JUDGMENT 1. - This appeal is preferred by appellants Nenia s/o Chimana, Ramu Sjo Shimbhuram, Ramuram s/o Hanutram and Bhanwaria s/o Nena, against the judgment of the Additional Sessions Judge, No. 1, Jodhpur, dated October 22, 1974 convicting and sentencing them as under : S. No. Name of the appellant U/s (I. P. C.) Sentence. 1. Ramu S/o Shimbhuram 326- R. I. for 5 years and a fine of Rs. 100/- 323/34/395 R. I. for 3 months. R. I. for 5 years and a fine of Rs. 200/- 2. Nenia S/o Chimana 326/34 R.I. for 5 years and a fine of Rs. 100/- 3. Ramuram S/o Hanutram 323/34 R.I. for 3 months 4. Bhanwaria S/o Nena 392/34 R.I. for 5 years and a fine of Rs. 200/- 2. The facts according to the prosecution were these. Mst. Heerki was married with Gordhan about 7 or 8 years before the incident. Thereafter, Gordhan became mad. Mst. Heerki, was then divorced according to the customary rites and Rs. 6,000/- and the ornaments were given to Chothuram, father of Gordhan. She was then given in 'nata' marriage to Rewatram. On 10.6.1973, Rewatram had come to take away Mst. Heerki. At about 3 p.m., he went in advance to the bus-stand. Mst. Heerki and her mother, sometime after, followed him to the bus-stand. It was, then in the way, when both of them were crossing a lane in the village, appellant Nenia rushed towards them and caught hold of Mst. Heerki by her pigtail and dragged her into a nearby 'bara', Nenia cried, 'run.run; I have caught hold of Heerki.' On hearing the cries, appellants Ramu S/o Shimbhuram, Ramuram S/o Hanut Ram and Bhanwaria s/o Nena rushed towards the site. They started beating Mst. Heerki and her mother. Ramu s/o Shimbhuram made a cut at the bridge of the nose of Mst. Heerki and when her mother intervened, she was also given a few knife injuries.The appellant also forcefully snatched away 'gold madliyas' from the neck of Mst. Heerki and some other ornaments and a sum of Rs. 150/-. Lumbharam and Jiyaram on hearing the cries, went to the place of occurrence and rescued the victims. The appellants ran away. In the evening, Modaram father of Mst. Heerki and some other ornaments and a sum of Rs. 150/-. Lumbharam and Jiyaram on hearing the cries, went to the place of occurrence and rescued the victims. The appellants ran away. In the evening, Modaram father of Mst. Heerki returned from his work and took the injured to Jodhpur Hospital and lodged an oral report on the same day at 11.30 p.m. at police station, Mahamandir, Jodhpur. Both the injured persons were medically examined. The appellants were arrested during the course of investigation and they made certain disclosure statements leading to the recovery of 'gold madliyas , 'Knife' and 'lathi'. After completing the investigation, a charge sheet was preferred against the appellants in the court of Munsif and Judicial Magistrate, Jodhpur District, who committed the case to the Sessions. The appellants pleaded not guilty to the offence and claimed trial. The learned Additional Sessions Judge believed the two eye witnesses and convicted the appellants as stated above. 3. I have heard the learned counsel for the appellants and the Public Prosecutor for the State and perused the record of the case carefully. 4. It was argued by the learned counsel for the appellants that first information report in the case was a suspicious document and further it was filled with delay. The recovery of 'gold madliyas' from the possession of appellant Nenia is not proved beyond reasonable doubt and it is highly doubtful whether any 'gold ornaments' and sum of Rs. 150/- were taken away from Mst. Heerki. It was further argued that atleast two appellants namely Remuram s/o Hanutram and Bhanwaria s/o Nena had been falesly implicated. It is alleged that they were armed with 'lathis' but injuries with blunt weapons were not found on the person of Mst. Heerki and her mother. As the core of the prosecution case is destroyed, it is not safe to convict Nenia and Ramu s/o Shimbhuram for any offences. Lastly, it was argued that in any case, no offence under section 326, I. P. C. was droved because there was no evidence to hold that the face of Mst. Heerki was permanently disfigured. 5. On the other hand, learned public prosecutor controverted the arguments advanced by the learned counsel for the appellants and supported the judgment of the Additional Sessions Judge, Jodhpur. 6. Heerki was permanently disfigured. 5. On the other hand, learned public prosecutor controverted the arguments advanced by the learned counsel for the appellants and supported the judgment of the Additional Sessions Judge, Jodhpur. 6. Firstly, it was argued that no offence under section 326, I. P. C. was proved because there was no evidence of permanent disfiguration of the face of Mst. Heerki. The argument appearance to be of great force. None of the witnesses stated that the face of Mst. Heerki was permanently disfigured. The medical evidence also is lacking on this aspect of the case. Learned Additional Sessions Judge merely observed that he did not agree with the opinion of the doctor P. Dayal, No doubt, it was argued before him that cut in a nose with a sharp weapon such as a 'knife' necessarily caused permanent disfiguration. However, in the absence of any evidence, about the disfiguration of the race I am of the opinion that no offence under section 326, I. P. C. is made out and learned Additional Sessions Judge was in error in coming to such a finding At best, the appellants could be convicted for the offence under section 324, I, P. C. 7. It was then argued by learned counsel for the appellants that the first information report is a suspicious document. P. W. 7 the maker of the first information report, admitted in the cross-examination that they reached the hospital in the night at about 8 or 9 p. m. He did not disclose the incident to the doctor. The Sub-Inspector of Police came there, after an hour or so. The Sub-Inspector of Police asked him to come to the police station in the morning. He went there at 8 a. m. and the Sub-Inspector of police, took down the statement and obtained his thumb impression on it. He is addicted to opium and, therefore, it was not possible to go to the police station in the night. On the other hand, P. W. 19 Padam Singh deposed that he was S. H .O. Police Station, Mahamandir, Jodhpur on 10-6-1973. P. W. 7 Modaram came there and gave an oral information, which he reduced in to writing, Ex. P./5, Curiously, enough, the witness did not state that at whit time he took down the information given by Modaram P. W. 7. P. W. 7 Modaram came there and gave an oral information, which he reduced in to writing, Ex. P./5, Curiously, enough, the witness did not state that at whit time he took down the information given by Modaram P. W. 7. Learned Additional Sessions Judge believed an entry in Ex P/5 that it was recorded at 11 p. m. on 10-6-1973. In the absence of the statement, of the S. H. O. to this effect, this entry is of Little value. Moreover, see no reason to discard the statement of P. W. 7 Modaram on this point. 8. I am, therefore, of the definite opinion that P W. 19 Padam Singh is not a realisable Investigating Officer and he antedated the F. I. R. which is clearly proved from the testimony of P. W. 7 Modaram. 9. This has an important bearing on the case. The investigation, therefore, is not fair and it is not possible to place any reliance on the evidence of P. W. 19 Padam Singh. Moreover, the first information report is not the product of spontaneity. It is not the first reaction of the witness to the incident and, therefore, the chance of embellishment and improvement in the prosecution case is not ruled out. In any case, it cannot be used to corroborate the statement of the maker of the F. I. R. or to test the maker of the prosecution evidence. 10. This takes me to the question of taking away the ornaments and Rs. 150/-by the appellants. Apart from the statement of Mst. Heerki, P. W. 8 and his mother P. W. 9 Mst. Rukma, the prosecution has tried to prove its case on the basis of the alleged disclosure statement by appellant Nenia, while in police custody and consequent recovery of 'gold madliyas'. However P.W. 19 Padamsingh failed to say in his statement at the trial as to what information was given by appellant Nenia to him. He simply stated that he recovered 'gold madliyas' vide Ex. P/13 The information conveyed by appellant Nenia was Ex. P. 18 Now, Ex. P. 18 and Ex. P. 19 are not substantive pieces of evidence and, therefore, its only use is for refreshing the memory of the maker thereof. He simply stated that he recovered 'gold madliyas' vide Ex. P/13 The information conveyed by appellant Nenia was Ex. P. 18 Now, Ex. P. 18 and Ex. P. 19 are not substantive pieces of evidence and, therefore, its only use is for refreshing the memory of the maker thereof. In extreme cases, where the maker is unable to recall the facts even after going through he cannot recall the facts mentioned, then the memos may serve the purpose of substantive evidence. Such is not a case here and, therefore. I am of the opinion that the prosecution failed to establish from the evidence of this witness Padam Singh P. W. 19 as to what information was conveyed by appellant Nenia. Moreover, I have already observed that it is difficult to place any reliance on the statement of the information conveyed by appellant Nenia, it is not proved beyond reasonable doubt that these 'gold madliyas' were recovered from his possession. The statement of P. W. 8 Mst. Heerki also does not inspire confidence. She also deposed that appellant Nenia snatched away 'gold todias'. When she appeared in the witness box, she was wearing gold 'Todias' and in cross examination stated that only one pair of 'Todias' was prepared by her husband. It would, therefore, mean that only one pair of 'gold' todias was in possession of Mst. Heerki and those she was wearing at the time of trial and and an inference is atleast the gold 'todias' was not taken away in this incident. Gold 'todias' were also not recovered. I, therefore, do not place to put any reliance on the statement of Mst. Heerki or her mother Mst. Rukma, which is not corroborated the recovery of the ornaments. The possibility is, that this was an embellishment in the prosecution case to make it more serious. That appellants have therefore been wrongly convicted for this offence. 11. Once, the possibility of embellishments in the prosecution case is not ruled out the testimony of the eye witnesses have to be scrutinised very closely. No specific role has been assigned to appellant Ramuram S/o Hanutram and Bhanwaria. The victims said that they were given 'lathi' blows by these appellants, this testimony is not corroborated by the medical evidence. The following injuries were noticed during the medical examination the person of Mst. Heerki and her mother Mst. Rukma:- MST. HEERKI : 1. No specific role has been assigned to appellant Ramuram S/o Hanutram and Bhanwaria. The victims said that they were given 'lathi' blows by these appellants, this testimony is not corroborated by the medical evidence. The following injuries were noticed during the medical examination the person of Mst. Heerki and her mother Mst. Rukma:- MST. HEERKI : 1. Incised wound inverted semi lunar shaped just below the bridge of the- nose size being 4.5 cm x. 2 cm. It was skin deep. 2. Incised wound 2 cm x 0.5 cm. on the dorsal aspect of left hand near proximal phallanx of index finger. 3. Bruise 2.5 cm x 2 cm. on left hand at its lateral aspect 10 cm. below the blow joint. MST. RUKMA: 1. Incised wound 2 cm. x 3 cm. on the left parietal region of the scalp. It was skin deep. 2. Incised wound 1.5 cm. x 2 cm. on left lateral aspect of chest at its middle. It was skin deep. 3. Incised wound 4 cm. x 0.1 cm. on the chest left side 10 cm. away from mid-line at about 9th inter-costal space. 4. Ill-defined on left hand. 12. In the opinion of the doctor, the injuries were caused by sharp-edged weapon and were simple in nature. The injury No. 3 on the person of Mst. Heerki and injury No. 4 on the person of Mst. Rukma were caused by the blunt weapon. I am, therefore, of the opinion that the involvement of appellants Ramuram s/o Hanutram and Bhanwaria in the incident or the crime is doubtful. 13. It was then vehemently argued by learned counsel for the appellants that in such circumstances, it will not be safe to shift the evidence of the two eyewitnesses to separate the truth from the false-hood and their evidence should be rejected in toto. 14. I have given anxious consideration to this argument. However, I am of the opinion that the court cannot shirk the responsibility of trying to separate the truth from false-hood from the statements of the witnesses, when their presence at the scene of the incident is not open to any doubt. In some cases, the witnesses might have prevariated to such an extent that it is not possible to shift their evidence. However, this cannot be in every case. The test would be whether the core and subs-ratum of the prosecution case is destroyed. In some cases, the witnesses might have prevariated to such an extent that it is not possible to shift their evidence. However, this cannot be in every case. The test would be whether the core and subs-ratum of the prosecution case is destroyed. The core and substratum of the case is-hat Nenia caught hold of Mst. Heerki and dragged her to a nearby 'bara'. Ramu s/o Shimbhuram inflicted the aforesaid injuries by a 'knife' to Mst. Heerki and when her mother Mst. Rukma tried to intervene, she was also caused the aforesaid injuries. To that extent, the truth can be separated easily from the other embellishment and untruths in the case. It is inconceivable that the two witnesses would substitute Ramu s/o Shimbhuram and Nenia for the real culprits. No motive for such a step is available on the record of the case. I also could not visualise any other manner, in which the incident could have been started nor there is any suggestion in the cross-examination that the incident occurred in some other set-up. In the circumstances, it also cannot be said for a moment that the injuries were self inflicted. It is also inconceivable that the rustic village women like Mst. Heerki and her mother Mst. Rukma could weave out altogether a false story. I, there fore, hold that these two witnesses are reliable to this extent that Nenia dragged Mst. Heerki in a 'bara' where she and her mother Mst. Rukma were caused the aforesaid injuries by Ramu S/o Shimbhuram. This part of the testimony is amply corroborated by the medical evidence. I, therefore, believe them to this extent notwithstanding the various embellishments made by them in magnifying the prosecution case. The learned counsel for the appellant also drew my notice to some minor untruths in the statements of the two witnesses and also to some contradictions. However, they are of no material significance and all the major embellishments have been already noticed and discussed by me. In my opinion, the prosecution has successfully proved that Ramu s/o Shimbhuram is guilty of the offence under section 324 I. P. C. and Nenia is guilty of the offence under section 324 read 34 I P. C. There was prior concert and premeditation for atleast causing some injuries to Mst. Heerki by a sharp weapon. 15. In my opinion, the prosecution has successfully proved that Ramu s/o Shimbhuram is guilty of the offence under section 324 I. P. C. and Nenia is guilty of the offence under section 324 read 34 I P. C. There was prior concert and premeditation for atleast causing some injuries to Mst. Heerki by a sharp weapon. 15. It was, then argued by learned counsel for the appellants that incident occurred in the year 1973. The appellants, therefore, should be awarded substantive punishment of a period already undergone by them. They have remained under detention for over a month. The submission made by learned counsel for the appellants appears to be reasonable. 16. I, therefore, accept the appeal as regards Ramuram S/o Hanutram, and Bhanwaria S/o Nena and acquit them of the offence for which, they were charged. The appeal of appellants Nenia S/o Chimana and Ramu S/o Shimbhuram is partly accepted and they are acquitted for the offences for which, they were convicted. However, Ramu S/o Shimbhuram is convicted for the offence under section 324, I.P.C. and is awarded substantive sentence for a period already undergone by him in detention and a fine of Rs. 1000/ - failing which further rigorous imprisonment for 3 months. Similar sentence is also awarded to Nenia S/o Chimana for his conviction under section 324 read with 34, I.P,C Both appellants Nenia S/o Chimana and Ramu S/o Shimbhuram are given 4 weeks time to deposit the fine in the trial court. The fine if recovered be paid to Mst. Heerki.Appeal partly allowed. *******