JUDGMENT 1. This is an appeal against the judgment of the learned Sessions Judge, Alwar dated December 17, 1973, whereby the accused-appellants were convicted and sentenced to various terms of imprisonment as detailed in the judgment. 2. The facts of the case, in brief, are that deceased Bhagwan Sahay went to the village Nasopur at about 8 P. M. on May 21, 1973 for getting the iron `'Kush" mended. In the village he witnessed a "binora" procession and talked to some of his known persons, and returned from there at about 1 a. m. for his house. When Bhagwan Sahay reached near the house of Devisingh accused, accused Devisingh inflicted a lathi-blow on him. Bhagwan Syhay started running for his safety. But Devi Singh chased him. When Bhagwan Sahay came near the "nohra" of one Umaid, accused Medsingh Siriya, Dhani Ram, Baibeer, Nanda Ram, Badlu, Parbhati and Umaid, who were all armed with lathis and jailers, surrounded him. These accused persons dealt lathi and jaily blows on Bhagwan Sahay, and then dragged him inside the house of Med Singh, Baibeer and Nandaram accused were exhorted that he should be done to death. The house of Med Singh was bolted from inside. Med Singh and his brother Dhani Ram, Shri Ram alias Siriya and Baibeer resided in the same house. Bhagwan Sahay continued to cry for help for one and a half hour, and thereafter his shrieks and cries were not heard. Sheokaran, Data Ram and Bal Mukund witnessed the "binora" alongwith deceased Bhagwan Sahay. They were ail sitting in the house of one Deep Chand, who was also witnessing "binora". Sheo Karan thereafter went to the well of deceased Shagwan Sahay to inform his brother Pooran Singh. This well is said to be about a mile away from the place of occurrence Sheo Karan reached the well at about 4-30 a.m. & informed him about the occurrence. Pooran Singh then went to the Police Station, Kotkasim at about 5 a. m. and narrated the incident orally to the ASI, as the SHO was not there. The ASI, however, asked him to bring a written report. Pooran Singh then went to the market and got the report written by one Shamsher Siqgh. He then lodged the written report Ex. P/8. The ASI, however, asked him to bring a written report. Pooran Singh then went to the market and got the report written by one Shamsher Siqgh. He then lodged the written report Ex. P/8. A case under Sections 364, 147, 148, 149 & 342, IPC was registered by the SHO Mahesh Chand Katara, and the investigation was handed over by him to the Head Constable Ram Chandra. A formal FIR Ex. P/20 was drawn up and signatures of Pooran Singh were obtained on it. The Head Constable Ram Chandra PW/8 visited the place of occurrence. On his way, Data Ram and Balu Ram met him. He recorded the Statement of Data Ram. He then went to the house of Med Singh which was bolted from outside. He unbolted the door and entered into the house, and found the dead body of Bhagwan Sahay in the chowk. The inquest report site plan and site-notes Ex. P/9 were prepared by him. Soon after SHO Mahesh Chand Katara arrived there and finding that Bhagwan Sahay has died he took up the investigation in his hands. The bloodstained earth near the dead body was seized by him vide memo Ex. P/3, and from near the "poly" vide Ex. P/2. The blood-stained stone from outside the Haweli of Med Singh was also seized vide Ex. P/4 Dhani Ram and Med Singh were arrested on April 25, 1973 vide Ex. P/21, and Ex. P/22, Hari Singh, Shri Ram alias Siriya, Umaid Singh, Parbhati, Nandram Devi Singh and Badlu were arrested on 31st May, 1973 vide memo Ex. P/23 to Ex. P/29. Accused Baibeer was arrested vide Ex. P/30. Accused Nandram and Baibeer gave information vide memos Ex. P/36 and P/37 regarding jaily and got the same recovered vide memos Ex. P/18 and Ex. P/19. On the information of the other accused persons lathis were recovered vide memos Ex. P/31 to Ex. P/35 and Ex P/38 to Ex. P/40 and got the same recovered vide memos Ex. P/10 to Ex. P/17. The jaily recovered at the instance of Baibeer and other blood-stained articles were sent for chemical examination. The body of Bhagwan Sahay was sent through foot constable Ram Chandra PW/5 to Kotkasim Hospital where the autopsy on the dead body was conducted by Dr. Rajendra Kumar PW/1. The blood stained clothes of the deceased were also sent for chemical examination. The jaily recovered at the instance of Baibeer and other blood-stained articles were sent for chemical examination. The body of Bhagwan Sahay was sent through foot constable Ram Chandra PW/5 to Kotkasim Hospital where the autopsy on the dead body was conducted by Dr. Rajendra Kumar PW/1. The blood stained clothes of the deceased were also sent for chemical examination. Investigation was conducted from the witnesses, and thereafter the accused were charge sheeted before the court of Munsiff-Magistrate, Kishangarh, who conducted the committed enquiry and committed the accused persons to stand their trial before the court of Sessions for the charges under Section 147, 148, 302 or 302/149 or 302/34, 364 and 342 IPC. 3. The learned Sessions Judge acquitted Umarao, Badlu, Parbhati and Hari Singh of all the offences with which they were charged. 4. It was contended on behalf of the accused appellants that the learned Sessions Judge erred in law in convicting the accused-appellants under section 302 read with section 149 IPC, as the injuries on deceased Bhagwan Sahay were not on the vital parts of his body. It was further contended that the First Information Report lodged with the police cannot inspire the confidence of this Court, and constitutes a sufficient ground for disbelieving the prosecution story. It was further contended that there was enmity between the accused and the family of the deceased and as such, the accused-appellants have been falsely implicated. It was further contended that the three eye-witnesses, namely PW/3 Data Ram, PW/4 Sheokaran and PW/9 Bal Mukund cannot be said to be wholly dependable witnesses as their statements were recorded under section 164. Cr. P.C., and that there are material contradictions in their statements. It was also contended that even if the prosecution witnesses are believed, the case against the accused-appellants squarely falls under section 326 IPC and not under section 302 IPC. 5. On behalf of the state, it was contended that there is no reason to disbelieve the sworn testimony of the three eye-witnesses. It was further contended that from the medical evidence it is amply born out that the injuries caused to Bhagwan Sahay were sufficient in the ordinary course of nature to cause death, and that there are no grounds justifying any interference in the order of the learned Sessions Judge. It was also contended that there is no merit in the appeal which deserves 'to be dismissed. It was also contended that there is no merit in the appeal which deserves 'to be dismissed. 6. The statements of the accused-appellants under, Section 342, Cr. P. C. were recorded. They pleaded not guilty, and Claimed to be tried. The accused appellant, Baibeer Singh, pleaded alibi and in support of his plea of alibi he examined DW/1 Raj Kumar, and DW/2 Malkan Singh. Accused-appellant Nand Ram also took the plea of alibi and in support of his plea examined DW/3 Dilip Singh and DW/4 Lal Singh. Accused Med Singh and Dhani Ram claimed right of private defence. 7. The contention of the learned counsel for the appellants and the learned Public Prosecutor have been considered and the record of the case carefully perused. The First Information Report was lodged by PW/2 Pooran Singh, the elder brother of deceased Bhagwan Sahay. Pooran Singh was at his well when Sheokaran informed him about the occurrence. He has stated that he reached the police station at about 5 a.m. where he met the head constable. The head constable told him that he should get the report written and then submit it. Pooran Singh went to the Bazar and got the report written by one Shamsher Singh. He came back in a half-hour's time and submitted the written report. 8. PW/3 Data Ram stated that Balmukund, Sheokarn, Balram, Deepchand, Banwari, Doli and he were smoking "hukka" on the night intervening 21st and 22nd May, 1973. At that time, there was a "binora" procession of a marriage party in the village. After the procession had returned these fellows continued chitchatting. At about 1 a. m. Bhagwan Sahay said that he is going to his well. When Bhagwan Sahay reached near the house of Devi, Devi weilded a lathi blow on him. Bhagwan Sahay started running, but Devi carrying a lathi chased him. While running when Bhagwan Sahay reached near "nohra" of Umaid he was surrounded by Dhani Ram, Shri Ram, Med Singh, Baibeer, Nandram, Badlu, Parbhati, Umarao and Hari Singh. Nand Ram and Baibeer had jailies while the other persons had lathis with them. All these persons started belabouring Bhagwan Sahay with lathis and jailies. Bhagwan Sahay fell down on the ground but he was lifted by these persons and carried him in the house of Med Singh. Nand Ram and Baibeer had jailies while the other persons had lathis with them. All these persons started belabouring Bhagwan Sahay with lathis and jailies. Bhagwan Sahay fell down on the ground but he was lifted by these persons and carried him in the house of Med Singh. The doors of the house were closed and these people started beating Bhagwan Sahay with lathis as the sound of the lathi blows were coming out from the house, and the cries and shrieks of Bhagwan Sahay were also being heard. After an hour and a half the cries and shrieks of Bhagwan Sahay were not heard. In the morning at about 9 a. m. when the police came, the doors of the house of Med Singh were opened, and the dead body of Bhagwan Sabay was found lying in the chowk, PW/3 Data Ram, Bal Mukund, Deepchand etc. tried to rescue Bhagwan Sahay, but they were threatended with dire consequences. There was sufficient moonlight in which these accused- persons could be clearly identified. The witness was cross-examined at great length, but nothing substantial could be taken out from him, and he remained unshaken. 9. PW/4 Sheokaran has stated that on the intervening night of 21st and 22nd May, 1973, there was a marriage in the village and a "binora" procession was taken out. He alongwith Data Ram, Bal Mukund, Deepchand and deceased Bhagwan Sahay were sitting. At about 1 a. m. Bhagwan Sahay started for his well, while the other persons kept sitting. When Bhagwan Sahay reached near the house of Devi he was attacked by him by lathi; but when Bhagwan Sahay tried to run, Devi carrying a lathi chased him. When Bhagwan Sahay came near the nohra of Umaid all these persons surrounded him and weilded jaily and lathi blows. Nand Ram and Baibeer had jailies and the others had lathis. When these persons wanted to intervene, the accused persons threatened them and said that they would also beat them. After assaulting Bhagwan Sahay, the accused persons carried him in the house of Med Singh and closed the doors and then again started beating his as was evident from the sound of the lathi blows. This witness then informed Pooran, the brother of Bhagwan Sahay, who lodged the Complaint. After assaulting Bhagwan Sahay, the accused persons carried him in the house of Med Singh and closed the doors and then again started beating his as was evident from the sound of the lathi blows. This witness then informed Pooran, the brother of Bhagwan Sahay, who lodged the Complaint. The police came in the morning and got the doors of the house of Med Singh opened, and found the dead body of Bhagwan Sahay lying in the chowk. 10. PW/9 Bal Mukund has practically supported and corroborated the statements of PW/3 Data Ram and PW/4 Sheokaran. This witness was a also cross-examined at length, but he has stood the test of cross-examination very well, and could not be shaken. 11. PW/1 Dr. Rajendra Kumar is the Medical officer who conducted the postmortem on the dead body of deceased Bhagwan Sahay on 22nd May. 1973. The body of the deceased was well-built and well-nourished. Rigor mortis was present all over the body. He found the following injuries on his personExternal injuries 1. Penetrated wound 1 cm x 1 cm x 3 cm deep on the front of right leg in middle. 2. Penetrated wound 1 cm x 1 cm x 21/2 cm deep on front of right leg in middle 1 cm below the injury No. 1. 3. Penetrated wound 1 cm x 1 cm x 3 cm deep on front of right leg in upper part. 4. Fracture of both bones of right leg in upper 1 /5th the broken end of bones was seen out of skin with ecchymosis around. 5. Fracture of both the bones of right lower arm in upper part with ecchy-mosis around. 6. Fracture of both the bones of left lower arm in lower l/5th with ecchy-mosis around. 7. Fracture of both the bones of left lower end with ecchymosis around. 8. Penetrated wound 1 cm x 1 cm x 6 cm in lower end of tight thigh. 9. Penetrated wound 1 cm x 1 cm x 6 cm in lower end of right thigh 1 cm below injury No. 8. 10. Penetrated wound 1 cm x 1 cm x 4 cm in lower end of left leg I cm above injury No. 10. On opening the dead body, he found the following injuries 1. There was fracture of 2nd and 3rd cervicle vertibrae. 2. 10. Penetrated wound 1 cm x 1 cm x 4 cm in lower end of left leg I cm above injury No. 10. On opening the dead body, he found the following injuries 1. There was fracture of 2nd and 3rd cervicle vertibrae. 2. There was rupture of spinal cord at the level of c-2 and c-3 vertibrae i. e. cervicle vertibrae 2nd and 3rd. 12. The cause of death in the opinion of this witness was shock and haemorrhage caused by above injuries. In the ordinary course of nature the injuries above were sufficient to cause death. All the injuries except the injuries detected on internal examination were ante-mortem in nature, and the injuries found on cervicle vertibrae and spinal cord might be ante-mortem or post-mortem in nature. He has further stated that ali the external injuries on the body of the deceased were on non-vital parts of the body. These external injuries were of such a nature that if timely medical aid had been given the injured might have survived. He has further stated that injury to cervicle vertibrae alone was not sufficient in the ordinary course of nature to cause death. He has further stated that had there been no injury to the cervicle vertibrae and the spinal cord the other injuries collectively in the present case would have been sufficient to cause death. Injuries No. 1, 2, 3, 8, 9, 10 and 11 detailed in the post-mortem report are simple in nature. Injuries No. 4, 5, 6 and 7 are grievous in nature. 13. PW/2 Pooran Singh has stated that he had gone to the Police Station at about 5 a. m., but he was asked by the Head Constable to get a written report. He went to the market and got a report written by Shamshersingh, and came back after half an hour or so. The FIR Ex. P/20 shows that the report was lodged at 8-20 a. m. on 22-5-1973. There is evidence on record that the SHO was not at the police station, when Pooran Singh wanted to lodge the report. As the FIR was a written one, the apprehension of the learned counsel for the accused-appellant is that there existed suspicious circumstances for disbelieving the First Information Report seem to be wholly unfounded. There is evidence on record that the SHO was not at the police station, when Pooran Singh wanted to lodge the report. As the FIR was a written one, the apprehension of the learned counsel for the accused-appellant is that there existed suspicious circumstances for disbelieving the First Information Report seem to be wholly unfounded. Pooran Singh must have handed over the written FIR at about.6 a. m., but the time has been shown as 8-20 a. m. When the SHO came to the police station. This minor discrepancy. in our considered opinion, does not lead to the inference that there has been any manipulation or pre-consultation in lodging the First Information report. 14. The contention of the learned counsel for the accused-appellant that an adverse inference should be drawn against the prosecution for having failed to examine Shamshersingh is equally without force. Shamshersingh was only a scribble who wrote the report as told by Pooran Singh. Shamshersingh is not, in any way, connected with the commission of the offence, and is not an eye-witness. The failure on the part of the prosecution to have examined the scribe, Shamshersingh, does not call for any adverse inference against the prosecution. 15. The evidence of the three eye-witnesses Data Ram PW/3, Sheokaran PW/4 and Bal Mukund PW/9 clearly established that when Bhagwan Sahay was going to his well, he was initially attacked by lathi by Devisingh. When Bhagwan Sahay wanted to run for his safety, he was chased by Devi Singh, who was carrying a lathi with him. When Bhagwan Sahay reached the nohra of Umaida he was surrounded by these accused persons, and was assaulted by jailies and lathis. Later on, he was dragged and taken to the house of Med Singh. The house of Med Singh was bolted from inside and Bhagwan Sahay was again beaten by the accused persons as was evident from the sound of lathi strokes and by his shrieks and cries. The Medical report shows that Bhagwan Sahay received multiple injuries on non-vital parts. His legs and arms were fractured. When the investigating officer reached the spot, the dead body of Bhagwan Sahay was recovered from the chowk of the house of Med Singh. 16. Accused-appellant Med Singh in his statement under Section 342, Cr. P. C. stated that after mid-night of 21/5/1973, when he was sleeping in his house. His legs and arms were fractured. When the investigating officer reached the spot, the dead body of Bhagwan Sahay was recovered from the chowk of the house of Med Singh. 16. Accused-appellant Med Singh in his statement under Section 342, Cr. P. C. stated that after mid-night of 21/5/1973, when he was sleeping in his house. He heard the cries of the wife of his brother Dhani Ram. She was crying that Bhagwan Sahay has entered into their house for assaulting Dhani Ram. He, therefore, weilded lathi blows on him. His brother Dhani Ram had jaily with him. Dhani Ram also dealt jaily blows in self defence, but he had no intention of killing Bhagwan Sahay. Dhani Ram in his statement under Section 342, Cr. P. C., has stated that Bhagwan Sahay entered into the house at mid-night with "kush" to kill him." He and Med Singh, .therefore, dealt blows with lathi and jaily on him. He has further stated that Med Singh had a lathi with him, while he had a jaily with him. The statements of DW/1 Ram Kumar and DW/2 Malkhansingh do not in any way establish the absence of Baibeer Singh from the scene of occurrence. Similarly, the statements of Dilipsingh and Lalsingh have failed to establish that Nandram was not present at the site of occurrence. 17. PW/1 Rajendra Kumar has categorically stated that all the injuries except the injury detected on internal examination were ante-mortem in nature. Injuries found on cervicle vertibrae and spinal cord might be ante-mortem or post-mortem in nature. In view of this statement of PW/1 Rajendra Kumar, the injuries on the cervicle vertibrae and spinal cord cannot be held to be ante-mortem. In such circumstances, we are left only with the other injuries. He has further stated that injuries No. 1. 2, 3, 8, 9, 10 and 11 were of simple nature, while injuries No. 4, 5, 6, and 7 were grievous in nature. He has also stated that the injuries on cervicle vertibrae and spinal cord alone were sufficient in the ordinary cause of nature to cause death, but he is not sure whether these two injuries were ante-mortem or post-mortem. In the opinion of this witness, the collective effect of these injuries might have been the cause of death. He has also stated that the injuries on cervicle vertibrae and spinal cord alone were sufficient in the ordinary cause of nature to cause death, but he is not sure whether these two injuries were ante-mortem or post-mortem. In the opinion of this witness, the collective effect of these injuries might have been the cause of death. He has also stated that if proper aid would have been available within 4 to 6 hours, the patient could have been saved. Having thoroughly examined the statement of PW/1 Rajendra Kumar, we are incjined to hold that the accused appellants could not believe that the death would be the immediate and instant cause of the injuries No. 1 to 11. Under such circumstances, it would be safer to hold that the offence squarely falls within the ambit of Section 326 IPC. 18. For the reasons stated above, the appeal filed by the accused-appellants is partly allowed. Their convictions and sentences under Section 302/149 IPC are hereby set aside, and they are instead convicted and sentenced under Section 326/149 IPC. We are inclined to hold that the ends of justice, in the present set of circumstances, would be met by sentencing each of the accused-appellants to eight years rigorous imprisonment. The other convictions and sentences passed by the learned Sessions Judge are hereby sustained. The accused appellants are in custody, and shall serve out the sentences awarded to them. The accused-appellants shall, however, be entitled to the set of under Section 428, Cr. P. C., 1973 for the period they remained in custody, during investigation, enquiry or trial. *******