JUDGMENT A.R. Navkar, J. 1. This Judgment shall govern disposal of Criminal Appeal No. 153 of 1979 (Ganpatrao v. State of Madhya Pradesh) and Criminal Appeal No. 160 of 1979 (Kamal Kishore v. State of Madhya Pradesh) as well 2. This is an appeal against the order of conviction recorded by the First Additional Sessions Judge, Gwalior, convicting appellant No. 1 Shashank Shekar Mourya under section 148 and 307 of India Penal Code and sentencing him to one year's rigorous imprisonment and five years' rigorous imprisonment respectively and convicting appellants No. 2 and 3, Vijaya Kumar Khare and Anwar Ahmad respectively, under section 148 and 307 IPC read with section 149 IPC and sentencing them to one year's rigorous imprisonment and five years' rigorous imprisonment respectively in Sessions Trial No. 150 of 1978, through Judgment dated 31-5-1979. Both the sentences in case of each appellant are ordered to run concurrently. 3. Appellants and two others were tried for the alleged offences under sections 147, 148, 307 and 307 IPC read with section 149 IPC on an allegation that they formed an unlawful assembly with a common object to attempt at the life of complainant Prahlad Chand Kohli and caused him injuries in furtherance of their common object. 4. The prosecution case, in short, is that the complainant Prahlad Chand Kohli runs a shop at Chitnis-ki-Goth. On 3-7-1978, at about 9 00 a.m., when the complainant Prahlad Chand was standing near the shop of Chetan Tailor, all the accused persons came there and surrounded him. Co-accused Kamal Kishore gave a lathi blow and appellant Shashank Shekar gave a blow by sword, hitting the complainant on his left hand. Another blow by sword hit the complainant on his right hand and head. It is further alleged that appellant Vijaya Khare was armed with a knife and appellant Anwar Ahmad was armed with a country-made pistol (Tamancha). He used the Tamancha for threatening those who were trying to intervene when the two other appellants were giving blows to the complainant. The complainant entered into the shop of one Chetan Tailor and then all the accused ran away. The complainant Prahlad Chand lodged the first information report (Ex. P/1) at Huzrat Kotwali, Gwalior. 5. The defence of the appellants was that they have been falsely implicated. The complainant entered into the shop of one Chetan Tailor and then all the accused ran away. The complainant Prahlad Chand lodged the first information report (Ex. P/1) at Huzrat Kotwali, Gwalior. 5. The defence of the appellants was that they have been falsely implicated. Appellant Shekar pleaded that Police did not arrest him, but he himself went to the Police Station with his uncle. Police took his personal search and out of the money recovered from his pocket, Police purchased a sword from the market and prepared the seizure memo showing that the same was recovered at the instance of Shashank Shekar. Appellant Vijaya Khare also pleaded that he was not arrested by Police, but he himself went to the Police Station. Further, it was said that the witnesses are the close relatives of the complainant and hence, they have falsely implicated him. 6. The prosecution has examined Prahlad Chand Kohli (PW 1), Go-vardhan (PW 2), Dr. V. K. Diwan (PW 3), Dr. Deen Bandhu Dvivedi (PW 4), Purushottam Kiledar (PW 5), Dharamvir (PW 6). Harish Chandra (PW 7), Chetan Das (PW 8), Hind Kumar Kohli (PW 9), Mahendra Kumar (PW 10), Saligram (PW 11), Ramamurthy (PW 12) and Phoolchand Verma (PW 13) in support of the case. As to show enmity between the parties, it was further observed by the learned Court below that some days prior to the incident, there was a complaint against the appellant that one of them gave a push to a girl and because of the push, she fell down and suffered injuries to the head. When brother of Prahlad Chand Kohli wanted to take her to a Doctor, the appellants intervened and did not allow brother of Prahlad Chand Kholi to take the injured girl to the Doctor. Similarly, it is alleged that there was a complaint filed by the shop-keepers having their shops near Roxy Talkies that the appellants tease the girls going to the College and if somebody asks them any explanation, or if somebody advises there not to tease the college-going girls, appellants try to threaten them Because of this complaint, the appellants have been falsely implicated in the present case. 7. As to weapons of offence, it is alleged that appellant Shashank Shekar used a sword, while Vijaya Khare had a knife with him. 7. As to weapons of offence, it is alleged that appellant Shashank Shekar used a sword, while Vijaya Khare had a knife with him. Anwar Ahmad, appellant No. 3 had a country-made pistol with him and he was threatening with the Pistol to the persons who were trying to intervene in the quarrel. The other two appellants bad lathis with them. 8. As to the defence of appellant No. 1 Shashank Shekar that a sword was purchased from the money which was recovered by the Police from him and after purchasing it from the market, it was shown by the Police that it was recovered at his instance, in my opinion, cannot be believed for a moment. The recovery at the instance of Shashank Shekar was made from a bush (Beshram ki Jhadi) near the Katora Tal. But, even accepting that the sword was recovered at the instance of Shashank shekhar, appellant No. 1, it was not sent to the Serologist and Chemical Analyser to prove beyond doubt that the stairs which the sword had were of human blood. If that would have been the case, then recovery of the sword at the instance of Shashank Shekhar, appellant No. 1 would have connected the appellant with the alleged offence But, as this is not done by the prosecution, the important link is missing between the alleged weapon of offence and appellant No. 1. There-fore, in my opinion, the recovery at the instance of appellant No. 1 of the sword is of no help and consequence to hold that appellant No. 1 Shashank Shekhar had used this weapon of offence at the time of the incident. 9. The next weapon of offence used is country-made Pistol 'Tamancha' There is no dispute that the alleged Tamancha was not used by Anwar Ahmad in the incident at all. Whether it was in the working condition or not, the prosecution has not proved. The only point which remains for determination is whether by showing the alleged Tamancha, appellant Anwar Ahmad, tried to intimidate the persons who were trying to intervene in the alleged quarrel. 10. The other weapon of offence used by Vijaya Khare is alleged to be a knife But, regarding the knife also, there is no report by the Chemical Analyser or by the Serologist. 10. The other weapon of offence used by Vijaya Khare is alleged to be a knife But, regarding the knife also, there is no report by the Chemical Analyser or by the Serologist. It has come in evidence of Prahlad Chand Kohli (P. W. 1), that the appellant Vijaya Khare tried to give blows by the knife on him. But, he warded off those blows by shielding himself by lifting a stool which was in the shop and the knife blows fell on the stool. He has further stated in the statement that when the alleged sword blow was given by the appellant Shashank Shekar to him, he tried to ward it off, but in doing so, he got the blow on his left hand and because of the blow his palm was cut (MERA PANJA KAT GAYA) The alleged sword blow which he tried to ward off, but fell on his palm, Shashank. Shekar wanted to give on his head. It has come in evidence that some Wood fell on the stool also and the stool had marks of sharp-edged weapons like sword or knife hitting it. The stool also was not seized and the explanation given by the witness wiping off the blood which fell on the stool is that he had no idea regarding the importance of the blood stains on the stool. This explanation, in my opinion is not sufficient to hold that he was ignorant of the evidentiary value of the blood spots found on the stool as well as the sword or knife marks on it. But, when we consider the medical evidence, the story put forward regarding Warding off of the blows by using the stool as a shield completely fails down. Further, in the first information report, use of stool is not mentioned any where. I may make it clear that every detail need not be mentioned in the first information report, but the warding off the knife blows and sword Mows by Using the stool is not such an unimportant fact that it should not find place in the first information report made by the injured himself. 11. Dr. I may make it clear that every detail need not be mentioned in the first information report, but the warding off the knife blows and sword Mows by Using the stool is not such an unimportant fact that it should not find place in the first information report made by the injured himself. 11. Dr. Deen Bandhu Dvivedi (P.W.4) was asked in his cross-examination in question No. 11 : 'whether after sustaining a fracture as mentioned above, the person who has suffered the fracture, could lift anything which weighs about 4 to 5 kg.' The answer is : 'It is not possible'. It was asked by the defence counsel as to what was the approximate weight of the stool by which the blows were warded. To this, the witness has answered that the stool with which the blows of sword and knife were shielded was at least more than 4 to 5 kg. in weight. If these facts are taken into consideration, the story of shielding the blows of knife and sword, I will have to hold, is far from truth. Similarly, the story regarding the use of stool, I do not find in the first information report. Therefore, taking into consideration this fact also, the opinion I have expressed already is strengthened. 12. The names of Ganpatrao and Kamal Kishore do not find place in the first information report at all. If their names as accused do not find place in the first information report, they could not be held responsible for committing any offence. 13. Then, the learned counsel for the appellant referred to me to the injuries received by the different witnesses. Prahlad Chand Kohli (P. W. 1) has stated that Kamal Kishore gave him a Lathi blow on his leg. Shashank Shekhar gave a sword blow on his lft hand. Similarly, second sword blow was given on his head. Accused Vijaya Khare tried to give him knife blow. At that time, Kamal Kishore and Ganpatrao had Lathis with them and when Ganpatrao tried to give him lathi blow, he warded off by use of the stool He has further stated that even though he was knowing Ganpatrao and Kamal Kishore by faces, he did not describe their features in the first information report, Subsequently, again he has stated that before giving statement to the Police, he knew the names of these two accused. But, even then, their names did not find place in the statement given by him to the Police. He was further asked in cross-examination as to what is the reason for not disclosing the names to the Police. To this, he has said that he has no answer. There was no identification parade held by the prosecution to identify Kamal Kishore and Ganpatrao. I may mention here the importance of holding an identification parade. In Vaikuntam Chandrappa v. State of Andhra Pradesh AIR 1960 SC 1340 , it is observed as under :-- It is true that the substantive evidence of a witness is his statement in Court, but the purpose of test identification is to test that evidence and the safe rule is that the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to the witnesses, generally speaking, requires corroboration which should be in the form of an earlier identification proceeding. Where in a murder charge against several accused under S. 302 read with section 34, Penal Code, an identification parade consisting of 46 persons in which they were 7 suspects, and an eyewitness while picking out 9 persons, made 3 correct identifications and made 6 mistakes, no reliance could be placed on such an identification by the witness even though he was disinterested and it could not be used as corroboration of the evidence of another interested eye-witness. These observations were relied by the learned counsel for the appellant for two purposes. One, for showing that Kamal Kishore and Ganpatrao were falsely implicated and two, that the Court identification, even though it is primary evidence, should be corroborated by holding identification parade to the Court identification. 14. Chetan Das (P. W. 8) has stated in para 29 of his statement (translated into English) that he will identify the accused who gave him the sword blow and who was standing now with the other accused in the Court. When he was asked to identify, instead of identifying Shashank Shekhar, he identified Vijaya Khare and said that Vijaya Khare gave him sword blow. Immediately, it is said to the Court that he is not feeling well and, therefore, he is not in a position to continue with his statement. Seeing this, the Court adjourned his evidence on 9-2-1979. When he was asked to identify, instead of identifying Shashank Shekhar, he identified Vijaya Khare and said that Vijaya Khare gave him sword blow. Immediately, it is said to the Court that he is not feeling well and, therefore, he is not in a position to continue with his statement. Seeing this, the Court adjourned his evidence on 9-2-1979. On 13-2-1979, he has stated in para 31 that on the last date as he was not feeling well, he could not identify the correct person who gave him sword blow. Further, the Court asked him whether today he could recognise the correct person. To this, he has answered 'Yes'. Again he was asked to identify and he identified Shashank Shekhar by name and also Anwar Ahmad and Vijaya Kumar by names. For the rest, he stated that he does not know them. From this also, it will be clear that Ganpatrao and Kamal Kishore were wrongly roped in by the prosecution. 15. Relying on the observations in Vaikuntam's case (supra) I do not see any sanctity to the identification which is done by the witness as mentioned above. In four days, which elapsed between 9-2-1979 to 13-2-1979, it requires no imagination to understand how the witness could identify a person to whom, in the beginning, he could not identify. Therefore, the mistaken identification in the Court makes the statement of Chetan Das (P. W. 8) very much doubtful. 16. Govardhan (P. W. 2) is also an eyewitness. He has stated that he saw Shashank Shekhar giving two sword blows. Accused Ganpatrao and Kamal Kishore gave lathi blows and Vijaya Kumar tried to give knife blows. Who gave the first Lathi blow, he has not witnessed. Neither he is in a position to say how many lathi blows were given by Ganpatrao. No lathi blow was received by Prahlad Chand Kohli. After hitting Prahlad Chand Kohli with a sword. Lathi blows were given to him. Accused Vijaya Khare gave knife blows to Prahlad Chand Kohli, while Prahlad Chand Kohli was standing on a Chabutara and Vijaya Kumar was standing on the road. He gave about six knife blows. But, these blows were saved by Prahlad Chand Kohli by shielding himself by a stool. Lathi blows were given to him. Accused Vijaya Khare gave knife blows to Prahlad Chand Kohli, while Prahlad Chand Kohli was standing on a Chabutara and Vijaya Kumar was standing on the road. He gave about six knife blows. But, these blows were saved by Prahlad Chand Kohli by shielding himself by a stool. But, when he was confronted with the Police Statement, he had to admit that there is no explanation with him as to why part of the statement is missing from the statement he has given to the Police. 17. Purushottam Kiledar (P W. 5) has stated that in the beginning, Prahlad Chand Kohli received a Lathi blow, which fell on his head. After getting a Lathi blow, some other lad gave him blow by a sharp-edged weapon. He has further stated that he knows the accused only by face and not by name. He has been declared hostile by the prosecution. But in cross-examination, he was asked that whether he is in a position to recognise the aceused who was threatening the persons who tried to intervene in the quarrel, by the country-made Pistol. He identified in the Court as Shashank Shekhar the accused who had country-made pistol. The identification is decidedly wrong because the prosecution story said that it was Anwar Ahmad who had country-made pistol with him and was threatening the persons who tried to intervene in the quarrel. Further, he has stated in para 15 that he did not see which weapon Vijaya Khare used when he tried to give blows to Prahlad Chand Kohli. Further, he has stated that what Vijaya Khare did along with other accused at the time of the incident, he is not in a position to say. 17-A. The next witness is Dharamvir (P. W. 6). He has stated that Prahlad Chand was given a blow on his leg by Lathi. The other lad gave a sword blow. His name is Shashank Shekhar. About 5 to 6 lads tried to attack Prahlad Chand Kohli. He has described the incident. It is nothing but repetition of the story of the prosecution unfolded by the other witnesses. His statement was recorded by Police after three days. It is submitted by the learned counsel for the appellant that as the delay is not explained, the statement cannot be relied much to hold that he is speaking the truth. It is nothing but repetition of the story of the prosecution unfolded by the other witnesses. His statement was recorded by Police after three days. It is submitted by the learned counsel for the appellant that as the delay is not explained, the statement cannot be relied much to hold that he is speaking the truth. There is no doubt that delay in recording the statement by the Police of an eyewitness, certainly raises doubt while deciding a case unless the delay is explained properly by the Investigating Officer. I do not find any explanation for not examining Dharamvir (P. W. 6) at an early date. To make it clear, the witness has staled in para 16 of his statement that from 3-7-1978 to 5-7-1978, he was in Gwalior. He has said that Prahlad Chand Kohli did not receive any blow of Lathi on his hand, nor any blow of lathi on his leg He has not seen any Lathi blow being given on any part of the body of Prahlad Chand Kohli, In his statement, in para 30, he has stated that Prahlad Chand Kohl received one Lathi blow and two sword blows. Prahlad Chard Kohli was given the Lathi blow from the back side. 18. I will consider now the medical evidence in the case to see whether it corroborates the evidence given by the eye-witnesses. The prosecution has examined two doctors to prove the different injuries found on the persons injured in the alleged incident. They are Dr. V.K. Diwan (PW 3) and Dr. Deen Bandhu Dvivedi (PW 4) Dr. Diwan (PW 3) has referred in his statement to four injuries on Prahlad Chand Kohli and in para 18 of his statement, he has stated that there is no mention in the X-ray report that there was fracture of bone of any vital part of the body. Further, he has stated that when the Police wanted to know whether the cumulative effect of the injuries found by him will be sufficient in the ordinary course of nature to cause death, he has opined that it may be possible. I do not see any cogent reason why the Police should have asked the Doctor regarding the cumulative effect of the injuries found by him and also whether the cumulative effect will be sufficient to cause death of the injured. I do not see any cogent reason why the Police should have asked the Doctor regarding the cumulative effect of the injuries found by him and also whether the cumulative effect will be sufficient to cause death of the injured. He has also given his opinion that injury No. 4, in his injury report, can be caused by a hard and blunt object like Lathi. He has further stated in para 10 that if a blow is given on the head with a blunt and hard object, then it may look as an incised wound, but there is a difference between incised wound and lacerated wound. He has described the difference in para 10 of his statement as under : (i) In a lacerated wound, the ends of the wound are clean, while in incised wound, the ends of the wound are swolen and they are not uniform, (ii). In a lacerated wound on all the sides, no swelling is found, while in incised wound, on all the sides swelling is found, (iii). In lacerated wound, the bulbs of the hair are cut, while in incised wound, the bulbs are crushed. But, when he was further asked regarding the injury-report he has given, he had to admit that he has not mentioned in any injury the distinguishing marks as he has mentioned above to come to a conclusion whether the injury is a lacerated wound or an incised wound. Injury No. 3 was not inflicted by any sharp edged weapon. Injury No. 3 refers to the injury on the thumb which he has described as incised wound on the right thumb. If his report is taken to be correct, then the allegation of the prosecution that Prahlad Chand Kohli received an injury on the thumb when he tried to ward off the sword blow, I will have to hold, is doubtful. Similarly, he has not stated why he has come to a conclusion whether the injuries are incised or lacerated by applying the test to which he has adhered in his statement to come to a conclusion that the injuries are either lacerated or incised. Therefore, it will be difficult to hold that the injuries he found on the body of Prahlad Chand Kohli were either caused by a sharp-edged weapon or by hard and blunt object. Therefore, it will be difficult to hold that the injuries he found on the body of Prahlad Chand Kohli were either caused by a sharp-edged weapon or by hard and blunt object. Therefore, the prosecution story that while inflicting blows, sword or knife was used, it is not proved beyond reasonable doubt. 19. Now, if I take into consideration the evidence of Dr. Deen Bandhu Dvivedi (PW 4), his evidence clearly shows that the witnesses produced by the prosecution as eye-witnesses have exaggerated the incident and also have tried to implicate innocent persons like Ganpatrao and Kamal Kishore by saying that they gave Lathi blows to Prahlad Chand Kohli. According to Dr. Deen Bandhu Dvivedi (PW 4), there was an injury each on right hand thumb and left leg. There was also an injury on the head and left palm, and he found no other fracture of any bone excepting that he found fracture of 4th and 5th metacarpal bones of the left palm and the fracture must have been of a duration of not more than ten days. 20. Even if the evidence of both the Doctors is taken into consideration and the injuries mentioned by the prosecution witnesses are taken together, it clearly shows that the witnesses have tried to improve their story before the Court to implicate innocent persons like Ganpatrao and Kamal Kishore in the incident. So also, they have tried to show that the appellant wanted to commit the murder of Prahlad Chand Kohli by increasing the number of blows tried to have been inflicted by the appellants by different weapons. If the eye-witnesses try to improve the story before the Court, then, in my opinion, the eye-witnesses cannot be said to be stating the truth and their statements cannot be believed on their face value. Therefore, the benefit of doubt created because of the exaggeration and improvement in the story of the prosecution made by the eye-witnesses, should be given to the accused and I will have to hold that the prosecution has not proved beyond reasonable doubt that the appellants were responsible for inflicting the alleged injuries. 21. There is one more aspect which was argued by the learned counsel Sarvashri J. P. Gupta, Y. K. Pathak and K. K. Sharma, It was submitted before me that under section 157, Cr. 21. There is one more aspect which was argued by the learned counsel Sarvashri J. P. Gupta, Y. K. Pathak and K. K. Sharma, It was submitted before me that under section 157, Cr. P. C. the first information report in respect of cognizable offences should be sent forthwith to a Magistrate competent to take cognizance of the offence. If there is un-explained delay, what will be the effect was considered in Ishwar Singh v. State of U. P. AIR 1976 SC 2423 . The relevant observations from this Judgment are as under:-- The extraordinary delay in sending the FIR is a circumstance which provides a legitimate basis for suspecting that the first information report was recorded much later than the stated date and hour affording sufficient time to the prosecution to introduce improvements and embellishments and set up a distorted version of the occurrence. In this case the suspicion hardens into a definite possibility when the case made in Court differs at least in two very important particulars from that narrated in the FIR. In such a case, the evidence of the eyewitnesses cannot be accepted at its face value. The same point was considered in Birsingh v, State of U. P., AIR 1978 SC 59 and the relevant observations from this Judgment run as under :-- 10. We now come to the second ground on which the learned Sessions Judge has rejected the prosecution case. According to the learned Sessions Judge the FIR does not appear to have been lodged at 7.30 p.m. as indicated in the report. In order to come to this conclusion that learned Judge relied on the following circumstances : 11. That although the FIR has been lodged at 7.30 p.m. at Kotwali Police Station at Unnao yet according to the Investigating Officer the seal of the S. P. Office dated 9th Nov. 1967 was given by mistake as the FIR could have been received on the next day i e. 10th Nov. 1967 because the office of the S. P. closed at 5 p m. on 9th Nov. 1967. There does not appear to be any room for such a clerical mistake unless it be held that the FIR must have been actually prepared on 10th Nov. 1967 so that it was not in existence on 9th Nov. 967. 1967 because the office of the S. P. closed at 5 p m. on 9th Nov. 1967. There does not appear to be any room for such a clerical mistake unless it be held that the FIR must have been actually prepared on 10th Nov. 1967 so that it was not in existence on 9th Nov. 967. On this point the High Court has disagreed with the Sessions Judge on a purely speculative ground. Before the trial Court the Public Prosecutor did not challenge the statement of the Investigating Officer that the seal was dated 10th Nov. 1967 which indicated that the FIR was received by the S. P. Office on that date. The theory of mistake put forward by the Investigating Officer seem to have been accepted by the prosecution. No application was made to the Sessions Judge to call for the records of the S. P. Office or any witness from there to find out as to when actually the FIR was received. It is therefore, manifest that the case itself was that the FIR., was received in the S. P. Office on 10th Nov. 1967 which lent intrinsic support to the suggestion of the defence that the FIR was lodged on 10th Nov. 1967 and was not lodged on 9th Nov. 1967 when it was purported to have been lodged. The High Court brushed aside the finding of the Investigating Officer on the ground that the explanation given by him was wrong because he may not have been in the know of things. This process of reasoning is purely speculative. PW 5 Umesh Chandra Verma the Investigating Officer was attached to the Kotwali Police Station in the town of Unnao where the office of the S. P. was situated. He had every day dealings with the S. P. Office and he must be presumed to know the exact state of affairs. The Investigating Officer's evidence that the office of the S. P. closes at 5-00 p.m. had not been challenged by the prosecution before the Sessions Judge nor any attempt was made to put further questions in re-examination to clarify the matter. The High Court however on its own examined one Fjaz Hussain from the Office of the S. P. to prove that the FIR was itself received in the S. P. Office on 9th Nov 1967, and. The High Court however on its own examined one Fjaz Hussain from the Office of the S. P. to prove that the FIR was itself received in the S. P. Office on 9th Nov 1967, and. therefore, the explanation given by the Investigating Officer was wrong. It is well settled that though an appellate Court has power to take additional evidence in a suitable case yet the discretion should not be exercised to fill up gaps or lacunae in the prosecution evidence. If the prosecution was serious about this matter there was no reason Ejaz Hussain could not be examined before the Sessions Court. The prosecution, therefore, appears to have accepted the plea of the Investigating Officer and left it at that. In these circumstances the High Court was not correct in exercising its discretion in examining Ejaz Hussain in its appellate jurisdiction We have carefully perused the evidence of Ejaz Hussain given before the High Court and we are of the opinion that Ejaz Hussain is an utterly unreliable witness on whom no reliance can be placed at all. This witness has clearly stated that the off ice hours of the S. P. are from 10 a m. to 5-30 p.m. and 30 to 35 persons work in the said office. He, however, states that while the officials leave at 5.30 p.m. the witness leaves office at 7-00 p m. and after he closes his room no one sits in that room The witness further admits that the seal is not kept in his room but is kept in another room in the said office which is closed at 5.30 p m In these circumstances therefore even if the witness states that he received the copy of the FIR he would not be in a position to put any seal on the FIR which was in the room which was locked at 5-30 p.m. On a direct question being put to him as to when he went to the office again after closing on 9th Nov. 1967 the witness stated "I did not go to the office after 7 pm nor did my clerk constable go to the office after 7 p.m. that day". 1967 the witness stated "I did not go to the office after 7 pm nor did my clerk constable go to the office after 7 p.m. that day". It is obvious that the FIR could not have reached the office at 7 p m. because it was it self lodged at 7-30 p.m. If the witness had left at 7 p.m. there could be no question of his receiving the FIR after 7-30 p.m. The witness is unable to decipher the initial of the person who had initialed the endorsement Later on he in his statement states that he usually left the office at 7 p m. but sometimes he (sic) at 7, 8 or 9 p m according to the volume of work. The witness further says that no register is kept in the Police Office in which the timings of arrival and departure of the witness are recorded which does not appear to be true because an office like that of the S. P. where as many as 30 to 35 persons work daily it is difficult to believe that the office would not have any attendance register showing the time of arrival and departure of the officials. It seems to us that this witness has tried to support the prosecution case by showing his presence on 9th Nov. 1967 till 9 p.m. although in his previous statement before the same Court he categorically stated that on the 9th Nov. 1967 he had left the office at 7 p.m. In these circumstances we place no reliance on the evidence of this witness The High Court indulged in another conjecture that the FIR must have been sent to the P.P and to the Elaqa Magistrate. This was not however a matter of which judicial notice could be taken but had to be proved like any other fact. There was absolutely no evidence led by the prosecution to show when the FIR was sent to the Elaqa Magistrate or to the P. P's. office and in the absence of any evidence on this point the High Court was not justified in drawing an inference in order to demolish the positive and categorical statement of PW 5 Umesh Chandra Verma the Investigating Officer. 12. The Sessions Judge found that even is the FIR the time of the lodging of the same, namely, 7.30 p.m. was written in different ink. 12. The Sessions Judge found that even is the FIR the time of the lodging of the same, namely, 7.30 p.m. was written in different ink. The High Court adverting to this aspect found that the ink might not have been different but it was thicker. Whatever that may be, this is also a suspicious circumstance and in the absence of any explanation given by the Investigating Officer it may lead to the inference that the FIR was not lodged at 7-30 p.m., but much later. Having regard therefore to the evidence discussed above we feel that the possibility of the FIR having been ante-timed has not been safely excluded and this circumstance is also sufficient to throw doubt on the prosecution case. In the present case, Phool Chand Verma (PW 15) has stated in para 2 that on 3-7-1978, the first information report was lodged in the Police Station and it is Ex. P/1. The first information report was sent on the next day. Therefore, there is a clear violation of the provisions of section 157 Cr. P C. That is to say that the first information report was not sent forthwith to the Magistrate competent to lake cognizance of an offence. The explanation put forward by the witness, in my opinion, is a lame excuse just to hide the carelessness on the part of the Investigating Officer to follow the mandatory procedure required under section 157, Cr. P. C. Relying on the observations of the Judgments mentioned above, as I have stated, there are embellishment and improvement in the story out forward by the prosecution and the story put forward by the eye-witnesses. 22. Now, the last question is whether the conviction of the appellants with the aid of section 149 IPC, or the conviction under section 148 IPC, can be maintained or not. To attract section 149 IPC it was held in Purshottam v. Suite of M.P. 1968 MPLJ 56 as under :-- Section 149, Penal Code, applies not only to offences actually committed in pursuance of the common object, but also to offences that the members of the assembly know are likely to be committed. The former falls within the first part and the latter in the second part of section 149, Penal Code. The former falls within the first part and the latter in the second part of section 149, Penal Code. When the offence committed is immediately connected with the common object of the unlawful assembly, the first part applies; by force of the second part, even if the offence which is actually committed is not in direct prosecution of the common object of the assembly yet, if it is held that the offence was such as the members knew was likely to be committed, all the members would be equally liable for the offence committed. In a case under section 149, there need not be a prior meeting of minds. It is, enough that each has the same object in view. It is a question of frequent recurrence where an offence is committed by a member of an unlawful assembly, whether the other accused knew that the offence committed was likely to be committed in the prosecution of the common object of the assembly. The expression "know" is not synonymous with "mere possibility" The liability of the other members for the offence committed during the occurrence depends upon whether the other members knew before hand that the offence actually committed was likely to be committed in prosecution of the common object. It is only reasonable to collect such knowledge from the attending circumstances, that is, the nature of the assembly, the arms used, the behaviour at or before the scene of action. If it can reasonably be held that the other members had such knowledge, then the extent o the liability of such other members of the assembly is the same as of the actual perpetrators of the crime. But if it cannot reasonably be held that the other members had such knowledge, then their liability for the offence committed will be limited to the extent to which they share the community of object. The consequence will be that the effect of section 149, Penal Code, may be different on different members of the same unlawful assembly. It was succinctly pointed out in 22 Cal. The consequence will be that the effect of section 149, Penal Code, may be different on different members of the same unlawful assembly. It was succinctly pointed out in 22 Cal. 306 that while dealing with such cases, on the one hand, it is necessary for the protection of peace that members of an unlawful assembly should not lightly be let off from suffering the penalties of offences for which the law has made them liable though committed by others, and on the other hand, the accused persons should not merely by reason of their association with others as members of the unlawful assembly be held liable for offences which they neither intended nor knew likely to be committed. It was further held in re Kalusingh Motisingh v. Stale AIR 1964 MP 30 that: "Mere presence in a crowd cannot render anybody liable, unless there was common object and he was actuated by the common object and that object was one of those set out in section 141 Indian Penal Code." Here, in the present case. no such common object has been proved by the prosecution. Further, in Muthu Naicker v. Stale of Tamilnadu AIR 1978 SC 1047 it was held as under : (H) Penal Code (1860), sections 149, 326-Charge against members of unlawful assembly under sections 326/149-Some members acquitted of that charge-Remaining members would also have to be acquitted of the same charge. Held: in appeal by the Supreme Court, that it would not only be unfair but self-contradictory to sustain the conviction of the remaining accused for the offence under section 326/149, IPC. That would be an unequal treatment and, therefore, even though as members of the unlawful assembly they could have been fixed with vicarious liability, in view of the situation obtaining on the finding of the High Court, the Supreme Court has no option but to acquit them for the offence under section 326/149, IPC. Therefore, relying on the two Judgments which I have referred to above, I will have to hold that the prosecution has failed to prove that there was common object of all the accused to attempt to commit murder of Prahlad Chand Kohli. They have also tried to implicate innocent persons like Ganpatrao and Kamal Kishore. Therefore, relying on the two Judgments which I have referred to above, I will have to hold that the prosecution has failed to prove that there was common object of all the accused to attempt to commit murder of Prahlad Chand Kohli. They have also tried to implicate innocent persons like Ganpatrao and Kamal Kishore. As there is no common object proved by the prosecution, as mentioned above, the appellants cannot be held liable under section 307 IPC read with section 149 IPC or they cannot be convicted under section 148 IPC also When the partisan witnesses come and give evidence against the accused, the evidence of a partisan witness must not be discarded on that ground alone, but the Court must scrutinise the evidence with more than ordinary care. It must focus its attention on whether there are discrepancies in the evidence; whether the evidence strikes the Court as genuine, and whether the story as narrated is probable, judicial approach has to be cautious in dealing with such evidence. If this caution is applied to the evidence in the present case, I am of the opinion that the witnesses being partisan witnesses, their evidence, to my mind, does not strike as genuine and the story put forward by the prosecution is also not probable. Therefore, the evidence produced by the prosecution is not sufficient to hold charges against the appellants under section 307 IPC read with section 149 IPC or section 148 IPC proved. 23. The result, therefore, is that the appeal is allowed and the conviction and sentence recorded by the learned Additional Sessions Judge against the appellants are set aside. They are already on bail. Their bail bonds shall stand discharged. Appeal allowed.