JUDGMENT 1. - Out of 13 person who stood their trial in the court of Additional Sessions Judge, Baran for having formed an unlawful assembly armed with deadly weapons and in the prosecution of common object for murdering Madan, the five appellants have been convicted under section 302 read with 149 and 148, Indian Penal Code. For the first count each one of them has been sentenced to life imprisonment and a fine of Rs. 100/-, in default thereof to further undergo six months rigorous imprisonment. On the second count the sentence passed is that of two years rigorous imprisonment on each. The convicts have filed this appeal to challenge their convictions and sentence. 2. The prosecution story is that Modu accused had mortgaged his 22 Bighas of land situated in village Boredi to Panna Lal (P.W.16). Panna Lal was to arrange for cultivation and to deduct Rs. 500/- per year towards the loan that he had advanced to Modu. In the relevant year i.e. 1968-69 Panna Lal gave this land to Madan deceased for cultivation. Modu did not like this. He asked Madan not to take the land and cultivate. Madan insisted to keep the land and cultivated Jowar on a portion of the same and prepared the rest for the next crop. A little before sunset on 30th of August, 1968. Modu along with 12 others namely; Surajmal s/o Kana, Chhitar S/o Bherulal, Prabbu s/o Shanker, Kedar s/o Kana, Bishna s/o Mathura, Ramdayal s/o Mathura, Ramnath s/o Pannalal, Jagannath s/o Baijnath, Kishanlal s/o Bhanwarlal, Jamna s/o Motilal, Anadi s/o Madho, and Ramnarian s/o Hira armed with weapons forming themselves into an unlawful assembly went to the house of Madan. Out of 13 persons Jagannath was armed with a gun, Chhitar and Ramdayal were armed with swords and others were armed with lathies; kuntiyas or parniyas. Madan was at that time sitting in the Aangan and about to take his meals. They threatened to kill Madan. Madan seeing them ran away from the house towards the 'Talab', as pointed out in the plan Ex. P/21 Surajmal (PW 6) his brother, who was living in the adjoining house and who was at that in the maize filed nearby seeing the assembly of 13 persons armed with weapons and apprehending danger to himself as well, ran away from the house. He also adopted the same course. P/21 Surajmal (PW 6) his brother, who was living in the adjoining house and who was at that in the maize filed nearby seeing the assembly of 13 persons armed with weapons and apprehending danger to himself as well, ran away from the house. He also adopted the same course. Both then took the path way leading to the village Sundlak Malkheri. Both of them went on running and the accused behind them chasing. When Soorajmal reached the 'Mandeda Khet' he saw four persons Bheru Lal, Gyarsi Lal, Birdhi Lal and Samander Singh of village Tarda going towards their village. He joined them but Madan was overtaken, by the accused persons. Kedar accused held Madan by his hands and dragged him towards the field of Rama which adjoined the Mandeda field. All the accused persons surrounded Madan and Soorjmal, accused inflicted a blow by his 'Kuntiya' on the neck of Madan on account of which Madan fell down on the ground. All the other accused persons namely Modu, Chhitar, Prabhu, Kedar, Bishna, Ramdayal, Ramnath, Jamna Lal, Anandilal, Ramnaryan and Kishna s/o Bhanwarlal belaboured Madan and inflicted numerous injuries on his person by their weapons. Jagannath s/o Baijnath accused, who had a gun, remained nearby on guard and prevented others namely the four aforesaid persons of Tarda village and Soorjmal P.W. 6 from coming to the rescue of Madan. Inspite of entreaties from these persons the accused caused serious injuries to Madan as a result of which he is said to have died at the spot. Thereafter some of the accused persons placed Madan on their lathies and Kuntias and took away his body from the field of Rama towards their village Boredia. Soorajmal (P.W.6) on account of fear did not go to his village and accompanied the persons of village Tarda, where he stayed for the night with Gopal his maternal uncle (P.W.3). In the morning of 31.8.68 Soorajmal went to village Boredia while passing by the house of Modu accused, he saw the dead body of Madan lying in the house of Modu. After having informed his mother Mst. Mathuri (P.W.1) about the death of Madan went to the police station Baran where he reached at about 9 a.m. He lodged an oral report. After having informed his mother Mst. Mathuri (P.W.1) about the death of Madan went to the police station Baran where he reached at about 9 a.m. He lodged an oral report. Shri Devendra Singh (P.W.15) Station House Officer, after having heard the details of incident from Sooraj Mal without recording the report, leaving Sooraj Mal at the police station went to the house of Modu. According to Soorajmal he brought the dead body in the afternoon and sent it for post mortem examination. It was at about 8 p.m. he was allowed to go from the police station to do the cremation of his brother and it was after that, he recorded the first information report which is marked Ex. P/5. This has been the grievance of Soorajmal vide Ex. D/7 that the station House Officer was in collusion with some of the accused inasmuch as he did not mention the names of all the 13 accused and instead he recorded the names of 10 persons and out of them, the names of two innocent persons Jagannath, s/o Shanker and Mathuralal son of Onkar were wrongly included. He pointed out that the names of (1) Jagannath son of Baijnath (2) Jamnalal, (3) Anandilal, (4) Ramnath, and (5) Kishan s/o Bhanwarilal were not mentioned. We will discuss this matter at the appropriate stage. 3. Dr. M.S. Juha (PW 13) Medical Officer at Baran conducted the post mortem examination of the deceased Madan at 5 p.m. on 31.8.68. He found the following external injuries:- 1. Depressed communicated fracture of the of the fore part of the frontal bone including communicated fracture of the left orbital fossa and the nasal bone. 2. Communicated fracture of the left parietal bone and upper one third of the right parietal bone. 3. Depressed communicated fracture of the upper ⅓rd of the occipital bone. 4. Base of the skull fracture in the left interior middle and posterical fossa. 5. Laceration of the brain at the places of depressed communited fracture of the skull and at the site of punctured wound. 6. Effusion of blood upon the surface of the brain in between the skull and duramatter and the substance of the mind part brain. Effusion of blood in the left anterior middle and posterior fossa of the base of the skull. Membrane torn at the skull and at the site of punctured wound. 6. Effusion of blood upon the surface of the brain in between the skull and duramatter and the substance of the mind part brain. Effusion of blood in the left anterior middle and posterior fossa of the base of the skull. Membrane torn at the skull and at the site of punctured wound. All wounds are ante-martem and caused by blunt weapon. 7. Bruise 10 cm. x 6 cm on the left scapular region. 8. Bruise 6 cm x 3 cm in the right loin. 9. Bruise 6 cm x 1/2 cm on the lowest part of the lateral aspect of the right thigh. 10. 1 abrasion 3 cm x 1 cm on the middle aspect of the right elbow. 11. One incised wound of the right side of the lower lib having gap of the two portions of the lib by 3 cm. 12. Severe laceration of the gun right side lower jaw and loss of all teeth of right side of the lower jaw except central incisor and right lateral incisor. 13. One incised wound 2 cm x 10 cm on the pinna of the right ear about in the middle. 14. One incised wound 2 cm x 1 cm on the right side of the forehead. 15. One punctured wound 21/2 cm x 1/2 cm into deep touching the brain on the middle of the occipital region. 16. One punctured wound 3 cm x 1 cm deep touching the brain on the lowest part of the occipital region. 17. One punctured wound 2 cm x 1 cm touching the brain on the left side of the forehead. 18. One punctured wound 31/2 cm x 11/2 cm deep touching the brain on the right side of the root of the nose. 19. Communicated fracture of both maxilla nasal wounds. 4. In his opinion the death was caused as a result of the severe haemorrhage and shock due to injuries of the vital organ of the brain. According to him injuries Nos. 4,5,6,15,16,17 and 18 were individually sufficient in the ordinary course of nature to cause death. He was also of the opinion that the injuries Nos. 11, 13 and 14 could be caused by a sword and injuries Nos. 15, 16, 17 and 18 were caused by a pointed sharp edged weapon. 5. The dead body was recovered from the 'Aangan' of Modu accused. He was also of the opinion that the injuries Nos. 11, 13 and 14 could be caused by a sword and injuries Nos. 15, 16, 17 and 18 were caused by a pointed sharp edged weapon. 5. The dead body was recovered from the 'Aangan' of Modu accused. Quite close to the dead body the station House Officer, found a country made gun and a 'Basula' nearby. One bamboo stick, and one rubbers led shoe of the left foot were also recovered. he collected blood stained earth from the house but he noticed in Ex. P/13 that there was no signs of fight at the house. He prepared the site plan of Modu's house Ex. P/13 and the inquest report Ex. P/15. In the course of investigation he also went to the field of Rama where the actual incident took place according to the prosecution. He found blood stains in the field and three teeth from the place of occurrence. There were indications to suggest that some one had tried to mix up the earth as to remove the signs of fight. He noticed foot prints of people of coming and going. His observations are mentioned in the site plan Ex. P/10 prepared by him. He also prepared the site plan of Madan's house. It is Ex. P/21. It is at this place that 13 accused armed with weapons came from south while Madan was about to take his meals. Seeing them he ran away from the place and the accused chased him. The place where Sooraj Mal (PW 6) was, has also been pointed out. 6. Modhu was arrested on 31.8.68 vide Ex. P/24 Kadar, Prabhu and Chhitar were arrested on 10.9.68, Soorajmal, accused was arrested on 24.9.68. When Soorajmal (PW 6)found that all the accused persons had not been arrested, he suspected the investigation on the approached the police authorities complaining that the Investigation Officer was adopting a partisan line and had joined hands with some of the accused. he also complained that two persons Jagannath and Mathuralal who had nothing to do with the incident, have been included in the report and five persons, who were named before him as culprits have not been mentioned in the first information report. For some time nobody listened to his complaint but his application dated 21.9.68 Ex. he also complained that two persons Jagannath and Mathuralal who had nothing to do with the incident, have been included in the report and five persons, who were named before him as culprits have not been mentioned in the first information report. For some time nobody listened to his complaint but his application dated 21.9.68 Ex. D/7 to the Superintendent of police Kota was attended to and the record of the investigation was sent for by him and it was handed over to Shri Om Dutta, C.I.D. Inspector police. It appears that Shri Om Dutta made the final investigation of the case. He recorded the statement of Soorajmal on 6.10.68 in which Soorajmal reiterated his complaint and mentioned the names of 13 persons as responsible for the murder of his brother Madan. The four persons of village Tarda, who were not interrogated by Shri Devendra Singh (PW 15) were also interrogated by Shri Om Dutta. After having completed the investigation Shri Om Dutta submitted a charge sheet against the 13 accused in the court of Sub Divisional Magistrate, Baran. These two persons namely Jagannath s/o Shankar and Mathura Lal son of Onkar mentioned in the Ex. P/5 were dropped. And this is how the 13 accused persons including the five appellants were committed by the Sub Divisional Magistrate, after preliminary inquiry to face their trial under section 302/149 and 148 IPC in court of sessions. 7. Before the trial judge all the accused pleaded not guilty and claimed trial. Some of them pleaded alibi. On behalf of the prosecution 16 witnesses were examined. On behalf of the defence 8 witnesses were produced to prove their alibi. The learned trial judge did not place reliance on the statements of P.W.9 Gyarsi Ram, P.W.10 Samunder Singh and P.W. 11 Birdhi Lal. He was of the opinion that their names were not mentioned in the First Information Report as witnesses and Soorajmal P.W. 6 had not disclosed their names to Shri Devendra Singh P.W.15. He believed the statement of Shri Devendra Singh when he stated that nobody disclosed their names as those having witnessed the actual incident. As regards the eight accused Bishan, Ramdayal, Ramnath, Jagannath, s/o Baijnath, Jamnalal, Ramnarain, Kishan s/o Bhanwarilal and Anandilal, he did not believe the testimony of Soorajmal (PW 6). He believed the statement of Shri Devendra Singh when he stated that nobody disclosed their names as those having witnessed the actual incident. As regards the eight accused Bishan, Ramdayal, Ramnath, Jagannath, s/o Baijnath, Jamnalal, Ramnarain, Kishan s/o Bhanwarilal and Anandilal, he did not believe the testimony of Soorajmal (PW 6). The reason for discarding his evidence that prevailed with him, is that his statement at the trial was not consistent to his version in the first information report Ex. P/5. He noticed from the First Information Report Ex. P/5 that only eight persons were named (two having been eliminated) as culprits and out of them five persons ran after deceased who took part in the actual murder of Madan. According to him, there was no other evidence to corroborate as to the complicity of these eight accused persons in the crime. He accordingly acquitted these accused persons. As regards the five appellants namely, Modu, Soorajmal (accused), Kedar, Chhitar, and Prabhu he accepted the testimony of his statement stood corroborated by the First Information Report Ex. P/5 and the statements of P.W.1 Mathuri P.W.2 Kana, P.W.3 Gopal and P.W.4 Bhajna. He did not believe the defence evidence and rejected their plea of alibi. He concluded that the five appellants formed an unlawful assembly and in prosecution of their common object to kill Madan, they inflicted serious injuries on him resulting in his death and were, therefore, guilty under section 302 read with section 149 Indian Penal Code. He also found them guilty under section 148 Indian Penal Code as they were armed with deadly weapons. They were sentenced as aforesaid. 8. Mr. Agarwal learned counsel appearing on behalf of the accused urged that according to Soorajmal (PW 6) the first information report was actually recorded in the evening of 31.8.68. He invited our attention to the various inconsistencies appearing in the version given by P.W.6 Soorajmal in Ex. P/5 and the statement that he made at the trial. According to his submission Soorajmal completely changed his story and thus he is an unreliable witness. He further strengthened his argument by contending that he had been disbelieved so far eight accused persons were concerned. He also urged that P.W.3 Gopal and P.W.4 Bhajna are not credible witnesses and they do not afford any corroboration to the statement of Soorajmal. According to his submission Soorajmal completely changed his story and thus he is an unreliable witness. He further strengthened his argument by contending that he had been disbelieved so far eight accused persons were concerned. He also urged that P.W.3 Gopal and P.W.4 Bhajna are not credible witnesses and they do not afford any corroboration to the statement of Soorajmal. As regards the statement of Mathuri (P.W.1) his contention is that it does not go to corroborate that part of the case which relates to the actual beating of Madan. On the other hand,Mr. Shishodia learned counsel for the State argued that Soorajmal (PW 6) is reliable witness. It has been urged that in view of the tainted investigation, credibility of Soorajmal's evidence at the trial, cannot be doubted and it is not open to the counsel for the accused to brand Soorajmal as an unreliable witness on the ground that his statement at the trial is not in consonance to the version recorded in Ex. P/5. In the alternative the argument of Mr. Shishodia is that at best Soorajmal is partly reliable and partly unreliable and from the evidence in the case, it is not difficult to sift the truth out of falsehood. According to him the statements of Mathuri P.W.1 and Kana P.W.2 substantially corroborate P.W.6. It has been submitted that from the nature of the injuries as evidenced by Dr. Juha (P.W.13) and from the totality of the circumstances, the case against the accused is well established. 9. There is no manner of doubt that the occurrence took place in the field of Rama about one and a half mile from the village Borediya. Even the Investigating Officer (PW 13) found blood stains in the field of Rama and three teeth. He also noticed foot tracks of several persons. We have the evidence of P.W.1 Mathuri, and P.W. 2 Kana to show that an assembly of 13 persons including five appellants armed with weapons came to the house of Madan in the first instance. They had clearly expressed their intention to kill him. Madan had run away on the 'Pagdandi' leading to the village Sundlak Malkheri P.W. 1 and P.W.2 followed the accused for a distance but they came back P.W. 1 further revealed that Sooraj Mal (P.W.6) had also run away and went away on the same path way. They had clearly expressed their intention to kill him. Madan had run away on the 'Pagdandi' leading to the village Sundlak Malkheri P.W. 1 and P.W.2 followed the accused for a distance but they came back P.W. 1 further revealed that Sooraj Mal (P.W.6) had also run away and went away on the same path way. Soorajmal (P.W.6) then informs the court that the accused over took Madan on the 'Med' of Mandeda field and Kedar accused caught hold of Madan and dragged him to the field of Rama, where Soorajmal accused gave a blow of Kuntiya that he had with him on the neck of the deceased. he named all the 13 accused who were present at the place of occurrence and took part in the beating. For Jagannath it was stated by him that he was holding a gun scaring others as to prevent them from going towards Madan for his rescue. This evidence fixes the place of occurrence as the field of Rama. The body was recovered at the house of Modu. According to the statement of P.W. 15 several articles like the Tamancha, Basula, a stick were found planted near the body. The Investigating Officer as well noticed no mark or sign of a fight in that house. The Investigating Officer did not tell the court as to how the dead body reached the house of Modu and who planted those articles near the dead body. In this view of the matter we have to believe the evidence of Soorajmal and other witnesses from Tarde, who stated that the accused persons brought the dead body from the field of Rama on their lathies and kuntiyas. 10. According to Soorajmal (PW 6) he reached the police station Baran at 9 a.m. on 31.8.68. He gave the detailed report of the incident and he mentioned the names of 13 persons, who formed an unlawful assembly and murdered Madan by causing injuries to him. The Station House Officer did not record the report immediately. Instead be left him at the police station and went to the house of Modu where the dead body was said to have been lying. He came back in the evening then he recorded the report and instead of mentioning the names of 13 persons in the report (Ex. P/5) he recorded the names of eight persons only of his own accord. He came back in the evening then he recorded the report and instead of mentioning the names of 13 persons in the report (Ex. P/5) he recorded the names of eight persons only of his own accord. Thus Soorajmal stated that the, the Station House Officer mentioned two names who were not concerned with the incident and omitted to mention the names of five person. Soorajmal then pointed out in his statement that every one and then he had been visiting the police officials to inform them that the Station House Officer was not conducing the investigation properly. He submitted a written application to the Superintendent of Police, Kota (Ex. D/7) on 21.9.68 containing his complaints referred to above. He also informed the court that the investigating Officer refused to examine the witnesses from Tarda. As a result of this application to the Superintendent of police, the investigation was transferred to Shri Om Dutta a C.I.D. Inspector Police Soorajmal was then examined by him on 6.10.68 where he mentioned the names of 13 persons. he also stated there in the details of the incident as to how the accused chased his brother Madan and how he was caught hold of near the Mandeda field and taken to the field of Rama and injured. he also disclosed the names of four persons be ongoing to Tarda & who happened to be going to their village while coming from Baran Shri Devendra Singh admitted in his statement that he sent the record of the investigation on 29.9.68 to the Superintendent of Police, Kota. We find it from the record that the charge sheet submitted against the accused persons was by Shri Om Dutta and it was the result of his investigation. This grievance against the Investigating Officer is also supported by the statements of P.W. 1 Mathuri and P.W. 2 Kana. They stated that the Investigating Officer did not mention all the names of the accused that they disclosed to him on interrogation. These facts have no been taken notice of by the learned trial Judge. In our opinion the facts as they emerge clearly disclose that the investigating officer did not show the requisite circumspection in the investigation. The foot that he did not record the report in the morning and instead he recorded in the evening, is by itself a serious reflection on his method of investigation. The report Ex. In our opinion the facts as they emerge clearly disclose that the investigating officer did not show the requisite circumspection in the investigation. The foot that he did not record the report in the morning and instead he recorded in the evening, is by itself a serious reflection on his method of investigation. The report Ex. P/5 does not by itself disclose the time as to when it was recorded. That apart, there is one striking feature in the investigation. The investigating officer after having fixed the place of occurrence as the field of Rama did not appear to have made any attempt to ascertain during the course of investigation as to how the dead body reached the house of Modu and who brought it. It could not have reached there without human agency and in all probability, could not have been planted at the house of Modu unnoticed. He failed to inform the court in this regard. As to who planted the gun basula and the bamboo stick near the dead body, and with what motive, the investigating officer had kept the court in dark. We are unable to say if the investigating officer had an oblique motive but we do not hesitate to hold that the impression that he had given us of his investigation, is that he had not been fair and upright in investigating the matter, and there are grave reasons to doubt the record that he has made in investigating this case, and it would be difficult for us to attach that much of importance to the record that he prepared which we should normally do. In Baladin and others v. State of Uttar Pradesh, AIR 1956 SC 181 , their Lordships observed; "That the record made by a police investigating officer has to be considered by the court only with a view to weighting the evidence actually adduced in court. In Baladin and others v. State of Uttar Pradesh, AIR 1956 SC 181 , their Lordships observed; "That the record made by a police investigating officer has to be considered by the court only with a view to weighting the evidence actually adduced in court. If the police record becomes upset or unreliable on the ground that it was deliberately perfunctory or dishonest, it loses much of its value and the court in judging the case of a particular accused has to weigh the evidence given against him in court keeping in view the fact that the earlier statements of witnesses as recorded by the police is tainted record and has not as great value as it otherwise would have in weighing all the material on the record as against each individual accused." 11. To support the prosecution story the testimony of Soorajmal (PW 6) goes a long way. His statement at the trial fully supports the prosecution case. The veracity of his statement has, however, been impeached from the version that has been recorded in Ex. P/5. He was confronted with the various portions of the versions made in First Information Report Ex. P/5 and he denied to have made them. Ex. D/6 is the statement recorded by Shri Devendra Singh after the first information report Ex. P/5 was recorded. In view of our finding recorded herein before that the investigation made by Devendra Singh is not above board and is rather tainted we would not attach any importance to the various contradictions which have been pointed out from Ex. P/5 and Ex. D/6. His statement at the trial is in complete accord with the content's of his application Ex. D/7. Mr. Agrawal pointed out by referring to portion A to B in Ex. D/7 that he mentioned 15 persons as the perpetrators of crime. On this premise, he has built up an argument that Soorajmal (PW 6) has himself included the two persons about which he had alleged that they were wrongly included by the Investigating Officer. We are not impressed by this argument. When we read Ex. D/7 as a whole we find that he had mentioned specifically the names of 13 persons, who, according to him joined to constitute the unlawful assembly. We are not impressed by this argument. When we read Ex. D/7 as a whole we find that he had mentioned specifically the names of 13 persons, who, according to him joined to constitute the unlawful assembly. In the portion A to B it has been clearly stated that the above said persons joined in beating Madan to death, and their names were mentioned to the Station House Officer, but he deliberately wrote the names of five only for causing the death of murder of Madan. However, in giving the figure after 'above said persons' instead of 13, 15 had been given. This is obviously a clerical mistake. We cannot as well ignore the fact that Sooraj Mal is an illitrate person. The application was got written by a petition writer at Kota yet from the contents and the context we are unable to read that he meant to refer to 15 persons, when in the earlier part of the application 13 persons have been specifically named. This discrepancy cannot be seriously taken note of as it appears to have occurred by accidental slip. We have been taken through his statement Ex. D/9 which was recorded by the Committing Court. We find no serious discrepancy in that statement to the one that he had made at the trial. The statement of this witness at the trial is also consistent to the statement made by him before the C.I.D. Inspector (Police) on 6.10.68. If we exclude from consideration as we think, we should the in consistencies and the discrepancies arising from his statement Ex. D/6 and the F.I.R. Ex. P/5, there is hardly anything which go to make his statement unreliable. We have discussed the reasons as to why we should not place reliance on Ex. P/5 and the statement Ex. D/6 recorded by the Station House Officer Devendra Singh. In this view of the matter we are clearly of the opinion that Sooraj Mal (PW 6) is a truthful witness. The learned trial Judge found his statement partly unreliable only because of Ex. P/5 and Es. D/6. 12. Mst. Mathuri P.W. 1 is the mother of the deceased. In her statement she gave the names of all the 13 accused who came to her house in search of Madan and they were armed with weapons. The learned trial Judge found his statement partly unreliable only because of Ex. P/5 and Es. D/6. 12. Mst. Mathuri P.W. 1 is the mother of the deceased. In her statement she gave the names of all the 13 accused who came to her house in search of Madan and they were armed with weapons. On hearing that the accused had come her son Madan ran away, and all the 13 accused chased him clearly indicating that they wanted to kill him. Sooraj Mal, her stepson who in the 'Bara' nearby also saw the thirteen accused, armed with weapons. He also took to this heels. She also followed the accused for some distance but she had come back. She informed the court that Sooraj Mal & Madan did not return to the house in the night. Sooraj Mal came back to the house in the morning to inform her that Madan had been murdered. No infirmity has been pointed out in her statement. 13. P.W. 2 Kana the uncle of deceased saw 13 accused chasing Madan and Sooraj Mal. He named them. He stated that Chhitar and Ramdayal had swords with them and Jagannath son of Baij Nath had a gun with him and the other accused were with Kuntiaya or lathies. He also attested the recoveries of the various articles near the dead body of Madan at Modu's house. To some extent he also corroborates the statement of P.W.6. 14. As regards Bhanja (PW 4) we cannot place reliance on his testimony. Mr. Agrawal pointed out from his statement that in the examination in chief though he named all the five appellants, but in cross examination he stated that he could not identify the five accused because it was sun set. We do not agree with the learned trial Judge in having used his testimony to corroborate the statement of Sooraj Mal (Pw 6) PW 3 Gopal is another witness who cannot be relied upon. Though he is the maternal uncle of Sooraj Mal but he has told lies in the court in more than one respect. he was declared hostile. We do not subscribe to the view of the trial Judge that his testimony can be availed of as a corroborating evidence. 15. Now we will turn to the evidence of PW 5 Bheru Lal, PW 9 Gyarsi Ram, PW 10 Samunder Singh and PW 11 Birdhi Ram. he was declared hostile. We do not subscribe to the view of the trial Judge that his testimony can be availed of as a corroborating evidence. 15. Now we will turn to the evidence of PW 5 Bheru Lal, PW 9 Gyarsi Ram, PW 10 Samunder Singh and PW 11 Birdhi Ram. All these persons belong to village Tarda Bherulal all had gone to Biran by train to make certain purchases from the 'hat' which took place a Baran on the date of incident being Friday. he met Gyarsi (PW 9) at the railway station Baran. They both went to the Bazar and did not shopping. In the evening they were coming back on foot. While they were near the crossing on which the water hut is situated, they met the other two witnesses Samunder Singh and Birdhi Lal who had also gone to Baran on foot in the morning for marketing and were coming back. Thus these four persons were going back to their village Tarda. They reached near village Malkheri, where from there are two ways; one is known as Gadar (cart-road) and other is 'Pagdandi' (foot-track) for reaching Tarda they took to the Pagdandi. When they reached the field of Mandeda they saw also Sooraj Mal running towards them. They saw Madan 13 persons were chasing him. They saw Madan being dragged on Rama field & then attacked by them. There is some discrepancy with regard to the weapons that the accused person were holding. But this discrepancy is not material in view of the fact that the accused persons were 13 in number and it was just sun set. The witnesses are however, unanimous that the accused persons were 13 in number and they inflicted injuries to Madan by the weapons which they were in possession of. When they and PW 6 Sooraj Mal wanted to intervene one of the who was holding a gun, threatened them to serious consequences if they went near Madan PW 5 knew Kedar and Ram Narian by name and others only by face PW 9 Gyarsi Ram knew the accused Modu. Sooraj and Chittar accused were known to him by face PW 10 Samunder Singh PW 11 Birdhi Lal identified Kadar as having dragged Madan to the field of Rama and said that Sooraj Mal accused was the first to have inflicted a blow by Kuntiya to Madan. Sooraj and Chittar accused were known to him by face PW 10 Samunder Singh PW 11 Birdhi Lal identified Kadar as having dragged Madan to the field of Rama and said that Sooraj Mal accused was the first to have inflicted a blow by Kuntiya to Madan. All those witnesses pointed out Jagannath accused as one holding the gun and scaring them not to go near Madan to save him. These witnesses are also unanimous that after Madan died his dead body was lifted on the lathies and Kuntiays & taken away towards the north. 16. Learned trial Judge disbelieved their evidence on the ground that their names were not disclosed by Sooraj Mal (PW 6) to the Investigating Officer. No were their names mentioned in the F.I.R. Ex. P/5. We have held above that the report recorded by Shri Devandra Singh (PW 15) and the investigation record prepared by him is of little value as it appears to us to have been tainted. In the complaint Ex. D.7 which was submitted by PW 6 Sooraj Mal to the Superintendent of Police Kota, their names have been mentioned. In their testimony they did not mention the names of all the accused. They spoke only about those whom they knew and could recognise at the place of occurrence. In our opinion reliance can be placed on these witnesses at least to this extent that the incident had taken place at the field of Rama in which thirteen persons belaboured Madan and after having caused fatal injuries to him, his body was taken away by them on their lathis and kuntiyas. Out of the said thirteen persons Modu, Kedar, Ram Narain, Sooraj Mal (accused) Chhitar and Jagannath were named by them. 17. The medical evidence clearly disclosed that out of 19 injuries Madan had sustained six fractures, (five of them on the head), four punctured would (three on the skull) and three incised wounds. The incised wounds, according to the doctor, could be caused by sword. Most of the fractures were on the head and were serious in nature. The four punctured wounds were also serious and each one of them was sufficient to cause death in the ordinary course of nature. Having regard to the number and nature of the injuries it can be safely said that a number of persons with different type of weapons caused these injuries. 18. The four punctured wounds were also serious and each one of them was sufficient to cause death in the ordinary course of nature. Having regard to the number and nature of the injuries it can be safely said that a number of persons with different type of weapons caused these injuries. 18. Again there is evidence of motive. Accused Modu had mortgaged his land with Panna Lal. Panna Lal gave this land to Madan for cultivation, Sooraj Mal (PW. 6) deposed that accused Modu had told Madan more than once not to cultivate the land and to leave the land in his favour. Madan was not prepared to give up the land. This was resented to by Modu and it provided a motive to him to take revenge upon Madan. Witnesses examined on behalf of the defence have not been believed by the trial Judge; and in our opinion rightly. Learned counsel appearing on behalf of the accused appellants did not as well place any reliance on the evidence of the defence witnesses. He did not refer to them at all in his arguments. Suffice it to say that no case of alibi is made by any of the accused. 19. Thus from the totality of the evidence it is more than clear that Modu with twelve persons forming into an unlawful assembly went to Madan's house with the common object to kill Madan. The case of the other eight accused, who have been acquitted by the trial judge, is not before us. In our judgement, the learned trial Judge had fallen into an error in disbelieving the statement of Sooraj Mal (PW. 6) as regards those eight accused on account of the discrepancies found in the first version of the witness as recorded by the Investigating Officer in Ex. P.5, as he did not take notice of the facts that the investigation done by PW 15 Devendra Singh was not fair and above suspicion. In any case the participation of the accused appellants is established beyond doubt and as such we find the convictions of these appellants under section 302 read with 149 IPC as proper and we confirm the same. 20. The conviction of the appellants under section 148 has not been attacked. We are satisfied from the testimony of PW 6 and PW 1 that they were armed with deadly weapons. 20. The conviction of the appellants under section 148 has not been attacked. We are satisfied from the testimony of PW 6 and PW 1 that they were armed with deadly weapons. Accordingly convictions and sentences under section 148 are upheld. 21. Before parting with the case, we take it to be our duty to point out the police administration about the manner in which the investigation has been conducted in this case. According to the informant, the FIR was not recorded in the morning by Shri Devendra Singh Station House Officer, Baran, when it was lodged. He proceeded to the spot where the dead body of Madan was alleged to be lying and ordered the informant to be kept at the police station, till he returned. He was permitted to go only when the SHO came back in the evening and the post mortem of the dead body had been done. In fact he was allowed to go to arrange for cremation of the deceased. It was then, that the first information report was said to have been prepared, and the signatures of the informant were obtained next morning. He was also charged to have given a distorted version of the case in the report. He did not faithfully record the report. He omitted to mention the names of five persons as culprits, and included two innocent persons. He proceeded with the interrogation of the prosecution witnesses in accordance with the case, he made out in the FIR. The Superintendent of Police Kota, on the complaint of the informant (Ex. D/7) took the investigation of the case from his hands and transferred it to Shri Om Dutta a CID Inspector Police. The exact reasons for transferring the investigation are not before us, but the Superintendent of Police must have had some reason which necessitated the transfer of the investigation. However, the eventual submission of the charge sheet against all the thirteen accused mentioned in the complaint (Ex. D/7) supports the accusation against the conduct of Shri Devendra Singh and it raises a serious doubt in the investigation done by him. If the said officer had manipulated the report Ex. P/5 & continued to make the record of the investigation in accordance with the case he made out in the first information report, it is a serious reflection on his conduct. If the said officer had manipulated the report Ex. P/5 & continued to make the record of the investigation in accordance with the case he made out in the first information report, it is a serious reflection on his conduct. He has even succeeded in achieving his object when the eight accused persons obtained their acquittal from the court of sessions on the ground of discrepancies in the FIR which if the allegations are correct, were his own creation & the subsequent statements at the trial. We have also indicated above that in some respect, his investigation had been very perfunctory. All this reveals a serious case of misconduct on the part of the investigating officer, and in our opinion, his conduct in the case deserves a real probe. We have no manner of doubt that the administration will be equally anxious to eradicate corruption, and desirous to improve their investigating force who are in law entrusted with the sacred duty of a very responsible nature to investigate into minor as well as major crimes and to bring the real culprits to book. The Registrar of this court will send a copy of this judgement to the Inspector General of Police, Rajasthan, Jaipur for such action, as he may deem fit with the circumstances of the case. 22. The Public Prosecutor, who appeared for the State in the trial court has shown lack of vision and carelessness in having given up Shri Om Dutta a CID Inspector Police from examining him as a witness for the prosecution. Shri Om Dutta completed the investigation and submitted the charge sheet against the 13 accused persons and he had been cited as a witness in the calender. yet he was not produced on behalf of the prosecution for no apparent reason to account for. From the order sheet, it appeared that the public Prosecutor had given him up. This is a serious lapse on the part of the prosecution agency. 23. For the reasons mentioned above, the appeal fails and it is hereby dismissed. *******