assembled there. Thereafter he picked up his scooter and came back. ( 22. He also called Atique and without waiting for his arrival he ran away from the house of Atique and again came back to the place of occurrence where he found the deceased to be dead and the mob was assembled there. Thereafter he picked up his scooter and came back. ( 22. ) STATEMENT of this witness under Section 161 Cr. P. C. was recorded on the date of incident only. True there are certain minor discrepancies and omissions in it such as he became late to go to his college has not been mentioned in his case-diary statement. Further he has not stated that he asked the deceased to push the scooter etc. We have also gone through his case diary statement (Ex. D-3) of this witness. This witness is a student having age of 21 years on the date of incident and therefore, if this witness had not gone to the house of the deceased to inform his family members about the incident, according to us his conduct cannot be questioned. The conduct of this witness is quite natural because as soon as he saw that respondent no. l has dealt knife blow on the abdominal region of the, deceased, he ran away from the place of occurrence because no one would dare to remain present there especially when this witness was carrying the deceased as pillion rider on his scooter. In para 11 this witness has stated that he did not see mohd. Ashfaq, Mohd. Siddique and Mohd. Tafique at the place of occurrence, but in the same breathe he has stated that because he became perplexed, therefore, he could not see who were standing at the place of occurrence. He has also stated that on account of fear he became perplexed and he did not go to the house of deceased to narrate the incident. ( 23. ) WE do not find any merit in the contention of learned counsel for the respondent no. He has also stated that on account of fear he became perplexed and he did not go to the house of deceased to narrate the incident. ( 23. ) WE do not find any merit in the contention of learned counsel for the respondent no. l that statement of this witness (PW-6) was recorded at 11:00 in the night by Police persons and according to Investigating Officer the same was written in between 5 to 6 P. M. If paras 6 and 13 of the statement of this witness are kept in juxtaposition to the statement of Investigating Officer Daulat Singh (PW-12) we find that this witness came to the police station at 5-6 P. M. and thereafter his statement was recorded. This would not mean that the statement was recorded in the evening. In para 13 of his deposition this witness has specifically stated that he went to the police station in the evening and at 11:00 in the night, his statement was recorded and therefore according to us there is no inconsistency in his statement. According to us, statement of this witness is clear, cogent and trustworthy and proves the entire case of the prosecution. ( 24. ) SO far as the evidence of another eyewitness Mohd. Tazim (PW-2) is concerned, his testimony is also quite reliable. According to this witness he is an employee of the Municipal Corporation and his duty was in the night. In the morning after his duty was over, he came nearby Areethe Wali Masjid where he saw respondent no. 1 standing there who scolded on him that why this witness allowed one Shahzade to manhandle respondent no. 1 and thereafter respondent no. 1 took out the knife and tried to cause injury on him but he stopped the blow by holding it as a result of which he sustained injury in his fingers. Thereafter this witness pacified him that he never asked Shahzade to beat respondent no. 1. Thereafter respondent no. 1 carried him inside the Masjid where he sworn and told that he never asked Shahzade to beat respondent no. 1. Thereafter on seeing that blood was coming out from his hand respondent no. 1 asked this witness that he will carry him. to provide the first-aid. Thereafter according to this witness he saw deceased coming on a scooter which was being driven by Anjum. Respondent no. 1. Thereafter on seeing that blood was coming out from his hand respondent no. 1 asked this witness that he will carry him. to provide the first-aid. Thereafter according to this witness he saw deceased coming on a scooter which was being driven by Anjum. Respondent no. 1 stopped the scooter and by catching hold of the collar of the deceased dealt knife blow on the abdominal region of the deceased. On seeing the incident this witness also became astonished and fled from the place of occurrence and went away towards Bhadbhuja Ghati. ( 25. ) DURING his cross-examination several questions were put to him such as after discharging his duty on the way to his house he was not required to go across the place of occurrence etc. We are not at all impressed by the submission of learned counsel for the respondent no. 1 that on this ground testimony of this witness is liable to be discarded. According to us it is for this witness to choose a particular way. If on the date of incident he has chosen a different way where the place of occurrence falls, according to us, merely on this ground testimony of this witness cannot be belied. Similarly we do not find any merit in the contention of learned counsel that because this witness did not go to the house of the deceased to inform family members his conduct becomes highly unnatural. In this context para 11 of his cross-examination may be seen in which it has been specifically stated by this witness that deceased was not his friend, but he was known to him. Further he has clarified that he is not acquainted with the whereabouts of the house of the deceased and for this reason he did not go to inform his family members. This witness when told about the incident to his mother she pacified not to go anywhere and to stay in the home and, therefore, in these state of affairs, according to us, evidence of this witness cannot be said to be unnatural or his conduct becomes doubtful as argued by learned counsel for respondent no. 1 and for this reason decision of Raju Bhaskar Potphode (supra) is not applicable in the present facts and circumstances of the case and the decision of Rana partap (supra) placed reliance by learned State counsel is applicable. 1 and for this reason decision of Raju Bhaskar Potphode (supra) is not applicable in the present facts and circumstances of the case and the decision of Rana partap (supra) placed reliance by learned State counsel is applicable. The Supreme court in this case has categorically held in para-6 that the evidence of a witness cannot be discarded merely on the ground that he did not react in any particular manner and therefore, according to us if eyewitnesses have not reacted immediately would not be a ground to hold that they are not the eye-witnesses. ( 26. ) THIS witness has also proved the presence of author of the FIR Mohd. Ashfaq alias Bablu and in para 18 he has specifically stated that while running away from the place of occurrence he saw Mohd. Ashafq, Mohd. Sidique, Mohd. Atique etc. Thus according to us the statement of this witness also proves that respondent no. 1 caused injuries by knife on the person of the deceased. ( 27. ) WE do not find any merit in the contention of learned counsel for respondent no. 1 that because this witness was not medically examined and, therefore, accusing respondent no. 1 for causing injury by knife to this witness not only becomes highly doubtful but also weakens the case of prosecution and presence of this witness becomes doubtful. In this regard, if para-6 of statement of this witness is taken into consideration, it would become crystal clear as he has stated specifically that he lodged a separate report respect of causing injury by respondent no. 1 to him and a separate case is pending against him. We also do not find any merit in the contention of learned counsel for the respondent no. l that in the same incident this witness received injury in his fingers. According to us, the incident took place much after receiving of the injury by this witness. It has come in the testimony of this witness that on the point of quarrel between Shahzada and respondent no. 1 it has been stated by this witness that respondent no. l tried to assault this witness, but the blow was stopped by this witness with the aid of the fingers of his hand and thereafter both of them went inside the Masjid and after sometime both of them came out. 1 it has been stated by this witness that respondent no. l tried to assault this witness, but the blow was stopped by this witness with the aid of the fingers of his hand and thereafter both of them went inside the Masjid and after sometime both of them came out. After they came outside from the Masjid this witness saw deceased coming on a scooter and thereafter injuries were dealt by respondent no. l by knife to the deceased. Hence, it cannot be said that this witness received injury in the same incident. ( 28. ) SO far as evidence of Mohd. Ashfaq @ Bablu (PW/3) is concerned on the fateful day he was going to purchase meat and when he reached nearby the house of one Sarang Saheb he found a scooter passing away from him. After going little ahead he saw Habib and Tazim. At that juncture, respondent no. l in front of the shop of vegetable vendor Rafique stopped the scooter and by catching hold of the collar of the deceased dragged him from the scooter which was being driven by Anjum. The scooter also fell down and respondent no. 1 dealt knife blows on his chest and thereafter, when he tried to cause another blow, knife was caught hold by the deceased as a result of which his fingers were cut. The cut injuries are also found in the postmortem report. The deceased by catching hold his stomach sat down at the place of occurrence and thereafter respondent no. 1 again dealt the blow of knife on his neck region in the same manner like a slaughterer chops the oat. ( 29. ) IN para 7 of his cross-examination this witness has stated that he is not having intimacy with the deceased but was having only a formal relation with him. According to this witness deceased was the friend of his elder brother Atique. Contention of learned counsel for the respondent no. ( 29. ) IN para 7 of his cross-examination this witness has stated that he is not having intimacy with the deceased but was having only a formal relation with him. According to this witness deceased was the friend of his elder brother Atique. Contention of learned counsel for the respondent no. 1 is that this witness has been cited as an eyewitness and is also the author of the FIR, but he has not seen the incident and in this context learned counsel has invited our attention to para 9 of the testimony of this witness in which this witness has stated that after lodging of the FIR, when deceased was sent to the hospital and when doctor told about the factum of the death of the deceased at that juncture he came to know that deceased had died and, therefore, at the time of lodging of the FIR by this witness stating about the death of the deceased, becomes highly suspicious. The argument at the first blush appears to be quite attractive, however, on deeper scrutiny we find it to be devoid of any substance. If we keep para 9 of the testimony of this witness in juxtaposition to para 13 of his statement we find that immediately after seeing the incident he went to lodge the report and thereafter police persons came to the spot and carried the deceased to the hospital in the emergency ward of the hospital where doctor declared him to be dead. Therefore, if this witness in para 9 has stated that on intimating by the doctor that deceased in fact had died would not somersault the stand taken by this witness in the FIR wherein it has been stated by him that deceased had died at the spot and, therefore, according to us, this witness cannot be said to be a manufactured witness or FIR can be said to be ante time and dated. ( 30. ) WE also do hot find any force in the submission of learned counsel for the respondent no. 1 that this witness (PW-3) in his testimony has stated that the inquest report was prepared in the mortuary and according to the prosecution same was prepared at the spot and, therefore, this witness cannot be said to be an eyewitness. ) WE also do hot find any force in the submission of learned counsel for the respondent no. 1 that this witness (PW-3) in his testimony has stated that the inquest report was prepared in the mortuary and according to the prosecution same was prepared at the spot and, therefore, this witness cannot be said to be an eyewitness. This witness was cross-examined for a considerable longer duration and in the latter part of para 13 he has stated that since there is long gap of time, he did not remember where the inquest report was prepared. Therefore, even if he has stated in the Court that the inquest report was prepared at the mortuary and not at the spot it would not weaken the case of prosecution. ( 31. ) THUS according to us, from the statement of this eye witness also, it is proved that it was respondent no. 1, who caused injuries by knife to the deceased, as a result of which he had died. The evidence of eyewitnesses is also corroborated by the medical evidence. As per Ex. P-18, Autopsy Surgeon Dr. C. S. Jain (P. W.-ll) has found the following injuries on the person of the deceased : (1) Neck on anterior and both lateral aspect is cut. Margins are clear cut. Depth of wound is more in centre where it is tapering superiorly just anterior to both ears. Depth in centre is up-to anterior border of cervical IInd Vertebrae near to ears, it is skin deep and at termination clotted blood present in wound at places. Following muscles are cut in injury : Platysma myelohyoid digastricus. Sternocleidomastoid. Stylohyoid. Sternohyoid. Omohyoid. Sternothyroid. Thyrohyoideus. styloglossus. Following vessels are cut in injuries :- Internal and External carotid artery, facial artery and vein. Maxillary Artery and Vein. External and Internal Jugular vein. Retro mandibular vein. and facial nerve. Tract direction is Anterior to posterior upward: (2) All fingers between middle and distal crease live sharply muscles deep cut in transverse place. Hypo thinner and thinner region of palm and upper part of thumb in continuation in same transverse place sharply muscles deep cut. Hand is sumdged in blood. These injuries appear to be defence wounds where cutting edge is sharp and weapon is hard. Hypo thinner and thinner region of palm and upper part of thumb in continuation in same transverse place sharply muscles deep cut. Hand is sumdged in blood. These injuries appear to be defence wounds where cutting edge is sharp and weapon is hard. (3) Stab wound on left chest 5 cm below nipple entered in thoracic cavity through 7th inter costal space at costochondiral function level giving knick on lower border of 7th rib and upper border of 8th rib. Perforating to thoracic wall and lung it has come out posteriorly through 6th inter costal space on anterior aspect it is situated obliquely vertical where lower end is directed lateral and is blunt 0. 3 cm upper end is spindle shaped length on skin is 5 cm and width 2. 5 cm on posterior aspect it obliquely vertical where spindle shaped upper end is directed medially 22 cm above posterior superior iliac spine and lower blunt end is directed laterally. Length on posterior aspect 3. 5 cm and width 2 cm Blunt end is 0. 3 cm. On anterior aspect from upper end a incised wound arising; this wound is gradually decreasing in depth from medial to laterally. Lateral end subcutaneous deep and spindle shaped. (4) There are two abrasions and superficial laceration in Rt. iliac region size is 0. 5 x 0. 3 cm of each. ( 32. ) WE do not find any merit in the contention of learned counsel for respondent no. l that on account of alleged non-compliance of Section1157 Cr. P. C. , case of prosecution becomes highly doubtful- There is prompt FIR (Ex. P-2) and immediately police persons arrived at the spot and prepared the spot map (Ex. P-3) mentioning crime number etc. Thereafter dead body of the deceased was sent for post mortem mentioning summary story of the case and causing injury by knife by respondent no. l has also been mentioned in the application addressed to the doctor, who performed the post mortem, which is Ex. P-18 and, therefore, even if it is held that there is non-compliance of section 157 Cr. P. C, according to us, it would not be fatal to the prosecution. ( 33. ) WE also do not find any merit in the contention of learned counsel for the respondent no. P-18 and, therefore, even if it is held that there is non-compliance of section 157 Cr. P. C, according to us, it would not be fatal to the prosecution. ( 33. ) WE also do not find any merit in the contention of learned counsel for the respondent no. 1 that postmortem was conducted only after 2 hours of the incident and at that juncture doctor found rigor mortis on the body of the deceased and, therefore, it should be held that incident had taken place 7-8 hours before conducting the postmortem. In this context we may profitably place reliance on paras 7 to 9 of the evidence of Autopsy Surgeon Dp. C. S. Jain (PW-11) wherein it has been specifically stated by the doctor that it varies man to man and nature of the injuries sustained by the deceased. The doctor has stated that in Bhopal if a person receives injuries as sustained by the deceased and blood continues to ooz, the rigor mortis may start immediately after the death. In para* 9 it has been stated that a person who has received injuries and if his body is covered by a bed-sheet in the month of February, and the dead body is examined in between half and one hour, rigor mortis can be seen on his entire body and, therefore, according to us, there is no barometer in order to indicate that when the process of rigor mortis would start and therefore the decision of Kunju Muhammed alias Khumani (supra) placed reliance by respondent is not applicable in the present case. The Supreme Court in another decision Tanviben Pankajkumar Divetia (supra) placed reliance by learned State counsel, in para 35 after analysing the evidence has held that presence of rigor mortis was only a rough guide for determining the time of the death. Hence, we do not find any merit in the contention of learned counsel that because rigor mortis was present on the entire body of the deceased the incident had taken place 7-8 hours before conducting the post mortem. ( 34. ) WE also do not find any merit in the contention of learned counsel for the respondent no. 1 mat in the spot map the Investigating Officer did not mention the place from where Mohd. ( 34. ) WE also do not find any merit in the contention of learned counsel for the respondent no. 1 mat in the spot map the Investigating Officer did not mention the place from where Mohd. Ashfaq alias Bablu (PW-3), who is also author of the FIR has seen the incident and therefore the presence of PW-3 at the spot becomes doubtful. The author of the FIR is also signatory of spot map (Ex. P-3) and in his presence it was prepared and, therefore, if the place where he was standing has not been shown, this will not dilute or somersault the entire case of prosecution. Even otherwise a defective investigation is not a ground to acquit the accused and in this context decision of Supreme Court AUarakha K, Mansuri (supra) may be placed reliance. ( 35. ) FOR the reasons stated here-in-above we are of the view that the view taken by the learned trial court cannot be said to be reasonably possible view. According to us the evidence of eyewitnesses is fully reliable and learned trial judge on flimsy grounds discarded their testimony. Looking to the injuries of the deceased since his neck has been completely chopped, his lung was also cut and it is also proved from the testimony of the eyewitnesses that the deceased also tried to stop the blow of knife by putting his hand in front of the weapon as a result of which his fingers were cut, according to us respondent no. l is guilty of committing the offence of culpable homicide amounting to murder and therefore, charge u/s. 302 IPC is proved against respondent No. l. ( 36. ) ON going through the finding recorded by the trial court, it is gathered that respondent no. l has been rightly acquitted from the charge u/s. 25 (1b) of Arms act. The said finding is hereby affirmed. ( 37. ) SO far as acquittal, of respondent no. 2 Rahat Warsi is concerned, according to us, since there is no iota of evidence that the clothes of respondent no. 1 were seized from the house of this respondent and also because there is no evidence that this respondent washed the blood stained clothes of respondent no. 1, therefore, according to us learned trial Judge did not commit any error in acquitting this respondent from the charges punishable u/s. 201 and 212 of IPC. 1 were seized from the house of this respondent and also because there is no evidence that this respondent washed the blood stained clothes of respondent no. 1, therefore, according to us learned trial Judge did not commit any error in acquitting this respondent from the charges punishable u/s. 201 and 212 of IPC. In this regard die findings recorded in para-39 to 43 are quite cogent and they are based on correct appreciation of evidence on record. ( 38. ) RESULTANDY, the judgment of acquittal of respondent no. 1 Habib Ahmed under section 302 of IPC is hereby set aside and it is hereby held that the charge under section 302 IPC is proved against him. However, charge u/s. 25 (1b) of Arms Act has not be found to be proved against him and his acquittal from this charge is hereby affirmed. Since charges u/s. 302 of IPC has been found to be proved we hereby sentence respondent No. l Habib Ahmed to undergo life imprisonment. The judgment of acquittal passed in respect of respondent no. 2 Rahat Warsi is hereby affirmed. ( 39. ) RESPONDENT No. 1 Habib Ahmed is on bail, his bail bonds are cancelled and he is hereby directed to surrender before learned Trial Court on or before 1st june, 2009 and learned Trial Court shall send him to jail to serve out the sentence: registry is hereby directed to send back the record to the Trial court post haste so as to reach much earlier to 1st June, 2009. Trial court is further directed that in case respondent no. l Habid. Ahmed fails to surrender, a perpetual warrant of arrest be issued against him and a notice be also issued to the surety to show cause why bail amount be not forfeited and may pass necessary order in that regard. Registry, is hereby directed to send the bail papers of respondent no. 1 to the learned Trial court and a photocopy of thereof be kept in the record of this file. The learned Trial Court is also directed to intimate the Registry of this Court about the factum of arrest of respondent no. l. Order accordingly.