Z. A. CHANNA, J.--This appeal is from a judgment of a learned Addi--tional Sessions Judge, Hyderabad, delivered on 31-1-1978, whereby he has convicted all the 4 appellants of an offence under section 302 read with section 34, P. P. C., for committing murder of one Karim Buz, and while appellant Adloo has been sentenced for the said offence to death, the remain--ing 3 appellants have been sentenced to imprisonment for life. Additionally, each of the appellants have been directed to pay a fine of Rs. 3,000 in default of payment of which they are to undergo R. I. For six months.
2. The occurrence which resulted in the death of Karim Bux took place on 17-7-1974, at about 4-30 p.m., in the land of Abdul Ghani Halepota, in deh Hutri, at a distance of 2-- furlongs from Hutri Police-Post. The first information report of the incident was lodged on the same day at the said police post by Khuda Bux Halepota, a friend of deceased Karim Bux, at 5 p.m. The version given in the F. I. R. Is that at about 3-30 p.m. That day there was an alteration between appellant Bachoo and the deceased because the former .Was throwing stones at the latrine of the deceased, which act of appellant Bachoo had annoyed the deceased. The first information report further states that about an hour later all the 4 appellants turned up in the field of Abdul Ghani, where the deceased was sitting on a cot, under a mango tree. In the company of complainant Khuda Bux and Sattaro, and while appellant Adloo gave a blow to the deceased on the head with the sharp side of his hatchet, the other 3 appellants gave him blows with the back sides of the hatchets on the head and other parts of the body, in consequence of which the deceased fell down on the ground. On the commotion and the cries of injured Karim Bux a number of persons from the village came running and on seeing them the appellants ran away.
3. The complainant and some of his companions took the injured to Hutri Police Post, and after the F. I. R. Was lodged, the deceased was taken by car to L. M. C. H. Hospital, Hyderabad, but he died before any medical aid could be given to him.
4. On 19-7-1974, appellants Adloo, Muhammad Hashim and Bachoo were arrested by S. H. O. Noor Ahmed. On the same day, appellant Adloo is alleged to have produced before the S. H. O. And mashirs, Muhammad Ishaque and Laloo, a hatchet which was lying under a cot in his house.
According to the mashirnama of the recovery the hatchet was not blood-stained. Nevertheless, the hatchet was subsequently sent to the Chemical Examiner to the Government whose report is to the effect that human blood was detected on it.
5. The autopsy on the deceased was conducted by Medical Officer Saifuddin Saif of L. M. C. H., Hyderabad. He found the following external injuries on the deceased:-
(1) Incised wound 1--' x ----- x skin deep over back of left hand at the root of index finger vertically.
(2) Incised wound 7" x 1' x scalp and skull deep at left and right occipital region mostly on right side, extending from left occipital eminense up to 4" above the right ear. Brain matter was coming out.
On internal examination it was found that there was laceration on the right and left cerebral hemisphere at its occipital region deep up to the brain substance. Semi-digested food was also found to the stomach of the deceased. According to the Medical Officer, the injuries on the deceased could have been caused by means of a single blow with a hatchet. He further estimated that the probable time between injuries and death was about 2 to 3 hours and that between death and post-mortem was 7 hours and 30 minutes. We cannot help observing that this later estimate, which has been given with uncanny accuracy, is based upon the report of the Police rather than clinical observation made by the Medical Officer.
6. Although the learned Additional Sessions Judge has placed implicit reliance on the ocular testimony and has rested conviction of 3 of the appel--lants solely on such evidence, we consider that the evidence of the eye--witnesses is wholly untrustworthy and does not inspire confidence.
The three eye-witnesses examined in the case are, complainant Khuda Bux Halepota, Sattaro, uncle of the complainant, and Khamiso Baheri. All three of them have testified to have witnessed the incident. According to their evidence in the Sessions Court, it was only appellant Adloo who had given hatchet blow to the deceased, in consequence of which the deceased not only sustained injury on his left hand, while he was trying to ward of the blow, but the blow descended on his head, causing a fatal injury. The evidence of the eye-witnesses in the Sessions Court is further to the effect that the remaining three appellants had not only instigated Adloo to attack and kill the deceased but they had oven raised their hatchets to strike him, though they refrained from actually striking him. This evidence is in direct conflict not only with the first information report but also the police statements of the witnesses and even their statements in the committal Court. As already pointed out, according to the F.I.R., while appellant Adloo had given a blow to the deceased on the head with the sharp side of his hatchet, the remaining three appellants had given him blows on the head and other parts of the body with back sides of hatchets. A similar story is told by the witnesses in their 161 statements as also In their evidence In the committal Court. This version, however, le completely belied by the medical evidence which shows that no injuries with s blunt weapon were caused to the deceased. It was obviously in consequence of the medical evidence and on realization of its impact that the witnesses, in their evidence in the Sessions Court, gave a completely different version and denied that appellant Muhammad Hashim, Bachoo and Moloo had given blows with the backsides of hatchets to the deceased. Even complainant Khuda Bux denied that he had stated so in his F. I. R. This dramatic and far-reaching change of version adopted by the witnesses suggests that the witnesses have little re and for truth and that they can conveniently change their statements to suit the circumstances and their object.
6. There are two other circumstances in the case which make us view the evidence of the three eye-witnesses with extreme suspicion and indicate that either they did not witness the incident at all, or if they did, they are thoroughly unreliable and their evidence cannot possibly be made the basis of conviction of the appellants. The first of these circumstances is that according to the eye- witnesses the fatal assault on the deceased was in consequence the of the stone throwing at the latrine of the deceased indulged in by appellant Bachoo about an hour prior to the fatal assault on the deceased. However, neither the mashirnama of the scene of offence nor S. H. O. Noor Ahmed mention the presence at or near the latrine of the deceased of any stones. The other circumstances is that if the deceased was sitting with the witnesses under a mango tree when he was given fatal blows, how did his body come to be lying in the watercourse, which according to the evidence of the Tapedar was about 33 feet away from the mango tree. It may be pointed out that the F. I. R. Makes no mention of the deceased having fallen into the watercourse. These two circumstances together with the different versions of the incident given by the witnesses incline us to the view that very likely they have not witnessed the incident and had concerted among themselves to implicate all the appellants.
7. We have also not appreciated what motive, if any, the appellants had to kill deceased Karim Bux.
If appellant Bachoo had thrown stones at the latrine of Karim Bux, as is the prosecution version, it was the deceased who had a grievance against Bachoo and not vice versa. Even if we assume that Karim Bux had either insulted or threatened Bachoo for throwing stones at his house, though there is no evidence to this effect, the only person who could have grievance against the deceased would be Bachoo and not the other three appellants, who are not even related to him. Furthermore, the grievance of Bachoo could hardly have been of such type as to impel to kill the deceased in the presence of several persons and that too in the daytime.
8. The only other evidence in the case is of recovery of a hatchet. Both S. H. 0. Noor Ahmed and mashir Muhammad Ishaque have testified that appellant Adloo had produced a hatchet from under a cot in his house. This hatchet was later on sent to the Chemical Examiner to the Government whose report is to the effect that human blood was detected thereon. On the other hand, the mashirnama of the recovery of the hatchet categorically recites that no bloodstains were seen on the hatchet in question. Further--more, though the hatchet was allegedly recovered on the 19of July 1974, according to the report of the Chemical Examiner, it was stated to have been despatched to him on 22nd November, 1974, was actually received by him on 13-1-1975 and he had sent his report on 17-6-1975. There was thus vast delay not only in the despatch of the hatchet to the Chemical Examiner but also in the transit of the hatchet from the Police Officer to the Chemical Examiner's Office. No attempt has even been made to explain these delays. Such unexplained delays cannot but make us highly suspicious of the evidence regarding the recovery of and the finding of human blood on the hatchet, if 7 not resulting in total rejection of such evidence. In the case of Muhammad Saleem v. State (1968 P Cr. L J 538), Dorab, J. Held that where a crime weapon, which was allegedly recovered at the instance of the accused, was sent to the Chemical Examiner for report after more than a fort-night, no reliance could be placed on such recovery. We are in respectful agreement with the view expressed in the aforesaid decision that where there has been substantial delay in sending the recovered articles to the chemical examiner for examination and report, and the delay has not been explained, the evidence of recovery will not ordinarily be accepted.
9. There is one more aspect of the case, which needs notice. It has been admitted by mashir Muhammad Ishaque that the house from where the incriminating hatchet was recovered is jointly occupied by appellant Adloo, his father and three brothers. Since the hatchet was not lying concealed but was apparently kept under a cot, exclusive possession of the hatchet by reliant Adloo is not established.th
10. For the foregoing reasons, we are of the opinion that the case of the four appellants is not free from reasonable doubt and that the prosecution has failed to adduce such material against the appellants as would establish against them the charges for which they were tried. We would accordingly set aside their convictions and sentences and accept their appeal. If they are not required in any other case they should be forthwith set at liberty. The reference made by the learned Additional Sessions Judge for the confirmation of the death sentence awarded to Adloo stands rejected.