MODI, J:—These are two connected matters, which arise out of the judgment of the learned Additional Sessions Judge, Jaipur District, Jaipur, dated the 29th April 1960, and we propose to depose of them by a single judgment. Appeal No. 225 of 1960 is by Moti and 8 others accused, all of whom have been held guilty under sec. 302 read with sec. 149 I.P.C. and under sec. 148 I.P.C. and also under sec. 323 read with sec. 149 I.P.C. And of these only Mulia accused had been sentenced to life imprisonment under sec. 302 reach with sec. 149 I.P.C. and to various periods of imprisonment on other counts, and the other accused have been awarded sentences of imprisonment extending over a number of years on all the counts including that under sec. 302 read with sec. 149 I.P.C, all the sentences to run con-curently. When the appeal came before us for hearing we felt that on the findings of the learned judge the sentences pissed by him against the various accused under sec. 302 read with sec. 149 I.P.C. with the exception of Mula were obviously illegal, and therefore, we, acting in the exercise of our revisional jurisdiction, ordered that notices should go to the other accused to show cause why their sentences should not be enhanced to life imprisonment. Mr. O.C. Chatterjee learned counsel for the accused, accepted notice for all these accused and submitted that the appeal and the revision be heard together and we have acceded to this request. This revision is Number 17 of 1962. 2. The case for the prosecution is briefly this:—It is alleged that on the 13th January 1959, Kalya and deceased Gungu were working at the well of die former when at about 11 or 12 Oclock in the morning all the 9 accused armed with weapons, namely lathis, a Kulhari Danda gandasa came to the well. As soon as they came there, they ran to beat Gangu and Kalyan. The latter took to their heels. The accused caught them at a distance of about 200 to 300 paces in the field of one Sheo bus Balai. The story further is that the accused Muli struck Gangu with an axe, and accused Ramakishan, Jagan Nath and others gave a number of lathi blows to Kalyan. The latter took to their heels. The accused caught them at a distance of about 200 to 300 paces in the field of one Sheo bus Balai. The story further is that the accused Muli struck Gangu with an axe, and accused Ramakishan, Jagan Nath and others gave a number of lathi blows to Kalyan. The victims having raised an outcry P.W.S. Bheria, Narain, Chandra, Ganesh and one other person Gyarsa came from their Dhani to rescue Gangu and Kalyan. The accused beat up these persons also with lathis. It is further alleged that the accused Rama Kishan struck P.W. Ganesh with a gandasi. As a result of beating given to Gangu he became unconscious on the spot. A first information report of this occurrence Ex.P. 3 was lodged by Kalyan one of the victims, at Police Station, Lalsot on the very day at 8.45 P. M. As respects the motive of the offence, it was mentioned in the first report that relations between the parties had become strained for the last 3 or 4 months in connection with certain land in Badh Mirpura, and that Kalyan had made a report against all the accused and certain other persons at the thana, as a result of which the latter had been challaned and the case was pending in a Magistrates court. That there was an enmity between the parties is not disputed on the side of the defence either, and there is ample material on the record to show that some time before this incident took place, Kalyan, the author of the first information report, and the accused Gyarsa did joint cultivation on a certain field or fields, and Gyarsa turned out Kalyan because he suspected that Kalyan was carrying on an illicit intimacy with his (Gyarsas) wife or had designs on her. It is also in evidence that Gyarsa had started criminal litigation against Kalyan and Gangu and certain other persons in connection with his wife. There is no doubt, therefore, that there was bad blood between the parties. It may be pointed out at this place that the accused persons had also filed a report Ex.P. 55 at this very thana in which they accused Gangu, Kalyan and 12 other persons of having come to their well, where the accused Mulia, Motiram and Jagan Nath were working, with the intention of giving them a beating. It may be pointed out at this place that the accused persons had also filed a report Ex.P. 55 at this very thana in which they accused Gangu, Kalyan and 12 other persons of having come to their well, where the accused Mulia, Motiram and Jagan Nath were working, with the intention of giving them a beating. It was further alleged in this report that Gangu gave a lathi blow to Gyarsa accused, and another Gyarsa S/o Narain struck Mulia Motiram and Jagan Nath with axes, and the rest of the persons complained against, had belaboured them with lathis and dandas. This report was filed by Gyarsa accused at 6-30 P.M. on the very day that is, 13th Jan., 1959. The Sub-Inspector Lalsot, P.W. Hukamchand proceeded to the spot and commenced the usual investigation. He sent the injured persons, among the prosecution party, namely, P.Ws. Bheria, Narain, Chandra, Ganesh and Kalyan to the dispensary at Lalsot. He also found that among the accused, Gyarsa, Moti, Mulia and Jgannath had been injured and he sent them also to the aforesaid dispensary at the same time. The injury reports prepared by Dr. N.D. Mathur are Exs.P.31 and P. 34 to P.38 and Exs.D. 5 to D.8 of these the injury report in connection with Gangu deceased is Ex.P. 31. According to this report, Gangu had received two incised wounds on his head, one on the left parietal region and the other on the right parietal, and there were two more injuries sustained by him, one of which was a lacerated wound also on the head, and the only other injury was an abrasion on the left side of the back. All these injuries according to the doctor, were simple. The first two were by a sharp edged weapon and the last two by a blunt weapon. The injuries caused to the other persons on the side of the prosecution were all simple, which were in all 17 in number and caused by blunt weapon*. According to this very doctor, four of the accused persons, namely Gyarsa, Mula, Moti and Jagan Nath had also sustained simple injuries all of which appear to have been caused by a blunt weapon, with the exception of injury above the right eyebrow of the accused Mulia which was caused by a sharp-edged weapon. Gangu died on the 16th January, 1959. Gangu died on the 16th January, 1959. The dead body of Gangu was sent for post mortem examination to the Sawai Mansingh Hospital at Jaipur, and Dr. R.K. Sharma did the autospy. See Ex.P.51. According to this doctor the deceased died of the head injuries and haemorrhage arising from a facture of the skull bones. Unfortunately Dr. Sharma could not be examined as a witness either in the committing court or in the court of Sessions, the alleged reason being that he had become insane at the time he could be produced for the evidence. An application was made by the learned Dy. Government Advocate before us on 8th January, 1962, after the arguments had been opened by learned counsel for the accused, that the said Dr. R. K. Sharma had since recovered and therefore, this court be pleased to summon and examine him in this court. We shall deal with this matter later. It appears that the police came to the conclusion that there was no substance in the report filed by the accused, and so far as the report filed by Kalyan is concerned all the accused were challaned and in due course convicted and concerned as stated above. 3. So far as the defence of the accused is concerned, all of them denied their guilt. Five of these namely, Partapa, Sheobux, Sheobux, Ramakishan and Amarphool pleaded alibi and they stated that they had gone to certain other villages on the day of the occurrence, the names of which it is unnecessary to mention. Gyarsa accused came forward with a counter story. His story was that there was an old standing enmity between him and Gangu, Kalyan and certain other persons in connection with a criminal assault on his wife, and that on the day of the occurrence the latter was weeding out grass in his field. At that time Gangu entered his goats in that field. Gyarsas wife was trying to push them out when Gangu abused her. Kalyan was also with Gangu at that time. The woman cried out, and this brought Gyarsa to the field. Thereupon hot words were exchanged between them and Gangu and Kalyan threatened to beat him with lathis. He shouted for help, and accused Mulia who happened to be close by came over there. Then Gangu and Kalyan shouted to their relations Bheria, Narain, Chandra, Ganesh and another Kalyan for help. Thereupon hot words were exchanged between them and Gangu and Kalyan threatened to beat him with lathis. He shouted for help, and accused Mulia who happened to be close by came over there. Then Gangu and Kalyan shouted to their relations Bheria, Narain, Chandra, Ganesh and another Kalyan for help. The case of Gyarsa is that before these persons arrived, Gangu deceased gave a lathi blow on the head of Mulia. Mulia then grappled with Gangu and they both fell down on the ground. By this time Bheria and others had arrived and some of these had axes in their hands and the rest had lathis. Kalyan then snatched the axe, which Gayrsa of the prosecution party had in his hand and he and Narain wanted to strike Mulia with axes, and while they were attempting to do that, Gangu had in the meantime come on the top of Mulia and was thus accidently struck in the head with axes by both Kalyan and Narain, persons of his own pary. Gyarsa further stated that accused Jagannath and Moti, who had also come to save him, were beaten up by members of the prosecution party, although he did not know who beat them. Thereafter Bheria and his friends left the place taking Gangu with them. He further went on to state that he went to the police and lodged the report Ex. P. 55. Thereafter they were sent for medical examination to the dispensary at Lalsot, and eventually he and the other accused were arrested after three or four days thereof. The defence of accused Mulia is on the same lines as that of the accused Gyarsa which we have set out in detail above. His version was that he had heard the cries of Gyarsa and his wife, while he was guarding his crop in the field and so he went to them. He tried to intervene to save the latter when Gangu struck a lathi blow on his head and before Gangu attempted another) lathi blow on him he grappled with Gangu and they both fell down, Gangu falling below Mulia. It is further said that Gyarsa and Narain of the prosecution party had axes in their hands. Then Kalyan threw away his lathi and took up Gyarsas axe and he and Narain wanted to strike him with the axes. It is further said that Gyarsa and Narain of the prosecution party had axes in their hands. Then Kalyan threw away his lathi and took up Gyarsas axe and he and Narain wanted to strike him with the axes. At this stage he managed to put up Gangu on the top of him with the result that the axes of Kalyan and Narain fell on Gangus head and thus he was injured. This accused further stated that thereafter Jagan Nath came there to intervene and he was also injured by Bheria, Narain and others. Thereafter certain other persons came from the neighbouring field and separated the two parties. 4. The accused Motis version was that he was a resident of another village and had come to village Hamir ka bara to take away Gyarsas wife who was his sister, and that while he was outside Gyarsas Guwadi he heard some noise in the neighbouring field. Having heard that he went there and saw the accused Mulia and the deceased Gangu lying on the ground and Kalyan and Narain were standing there with axes in their hands. According to this accused, he tried to separate the two parties and in doing that he was struck with a lathi on his head. In short, his case is that he was not at all responsible f6r any injuries to any one of the prosecution party. 5. The defence of Jagan Nath was that while he was passing by the field of Gyarsa accused on the day of the occurrence he heard an outcry. On his watching where from it was coming he found that Mulia and Gangu were grappling with each other, and Kalyan was giving belows with a danda to Mulia. He further stated that Ganesh, Chandra, Bheria, Narain and Gyarsa were also there, and that Narain and Gyarsa were attempting to strike Mulia with their axes but the blow fell on Gangu. This accused also admits to have received-some injuries, but he denies that he had any weapon whatsoever with him. 6. The accused produced 16 witnesses in all. Most of these witnesses were produced to prove the defence of alibi and learned counsel rightly does not wish to rely on them. This accused also admits to have received-some injuries, but he denies that he had any weapon whatsoever with him. 6. The accused produced 16 witnesses in all. Most of these witnesses were produced to prove the defence of alibi and learned counsel rightly does not wish to rely on them. He has however drawn pointed attention to the evidence of P. W. 16 Harbux, Sarpanch of village Bidhakhera, which is just at a distance of about a mile from the place of occurrence we shall deal with his evidence in due course. 7. The prosecution produced 11 witnesses in all. Of these P. W. 1 Bheria, P. W. Chandra, P. W. 3 Narain, P. W. 4 Ganesh, P. W. 5 Gyarsa and P. |W. 9 Kalyan are the alleged eye-witnesses, P.W. 11 Hukam Chand is the investigating officer. It may be pointed out at this place that Kalyan, the author of the first information report was not produced either before the committing magistrate or at the trial, the reason being that he had disappeared some ten days after the incident had taken place and the reason according to the prosecution is that his whereabouts were not traceable. That in our opinion does not affect the case for the prosecution inasmuch as although the first information report Ex. P. 3 was formally signed by Kalyan only, that report had been read out by the investigating officer to the other prosecution witnesses, namely, Bheria, Chandra, Narain, Ganesh and they had accepted it as correct before the investigation started. These witnesses also accepted in their depositions at the trial that they had accompanied Kalyan to the police station while he had gone to lodge the first report and it was the same report which Kalyan had filed at the thana. The learned trial Judge accepted this evidence of the prosecution witnesses in the main and held that the case against the accused was proved to the hilt. 8. In this appeal, filed on behalf of all the accused it has been strenuously contended before us by learned counsel for the accused that the learned trial Judge fell into serious errors of law and fact in holding the case for the prosecution to be proved and that case suffers from such vital infirmities that it cannot be accepted as any safe foundation for convicting the accused. In this connection our attention has been particularly invited to the manner of approach adopted by the learned Judge below, according to which he first considered the case for defence and came to the conclusion that it deserved to be rejected and thereafter he addressed himself to the case for the prosecution a process which was forcibly criticised as entirely erroneous and the reverse of what it should have been. It has also been strongly borne in upon us that the case developed by the prosecution at the trial was entirely different from that which was put forward in the first information report, and that the learned Judge had failed to take due note of that. Another criticism made by learned counsel was that the learned Judges appreciation of the eye-witnesses was more or less superficial and that the prosecution had entirely failed to explain the injuries caused to the accused. In particular our attention was invited to the evidence of P. W. 9 Kalyan, whom the learned Judge had fully believed, whereas according to learned counsel that evidence could not be accepted for a moment. Further-more our attention has been invited to certain inconsistencies in the evidence of the eye-witnesses on vital points, and on the strength of these contentions we have been strongly pressed to throw out the case for the prosecution. Having heard learned counsel for both the parties it seems to us that much of the criticism which has been levelled against the judgment of the court below, is not without force. 9. This brings us to a consideration of the various contentions which we have set out above. In the first place, it seems to us that the grievance of learned counsel for the accused is that the learned trial Judge approached this case from an entirely inverted angle, inasmuch as he considered the defence version first and the prosecution version thereafter. It appears from a perusal of his judgment under appeal that having stated the prosecution case, the learned judge set out the statements of the accused at a considerable length and then he proceeded to give a gist of the evidence of the eye-witnesses and thereafter he again addressed himself to the defence of the accused and dealt with the same in great detail, and further critically examined the report filed by the accused, Ex. P. 55 to which reference has already been made, and eventually concluded his discussion as follows : —"It is, therefore, abundantly clear that the defence version as set up in the statement under sec.342 Cr. P.C. was not at all tenable and reasonable. Ex. P. 55 itself the report made by Gyarsia falsified that version". Thereafter the learned Judge proceeded to examine the prosecution case to see whether it was established or not. We feel bound to point out that the manner in which the learned trial Judge dealt with this case leaves a lot to be desired. If there is one principle more well established than any other, in our criminal jurisprudence it is this that the burden of proving the prosecution case rests throughout on the prosecution and hardly ever shifts to the accused. That being so, the learned judge should have in the first instance examined the case for the prosecution uninfluenced by what the defence was and then taken into consideration the case of the accused and thereafter come to a final conclusion on the whole of the evidence having been so considered, whether the prosecution had succeeded in proving the case of the accused without any reasonable doubt. We have no hesitation in saying that the manner in which the learned Judge addressed himself to the case before him by pronouncing his verdict on the case of the defence first, he has laid himself open to a serious attack for which there is no satisfactory answer. 10. Be that as it may, the next important ground of attack, which deserves to be mentioned at the very outset is that the case of the prosecution as disclosed in the first information report was that all the 9 accused, armed with various weapons and after a pre-concert, had come to the well where Kalyan and Gangu were working and there they wanted to beat up the latter. The further case of the prosecution as disclosed in the first report, was that these two persons ran to a distance of about 200 to 300 paces where the accused caught up with them. The further case of the prosecution as disclosed in the first report, was that these two persons ran to a distance of about 200 to 300 paces where the accused caught up with them. This happened in the field of Sheo Bux Balai and there Mulia gave an axe blow to Gangu and Ramakishan Jagan Nath and others struck lathi blows to Kalyan and it was then that the other prosecution witnesses, namely, Bheria, Narain, Chandra and Ganesh arrived on the scene and these last mentioned persons were also beaten up as they tried to intervene. As against this version, each one of the eye-witnesses at the trial has given out a radically different story inasmuch as their evidence in court was that only three persons, namely, Gyarsa, Mulia and Mod had come to the well where Kalyan and Gangu were drawing water and Mulia was armed with an axe, Moti with a Juda (yoke) and Gyarsa with a lathi.: These persons chased Gangu and Kalyan who had started running towards the field of Sheobux. It is then said that the other six accused namely, Jagan Nath, Ramkishan, Partapa, Sheo Ram, Sheobux and Amarpholl emerged from behind the house of the said Sheobux Balai which was presumably at the other end. Some of the eye-witnesses have then said that these accused put up an obstruction in the way of Gangu and Kalyan running further away, with the result that they were sandwiched between the two parties of the accused. The story which was further developed at the trial was that out of these six persons, who had come out from behind the house of Sheobux Balai, Partapa accused was also armed with an axe, and he hit Gangu on the head with it. Moti accused also struck a blow with his Juda on the head of Gangu who then fell down. Gyarsa thereafter gave a lathi blow to Gangu, and then Mulia gave him a further axe blow; and it is further said that both Mulia and Partapa then hit Gangu with their axes. Then the story is that the various prosecution witnesses, namely, Bheria, Narain, Chandra and Ganesh who had rushed to Sheo Buxs field on having heard the outcries of Gangu and Kalyan were also beaten up by the accused persons. Then the story is that the various prosecution witnesses, namely, Bheria, Narain, Chandra and Ganesh who had rushed to Sheo Buxs field on having heard the outcries of Gangu and Kalyan were also beaten up by the accused persons. We have found it not a little difficult to reconcile these two versions, and we are entirely at a loss to understand why it should have been necessary for the eye-witnesses to develop a story at the trial, which was radically different from that which was disclosed in the first report. We have already stated above that the author of the first information report, Kalyan who was one of the victims, was not produced in evidence either in the court of the committing magistrate or in the court of Sessions. That, however, would not stand in the way of the first report being taken into consideration in the circumstances of this case, because each one of the eye-witnesses for the prosecution has admitted that the report had been read out to them by the Sub-Inspector and that they had accepted its correctness. 11. From what we have said above, it is abundantly clear that the prosecution came forward with a positive case in the first report and developed a different case altogether at the trial. We have tried hard to get an explanation from the learned Deputy Government Advocate for this discrepancy in the prosecution case but have not been able to get any satisfactory answer. The confusion in this case that has arisen out of this discrepancy has become worse confounded because the main eye-witnesses namely, Bheria, Narain, Chandra and Ganesh are all relations and their presence on the spot would be otherwise easily acceptable because all of them sustained injuries during the occurrence with which we are concerned. 12. In relying on the first information report to the extent and in the manner he did, we must point out that the learned Judge fell into a serious error. A first information report is the earliest information that is given by an informant to the police with the object that an investigation be commenced into the offence reported to it. In relying on the first information report to the extent and in the manner he did, we must point out that the learned Judge fell into a serious error. A first information report is the earliest information that is given by an informant to the police with the object that an investigation be commenced into the offence reported to it. Inspite of the fact, therefore, that such a report contains the earliest version of the case for the prosecution, and in that sense furnishes a useful key to ascertain the truth or otherwise of the case, it should not be and cannot be used as a piece of substantive evidence on which the guilt of the accused can be directly founded. The only legitimate use to which such a report can be put is that it can be pressed into service to corroborate or contradict the maker or makers of it or to impeach his or their credit. If any authority be needed for this proposition of law we would invite attention to the State of Bombay Vs. Rusy Mistry and another (1). The learned Judge therefore in founding his conclusions on the report in question and having given an almost complete go-by to the evidence produced at the trial was entirely wrong and this goes a long way to vitiate his judgment. 13. Having regard to the facts and circumstances, which we have mentioned above, we find ourselves entirely unable to agree with the conclusion to which the learned trial Judge came as regards the guilt of the accused. It is true that there was enmity between the parties involved in this case. It is also true, so far as we can see that there was a Marpeet between them, the proximate cause of which was not put forward by the prosecution and it seems to us to have been suppressed. It is equally true that during the course of the Marpeet one of the members of the prosecution party sustained injuries which resulted in his death. It is a matter of regret to us that we have not found it possible to convict the offenders, whoever they may be, in this case. It is equally true that during the course of the Marpeet one of the members of the prosecution party sustained injuries which resulted in his death. It is a matter of regret to us that we have not found it possible to convict the offenders, whoever they may be, in this case. The blame for this result, however must squarely rest on the relations of the deceased and the prosecution agency because we cannot help pointing out that the true story has been supressed from us, and a highly framed up version was put before the court, in the sense that an entirely garbled version of what might have been a true incident or of what was the truth has been put forward, and false eye-witnesses have been introduced in the case, and quite possibly a large number of innocent persons have been roped into it, with the result that it has been well nigh impossible for us to separate the truth from the falsehood. We should also like to make it clear at this place that in arriving at the above mentioned conclusion we should not be understood to imply that we believe the case relied on by the defence as propounded in the report filed by the accused Gyarsa Ex. P. 55 or as disclosed by him and the other accused in their statements under Sec. 342 Cr. P. C. as correct. In fact we are inclined to think that both sides have freely indulged in glaring falsehood in this case, for which if we may say so, they had ample time before filing their respective reports is the police so that it is impossible to choose between the two stories. The accused happened to succeed, therefore, chiefly because the prosecution has failed to establish its case against them with that degree of satisfaction which we should expect in a case of this kind, where a number of persons are involved in the crime, and further because the burden of proving the guilt of the accused, as we cannot over-emphasise, in a criminal prosecution, rests on the prosecution throughout, and it is not for the accused to prove their innocence. 14. 14. We also cannot help pointing out that the investigation of the case was far from satisfactory and the investigating officer failed to investigate the case with that measure of responsibility which was expected of him in a case of this kind. We also take the opportunity of expressing the hope that the authorities concerned will take the necessary steps to see that proper plans of the scene of offence at least in cases of grave offences are prepared by those incharge of the investigation and that such plans should be drawn up with reasonable approximation to the realities of the case and should show the various important places with reference to their exact distances from the scenes of crime, so as to serve a valuable check for the truth or otherwise of the respective stories put forward by the prosecution or the defence, as the case may be. Let a copy of this judgment be sent to the Chief Secretary to the Govt. for such action as may be necessary. 15. In view of the result at which we have arrived we consider that it will be entirely futile to allow the application filed by the learned Deputy Government Advocate for summoning Dr. R.K. Sharma, who performed the post-mortem examination of the deceased Gangu and examine him here. 16. The result is that we allow the appeal, set aside the convictions and sentences of the accused appellants and hereby acquit them. We are informed that all other accused except Mulia are on bail and so these accused need not surrender to their bail bonds. The accused Mulia shall be released forthwith. 17. In view of the decision of the appeal, the revision fails and is hereby dismissed. 18. Though we have dismissed the revision in view of the appeal of the accused having succeeded, we feel that we should not omit to point out that the sentences awarded to all the accused other than Mulia extending from 3 to 7 years rigorous imprisonment under sec. 302 read with sec. 149 IPC are altogether illegal. The learned Judge seems to have laboured under a rather serious misconception that conviction u/s. 302 read with sec. 149 IPC stands on a different footing legally from that under sec. 302 read with sec. 149 IPC are altogether illegal. The learned Judge seems to have laboured under a rather serious misconception that conviction u/s. 302 read with sec. 149 IPC stands on a different footing legally from that under sec. 302 IPC simpliciter, and that it is legally permissible to impose lesser sentences of punishment on persons convicted by force of that section than the minimum sentence of life imprisonment provided for the substantive offence under sec. 392 IPC. We should have expected the learned Judge to have known the underlying object and the true import and effect of sec. 149 IPC. This section provides for constructive liability. In other words it enacts that where there is a community of object between a number of offenders constituting an unlawful assembly, then every member of such assembly would be guilty of having committed the offence committed by any other member of the assembly, even though he may not have committed it himself, provided that such offence was committed in prosecution of the common object of the assembly or it was such that every other member of the assembly should have known that it was likely to be committed in prosecution of that common object. Once the conditions of sec. 149 IPC arc fulfilled, and a person is held guilty of the offence of murder under sec. 302 read with S. 149 IPC then the only lawful punishment with can be imposed on such an offender would be the one provided under sec. 302 IPC itself and the minimum punishment provided thereunder is imprisonment for life and no less. The learned trial Judge, was therefore entirely wrong in awarding lesser sentences of imprisonment to each one of the accused under sec. 302 read with sec. 149 IPC and we hold accordingly.