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6.We have heard Ms.Kamna Vohra on behalf of the convict in Crl.A. No.109/97, Mr.Sumeet Verma as amices Curiae on behalf of the convict in Crl.A. No.81/97 and Mr.Ravinder Chadha on behalf of the State. Learned counsel have taken us through the trial Court's record.

7.It is strenuously urged by learned counsel for the convicts that the trial Court has seriously erred in relying on the testimony of the said three eye-witnesses, because their conduct in not disclosing the names of the assailants, who were known to the (sic)m, to the doctor is unnatural. It is contended that the said three eye-witnesses are not reliable witnesses in as much as : (i) in his statement to the police on 5 December 1994 PW-2 had named only two persons, namely, Bhagwan Dass and Kishan Pal as accu (sic)ed, whose names figured in the FIR but subsequently in his supplementary statement he added the names of the other two persons, namely, Rajesh and Rattan Pal; (ii) in the MLC, the cause/history for injuries given to the doctor by the victim's attendants as a fall from some height but later on they changed their version by saying that the victim was beaten by rods and stones by some persons but their names were not disclosed, meaning thereby that they did not know the names of the assailants. It is also submitted that the testimony of these three so-called eye witnesses is not worthy of any credence because there are material contradictions in them, namely, PW-2 has deposed before the Court that there was a dispute between the convicts and his uncle Bhagwan Prasad, PW-1, on payment of mess charges amounting to Rs.600/- or Rs.700/-, while PW-4 has deposed that there was a dispute regarding payment of rent; PW-2 has stated before the Court that his statement was recorded by the police at the spot while the investigating officer, Suraj Goswami, PW-16 has stated that the statement of the said witness was recorded in the hospital; PW-3 has stated before the Court that he along with PW-2 went to the Police Station at 5:35 AM where the statement of PW-2 was reorded by the police but there is no statement of PW-2, which was recorded by the police at the Police Station; PW-1 has stated that they had not taken the deceased to the Jyoti Nursing Home, whereas PW-2 has stated that they had also taken the victim to Jyoti Nursing Home and according to PW-2 the incident took place outside his house but as per the testimony of PW-3 it took place outside the house of convict Kishan Pal. It is, thus, urged that these material contradictions in the testimony of the three bye-witnesses raise serious doubts about their presence at the place of occurrence. Learned counsel would also submit that the stand of PW-2 to the effect that he and his other brother Purshottam were present at the place of incident is belied from the f (sic)ct that though in his statement dated 5 December 1994 (Ex. PW-7/A) before the S.I. Suraj Goswami, he had stated that both the convicts started hitting him and his brother with iron rods "forcefully"but not a single mark of injury was found on any part of his body. It is also submitted that PW-1, PW-2 and PW-4 being close relatives of the deceased and PW-3 being their close friend, all of them are interested witnesses and, therefore, their testimony cannot be believed to be reliable and trustworthy. It is also urged on behalf of the convicts that entire trial is vitiated because the prosecution has failed to explain the delay of 4-5 days in sending report of the incident to the Ilaka Magistrate under Section 157(1) of the Code of Criminal Procedure see also argued that the entire case put up by the prosecution is suspicious because no public witness was present at the time of alleged recovery of weapons of offence, which is a mandatory requirement in terms of Section 100(4) CrPC.

12.In the instant case, it is in evidence that while admitting the deceased in the hospital, PW-1 had stated before the doctor (PW-11) that the deceased had been beaten by stones by some "known persons". It is pertinent to note that this again was a changed version in as much as in the first instance the doctor was told that the deceased had a fall from height. It is also in evidence that Har Prakash (PW-2) had also accompanied the deceased to the hospital but he also did not disclose to the doctor the name of any assailant. It is intriguing that when both these eye-witnesses knew the assailants, who admittedly were the tenants of PW-1, why did they not disclose their names to the doctor. It is only in the early hours of 5 December 1994 that for the first time PW-2 gave the names of the convicts to the police. Significantly PW-2 again changed his version and subsequently gave the names of two more persons to the police, who according to him, had also given beating to the deceased by stones. It is inexplicable as to why PW-2 who claimed to be present at the spot and was also beaten by four assailants, chose to name only two persons in the first instance and withheld the names of other two assassins of his brother, to be disclosed later. All these circumstances, in our view, cast a serious doubt on the testimony of PW-1 and PW-2 and the convicts are clearly entitled to benefit of doubt on that score.