JUDGMENT 1. - This appeal is directed against the Judgment dated 21-12-1981 of the Additional Sessions Judge, No. I Baran, whereby it has convicted the accused appellant under Section 302 read with Section 34 IPC and sentenced him to life imprisonment and a fine of Rs. 100/-, in default of payment of fine, to further undergo 2 months rigorous imprisonment. 2. On 20th May. 1981 at about 3.00 P.M. Bheru Lal was sleeping under the Mango tree in village Kachra. Accused Appellant Prahlad alongwith co-accused Jagdish came there. Jagdish had a 'gandasi' in his hand, whereas accused appellant Prahlad had a lathi. According to the prosecution, Jagdish gave a fatal blow on the hand of deceased Bheru Lal by gandasi and the accused appellant is alleged to have inflicted some lathi blows on the person of deceased. Gandi Lal (PW 7) and Om Prakash (PW 11) were present at the site and had seen the, incident. After hearing the cries, Smt. Pansuri (PIN 1) wife of the deceased and Ratan Lal (PW 3) had also come and had seen the beating. After receiving the injuries, Bhern Lal became unconscious. When injured Bheru Lal was being taken to Atru Hospital, he first reached the Police Station, Atru and lodged the First Information Report (Ex.P. 10). Since both the heads of Bheru Lal were injured he did not sign, but put his thumb impression on the FIR. A case under Section 307 read with Section 34 IPC was registered. Bheru Lal was admitted in the hospital, but he died on 22nd May, 1981 at about 4.15 A.M. Dr. Hemraj (PW 6) conducted the post mortem and the report is Ex.P. Accused appellant Prahlad was arrested on 28-5-1981 and he alleged to have given information (Ex.P. 13) on 3-6.1981 that one lathi of Bambo was kept in the house of Jagdish and ultimately he got the lathi recovered vide seizure memo (Ex.P. 3). After usual investigation, the case was challaned and it was committed to the Sessions for trial. The prosecution in support of its case, examined 12 witnesses. The accused denied the prosecution allegations and stated that he has been falsely implicated because of the prior enmity. The accused appellant did not produce any evidence in defence. Learned Additional Sessions No. 1, Baran after trial, convicted the accused appellant as aforesaid. Co-accused Jagdish had died after the incident. 3. The accused denied the prosecution allegations and stated that he has been falsely implicated because of the prior enmity. The accused appellant did not produce any evidence in defence. Learned Additional Sessions No. 1, Baran after trial, convicted the accused appellant as aforesaid. Co-accused Jagdish had died after the incident. 3. Learned counsel for the appellant has vehemently submitted that the FIR was lodged at 6.00 P.M., where-as, the incident had taken place at 3.00 P.M. on 20th May, 1981 and the place of occurrence was only at a distance of 5 Kmtrs. from the police Station and, therefore, there was enough time for fabrication of FIR and no reliance can be placed on such a belated FIR. He has further submitted that the prosecution has fabricated the evidence regarding information and discovery of lathi from the accused appellant. He also submitted that there was no motive for the murder of deceased Bheru Lal and therefore, the prosecution evidence should be examined very closely. He has further submitted that there are several contradictions and omissions in the prosecution evidence and no reliance can be placed on the so-called eye witnesses. and the accused appellant is entitled to acquittal. His main contention is that according to the Doctor's evidence the death was caused due to incised wounds (injury No. 1) found on the head of the deceased, which was inflicted by co-accused Jagdish. Accused appellant is alleged to have inflicted only lathi blows on the non-vital parts and since there was no evidence of prior consert of pre-meditation, the accused appellant cannot be convicted u/s 302 read with Section 34 IPB. 4. On the other hand, learned Public Prosecutor has submitted that the FIR was lodged within 3 hours of the incident and since the deceased had received serious injuries, the delay of 3 hours cannot be said to be unusual or suspicious so as to discard the evidence on this ground. Since the accused appellant had come with the co-accused Jagdish to the place of incident and it was in his presence that co-accused Jagdish inflicted fatal blows and the accused appellant also inflicted lathi blows, the accused appellant can be convicted u/s 302 IPC read with Section 34 IPC. Since the accused appellant had come with the co-accused Jagdish to the place of incident and it was in his presence that co-accused Jagdish inflicted fatal blows and the accused appellant also inflicted lathi blows, the accused appellant can be convicted u/s 302 IPC read with Section 34 IPC. The evidence of the eye witnesses is consistent and there are no contradictions or omissions on the material points so as to disbelieve them and discard their testimony and that the presence of the, eye witnesses cannot be doubted. Further, the motive looses all its significance. 5. We have carefully gone through the record of the case as well as the judgment of learned Additional Sessions Judge No. 1, Baran. We have also considered the respective submissions of learned counsel for the parties as also the authorities cited at the bar. 6. PW 1 Mst. Panstiri wife of deceased Bheru Lal has deposed that after hearing cries she went to the spot and found her husband lying injured. Her son Om Prakash and `Giyses' Gendi Lal were also present. Gendi Lal told her that her husband had been beaten by Jagdish and Prahlad. She had seen Jagdish and Prahlad running from the place of incident. Jagdish had a Gandasi in his hand and Prahlad had a stick. In cross examination she has admitted that her husband did not tell anything to her after the incident. He had become unconscious till he was taken to the Hospital. 7. PW 2 Mathura Lal reached the spot after hearing the cries and saw Jagdish and Prahlad running with Gandasi and stick in their hands and found Bheru Lal injured and unconscious. Om Prakash and Gendi Lal wet e also present there and Ratan Lal Pansuri had also come. Om Prakash and Gendi Lal told them that Prahlad and Jagdish had beaten Bheru Lal. Jagdish had inflicted Gandasi blows, whereas Prahlad gave by stick only. Bheru Lal was taken to home and thereafter to Atru Hospital via Police Station. On the way, Bheru Lal regained consciousness and told that Jagdish had inflicted a Gandasi blow and Prahlad had also beaten him and Bheru Lal lodged a report in the Police Station. in cross examination, he has admitted that he had not seen the injuries being inflicted by his own eyes and he has denied that he had given such statement before the Police. 8. in cross examination, he has admitted that he had not seen the injuries being inflicted by his own eyes and he has denied that he had given such statement before the Police. 8. PW 3 is Ratan Lal, who also rushed towards the site after hearing the cries. He was being followed by Mathura Lal and he also met Mst. Pansuri going towards the site, and he saw Jagdish and Prahlad running away from the incident and found Bheru Lal unconscious, having injuries on his hands, head and legs. Gendi Lal told him that Jagdish had inflicted Ganessi blows on his hand, head and legs and with the result he fallen down. Thereafter Prahlad had inflicted lathi blows. Bheru Lal was taken to the house and he did not go to the Hospital or to the Police Station. 9. PW 4 Prabhu Lal is only a formal witness. 10. PW 5 Ramgopal, who is the neighbour of Bheru Lal saw Bheru Lal lying on the cart unconscious., and when Bheru Lal regained consciousness he had told that Prahlad and Jagdish had given beatings to him with lathi and Gandasi. Bheru Lal was taken to the Police Station where had he lodged the FIR. 11. PW 6 is Dr. Hemraj, who had examined Bheru Lal at about 8.25 P.M. and found the following injuries: 1. Incised wound 21/2" x ⅛" x 1/4" on posterior part of rt. parietal region of scale. 2. Sever tenderness and swelling with suspected fracture of medial size of metacarcal 3" x 2" in size medial side of dorsem of left hand. Suspected fracture. 3. Sever tanderness with swelling with clear out fracture of rt. radius bone whole rt. forearm. 4. Incised wound with swelling the palmer anterial arch 11/2" x ⅛" x ⅜" on dorsam of right hand. 5. Incised wound 1" x ⅛" x 1/2" at mid and front of right leg. 6. Multiple swelling and tenderness on right lower limb. 7. Last wound 1" x 11/2" x 1/2" on medial and upper par of right leg. The Doctor has deposed that injuries No. 1, 4 and 5 were by sharp edged weapon and others by blunt object. Bheru Lal died on 22-5-1981 at about 8.00 P.M. and thereafter he conducted the post mortem and he further deposed that injury No. 1 on the hand was the cause of death. 12. The Doctor has deposed that injuries No. 1, 4 and 5 were by sharp edged weapon and others by blunt object. Bheru Lal died on 22-5-1981 at about 8.00 P.M. and thereafter he conducted the post mortem and he further deposed that injury No. 1 on the hand was the cause of death. 12. PW 7 Gendi Lal is Giyees of the deceased and has been examined as eye witness. He has deposed that Jagdish abused Bheru Lal and then Bheru Lal told that why he should abuse him. Thereafter, Jagdish inflicted a Gandasi blow on the head of Bheru Lal. Thereafter Prahlad inflicted 2-4 blows by lathi. After hearing cries. the wife of Bheru Lal and Ramratan came there. PA 8 Ram Swaroop was also present on the site. Thereafter Bheru Lal was taken from the house to the Police Station, where Bheru Lal lodged the report and then he was taken to the Hospital. In cross-examination he has deposed that Jagdish and Prahlad had come from two sides of the house. Bheru Lal had become unconscious, but he regained consciousness while on way to the Police Station. 13. PW 8 Ram Swaroop was passing from the side when he was taking his cart to his field and he saw from the distance of 40-50 passages that Jagdish was beating Bheru Lal by Gandasi and Prahlad by latki and Gendi Lal was present there. Later on one woman and Ramratan also came there. He was examined by the Police after 11 days of the incident. This witness has not been believed even by the trial court as he was a chance witness and his evidence was recorded by the police after a great delay and that there were contradictions in the statement before the police and the court. 14. PW 9 is a formal witness and does not help the prosecution case. 15. PW 10 Chotu Lal who is the son of Bheru Lal deceased reached the house and found his father Bheru Lal lying unconscious on the cot and found bleeding in hands, legs and head and since it was raining and as soon as the rain stopped, he took his father in the cart to the police station and then to the Hospital. His father had dictated the FIR and on way to the Hospital, his father had told him that Jagdish and Prahlad had beaten him with Gandasi and Lathi. 16. PW 11 Om Prakash is another son of Bheru Lai who was aged 10 years and the trial court after putting some questions observed that the witness does not understand the importance of oath but is capable of giving evidence. So he is a child witness. He was sitting with his father and Gandi Lal near the mango tree and Jagdish and Prahlad arrived from the village side and abused his father and Jagdish inflicted Gandasi blow on his head, whereupon, his father fell down and then Prahlad gave lathi blows. Later on his mother and Ratan Lal and Mathura Lal came there. Thereafter his father was taken to the home. 17. PW 12 is Ram Singh who was S.H.O., who had recorded the FIR (Ex.P 10). He has deposed that the condition of Bheru Lal was quite serious and he was sent to the Hospital. He had inspected the site in presence of Gandi Lal and prepared site plan (Ex.P. 11), The clothes of the deceased were also recovered and seized and later on they were found to be blood stained. 18. Accused Prahlad gave information on 3-6-1981 which was recorded as Ex.P. 13 and later on Prahlad got recovered the stick and the recovery memo is Ex.P. 3, 19. Thus we find that the prosecution evidence is unanimous that it was Jagdish, who had inflicted Gandasi blows on head, hands and legs of the deceased and caused injuries No. 1, 4 and 5 and the allegations against the present accused appellant is only that he had inflicted lathi blows to the deceased after he had fallen down because of the injuries inflicted by Jagdish. These injuries No.3, 6 and 7 could be assigned to accused Prahlad, which are not on the vital part of the body and only on legs and hands. Moreover, there is no evidence of any motive against the accused appellant for having conspired to murder deceased Bheru Lal. According to the Doctor's evidence injuries Nos. 1, 4 and 5 should he inflicted by Gandasi and rest by lathi. He has further opined that the death was due to injury No. 1 on the head. Moreover, there is no evidence of any motive against the accused appellant for having conspired to murder deceased Bheru Lal. According to the Doctor's evidence injuries Nos. 1, 4 and 5 should he inflicted by Gandasi and rest by lathi. He has further opined that the death was due to injury No. 1 on the head. Thus it is clear that Bheru Lal died as a result of injury No. 1 inflicted by co-accused Jagdish and, therefore, appellant Prahlad cannot be held responsible for the death of Bheru Lal unless the prosecution had proved that there was some pre-consert or they had common intention to cause death of Bheru Lal. 20. We have carefully gone through the entire prosecution evidence as discussed above and there is not an iota of evidence to show that accused Prahlad had any common intention i.e. furtherance of which he also inflicted lathi blows and, therefore, we are of the opinion that accused appellant cannot be convicted for offence u/s 302 read with Section 34 IPC. 21. After having gone through the prosecution evidence on record, we are of the opinion that the case of the prosecution that Prahlad also inflicted lathi blows to the deceased after he had fallen down on the ground, seems to be truthful. The prosecution evidence is unanimous on this point and, therefore, we find that accused Prahlad was guilty of causing grevious hurts voluntarily to deceased Behrulal and therefore, he is liable to be convicted u/s 325 IPC. Accused appellant has already remained in jail for nearly 3 years and 9 months and, therefore we feel that the interest of justice will be met if the accused appellant is sentenced to the term already undergone by him. 22. In the result, we partly allow this appeal, set aside the conviction of accused appellant Prahlad under section 307 read with Section 34 IPC but we convict accused appellant Prahlad under section 325 IPC and sentence him to the term already undergone. The accused appellant may be released forthwith, if not required in any other case.Appeal partly allowed. *******