JUDGMENT V.K. Mehrotra, J. 1. BY his judgment dated May 25, 1976 in Sessions Trial Nos. 339 of 1975 State v. Giri Singh and others and 156 of 1976 State v. Shanker the Ilnd Additional Sessions Judge, Mathura convicted Jamuna Das, his son Baboo, Sushil, Shanker son of Gappoo and his brothers Hari, Radhey and Ramesh under section 307 IPC read with section 149 IPC, section 148 IPC and section 147 IPC and awarded a sentence of five years rigorous imprisonment with a fine of Rs. 200/- two years' rigorous imprisonment with a fine of Rs. 100/- and one year's rigorous imprisonment (under section 147 IPC to Jamuna Das) respectively making the sentence of imprisonment concurrent. Co-accused Girish and Gappoo were acquitted. Feeling aggrieved, the convicted persons have come to this court in this appeal. 2. THE incident out of which the present case arose is said to have taken place about 8 A. M. on July 20, 1973 when, it is said, the appellants together with the two acquitted co-accused and three more persons surrounded PW 4 Ballabh near the Dharamshala of accused Jamuna Das while he was going to the vegetable market and started belabouring him. Ballabh's brother Ram Babu (PW 1), his nephew Kishno and Mahesh and Hori Lal went running there on hearing the alarm with a view to save Ballabh when appellants Ramesh and Hari fired at them with a view to kill them with country made pistols. Mahesh was hit by pellets. Kishno and Ballabh sustained spear injuries, when they were assaulted near their shop where they had sought refuge. Raj Bahadur Vederia (PW 3) and Shiva witnessed the assault. Amongst the assailants, appellants Ramesh and Hari had country made pistols. Radhey and Shanker had Pharsa. Baboo, Sushil and co-accused Girish had spears while the rest had lathis with them. Ballabh, Mahesh (PW 2) and Kishno who had sustained injuries accompanied PW 1 Ram Babu to Police Station Baldeo at a distance of about six and a half miles from the place of the incident in Qasba Gokul and a report about the assault was lodged at 9.15 A. M. there by Ram Babu. Sub-Inspector Naubat Singh (PW 5) was present when the report was bdged. He entered upon investigation forthwith and eventually submitted a chargesheet against the accused persons on August 14, 1973. Sub-Inspector Naubat Singh (PW 5) was present when the report was bdged. He entered upon investigation forthwith and eventually submitted a chargesheet against the accused persons on August 14, 1973. He had sent the injured persons for their medical examination to the Public Health Centre at Baldeo where the Medical Officer Incharge Dr. Daulat Ram (PW 6) examined their injuries which were found to be as under : (Injuries of Mahesh, Kishno and Ballabh caused to them by fire-arm, sharp cutting weapon and penetrating object quoted-Editor). The injuries had been examined on July 21, 1973 between 1 P. M. and 1.35 P. M. 3. ACCUSED Jamuna Das also lodged a report against PW 1 Ram Babu and 13 other persons the same day at 9.35 A.M. giving his version of the incident. When he went to lodge the report he was accompanied by appellants Baboo, Sushil and Ramesh who had injuries on their person. These injuries were also examined by Dr. Daulat Ram same day and were as follows According to the Doctor, the injuries were superficial in character and could be self-inflicted. 4. AMONGST the various witnesses examined by the prosecution in support of its case, PW 1 Ram Babu, PW 2 Mahesh, PW 3 Vederiaya and PW 4 Ballabh gave an eye witness account of the incident. The testimony of Vederiya was found to be unworthy of belief by the Trial Judge who, however, believed the testimony of the others and convicted the present appellants, as aforesaid after negativing the defence version. During the pendency of the present appeal, appellant Jamuna Das died. His appeal has, thus abated. Amongst the surviving appellants three namely, Baboo, Sushil and Ramesh have asserted that while they were sitting alongwith Jamuna Das on the Chabutara of the Dharamshala, PW 1 Ram Babu and 13 others assaulted them with various weapons with which they were armed and that in order to save themselves and Jamuna Das they took recourse to throwing of brick bats and bottles at the assailants. The other appellants denied their presence and participation at the spot. 5. THE first submission of the learned counsel for the appellants is that the injuries actually found on the person of the victims of the alleged assault by the party of the appellants belie the prosecution version. The other appellants denied their presence and participation at the spot. 5. THE first submission of the learned counsel for the appellants is that the injuries actually found on the person of the victims of the alleged assault by the party of the appellants belie the prosecution version. As such, it is argued that the prosecution case cannot, be held to be proved beyond doubt. There is some substance in the submission. The picture of the assault as contained in the earliest version given out by PW 1 Ram Babu in the report lodged by him is that the appellants, the two acquitted co-accused and three unknown persons surrounded his brother Ballabh and belaboured him. It has been noticed earlier that apart from appellants Ramesh and Hari who had country made pistols with them, the remaining assailants were variously aimed with spears, Pharsas and lathis. Persons so armed were ten in number, apart from Ramesh and Hari. Ballabh, however, was found to have sustained a single stab wound. It is obvious that the correct version is not being placed before the court by the prosecution else one would expect many more injuries on the person of Ballabh. Appellants Radhey and Shanker are said to have been armed with Pharsa. They are also supposed to have assaulted the victims with it. Surprisingly, however, none of the victims, namely Mahesh, Kishno and Ballabh sustained a single injury attributable to a Pharsa. Clearly, therefore, the prosecution witnesses have not stated the truth when they asserted that these two persons also were amongst the assailants and had actually assaulted the victims with Pharsa. There seems to be truth in the statement made by appellants Shanker and Radhey that; they were not present in the village at all on the date of the incident. 6. APPELLANT Ramesh who is said to have been armed with a country made pistol, is one of those appellants who have come out with a counter-version. He has taken the stand, as noticed earlier, that it was the reporter and his group which was the aggressor and that he, alongwith deceased-appellant Jamuna Das, Sushil and Baboo were the victims of the assault and further that they had pelted brick bats, stones, glass bottles etc. in self-defence. He has taken the stand, as noticed earlier, that it was the reporter and his group which was the aggressor and that he, alongwith deceased-appellant Jamuna Das, Sushil and Baboo were the victims of the assault and further that they had pelted brick bats, stones, glass bottles etc. in self-defence. in the version given by him it has not been mentioned as to how were gun shut injuries caused to Mahesh though it has been stated that Kishno (injured) and Chhallo, who were members of the group of the reporter, had fired with country made pistols. The version does not explain the injuries sustained by the victims, namely, Mahesh, Kishno and Ballabh. It is obvious that it is not the whole truth either. Appellants Baboo and Sushil have like appellant Ramesh, came out with a version which is similar to the one put forward by Ramesh. They have also owned that they were present at the place, alongwith deceased Jamuna Das and appellant Ramesh when an incident took place between the two groups. Their version also does not explain the gun shot injuries sustained by Mahesh. Clearly enough, they have not stated the whole truth. 7. THE position that emerges is that neither the prosecution nor the defence has come out with the whole truth. The prosecution story, when tested at the anvil of the medical evidence, appears to be: full of doubts about the number of assailants and the weapons which were actually used by them. 8. THE prosecution, as mentioned earlier, relied upon the eye-witness account of the incident given by the repoter Ram Babo, the two injured Mahesh and Ballabh and one Vederia who was cited as a witness of the incident in the first information report and who alone, amongst the eye-witnesses, is unconnected with the family of the reporter. The trial Judge has not found his testimony worthy of belief. During the course of the discussion of the evidence of this witness, the trial Judge observed that : ".........a perusal of his statement reveals that he had not spoken correct facts and he is not a witness on whose evidence reliance can be placed. The trial Judge has not found his testimony worthy of belief. During the course of the discussion of the evidence of this witness, the trial Judge observed that : ".........a perusal of his statement reveals that he had not spoken correct facts and he is not a witness on whose evidence reliance can be placed. After going through his statement one will come to the conclusion that he is a witness who had not witnessed the occurrence at all........" It is clear that the prosecution has, in its over-zeal, introduced a witness who has not witnessed the occurrence at all. This would add to the infirmity of its case. It has been argued that, inasmuch as, PW 2 Mahesh and PW 4 Ballabh had admittedly sustained injuries at about the time alleged by the prosecution, their presence cannot be doubted and that their testimony should, therefore, be held enough for taking the view that the prosecution has succeeded in establishing its case against the appellants. This submission over-looks that while presence of injuries on the person of these two witnesses may be said to ensure that they were present during the incident, it cannot be a guarantee of the truthfulness of their version about it. A perusal of the statement made by these two witnesses would show that in the first instance they also speak of an assault by a large number of persons, and with various weapons, upon them in the same manner in which it is recited in the first information report. They are, like PW 1 Ram Babu. named as accused persons in a dacoity case initially by deceased- appellant Jamuna Das. Their testimony is clearly of an interested character and in view of the strained relations between deceased-appellant Jamuna Das and PW 1 Ram Babu it is not unlikely that they would be out to support the case set up by the prosecution in the first information report lodged by Ram Babu and would be keen to secure the conviction of the appellants. Implicit reliance, in the circumstances, cannot be placed upon their testimony. 9. THE statement of PW 1 Ram Babu reveals that there was long standing enmity between him and deceased-appellant Jamuna Das. There is a mention of a number of cases between them and of further reasons for the strained relations. Implicit reliance, in the circumstances, cannot be placed upon their testimony. 9. THE statement of PW 1 Ram Babu reveals that there was long standing enmity between him and deceased-appellant Jamuna Das. There is a mention of a number of cases between them and of further reasons for the strained relations. The version that was given by him in the first information report has been found to be descrepant when judged in the light of the injuries actually found on the person of the victims. He has mentioned in his report about the presence of a person, as a witness of the incident, who has been found not to have witnessed it at all. It is obvious that he cannot be credited with having much regard for truth. It will not be safe, therefore, to accept the prosecution case on the basis of his testimony either. 10. IN the result, not-withstanding the acceptance by some of the appellant of their presence near the scene of the incident at about the time of the occurrence, it cannot be held that the incident took: place in the manner alleged by the prosecution. The version put forward by the prosecution, particularly in regard to the number of assailants and the weapons used by them, is not free from doubt. The injuries actually found on the person of the victims on the side of the prosecution were such as could be caused by a fire-arm and a spear. Which of the two persons said to have been armed with country made pistols or which of them armed with a spear was responsible for them also cannot be found out with any amount of certainty the testimony of the eye-witnesses offered by the prosecution is of no avail in this respect as well. Gunshot injuries found on the person of Mahesh could be caused by a single person and so also the spear injuries found on the person of Kishno and Ballabh which could be the result of blows given by one man alone. The prosecution has clearly roped in some innocent persons. It has also introduced a person as an eye-witness who had not witnessed the incident at all. In this state of affairs, it is not possible to uphold the conviction of the appellants. The appeal of Jamuna Das is dismissed as having abated. 11. The prosecution has clearly roped in some innocent persons. It has also introduced a person as an eye-witness who had not witnessed the incident at all. In this state of affairs, it is not possible to uphold the conviction of the appellants. The appeal of Jamuna Das is dismissed as having abated. 11. THE appeal of the remaining appellants, namely, Baboo, Shanker, Sushil, Hari, Radhey and Ramesh is allowed. Their conviction and the sentences awarded to them are set aside. They are on bail to which they need not surrender. Their bail bonds shall stand discharged. --- Appeal dismissed.