JUDGMENT Kundan Singh, J.
1. This appeal has been preferred by the appellants Ali Hasan alias Jhinkan and Bismillah alias Nirha against the judgment and order dated 23-9-1983 passed by Sri Raghunath Prasad, the then VII Addl. Sessions Judge, Gorakhpur, whereby he has convicted the appellants under Section 302, I.P.C. and sentenced each of them to undergo imprisonment for life.
2. The prosecution case, in brief, is that a dispute took place between Munni Lal alias Kallu on one hand and Alim Hasan alias , Jhinkan on the other few days earlier. They challenged each other to see in future. Due to that reasons Jhinkan was on inimical terms with Munnilal alias Kallu. On 4-3-1982 at 1.30 p.m. Munnilal alias Kallu was returning from Collectorate to his house in the company of PW 1 Pradeep Kumar and PW 2 Shariker. When they were passing through the way in front of the house of Jhinkan in Mohalla Jamunahiya Bagh, Jhinkan stopped Kallu and enquired from him about the old Dispute and started scolding him. Munnilal ,alias Kallu protested it whereupon Jhinkan gave a knife blow to Munnilal alias Kallu. Shanker and Pradeep Kumar, who were accompanying Munnilal alias Kallu, tried to intervene but in the meantime, Nirha father of Jhinkan, and one more person both armed with a country made pistol and a hockey respectively came out of the house. Seeing them Kallu, Pradeep and Shanker ran towards West. All of them chased them and at some distance Nirha fired a shot which hit Kallu and as a result of that gun shot injury he fell down. Thereafter, Jhinkan and other person inflicted knife and hockey blows on the body of Kallu. Vijay Kumar, Faiyaz and others, residents of Mohalla Jammunahiya Bagh reached there and they tried to apprehend them but all the three accused persons threatened them and fled away. Kallu was brought on a Rickshaw by Shankar, . Pradeep, Vijay, Faiyaz and others to the district Hospital where he, was admitted. After a short while, Kallu succumbed to his injuries. Shayam Lal, father of the deceased, learnt about the incident and rushed to the district Hospital where he found his son dead. The witnesses, who were in the company of the deceased at the time of incident or had arrived there, narrated the incident to the informant Shyam Lal, got the F.I.R. scribed from Vijay and lodged the same at police station Gorakhnath, District Gorakhpur, on the same day at 3.25 p.m. a memo was sent to the police station Kotwali Gorakhpur about the death of Kallu alias Munnilal.
3. Umesh Chandra Upadhyaya, Sub Inspector (PW 8) prepared the panchayatnatna of the deceased in the District Hospital, Gorakhpur and the dead body of Kallu alias Munnilal was handed over to PW 9 Gulam Mohammad, constable for being carried to mortuary for post-mortem examination. Dr. M. P. Singh (PW 5) conducted the postmortem examination on the dead body at 3.00 p.m. on 5-3-1982, who found 12 incised wounds and one gun shot wound of entry on the body of the deceased.
4. Sri Kant Pandey (PW 10), Station Officer, Gorakhnath started the investigation of the case. He recorded the statement of 'Shyam Lai at the police station. He tried to search out the accused persons but they were untraceable. He reached the place of occurrence at 5.30 p.m. where he found the witnesses who had already been summoned. He prepared a site plan and recorded the statements of Pradeep Kumar, Faiyaz and Vijay under Section 161 Cr.P.C. Since the accused persons could not be arrested, the proceeding under Sections 82/83, Cr.P.C. were taken against them. The Investigating Officer after completion of the investigation submitted a charge sheet against the accused persons in court.
5. The prosecution examined 10 witnesses in all to prove its case. Out of them, Pradeep Kumar, Shanker and Vijay Kumar were examined as PWs 1, 2, & 3 respectively, as eye witnesses of the occurrence. Shyam Lal who was examined as PW 4 is the informant and had lodged the FIR at the police station. Dr. M. P. Singh (PW 5) was examined to prove postmortem examination report of the deceased. Umesh Chandra Upadhyay was examined as PW 8 to prove the inquest report of the deceased and Srikant Pandey was examined as PW 10 to prove the different parts of the investigation.
6. All the accused appellants denied the prosecution version and stated in their statements that the witnesses belong to the gang of the deceased and they have falsely implicated them in the present case due to enmity.
7. The learned trial Judge after going through the evidence on record held the appellants guilty of the charge and accordingly he convicted and sentenced them as stated above.
11. The main argument of learned counsel for the appellants was that FIR was lodged after the preparation of inquest report by the Sub Inspector Kotwali and therefore, the FIR was ante-timed which indicate that nobody was present at the place of occurrence and the incident was not seen by anybody. We have gone through the entire evidence thoroughly. The incident took place at 1.30 p.m. on 4-3-1982 and thereafter Kallu alias Munnilal was taken to the Hospital where he was got admitted by one Ram Chandra, uncle of the deceased, but he died soon thereafter in the hospital. A memo was received at the police station Kotwali Gorakhpur through one Mangru Ward boy about the death of Munnilal alias Kallu which was noted in G.D. No. 30 at 3.40 p.m. Umesh Chandra Upadhyay (PW 8) then went to hospital and started the inquest at 4-30 p.m. which was completed at 5.30 p.m.PW 4 Shyam Lal, father of the deceased, reached hospital at the time when the dead body was being sealed which thereafter was sent to Mortuary for post-mortem examination. Thereafter he along with Pradeep and Vijay went to the police station and reached there within half an hour. He also made it clear that he reached at the police station at 3.15 p.m. It appears that inquest report was completed at 5.30 p.m. and the dead body was handed over to constable Gulam Mohammad (PW 9) for post-mortem examination. We are unable to accept the submission made by the learned counsel for the State that Shyam Lal reached the hospital where he was informed about the incident and he got the FIR scribed from Vijay Kumar and lodged it at 3.25 p.m. at the police station Gorakhpur then he again reached the hospital to attend his son's body.
12. The learned counsel for the appellants draw our attention to the inquest report to make it clear that S.I. found three types of injuries on the body of Kallu alias Munnilal namely (i) Incised wounds (ii) Lacerated (Khoon Alooda) wounds and (iii) Gun shot injuries, and contended that when the police learnt about three types of injuries from the inquest report, role of inflicting injuries was assigned to all the three persons Jhinkan by a knife, (ii) Nirha alias Bismilla with country made pistol and (iii) the 'third unknown person by hockey, though no ostensible blunt weapon injury was found on the body of the deceased by the doctor who conducted postmortem examination. The prosecution case is not consistent with medical evidence. Had PW 8 Umesh Chandra Upadhyaya, S.I., not mentioned the lacerated wound (Khoon Alooda), the role of causing injuries with blunt weapon would not have been assigned to third unknown person.
13. First of all we have to examine the evidence on record to find out whether any hockey stick was used in the incident. Dr. M. P. Singh (PW 5), who conducted the postmortem examination, found no external mark of injury caused by a blunt weapon. However, he found lacerated upper part of abdomen's walls, peritoneum lacerated, stomach and abdominal cavity full of blood. In this respect we may refer to the opinion of Dr. Modi in the Text Book 'Medical Jurisprudence Toxicology', 21st Edition 1988, Page 327, which reads as under:
"Injuries of the abdominal parietes may be contusions, abrasions, and non-penetrating wounds. Contusions of the abdominal parietes are produced by a blunt weapon, a kick, a carriage wheel passing over the abdomen, crush accidents or by a fall. It is not necessary that they should show any external mark of injury on the skin. Sometimes, an effusion of blood may be seen in the tissues or muscles under the spot where violence was used; but it must be borne in mind that an effusion of blood in muscles may occur spontaneously as a result of disease without any external violence."
14. According to the opinion of Dr. Modi, laceration or contusion or even abrasion may come in the abdominal walls by blunt weapon by a kick or carriage wheel or by fall. In the instant case, the 3rd unknown person assaulted the deceased with a hockey stick. In case the 3rd person had inflicted hockey blows on the body of the deceased, it was not necessary that those blows would have been fallen only on the abdomen and not on any other bony part of the body. However, if we see the other side of shield also, the possibility of sustaining the injuries on the abdominal walls by kicks at the time when the deceased was being assaulted by knife and pistol could not be ruled out. Had the hockey been used in the incident, the deceased must have sustained lacerated wounds or contusions on the bony part of the body. More probability is that the hockey was not used and the deceased was kicked by any of the assailants. Shyam Lal father of the deceased deposed in the court that when he reached the hospital, he found dead body of his son being covered with a cloth and sealed and thereafter it was sent to mortuary in his presence for post-mortem examination. After that he went to police station in the company of Pradeep and Vijay where he reached at 3-25 p.m. and there he stayed for about half an hour. Thereafter he went to his house straightway. In our opinion in view of the inquest report prepared by PW 8 Umesh Chandra Upa-dhyay, S.I., which was completed at 5.30 p.m., the FIR being lodged after the preparation of the inquest report could not be excluded as argued by the learned counsel for the appellants.
15. Now we proceed to examine the ocular testimony of the witnesses to find out whether the witnesses were present at the scene of occurrence and they had actually seen the incident. Shanker (PW 2) and Vijay Kumar (PW 3) admitted in their statements that when the first knife blow was given by Jhinkar they did not raise any alarm nor they arrested Jhinkar. When the victim party saw the accused armed with weapons or when they ran towards West at that time also they did not raise any alarm or shout to attract witnesses or made attempt to save the deceased. Even at the time when gun shot was fired on Kallu alias Munnilal deceased, none of them raised hue and cry. It would be evidence from the site plan that the place (x) where first knife blow was given by AH Hasan alias Jhinkan to Kallu and the deceased and his companions saw two more persons Nirha with a country made pistol and unknown person with a hockey stick, is at a distance of about 46 steps from the place of (x-1) where Nirha fired a shot from country made pistol, Ali Hasan inflicted knife injuries and unknown person inflicted hockey blows on the body of deceased. The place (x-2) from where the witness saw the incident is about 13 steps from the place of (x-1). The companions of the deceased after seeing the accused persons armed with deadly weapons, they ran away from the place (x) to place (x-2) and they saw the shot was fired on the body of deceased by Bismillah alias Nirha at place (x-1) whereas the other accused persons were also inflicted knife and hockey injuries, Till then the witnesses, who were present at the place (x-2), did not raise any alarm to save the decesed from the accused persons. That conduct of the witnesses appears to be unnatural. On the other hand, had they been present at the scene of occurrence, they must have raised alarm to save the deceased from the accused persons even if it is assumed that the witnesses who were accompanying the deceased were not physically stout to save the deceased or to apprehend the accused persons then when the injuries were being inflicted on the person of the deceased by the accused persons, Vijay and Faiyaz are also said to have reached there, who have claimed themselves to be the eye witnesses of the incident. PW 1 Pradecp Kumar stated that when the accused had left the place of incident, the witnesses went near the deceased and found him badly injured. He was then taken to the hospital by the witnesses but no name of any one of the witnesses who brought the deceased and got him admitted in the hospitals mentioned in the hospital records. Only the name of Rarn Chandra is mentioned in the Admission Register and it is said that Ram Chandra was uncle of the deceased who reached at the scene of occurrence just after the incident. Ram Chandra has not been examined in this case to prove that he was the uncle of the deceased and he got him admitted in the District Hospital From the evidence of the witnesses, it does appear that Ram Chandra was in the hospital when the police reached or he accompanied Shyam Lal to lodge the FIR at the police station. Even Shyam Lal has not spoken that his son Kallu was got admitted by his brother Ram Chandra and he found him present in the hospital when he reached hospital. It appears that some other person got the deceased admitted in the hospital disclosing his identity as Ram Chandra who may or may not be the uncle of the deceased. Had the witnesses or the alleged companions of the deceased been present in hospital at the time of admission of deceased as claimed by them, their names would have been appeared in the hospital records. On the other hand, it appears that the alleged eye witnesses reached the hospital to see the deceased when they learnt about the incident. Shanker stated that he and Ram Chandra took the deceased to hospital on a rickshaw. His clothes were smeared with blood but they were not shown to the Investigating Officer. He stated that at about 2.30 p.m. he met Sub Inspector in the hospital itself where he was interrogated by him. Thereafter he was not interrogated by the Sub Inspector. PW 10 Srikanat Pandey, I.O., stated that he interrogated Shanker PW 2 on 5-3-1982 at his house. It does not appear to be probable that Shanker who was accompanying the deceased from Collectorate and the incident took place within his view and he also brought the deceased to the Hospital and got him admitted there and had left the hospital after Kallu heaved his last, then there was no question of recording his statement by the I.O. in the Hospital itself as stated by him. PW 1- Pradeep Kumar admitted that he is 'being prosecuted in a murder case. Vijay kumar PW 3, Faiyaz and Kallu alias Mun-nilal were also accused in that. case. Shanker PW 2 was also an accused and facing his prosecution. Thus the eye witnesses, examined in this case, were cohorts of the deceased as they were facing prosecution under Section 302, I.P.C., hence they were pocket witnesses of the police to depose for it to suit its convenience. PW 1 Prdeep Kumar stated that he along with others had gone to Collectorate to take counsel of Sri Harish Chandra Advocate about some land matter, while PW 2 Shanker stated that he went to Collectorate to see an Excise Auction where he came across with Kallu deceased and Pradeep Kumar. PW 3 Vijay Kumar stated that he and Faiyaz were going to purchase some medicines and while he was returning to his house, he saw the incident. The reason of their presence at the place of occurrence is also not convincing.
16. In our opinion, the presence of the witnesses at the spot is doubtful. We are unable to place implicit reliance on their testimony to sustain the conviction of the appellants.