JUDGMENT <NAME>, J.

1. These criminal appeals by special leave are by <NAME>, <NAME> alias Sri Narain and <NAME> respectively from the. Judgment of <ORG> by which the order of acquittal passed by the learned <ORG> Judge, Kanpur is set aside and they have been convicted under Section 302 r/w Section 34, I.P.C . and sentenced to imprisonment for life. <NAME>, <NAME> and <NAME> alias Shri Narain were accused Nos. 1 to 3 respectively in <ORG>. The charge against them was that they had, in furtherance of their common intention, committed the murder of one <NAME> at about 8.10 P.M on April 23, 1964 in front of the shop of a milk vendor, Chhunno, situate in Lathi Mohal P.S. Collectorganj in the City of Kanpur.

2. The deceased <NAME> was about 22 years old and was the son of one <NAME>. <NAME> had two shops-one in the Generalganj Bazar bearing the name of <NAME> Raj Kishore. The main business of sale and purchase was carried on in that shop. The other shop was in the Panch Kucha lane and bore the name of <NAME> Dalai. This shop was mainly concerned with the maintenance of <NAME> and account books. <NAME>, P.W. 1 was the Munim of <NAME>.

3. About 5 or 6 days prior to the incident the accused <NAME> and <NAME> were gambling in the Ahata of Sawai. <NAME>, the deceased, who happened to pass by the place reprimanded them for these activities. This was not liked by <NAME> and <NAME> who gave a threat to <NAME>. <NAME> reported the matter to his father who, thereupon, instructed his employees that one or the other of them should keep <NAME> company whenever he was going away from the house or the shop.

4. Accordingly, on the night of April 23, 1964 after closing the shop at 8.00 P.M., which was the time for all shops to close, <NAME>, <NAME> and <NAME> started for the latter's house by the aforesaid Generalganj Bazar Street. That street appears to be a one way street and no conveyances, not even Rickshas, were allowed to ply in that street. When the two of them reached near the shop of <NAME>, the milk vendor, they noticed that the three accused were near the aforesaid shop. On seeing them, they came up, <NAME> addressed <NAME> reminding him about the superior airs about gambling which he displayed a few days ago and told him that he now wanted to settle scores with him. <NAME> retorted that he had seen many a person like <NAME> whereupon <NAME> asked the other two accused to finish <NAME>. Thereupon <NAME> and <NAME> each whipped out a knife and attacked <NAME> in the back. <NAME> made an attempt to run but <NAME> caught hold of him by his hand. <NAME> fell on the ground there and became unconscious. The incident attracted a number of persons and as the miscreants were running away, shouts were uttered and they were chased by <NAME>, <NAME>, <NAME>. P.W. 2, <NAME>, P.W. 5 and one <NAME> all of whom caught <NAME> before he had run five or six paces while the other two accused <NAME> and <NAME> ran away and disappeared. <NAME> had still the knife in his hand. He was disarmed by <NAME>, <NAME>. A large crowd had gathered on the spot and just when the captors of <NAME> were thinking of taking him to the Police Station, <NAME>. <NAME> the brother of <NAME>, came on the scene. He was coming from the shop of one <ORG> in the same street after closing the shop at about 8.00 P.M. On the way he had seen a crowd and hastened to the spot. From some distance he first saw that <NAME>, <NAME> and two or three other persons had caught hold of <NAME> and after advancing further he saw his brother <NAME> lying on the road with injuries. <NAME> shortly told him that <NAME> had been stabbed by two or three persons and. that they were taking <NAME> to the Police Station. He left it to <NAME> to remove <NAME> to the hospital. The captors of <NAME> then took him to the Police Station of Collectorganj. The Sub-Inspector <NAME>, <NAME>7 was present in the Police Station along with Head Constable <NAME>, <NAME>0 who was the Head Moharrir. The later recorded <NAME>'s statement as per Ext. K.I. <NAME> was taken into custody. A seizure memo was made of the blood stained knife as per Ext. K. 2. It was found that there were blood stains on the shirt of <NAME> and so the shirt was also seized under the Memo Ext. K. 3. The knife and shirt are Exts. 1 and 2 in the case. These were sent to the Chemical Analyser in due course who certified that whereas there was human blood on the shirt, the blood on the knife had disintegrated.

5. While <NAME> was recording the complaint of <NAME>, a telephone message was received at 20.35 hours i. e. 8.35 P.M from Sub-Inspector <NAME>, P.W. 8 who was in-charge of <ORG>. The message was that a man was lying injured at the crossing of <NAME>. <NAME> informed <ORG> that a report in respect of the occurrence had been already lodged and necessary action was being taken. The necessary entries were made with regard to the progress of the investigation in the General Diary of the Police Station and <NAME> went on duty at 9.00 P.M-his place being taken by Head Constable <NAME>. P.W. 13.

6. The source of <NAME> information in the Control Room that a man was lying near the gate of <NAME> was <NAME>. P.W. 12. <NAME> is a local Advocate and has his house only 40 or 50 paces from the shop of <NAME> the milk vendor. On being informed by somebody that a man was lying injured, he went to the place and saw the injured person. Nobody gave him any in formation as to who he was and what had happened and so he went back to his house and at 8.34 P.M telephoned to the Control Room informing it that a man was lying injured near the gate of <NAME> and a patrol car should be sent. It was this message from <NAME> which was picked by <NAME> in the Control Room. On receiving that message, he sent a wireless message to patrol car No. 2 in-charge of <NAME>, P.W. 9 and at the same time also sent the message to <ORG> within whose jurisdiction the man was lying. That is how at 8.35 P.M. <NAME>, P.W, 10 received the message from the Control Room which was duly recorded by him in the General Diary of the Station.

7. On receiving the message from the Control Room <NAME>, P.W. 9 proceeded to the locality indicated. He reached the place at about 8.49 P.M. The man who was standing there said that he was the brother of the injured person (obviously referring to <NAME>, P.W. 7) and gave the name and address of the injured. He then put the injured <NAME> in the car. An Officer of <ORG> and some Constables had already come there. The <ORG> is under the Collectorganj Police Station. He, therefore, took Constable <NAME> of that <ORG> along with him in the car and though the brother of the injured <NAME> wanted to go in the car to the hospital, he could not be accommodated. He left the scene of offence at about 8.54 P.M. and reached <ORG> with the injured at about 8.59 P.M. Dr. <NAME>, P.W. 11 who was in-charge at once examined the injured, person and found that he was, dead. He then informed the Police Station Kot-wali about his death. Message about death was transmitted from the Kotwali Police Station to the Collectorganj Police Station at about 11.30 P.M. and the same was noted by the Head Mohrrir Head Constable <NAME>, P.W. 13.

8. In the meantime <NAME>, P.W. 17 after finishing part of the investigation of the offence, which had been registered as an offence under Section 307 I.P.C. at the Police Station, had gone to the scene of occurrence for further investigation. He recovered the blood stained earth from the place where <NAME> had fallen and recorded also the statements of eye witnesses who had accompanied him from the Police Station. While the investigation was proceeding, the officer received intimation from his Police Station that <NAME>. had died. So he ordered <NAME>, P.W. 16 the Officer incharge of Sirki Outpost, who was there at the place since about 8.30 P.M to proceed to the hospital to prepare the inquest report. He had been instructed to take the duplicate copy of the complaint from the complaint Raja Ram P.W. 1 for the purposes of the inquest. <NAME> went to the hospital at about 12.30 a.m. but there was a delay in obtaining the body in. the hospital. He could actually start his inquest panchnama at about 2. O'clock.

9. In the meantime <NAME>, P.W. 17 continued his investigation at the scene of offence. He started searching for <NAME> and <NAME>. The house of <NAME> which was close to the shop of <NAME>, his uncle was searched at about 1.00 or 1.30 a. m. but he was not found. Thereafter he went to Canal road in search of <NAME>. His house was searched but <NAME> was not found. The search continued till about 10. O' clock on 24-4-1964 but both <NAME> and <NAME> were found to have absconded. After returning to the Police Station at 10.00 A. M. he recorded the statement of <NAME> and sent him to the Jail : Doctor as there were two small injuries on the little finger of the right hand. The search of <NAME> and <NAME> was fruitless and so he reported for proceeding against the accused under Sections 87 and 88 of the Criminal Procedure Code. Thereafter <NAME> Surrendered before a court in Unnao.on 28th April 64 and since he Claimed. to be identified' in an identiflcation; parade at Unnao, a test identification parade was held in the District. Jail Unnao on 11th. June. 1964.At. this; identification parade, he was correctly picked out by <NAME>, P.W. X and <NAME>, P.W. 2. <NAME>, P.W. 5 did not pick him out. As for <NAME>, he surrendered in the court at. Lakhimpur Kheri on 4th May, 1964.

10. On being charged for the murder of <NAME> the accused pleaded not guilty. The case of <NAME> in his statement under Section 342 Criminal Procedure Code was that on the evening in question at about 7.45 p.m. he was returning home from a shop in Collectorganj and when he reached the turning of Jagannath Lane, he saw two or three unknown persons attacking <NAME> with knives. As he knew <NAME>, he went for his rescue but the assailants. turned on him and he received injuries; on both his hands. So leaving <NAME> at the place, he rushed to the <ORG>. Station Collectorganj to give information. He asked the officers to take, down his information but they said that they would make the investigation first and then record his statement. He further stated that he, had been made to sit there in the <ORG> Station till about midnight and the officers asked him to give evidence against two or three persons whose names he could not recall at the time. He refused to oblige saying that though he did not know the names of the assailants, he could recognise them if shown to him. Because of this obstinacy on his part, he alleged, .he had been falsely implicated by the police. He admitted that article No. 2 - the shirt, which he was wearing at the time, contained blood stains and was seized. He, however, denied that the knife Ext. 1 had been snatched from him by P.W. 1 Raja, <NAME>. Though <NAME> had stated that he received injuries on both the hands, it is now established that he had only two wounds on the inner surface of the right hand little finger only - one being a slight lacerated wound and the other an incised wound above it. In the certificate given by the Doctor, however, an inadvertent mistake crept in to the effect that these two wounds were on the left hand little finger. In fact that should be the right hand little finger. The injuries were one above the other on one finger of one hand, that is the right hand and there was no injury on the left hand. We may mention here only that both the courts agree that these injuries on the little finger sustained by <NAME> must have been , caused in the act of inflicting injuries on another person with a knife and not in warding off knife blows by a third person. <NAME> had deliberately told a: falsehood that he had received injuries on both hands taking the cue from the error made in the medical certificate with a view to suggest that the injuries on both hands were more likely to be caused when he was warding off an assault on him.

11. The other two accused namely <NAME> and <NAME> denied participation in the incident and alleged that they had been falsely implicated because of enimity with the police.

12. On behalf of <NAME>. <NAME> D.W. 1 was examined as a witness to suggest that the story told by <NAME> in court was probable.

13. It is not in dispute that deceased <NAME> was attacked with knives at about 8.10 p.m. and he had fallen on the road hardly two or three paces away from the shop of <NAME>, the milk vendor. There is no dispute also that whosoever be the assailants, it was a clear case of murder. The learned Sessions Judge on a consideration of the evidence recorded the following findings:

(1) The motive alleged by the prosecution was substantially proved;

(2) The three eye-witnesses examined in the case namely <NAME>, P.W. 1, <NAME>. P.W. 2 and <NAME>, P.W. 5 were not reliable witnesses, since it was very probable that they were not at the scene of offence at all to witness the assault.

(3) <NAME>, P.W. 7 must not have reached the place of occurrence till after <NAME> had been removed to the hospital.

(4) That the story of <NAME> may not be entirely trustworthy. However his case that he had by himself gone to the Police Station could not be ruled out. The story of the prosecution that he had been caught by the alleged witnesses and others did not appear to be true.

(5) The F.I.R. must not have been recorded at 8.25 p.m. as alleged by the prosecution. The entries made in the General Diary from 8.25 p.m. till the next morning may not have been made that night only. They might have been made on the next day as suggested by the defence.

(6) That both <NAME> and <NAME> had absconded after the incident.

(7) There was a great possibility that these very accused might have been involved in the affair, but, however strong the suspicion, there could be no conviction.

14. Accordingly, the learned <NAME> Judge gave the benefit of doubt to the accused and acquitted them.

15. Aggrieved by the order of acquittal the <ORG> went in appeal to <ORG>. Being an appeal against acquittal, <ORG> approached the findings of the Sessions Judge in the light of the principles laid down by <ORG> in the case of <NAME> (2) and by this court in <CITATION> and other cases. Since <ORG> was of the opinion that the accused were wrongly acquitted, it recorded from place to place in the judgment how the learned Sessions Judge was palpably wrong in the consideration of the evidence. Finally <ORG> observed, "On a consideration of the evidence on record in the light of the aforesaid principles we are satisfied that the grounds on which the learned Sessions Judge acquitted the respondents (accused) were not good and reasonable, and the order of acquittal was against the weight of evidence. The learned Sessions Judge did not approach the case in the correct perspective. Before rejecting the testimony of the eve witnesses the learned Sessions Judge should have considered the question as to whether the prosecution case as to the pursuit given to the miscreants and as to the apprehension of respondent <NAME> on the spot and as to his being taken in custody to the Police Station was established or not. The one grave error which he committed was that he first recorded a finding on the question as to whether the eye witnesses could have been present at the scene of occurrence or not. Having once come to a finding that they could not have been present at the scene of occurrence he could not have recorded a finding in favour of the prosecution on the question as to whether respondent <NAME> was apprehended on the spot or not. The prosecution evidence should not have been considered by the learned Sessions Judge in isolated parts and a finding on the question as to whether the eye witness account was trustworthy or not should have been recorded after taking into consideration the prosecution evidence as a whole."

16. After hearing counsel on behalf of the accused and the <ORG> and on a perusal of the evidence to which our attention was invited,, we have come to the conclusion that the above criticism of <ORG> was fully justified. We will only add that the learned <NAME> Judge failed to see the wood for the trees.

17. Learned Counsel for the appellants put before us in the fore-front an argument which seems to have impressed the learned Sessions Judge. The argument was that the evidence of the Advocate Mr. <NAME>, P.W. 12 was the touch stone for determining. whether the prosecution case was true or not. It was submitted that Mr. <NAME> was a disinterested witness and if his evidence is accepted it would be clearly established that neither <NAME>, P.W. 7 nor <NAME>, P.W. 1 could have been there before 8.34 P.M and hence the story now told by the prosecution that the first information had been recorded at the instance of <NAME>, P.W. 1 at 8.25 P.M is demonstrably false. The argument proceeds this way (1) If <NAME>, P.W. 7. had arrived at the scene within a minute or two of the stabbing and had seen <NAME> and the other captors taking <NAME>, it would be expected that <NAME> would remain near the fallen <NAME>, in which case Mr. <NAME> would not have failed to learn who the deceased was, who were his assailants and as to whether one of them was caught and taken to the Police Station. And since Mr. <NAME>. even after enquiry, did not learn about any of these things, it would be clearly established that <NAME>, P.W. 7 must not have come there at all till <NAME> was removed from the place; (2) and if <NAME>, P.W. 7 was not there at all, the story told by <NAME>, P.W. 1 that he had met <NAME> before leaving the scene of offence was false; (3) That in all probability <NAME>, P.W. 1 was also not there at the time of the incident because if he had been there and <NAME> was not there, he would not have left the place leaving <NAME> unattended. He would have been more anxious to take <NAME> to the hospital than to take <NAME> to the Police Station. There were other captors of <NAME> and he could have requested the captors to take <NAME> to the Police Station and remained behind to make arrangements for removing <NAME> to the hospital. The very fact that he was not there when actually the police van came to take <NAME> away would go to show that <NAME>, P.W. 1 must not have come to the scene of offence at all at any time. Therefore, the case now put forward by the prosecution that he had , gone to the Police Station with <NAME> and had filed the first information at 8.25 p.m. is false. 18. The whole argument proceeds on the assumption that if <NAME>, P.W. 7 were on the scene of offence. Mr. <NAME> Advocate, would not have failed to get all the particulars, since Mr. <NAME> had made enquiries with regard to the person whom he had seen fallen on the ground. That assumption, however, cannot be made, in the circumstances of the case. It is an' undisputed fact that the stabbing incident could not have taken place later than 8.10 p.m. The evidence of <NAME>, P.W. 1 and the other two eye witnesses is that immediately after the stabbing and the falling down of <NAME>, the miscreants were chased and accused <NAME>. was caught with the knife in his hand. They lost no time in taking him to the Police Station which would mean that within two minutes of the stabbing <NAME> and the other captors of <NAME> marched him to the Police Station. According to <NAME> and the eye witnesses, <NAME> arrived just when they were taking him away. <NAME> did not waste time. He merely told <NAME> to attend to his brother saying that he was taking <NAME> to the Police Station. That is also the evidence of <NAME>, P.W. 5 and <NAME>, P.W. 2. The last witness does not say in so many words that the man to whom <NAME> spoke was <NAME> but he says that a person had come at that time and <NAME> told the person that he should look after the boy and that he was going to the Police. Station. So if this evidence is believed, then it is clear that <NAME>, P.W. 7, had come on the scene of offence within a couple of minutes of the stabbing. That was also not unlikely because <NAME>'s evidence shows that after closing the shop at 8.00 p.m. he was coming that way to go to his house and the, scene of offence was on the way not far from the shop. When he saw a crowd . and heard about stabbing, he hastened to the spot and met <NAME> just when he was preparing to go to the Police Station. The evidence of the prosecution, therefore, goes to show that <NAME> was there almost immediately after the stabbing and the captors including <NAME> departed thereafter. Mr. <NAME>'s visit to the scene was much later. Mr. <NAME> says that at about 8.15 p.m. some body told him when he was in his house that some body had fallen on the road with injuries. He therefore, went there and found that a boy was lying in the middle of the road in front of the shop of <NAME>, the milk vendor. It is, therefore, clear from his evidence that Mr. <NAME> had come to the place after <NAME> had gone away from the place and, therefore, he could not have seen the apprehension of <NAME> and his being marched to the Police Station. There is further indication in his evidence that at least 10 to 15 minutes must have passed between the stabbing and the actual arrival of Mr. <NAME> on the scene. The time, can be fairly fixed from his own evidence. After returning to his house, Mr. <NAME> had telephoned to the Control Room and that was at 8.34 p.m. There is record about this at the Control Room. The house of Mr. <NAME> is hardly about 40 to 50 paces from the scene of offence. He further says that he was at the scene of offence for about five or six minutes. Calculating back, therefore, it is clear that Mr. <NAME> must have come to the scene of offence not much earlier than 8.25 p.m. In other words, between the stabbing and the coming of the Advocate, there was a Hap of nearly 10 to 15 minutes. In the meantime a big crowd had gathered. According to the prosecution witnesses it was a crowd of about 50 or 100 people. Mr. <NAME> says that there was a crowd when he went there but he says that it was a crowd of about 10 to 15 people. It is not disputed that this is a busy street and that was the time when shopkeepers were closing their shops and going away. It may be, therefore, taken that there must have been a fairly big crowd when Mr. <NAME> arrived at the scene. It is not the case that Mr. <NAME> had come there in his court robes or that he was in any way distinguishable from any other member of the crowd. Nor can it be said that Mr. <NAME> had taken the trouble to make any serious enquiry, because if he were serious about it he could have made enquiries with the milk vendor <NAME> who was admittedly in his shop and the man had fallen only two or three paces away in front of <NAME>'s shop. <NAME> was a man known to Mr. <NAME>. But Mr. <NAME> had not taken the trouble to question <NAME>. It would, therefore, appear that Mr. <NAME> must have casually asked the first man he met in the crowd as to who the boy was and he must not have received any answer. In fact he admits that when he put the first question, he did not receive any answer and so he did not make any further enquiry. One does not know with whom he made the enquiry. He might be just a passerby who, like the other members of the crowd, might have had only a casual interest. It is not also the case that Mr. <NAME> knew <NAME> or <NAME> knew Mr. <NAME>. For aught we know, <NAME> may have been there somewhere in the crowd not necessarily close to his brother. It would be difficult to conceive that <NAME> who was unaccompanied by friends at the time and who was anxious about removing his brother to the hospital would be fixed to the side of <NAME> all the time. Even to get help he might have to leave the side of his brother. Assuming further that he was near enough to hear the question of Mr. <NAME>, he might not have cared to answer him because to him he was just another passerby whose idle curiosity he may have ignored to satisfy through sheer tiresomeness. Further <NAME> had no inducement to make himself conspicuous before the arrival of the police by declaring that he was the brother of the deceased, because he was now in ah area where his brother had been stabbed and some of the miscreants were still at large. In this state of things the assumption made in the argument that if <NAME> was there Mr. <NAME> would not have failed to know better particulars about the boy, is not a sound assumption. As against this, we have a large volume of evidence to show that <NAME>. P.W. 7 was at the spot. We have already referred to the evidence of <NAME>, P.W. 1, <NAME>, P.W. 2 and <NAME>, P.W. 5. Their evidence as also the evidence of <NAME> clearly shows that he was at the scene of occurrence within a couple of minutes of the stabbing. Reference was made to the fact that <NAME>'s name was not referred to in the First Information Report where <NAME>, P.W. 1 merely stated "people are sending him to the hospital". It was contended that if <NAME> was there, <NAME> P.W. 1 would have said that <NAME> was arranging to send him to the hospital and not that "people are sending him to the hospital". We do not think that by his particular statement <NAME> wanted to exclude <NAME>. It is not the case of <NAME> that some un-known man in the crowd was making arrangements to take <NAME> to the hospital. And since he made a definite assertion at the Police Station that people were sending him to the hospital, it only shows that <NAME> was perfectly confident that arrangements were being made to send <NAME> to the hospital. He could get this confidence only because ' there was <NAME> present at the scene of offence. Moreover, the Investigating Officer had recorded more detailed statements of <NAME>, P.W. 1, <NAME>, P.W. 2 and <NAME>, P.W. 5 that same night at about 10.00 P.M. and it is not elicited from their cross-examination by reference to the police statements that they had failed to mention the presence of <NAME> at the time of the departure from the scene of offence at 8.10 P.M. Then again there is the evidence of Sub Inspector <NAME>, P.W. 16 who says that when he came to the scene at about 8.30 P.M he had met <NAME> at the place. Later, the Officer in-charge of <ORG> reached the place at 8.49 P.M. and he met <NAME> there and it was <NAME> who furnished him the name and address of <NAME>. Against all this evidence which establishes <NAME>'s. presence, at the; scene of occurrence soon after the stabbing, it will be extremely improper to hold that he must not have been present there merely because Mr. <NAME>, Advocate, did not receive any answer to the casual question asked by him to ascertain who that boy was.

19. And if <NAME> was there as alleged by the prosecution, there was no difficulty in <NAME> proceeding to the Police Station with <NAME> leaving <NAME> at the scene to make arrangements for removing <NAME> to the hospital. Then again if <NAME>, P.W. 1 and the other captors of <NAME> proceeded to the Police Station from the scene of occurrence soon after 8.10 P.M., there is no dispute that they would be in the Police Station at about 8.25 P.M. for recording the complaint.

20. The. defence suggestion before the learned Sessions Judge was that till the inquest papers were prepared between 2.30.& 3.30 A.M., on the same night, <ORG> had no idea of this offence at all and that the wheels of investigation started moving only thereafter. The allegation is that after the Investigating Officer found that an offence had been committed in a particular locality, he decided to falsely im plicate the accused because of some grudge against <NAME>. It is not the case that <NAME> or the other two eye witnesses, who were perfect strangers, had any interest in implicating falsely any of the accused in this case. But the suggestion is that the Investigating Officer had a grudge against <NAME> and he, therefore, pressurised <NAME> and the other two witnesses to give false evidence and it was only after he was successful in doing so that he obtained the F.I.R. from <NAME> on the morning of 24-4-1964. This suggestion on behalf of the defence seems to have very much impressed the learned Sessions Judge. There were serious difficulties, however, in accepting such a defence. The First Information Report was stated to have been recorded at 8.25 P.M. The seizure memo of the knife and the shirt had been made soon after and regular entries had been posted with regard to the same in the General Diary maintained at <ORG> in accordance with the regulations. Apart from entries with regard to the investigation of the offence that same night there are also other entries made in the General Diary in serial order which had nothing to do with this offence. These entries in the General Diary were fatal to the defence suggestion. The learned Sessions Judge however, brushed aside the difficulty with the facile observation that all those entries which are shown to have been made in the night in the General Diary must not have been made at all at the time and , that; after keeping some space blank in the General Diary, those entries must have, been made on the next day. after the investigating Officer had fixed up . everything. In our opinion the learned Sessions Judge was not justified in making this criticism. He has practically charged <ORG> with fabricating an official Register. The General Diary at <ORG> is maintained under U.P. Police Regulations. Regulation No. 294 prescribes that the General Diary . shall be written in duplicate under the superintendence of the officer-in-charge of the Station who is responsible for the entries made in it. The regulation further says that the original is to be sent to the Superintendent or Assistant or Deputy Superintendent-in-charge of the sub-division. The diary should be a complete but brief record of the proceedings of the police and of occurrences reported to them or of which they have obtained information.1 In other words, the General Diary, is to be kept from minute to minute and from hour to hour and a charge of this nature that the Officer-in-charge of the Station had not written up the General Diary in accordance with the regulation would be indeed a very serious charge which may not be countenanced unless established by strong evidence. As a matter of fact though the Officer-in-charge of <ORG> <NAME>. P.W. 17 and the two Head Moharrirs who were incharge of the General Diary on that night namely <NAME> and <NAME> had been examined in the case, there is no cross-examination of these witnesses on the charge now made. The entries till 9.00 P.M. relative to the present offence had been made by Head Constable <NAME>, P.W. 10. He was off duty at 9.00 P.M. and his place was taken by Head Constable Sheodeo Prasad P.W. 13. It will be wrong to assume that these two Head Constables who were in-charge of the General Diary would keep for no known reason blank spaces in the Diary for being filled up at some future time. It was not also explained why at all these Officers would decide to leave blank spaces in the General Diary at 8.25 P.M. The defence that <ORG> did not know about this offence till 3.30 A.M. would postulate that no body interested in filing a complaint with regard to this offence had approached <ORG> during the night. The only intimation which <ORG> had received in connection with this offence was-one received from the Control Room at 8.35 P.M. That intimation conveyed <ORG> nothing more than that, a per son was injured and lying at a certain place. No names or particulars had been mentioned. It would be recalled that this intimation had been given from the Control Room by Sub Inspector <NAME>, P.W. 8 as soon as he received the telephone message from Mr. <NAME>. the Advocate. In the ordinary course this would be the first entry in the General Diary in connection with this offence. But what we find is that even before this intimation was received, several entries have been made in connection with this offence-the first of them being at 8.25 P.M. relating to the First Information lodged by <NAME>, P.W. 1. In fact Head Constable <NAME>, P.W. 10 says that when he was recording the statement of <NAME>, P.W. 1 this particular message was received from the Control Room at 8.35 P.M. and at that very time he told the Control Room on the phone that a report in respect of that offence had already been lodged at <ORG> and necessary action was being taken. This is confirmed by <NAME>, P.W. 8 when he was specifically asked about it ,in his cross-examination. It is not suggested that <NAME> who was in-charge of the Control Room had anything to do with any mischief contemplated by the officers of this Police Station and it would only show that <NAME>, P.W. 10 was telling the truth when he said that when the message was received from the Control Room the investigation, of this offence was in progress. The General Diary shows that this particular message from the Control Room has been duly entered at 8.35 P.M. The suggestion is that even this message must not have been entered at the time but noted on a separate piece of paper to be posted in the General Diary sometimes afterwards. It is not easy to see why at this particular point of time <NAME> should not have made the record in the General Diary in due course of official business. The message itself was innocuous and did not suggest that an offence had been committed or who the offender was or who were the assailants. Therefore, there is no reason whatsoever why the entry should not have been made at the time when the message was received. And since this entry about the message follows the entry with regard to the first information report, the normal inference would be that the several entries had been made in due course of official business. If the defence suggestion were true, we must assume that something must have occurred at 8.25 P.M. which inspired <ORG> not to enter the entries in due course. If none of the persons interested in complaining about the offence had reached <ORG> at that time and there was no known source of information at <ORG> with regard to the offence, there could not have been any good reason at all why the entries should not be made in the usual course. The importance of this aspect of the question was not lost on the learned Sessions Judge. He got over, this difficulty also by saying that <NAME> must have come at about 8.25 P.M. and must have given some information. According to the learned Judge <NAME> must have given information about his companions <NAME> and <NAME> and that was the reason why the officers attached to <ORG> stayed their hands and refrained from making any entry about the information given by <NAME>. Now the case of <NAME>, as disclosed in his statement under Section 342 , Criminal Procedure Code , is that he had merely seen two or three persons assaulting <NAME> the deceased with knives and since he knew <NAME> he went to his rescue. The assailants of <NAME>, however, turned on him and he got injuries on both his hands. He, therefore, left the place and went to <ORG> to make a report. He does not say that he implicated <NAME> and <NAME> as being the assailants. Therefore, there is no basis for the conjecture of the learned Sessions Judge that the names of <NAME> and <NAME> might have been' mentioned by <NAME> as the assailants. Secondly if what <NAME> actually says is true there could be no possible reason for the Station Officer not to record his statement in the usual course because he was reporting the commission of a cognizable offence without naming the assailants and was wanting the officers to take immediate action to save <NAME>. It is impossible to believe that if such a statement of a cognizable offence being committed was reported to <ORG>, the Officers would have remained absolutely indifferent and inactive. As already stated no other influence was working at <ORG> at that time and, therefore, there could have been no reason at all why the information given by <NAME> should not have been recorded. To suggest that the Officer delayed recording of <NAME>'s statement in order to implicate <NAME> and <NAME> would be absurd because <NAME> had not mentioned the names of <NAME> and <NAME>. It would be extravagant to suggest that on hearing of a stabbing case within his area, the Officer would at once think of <NAME> and <NAME> with a view to implicate them falsely, without ascertaining, in the first place, the circumstances of the stabbing, the availability of <NAME> and <NAME> on that day at the particular place and time, the probability of eye witnesses mentioning the names of other assailants and the inclination of the relations of <NAME> to help the officer in his mischievous plans. It was not even considered by the learned Sessions Judge whether <NAME>, in the circumstances, would have voluntarily gone to <ORG> to give information. It was possible for him to phone <ORG> to get immediate help to rescue <NAME>. Instead of that it is supposed that he went to <ORG> which was about three to four furlongs away. Secondly <NAME> would be the last person to go to <ORG> by himself when there were circumstances which would impel him to keep himself as far away from <ORG> as possible. He could not have forgotten that only four or five days previously, he and <NAME> had given a threat to <NAME> - a fact of which due notice has been taken by the learned Sessions Judge. He had. blood on his shirt and injuries on the right little finger which would draw the suspicion of any experienced Police Officer at <ORG>. It is, therefore, impossible to believe the story of <NAME> that he had gone to <ORG> by himself to report about the assault on <NAME> and that though he made his report the Officer decided not to record it.

21. It necessarily follows from the above discussion that <NAME> must have been brought to the Police Station with the blood stained knife by somebody at 8.25 P.M. and in that behalf we have a large body of evidence both of the eye witnesses <NAME>, P.W. 1 etc. and the Police Officers who were in-charge of the Police Station. Immediately after the arrival of <NAME> with <NAME>, the investigation proceeded in the usual manner. <NAME>'s F.I.R. was recorded, the necessary seizure memos were prepared, the General Diary entries were posted and thereafter we know from <NAME> evidence that he went off duty at 9.00 P.M. The Investigating Officer <NAME>, P.W. 17, however, took some more time at the Police Station to complete the proceedings before he went to the scene of offence. There was no particular hurry because he had already come to know that <ORG> had been contacted and there were people attending to <NAME> at the scene of offence. The offence which had been recorded at the time was only under Section 307 , I.P.C . and not under Section 302 , I.P.C . It was only much later when the Investigating Officer was at the scene of offence and recording the statements of the eye witnesses that the report about the death of <NAME> was received by him. In our opinion, there was no sufficient basis for the learned Sessions Judge to think, that the information about this offence had not been received till early next morning and that the General Diary had not been posted with the entries in due course of official business.

22. Once it is established that the First Information Report was given by <NAME>, P.W. 1 at 8.25 P.M. the defence which had impressed the learned. <NAME> Judge completely collapses. <NAME> had been brought to the Police Station with a blood stained knife and the eve witnesses were available who, had also taken part in chasing and capturing <NAME>. As mentioned earlier, none of the three eye witnesses had any personal interest in implicating the three accused. In fact nothing was suggested to them in their cross-examination. One more remarkable thing which must be noted is that even <NAME>, P.W. 1 had not known the other two captors <NAME>, P.W. 2 and <NAME>, P.W. 5 and the captors also did not know each other. Their evidence, however, shows that all these three witnesses had known the three accused since before the incident. <ORG> has accepted their evidence as substantially true and we do not think that we have any good grounds to differ from <ORG> assessment of the. evidence. The learned <NAME> Judge having once formed the erroneous opinion that the F.I.R. must not have been recorded at 8.25 P.M. had no other alternative but to discard the evidence of eye witnesses; and. this the learned <NAME> Judge has done by attaching undue importance to minor details in the evidence of these witnesses as pointed out by <ORG>. <ORG> was, therefore, justified in its criticism of the judgment of the learned <NAME> Judge as unreasonable and palpably wrong and coming to its own conclusion as to the guilt of the accused.

23. In the result these appeals fail and are dismissed.


ORDER

1. The question is regarding the regularisation of work-charged employees and muster-roll labour employed on different projects by the <ORG> of U.P. at different points of time. The respondent-<ORG> has furnished a list of almost 13 thousand such employees employed zone wise as per Annexure 'A-l' to the additional affidavit on behalf of the <ORG>. These are divided into two groups, namely, 7744 work-charged employees and 5516 muster-roll employees. A separate list of employees claiming regularisation in various pending cases has been appended as Annexure 'A-3'. A list of employees who came to be regularised pursuant to orders made by this Court from time to time since after 16-3-1993 is appended as Annexure 'A-4'. Annexure 'A-5' gives the list of vacant posts available in the regular establishment at the relevant point of time. The <ORG> of U.P. also contends that on account of financial constraints, it was forced to slow down the pace of work for as many as 7 important projects. Pursuant to our order dated 11-10-1993 and in the light of the observations made in the <CITATION> , , we are told that the <ORG> has prepared a Scheme, the details whereof are given in the additional affidavit, para 6. According to this Scheme, broadly stated, the <ORG> has undertaken to regularise work-charged employees employed prior to 19-9-1985 who possess qualification for regular appointment on an equivalent post in the service of the establishment, i.e., who qualify under the recruitment rules in force for that post. The age criteria, however, would be relaxed but other qualifications for eligibility would have to be satisfied. The <ORG> has to prepare a seniority list of work-charged personnel on the basis of those who are qualified under the relevant recruitment rules and thereafter regularisation has to take place strictly in accordance with seniority. The estimated vacancies in the years 1993-94 are indicated and the projection for the specific years insofar as vacancies are concerned is estimated and mentioned in the additional affidavit. As regards daily-wage/muster-roll personnel, it is stated that since their work is of a contingent nature, it is not possible to regularise them unless suitable posts are required and created under the rules. The regularisation of daily-paid employees and muster-roll employees of <ORG>, contends the deponent, is beyond the planning of the <ORG> and its financial capacity. To put it differently, therefore, the <ORG> has prepared a regularisation scheme so far as work-charged employees are concerned but has expressed its inability to prepare any such scheme for daily-rated/muster-roll employees. We have carefully perused the proposed scheme in regard to work-charged employees and we felt that in Clause 'D' which talks of regularisation as per vacancies arising in regular posts on the establishment, a modification is necessary, in that, there should be a review of the cadre strength from year to year and based on the past requirement and continuity of work-charged employees, the cadre strength should be increased by a certain percentage of the work-charged employees working over a period of time that may be fixed by the <ORG> so that the pace of regularisation is accelerated and is not the same as obtaining in the past. For example, if 100 work-charged employees have been required throughout a period of time it could reasonably be estimated that even if shedding takes place, a certain percentage of those employees would certainly be retained and a part of them could be absorbed by increasing the cadre strength to that extent. An exercise of review in the cadre strength from year to year, thereafter, becomes necessary because while on the one side the financial difficulties of the <ORG> have to be kept in view, on the other side the welfare of the workmen who have served the <ORG> on different projects has to be balanced. Concern is also to be shown for those who have worked for a number of years and have become ineligible for any other employment anywhere, be that the private sector or the public sector. Therefore, a balance has to be struck between the two competing interests and that can be struck by a periodical revision of the cadre strength from year to year. We must also impress on the <ORG> <ORG> that if work-charged employees have been on the establishment for long periods, the <ORG> should be liberal in the matter of revision of the cadre strength so that the benefit of regularisation is available to a reasonably good number of work-charged employees who have been associated with the <ORG> Departments for long periods. We would, therefore, direct that Clause 'D' should be understood as taking into its fold a periodical year-to-year revision of the cadre strength and besides the estimated vacancies, the additional vacancies on account of the increase in the cadre strength should become available for regularisation. If the figures given in para 6-A are perused, it appears that 25 per cent were engaged on work-charged establishment between 1960-65, 50 per cent between 1965-70, 20 per cent between 1975-80 and 5 per cent between 1980-85. This would show that there are workmen on the work-charged establishment who had joined between 1960-65 and who, we believe, if continuing in service, would certainly be required by the departments concerned and could be considered for regularisation under the Scheme by an increase in the cadre strength. So also one can say that the workmen working between 1965-75, if still in employment, could be considered for regularisation by an increase in the workforce. Our emphasis is that while the <ORG> has to keep in view that financial constraints and the need for allocation of finances for development of projects, it should also show concern for those who are working in different departments of the <ORG> so that at the end when they are relieved from service on their attaining the age of superannuation, they may have something to fall back on. Keeping this in mind, we think that a liberal increase in the workforce for the first few years would satisfy the large number of work-charged employees who are working on different projects of each department for a number of years.

2. That takes us to the question regarding the regularisation of muster-roll employees. Because they can only stand next to work-charged employees, we would recommend that they could be absorbed as work-charged employees to the extent or at a certain percentage of posts falling vacant on the latter being regularised under the Scheme. That would satisfy a certain percentage of the category of daily-wage/muster-roll employees also. We would like the <ORG> to undertake a review of the cadre strength by March this year and thereafter in December every year so that budgetary support could be provided for in the next financial year for the added strength to the cadre. With these observations and recommendations, we approve the Scheme but we would once again impress upon the <ORG> that the spirit of our observations in Piara Singh Case (Supra) should be observed. The petitions shall stand disposed of accordingly.

3. Contempt petitions in WP (C) No. 860 of 1989 are also disposed of. WP(C)No. 651 of 1991

4. The writ petition is dismissed.


JUDGMENT

1. This is a defendant's appeal arising out of a suit brought by rival pre-emptors for a division of property with the contesting defendant. On the 9th August 1923, certain vendors sold the property to certain vendees. <NAME>, the contesting defendant brought a suit for pre-emption against the vendees and obtained a decree on the 14th March 1924. He obtained possession under the said decree. The present plaintiffs, who are eight in number, brought the present suit on the 19th July 1924, for a share in the property so pre-empted. The defendant contested that, inasmuch as he was a co-sharer and had acquired the property prior to the present suit, Section 20 was a bar to the plaintiffs' claim. <ORG> instance acceded to this contention and dismissed the suit, but the lower appellate Court has come to a contrary conclusion.

2. It cannot be doubted that before the passing of the Agra Pre-emption Act the mere fact that a rival pre-emptor had obtained a decree for pre-emption did not prevent other rival pre-emptors from claiming a share in the property as against him, provided their suit was instituted within one year from the sale. In the case of <CITATION>  32 All. 340, it was pointed out that a right of pre-emption was not a right of repurchase but a right of substitution for the original vendee, and that under the decrees in favour of the rival pre-emptors there has not been any fresh transfer in their favour, but they have been put in the places of the original vendees.

3. In our opinion that law has in no way been altered by the new Act. Section 4, Sub-clause (9) embodies the principle that the right of pre-emption is not a right of transfer but a right of substitution. Under Section 13, when two or more persons claiming pre-emption are equally entitled, the property shall be equally divided between them, each paying an equal share of the consideration for the transfer. It matters little who comes to <ORG> first, provided that they all come within the period of limitation. Section 20 of the Act cannot apply to the case where one rival pre-emptor has obtained a decree for pre-emption first. The expression where the purchaser has transferred the property in dispute to a person having a right of pre-emption, etc. cannot cover the case of a pre-emptor obtaining a decree for pre-emption for, as pointed out by us, that is not a case of a transfer by the vendee to the pre-emptor, In our opinion, therefore, the view taken by the learned District Judge was correct and the present plaintiffs are entitled to their proportionate share in the preempted property.

4. <NAME> was one of the claimants. The present plaintiffs, who are eight in number are also claimants. These latter are, therefore, entitled to eight-ninths of the property sold under the deed of 9th August 1923, on payment of eight-ninths of the sale consideration. The appeal is accordingly dismissed with costs including in this <ORG> fees on the higher scale