( 51 ) THE other recovery is of the knife at the instance of Dharambir appellant. It is stated by the Investigating Officer that on 25-10-74 while in custody Dharambir had made a disclosure statement that he had buried the knife in sand near Wazirabad Ghat and that he could get the same recovered. Recovery was then effected from the said place at his instance in the presence of Ram Kala, Om Dutt, Brahm Pal and Abdul Aziz. To prove this fact the prosecution has examined Brahm Pal Public Witness 18, Om Dutt Public Witness 25 and Abdul Aziz Public Witness 26, apart from the Investigating Officer. Of these witnesses, Abdul Aziz met the party near the bank of river sheer by chance. The place of recovery is a thorough fare and is accessible to every one. It is not believable that the knife could have been buried there. The entire evidence of this recovery also seems to us to be highly unsatisfactory. Moreover, when the eye witnesses have been disbelieved for good reasons, the recovery evidence does not advance the case of the prosecution any further.

( 52 ) THE result of the above discussion is that the charges against both the appellants are not satisfactorily proved. We accordingly accept this appeal and set-aside their convictions and sentences.

( 53 ) BEFORE parting we want to add that a copy of this judgment be sent to the Delhi Administration for taking a note of the lapses on the part of the police officers in the matter of investigation and to take appropriate action in this behalf

F. S. GILL,j.

( 1 ) THE two appellants in this appeal are Dharambir and Mahabir. They were convicted by Shri S. C. Chaturvedi Additional Sessions Judge, Delhi on 6-11-75 under section 302 read with section 34 of the Indian Penal Code. and were sentenced to imprisonment for life.

( 2 ) THIS incident took place at Wazirabad Water Works on 18-10-74 at about 10. 45 P. M. when Ram Lila celebration was about to come to a close on that night. Both Dharambir and Mahabir were witnessing the programme. So was Azad (deceased ). These appellants and the deceased belonged to a nearby village called Jagatpur. Several other inhabitants of the same village were also present there to witness the function.

( 3 ) IT is alleged that at about 10. 45 P. M. Dharambir armed with a knife and Mahabir armed with a lathi, got up and went to the place where Azad was sitting. Without any remark or throwing any challenge Dharambir started stabbing Azad on his back with the knife. Mahabir then pulled Azad and made him lie on the ground with his belly downwards. It is further alleged that Dharambir gave more blows with his knife. In all 7 or 8 blows were stated to have been infficted by Dharambir.

( 4 ) IT is also alleged that when Azad was lying on the ground Rajpal and Mahinder Public Witness s made a desperate bid to rescue Azad by laying themselves on him. When they were laying over Azad, Mahabir was alleged to have given lathi blows to Rajpal on his arm, neck, shoulder, back and waist. By that time Tejpal, Jai Parkash, Sukhbir and other persons arrived at the scene of the occurrence and both the assailants ran away with their respective weapons after proclaiming that they had taken the revenge of a similar incident which had taken place during such celebrations two years ago. Shortly thereafter, Constable Manohar Lal, who was on duty there, also arrived.

( 5 ) RAJPAL removed injured Azad to the Irwin Hospital in a taxi. Constable Manohar Lal had also accompanied them. On examination the doctor declared that Azad was already dead.

( 6 ) SHORTLY thereafter, the S. H. O. and other police officials arrived in the Hospital. Statement of Rajpal was recorded by the S. H. O. It was sent to the police station and on its basis a case under section 302/34 of the Indian Penal Code. was registered.

( 7 ) BY this time Mahinder and Nathu Singh had also reached the hospital. It is alleged that the Investigating Officer started for the place of the occurrence along with Rajpal, Mahinder and N

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