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3. Since condition of injured Mumtaz Husain was serious he was referred to LLR Hospital, Kanpur where he was admitted at 7:40 p.m. the same evening but he succumbed to the injuries sustained by him in the said incident the same night at 9:30 p.m. On receiving information on telephone on 6th March, 1995 at 10:00 a.m. from police station Swaroop Nagar regarding death of Mumtaz Husain in LLR Hospital last evening the police altered the crime under Section 302 IPC vide GD entry No. 24 (Ext. Ka l0). Then Station Officer Brijvir Singh went to LLR Hospital and drew inquest proceedings on the dead body of Mumtaz Husain. He prepared the inquest report (Ext Ka 4) and other necessary papers ( Ext Ka 5 to Ka 8) and handed over the dead body in a sealed cover alongwith necessary papers to Constables Jahan Singh and Sunil Kumar for its post mortem. He also recorded statement of Sajid Husain, father of the deceased.

13. After going through the record we are of the view that findings recorded by the trial judge are manifestly erroneous and contrary to evidence. The finding recorded by the court below is that since according to the prosecution case Mumtaz Husain succumbed to injuries allegedly sustained by him in LLR Hospital at about 9:30 p.m. and at that time the investigating officer was present in the hospital the crime should have been altered under Section 302 IPC the same night but it was altered under Section 302 IPC next morning at 10:00 a.m. on receiving information on telephone from the Hospital next day the FIR is antetimed. He also observed that since the investigating officer did not find any blood at the scene of occurrence it all goes to show that the incident did not take place at the time, place and in the manner alleged by the prosecution.

17. Further, PW 4 SI Brijvir Singh, the investigating officer nowhere deposed in his statement that on 5th of March, 1995 he went to LLR Hospital. He stated only this much in his examination-in-chief that that day after registration of the crime at the police station he alongwith the police force and Rashid Ali, the first informant went to Ursala Hospital but the injured alongwith his father and brothers in a tempo met him on the way going to LLR Hospital and then after talking to the injured for a little while he went to the scene of occurrence, inspected the site and prepared its site plan map and thereafter searched for the accused. He also deposed that next day on receiving information on telephone from LLR Hospital that Mumtaz Husain had succumbed to the injuries last night the crime was altered under Section 302 IPC and that it was thereafter that he went to LLR Hospital for inquest proceedings. He was not given a suggestion even in his cross-examination by the defence counsel that when injured Mumtaz died in the LLR Hospital he was present there and that inspite of having knowledge regarding death of Mumtaz at that very night in the Hospital the crime was not altered under Section 302 IPC that very night at the police station. In view of these facts without cross-examining the investigating officer on the point the argument that in spite of the fact that investigating officer being present in the LLR Hospital at the time of death of injured Mumtaz the crime was not altered under Section 302 IPC the same night and hence it should be presumed that FIR was not in existence at that time is not available to the learned counsel for the accused respondent.