JUDGMENT 1. - Appellants Birma and Udailal have been convicted and sentenced by the learned Sessions, Judge, Jhalawar, as under: 1. Appellant Birma : (i) under section 307 to rigorous imprisonment for 5 years and a fine of Rs. 2000/- or in default further rigorous imprisonment for six months. (ii) under section 326 IPC rigorous imprisonment for 4 years and a fine of Rs. 2000/- or in default further rigorous imprisonment for three months. 2. Appellant Udailal : rigorous imprisonment for 3 years and a fine of Rs. 1000/- or in default rigorous imprisonment for three months under section 307-34 IPC. No separate sentence was awarded to Uda under section 326-34 IPC although he was convicted there under. 2. The case of the prosecution as registered with the police on June 18,7, 1977, at 8 a. m. is like this, Ram Lal PW 3, left his village for going to village Deoli on some private business on January 18, 1977 morning. He had gone hardly half mile from the village when he saw Birma and Uda accused sitting near a well of Bapu Lohar. The story given in the F. I. R. is that Uda, who was not named in the F. I. R., caught hold of Ram Lal and held him in hostile embracing from behind. Birma who was armed with an axe struck it on the neck of Ramlal. Two witnesses Amarlal, PW 5. and Nathu, PW 4, who were also not named in the F. I. R., are alleged to have rushed to the rescue of Ram Lal. On seeing them the culprits ran away. The injured Ram Lal walked back to the village and went to his house. His father, who had in the meantime gone out in the fields to answer the call of nature had to be called back. On the return of his father to his house Ram Lal narrated the occurrence to him mentioning to that Birma had inflicted the injury to him. He did not, however, mention the name of the other accused, namely, Uda or the names of the alleged eye witnesses of the occurrence. 3. Uda Lal, the father of Ram Lal injured, immediately went to the police station and lodged the F. I. R. there. He did not, however, mention the name of the other accused, namely, Uda or the names of the alleged eye witnesses of the occurrence. 3. Uda Lal, the father of Ram Lal injured, immediately went to the police station and lodged the F. I. R. there. He told the police that his son, who had become unconscious as a result of the injury, would himself disclose the name of the second assailant. 4. Dr. R. C. Dube, who examined the injured shortly after the occurrence found one clean cut transverse incised wound 31/2" x 11/2" x 2" over front of the neck just below thyroid catrilage. He gave his opinion that the injury was dangerous to life and after infliction of this injury the victim was not in a position to speak. 5. The investigating officer recorded the statement of the injured in the hospital on July 3, 1978. He named Nathu and Amar Lal as the eye-witnesses of the occurrence. He named Uda as his second assailant who had held him in hostile embrace, thus facilitating the injury to him by the other accused. On completion of the investigation, the police sent up both Birma and Uda for trial under section 307 and 307-349 IPC or in the alternative under section 326 IPC for making an attempt on the life of Ram Lal and causing grievous hurt to him. He charged the other accused, namely, Uda, under section 307-34 IPC. In the alternative he was charged under section 326-34 IPC. 6. It may straightaway be mentioned here that the charges framed by the learned Sessions Judge against both the appellants, in the alternative, were wholly unnecessary. In the case, he could not legally convict the appellants both under section 307 and 326 IPC. The offence of 307 IPC comprehends the minor offence of 326 IPC. I accordingly cancel the charge under section 326 IPC framed against Birma and the charge under section 326-34 IPC against Uda. The convictions and sentences of the appellants on the alternative charges are, therefore, set aside. 7. Turning now to the conviction of Birma under section 307 IPC and of Uda under section 307-334 IPC, the learned Judge has convicted them only on the basis of the testimony of the injured himself. The convictions and sentences of the appellants on the alternative charges are, therefore, set aside. 7. Turning now to the conviction of Birma under section 307 IPC and of Uda under section 307-334 IPC, the learned Judge has convicted them only on the basis of the testimony of the injured himself. It will be seen that the learned Judge has rejected the testimony of Nathu PW 4 and Amar Lal PW 5 as unreliable. I am also of the same opinion that the presence of Nathu PW 4 and Amar Lal PW 5 at the scene of occurrence is doubtful. Their names were not mentioned in the F. I. R. Their statements were recorded by the Investigating Officer on July 3 and 7, 1977. They are close relations of the injured. That being so the learned trial Judge was prudent enough to ignore their testimony as unreliable. 8. This brings me to the testimony of Ram Lal injured himself. His statement was recorded by the Investigating Officer on July 3, 1977. It was only on July 3, 1977, that he disclosed for the first time the name of the other accused namely Uda and the names of the alleged eye witnesses namely Amarlal and Nathu. If Udalal, father of the injured, who lodged the F. I. R. is to be believed, the injured had himself given him the version of the occurrence which he described to the police in the F. I. R. If no one fails to understand why the injured did not disclose the name of Uda, the second accused and of Amarlal and Nathu the prosecution witnesses. Learned counsel for the defence has submitted that since there was old enmity between the parties, Udailal mentioned the name of Birma accused in the F. I. R. on his own and that when the injured regained consciousness there was no option left open to him except to support the statement of his father and add the name of another envy as the second assailant. Learned counsel also argued that since the injured did not hesitate to introduce the names of two false witnesses at that late stage, his evidence deserves to be rejected as a whole. 9. I have examined the statement of Ramlal injured in the light of the submission made by the appellants learned counsel and find that his evidence does not inspire much confidence. 9. I have examined the statement of Ramlal injured in the light of the submission made by the appellants learned counsel and find that his evidence does not inspire much confidence. He admitted his enmity with Birma in that he had some two years before the occurrence, implicated Birma in a theft case. He would have us believe that the police had interrogated him in the hospital on the day of occurrence itself and recorded his statement there. The statement under section 161 Cr. P. C. would however show that it was recorded on July 3, 1977, i. e. more than a fortnight after the occurrence. Ram Lal further testified that he had become unconscious immediately after narrating the occurrence to his father and that thereafter he regained consciousness in the hospital after a long time. If he had become uncounclous by the time his father returned home. It is on the face of it, ridiculous to suggest that he maintained his consciousness till the return of his father home and that he became unconscious immediately after narrating the occurrence to his father. 10. Dr. R.C. Dube has testified that with the infliction of this injury on the neck of Ram Lal he was not in a position to speak at all. This opinion of Dr. Dube appears to be correct. That is why the F. I. R. is a document containing incomplete account of the prosecution story. It appears that Udailal, father of the injured, gave in the F. I. R. only such version as he could himself reconstruct without any assistance from the injured.For all the reasons the conviction of the appellants cannot possibly sustained on the evidence of Ram Lal injured. The appeal is allowed. The conviction and sentences of the appellants are set aside. They are instead acquitted. They shall be released forthwith if in custody and if not required to be detained in any other case.Appeal allowed. *******