R. B. LAL, J. ( 1 ) THIS appeal is directed against the judgment and order of the 1st Additional Sessions Judge, Banda dated 23. 10. 78 convicting each of the three appellants of offences under sections 148 and 307/341. P. C. and sentencing each of them to undergo rigorous imprisonment for one year under the first count and rigorous imprisonment for seven years under the second count. Both the sentences were directed to run concurrently. By the same judgment three co-accused Lal Bahadur Singh, Lakhan Singh and Surajbhan were acquitted. ( 2 ) THE prosecution case was that in village Khajuriha Kalan there were rival parties of Lal Bahadur Singh and Chandan Singh. Raja Ram injured was in service in a Sugar Mill. He had come to the village on leave. Lal Bahadur become annoyed with him because he was seen associating with Chandan Singh of the rival party. ( 3 ) ON 19. 7. 76 at about 7a. m. Raja Ram went to the east of the village Abadi to answer the call of nature. A little while after, his brother Lotan, complainant (P. W. 1) and his cousins Bachchu (P. W. 3) and Jagannath (P. W. 4) also went in the same direction to answer the call of nature. Raja Ram sat down in a Khai to ease himself. At that time, the present appellants and the three acquitted co accused persons emerged from a flour mill which was at a short distance. Baura appellant was carrying a Barachhi while the remaining five were carrying lathies. All these persons went near Raja Ram and Lal Bahadur and Lakhan Singh exhorted their companions to kill Rajaram. The present appellants and Surajbhan began to assault Rajaram with their respective weapons. On hearing noise. Lotan, Bachchu, Jagannath and other villagers rushed to the scene and saw the occurrence. The assailants kept these persons at a distance by threatening to assault them as well. Thereafter, the assailants ran away towards the flour mill. Rajaram sustained injuries on his noise, face and head and became unconscious. He was taken on a Charpai to police station Raipura which was about three miles away and there Lotan lodged a, written report the same day at 8. 45 a. m. The condition of Raja Ram) injured was serious and, therefore, he was sent to hospital at Karvi for medical examination and treatment. He was taken on a Charpai to police station Raipura which was about three miles away and there Lotan lodged a, written report the same day at 8. 45 a. m. The condition of Raja Ram) injured was serious and, therefore, he was sent to hospital at Karvi for medical examination and treatment. Karvi was twenty four miles away from Rajpura. ( 4 ) THE injured reached the hospital at Karvi at 10. 38 a. m. Dr. N. C. Dubey (D. W. 1) was present in the hospital. Dr. Ram Narain Gupta, the Senior Medical Officer, was not present in the hospital. Dr. N. C. Dubey was a new hand and, therefore, he did not examine the injuries of the injured. He waited for the return of Dr. R. N. Gupta. However, since he found that the condition of the injured was serious, he sent a note to the Magistrate for recording a dying declaration of the injured Shri B. P. Upadhyay, Tahsildar, Karvi (D. W. 2) who exercised the powers of an Executive Magistrate came to the hospital and recorded the dying declaration of the injured from 1230 p. m. to 1. 2$ p. m. Dr. R. N. Gupta (C. W. 1) returned to the hospital at about 7 p. m. and examined the injuries of Raja Ram, injured at 8. 30 p. m. on 19. 7. 76. Thereafter Rajaram was shifted to the District Hospital at Banda. ( 5 ) SRI R. S. Shakya, station officer, police station Rampura (P. W. 9) was present when the report was lodged and be proceeded to the scene of occurrence. He found blood at the scene and took a sample of it in a sealed container. He prepared a site plan. He interrogated the witnesses. After completing investigation, he submitted chargesheet against all the six named persons on 27. 8. 76. ( 6 ) ALL the accused denied the prosecution story and alleged false implication due to party bandi. They examined two witnesses Dr. N. C. Dubey and Sri B. P. Upadhyay, Tahsildar to prove the dying declaration. This statement was proved in order to discredit the testimony of the injured and other witnesses. ( 7 ) THE learned trial Judge acquitted three accused, namely Lal Bahadur Singh, Lakhan Singh and Suraj Bhan because they were not named in the dying declaration made by Raja Ram. This statement was proved in order to discredit the testimony of the injured and other witnesses. ( 7 ) THE learned trial Judge acquitted three accused, namely Lal Bahadur Singh, Lakhan Singh and Suraj Bhan because they were not named in the dying declaration made by Raja Ram. He convicted the present three appellants relying on the testimony of the injured. ( 8 ) THE three convicts have not felt satisfied and hence this appeal. I have heard the learned counsel for the appellants and the learned A. G. A. and have perused the material on the record. ( 9 ) THE injury report of Rajaram is Ex. ka 2. His injuries were examined by Dr. R. N. Gupta (C. W. 1) on 19-7-76 at 8. 30 p. m. Dr. Gupta found four punctured wounds, three incised wounds, one lacerated wound and four bruise on the person of the injured. Three injuries involved fractures, the right eye was damaged and its vision was not clear. The injuries were on the nose, face and the scalp. ( 10 ) ACCORDING to the doctor injuries Nos. 1 and 9 to 12 were caused by blunt weapon, Nos. 4, 6 and 8 were caused by sharp edged weapon and the rest by sharp pointed weapon. Injuries Nos. 2 to 6 were serious. These injuries and injuries Nos. 7 and 8 were kept under observation and X-ray was also advised. The injuries were about half a day old. ( 11 ) THE right eye of Raja Ram was completely lost on account of the injury sustained in it. ( 12 ) IN order to prove its case the prosecution had examined four eye witnesses namely Raja Ram, injured (P. W. 2) his brother Lotan, complainant (P. W. 1) and his cousins Bachchu (P. W. 3) and Jagannath (P. W. 4 ). It also examined two other witnesses Jhalli (P. W. 5) and Ram Asrey (P. W. 6) brother and cousin respectively of Raja Ram to give circumstantial evidence against the accused. The other witnesses included the doctor, and the investigating officer. The learned trial Judge did not find the evidence of Lotan, Bachchu, Jagannath Jhalli and Ram Asrey worthy of reliance. He placed reliance on the testimony of Raja Ram injured and held the present appellants guilty. ( 13 ) THE learned counsel for the appellant has assailed the testimony of Rajaram. The learned trial Judge did not find the evidence of Lotan, Bachchu, Jagannath Jhalli and Ram Asrey worthy of reliance. He placed reliance on the testimony of Raja Ram injured and held the present appellants guilty. ( 13 ) THE learned counsel for the appellant has assailed the testimony of Rajaram. On the other hand, the learned A. G. A. has urged that the testimony of Raja Ram is worthy of reliance. He has also urged that the testimony of the other eye witnesses was worthy of reliance and it was wrongly rejected by the learned trial Judge. On a careful consideration of the testimony of Loton. Bachchan, Jagannath Jhalli and Ram Asrey and the facts and circumstances of the case, I am clearly of the view that no reliance can be placed on the testimony of these witnesses and their evidence was rightly discarded by the learned trial Judge. These witnesses were closely related to the injured. The reasons given by them for their presence near the scene of occurrence at the relevant time were not convincing. They had tried to implicate all the six accused white the dying declaration of the injured showed that he had named only three assailants. In my view these witnesses are not worthy of reliance and their testimony should be ignoredheir remains the evidence of Raja Ram injured. ( 14 ) IN his statement in chief Raja Ram injured gave account of the occurrence which was in conformity with the first information report lodged by Lotan complaint. He stated that six accused persons, of whom Baura was armed with a Barachhi and the rest were armed with lathies, had surrounded him. Raj Karan and Lala (appellants) gave him lathi blows and Buara (appellant) gave him Barchhi blows. On sustaining these injuries he became unconscious and did not know what happened thereafter. He regained consciousness in the hospital at Banda. In cross- examination, this witness denied that he had made a statement to the Tahsildar in the hospital at Karvi. The dying declaration Ex. kha 1 recorded by the Tahsildar (D. W. 2) was put to this witness but he denied to have made it. He denied that he had stated before the Tahsildar that he had regained consciousness at his house. The dying declaration Ex. kha 1 recorded by the Tahsildar (D. W. 2) was put to this witness but he denied to have made it. He denied that he had stated before the Tahsildar that he had regained consciousness at his house. He also denied to have told the Tahsildar that he had seen three persons at the time of occurrence and Lala was carrying a Pharsa and Baura was carrying a Ballam. He also denied that he had told the Investigating officer that Lala gave a Pharsa blow and Baura gave a Ballam blow on his face. ( 15 ) THE statement of Rajaram, injured (P. W. 2) that he had not made a statement to the Tahsildar in the hospital at Karvi cannot be believed in view of the reliable defence evidence. The defence proved this dying declaration Ex. Kha I through Dr. N. C. Dubey (D. W. 1) and Sri R? Upadhyay (D. W. 2), Tahsildar. In this dying declaration, Raja Ram had stated that three persons namely, Lala Singh, Baura and Raj Karan Singh (present appellants) who were armed with a Pharsa, a Baham and a lathi respectively, had assaulted and caused injuries to him. He had added that no one else was present at the time when he was assaulted. He did not know who removed him from the scene of occurrence. He regained consciousness at his house. Since Raja Ram survived his injuries, the statement Ex. kha 1 cannot be used as a substantive piece of evidence in this case. It remains only a previous statement of Raja Ram. The defence used this previous statement to contradict the statement of this witness, made at the trial, wherein he had implicated all the six accused as his assailants. As this previous statement was silent about the presence of three co-accused namely, Lal Bahadur Singh, Lakhan Singh and Surajbhan and by necessary implication negatived their presence and participation in the occurrence, the learned trial Judge did not believe the statement of Raja Ram in respect of these three accused persons and acquitted them. ( 16 ) THE learned trial Judge did not discard the statement of Raja Ram in toto. He observed that the witness had supported the prosecution story as set out by the complainant, under some compulsion. ( 16 ) THE learned trial Judge did not discard the statement of Raja Ram in toto. He observed that the witness had supported the prosecution story as set out by the complainant, under some compulsion. He took the view that the statement of this witness regarding complicity of three accused persons (present appellants) was worthy of acceptance, because it was consistent with his previous statement Ex. kha 1. This approach. of the learned trial Judge has been assailed by the learned counsel for the appellants and he has urged that the previous statement (Ex. kha 1) of the witness could not be used for the purpose of corroboration. The statement of Raja Ram made at the time of trial was proved false in some important parts. At the trial, this witness had falsely implicated three accused persons and had also falsely denied having made the statement Ex. kha 1. No reliance would be placed on any part of the statement of such a witness even though an injured, in the absence of any independent corroboration. ( 17 ) THE statement of an injured witness regarding the occurrence is normally entitled to great weight. However, if it is found that his statement suffers from infirmities, rule of caution necessitates to look for corroboration. In the instant case as well, the rule of caution requires that the statement of the injured should receive corroboration. There is no other material except the previous statement Ex. kha 1 which may afford corroboration to the statement of this witness. The important question is whether the statement Ex. kha 1 can be used for purposes of corroboration and whether it goes to corroborate the statement of the witnesses. ( 18 ) LEGALLY there is no bar to use of different parts of a former statement for purposes of contradiction under Section 145, and corroboration under Section 157 of the Evidence Act: in the same proceedings. A statement may contain positive recitals on certain points and may be silent on other points. A positive recital may be such as necessarily implies existence of an additional recital. For example if the statement says that A stabbed B, it may be implied that the statement meant to say that only A stabbed B. A positive recital may also have a negative aspect. A positive recital may be such as necessarily implies existence of an additional recital. For example if the statement says that A stabbed B, it may be implied that the statement meant to say that only A stabbed B. A positive recital may also have a negative aspect. For example, where the recital is that the culprit was a dark complexioned man, it also may be deemed to contain the recital that he was not a man of fair complexion. There may also be a positive recital in a former statement, which cannot stand together with a recital in a later statement. All such parts of a previous statement are ordinarily useful for the purpose of contradicting the statement at the trial. But the same previous statement may also contain positive recitals which are not wiped out by situations discussed earlier, and if such a statement fulfills the requirements of section 157, Evidence Act, its relevant parts may be used to corroborate the testimony of a witness. ( 19 ) SECTION 157 of the Evidence Act provides what former statement of a witness may be used to corroborate his later testimony as to the same fact. The section reads thus; 157. Former statements of witness may be proved to corroborate later testimony as to same fact ;-In order to corroborate the testimony of a witness, any former statement made by such. witness relating to the same fact, at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved. Under this section a statement relating to the same fact made at or about the time when the fact took place alone can be used to corroborate the testimony of the witness as regards the same fact. This leads us to consideration of the question whether the statement Ex. kha 1 can be taken to have been made at or about the time when the occurrence took place. The meaning of the words at or about the time was considered by the Supreme Court in Kameshwar v. State of Rajasthan. The Supreme Court observed that there can be no hard and fast rule. The main test is whether the statement was made as early, as can reasonably be expected in the circumstances of the case and before there was opportunity for tutoring or concoctiontt. The Supreme Court observed that there can be no hard and fast rule. The main test is whether the statement was made as early, as can reasonably be expected in the circumstances of the case and before there was opportunity for tutoring or concoctiontt. ( 20 ) IN the instant case the occurrence had taken place at 7 a. m. The statement Ex. kha 1 was recorded from] 2. 30 p. m. onwards. Thus, there was a gap of about five and a half hours. Rajaram injured had sustained as many as 12 injuries which were caused by blunt, sharp-edged and sharp pointed weapons. They included three fractures of nasal bones and right maxillary bone. The right eye had also suffered serious injury which ultimately led to loss of the eye. His condition was very serious as stated by Dr. N. C. Dubey. The first information report lodged by Lotan shows that the condition of Raja Ram was very serious and he had no hope of his survival. It was in these circumstances, that Raja Ram injured could not lodge report at the police station and Lotan lodged the same. From the police station, he was rushed to the hospital at Karvi which was about 24 miles away. He reached the hospital at 10. 38 a. m. as noted by Dr. N. C. Dubey (D. W. 1), Dr. Dubey attended the injured and since he considered his condition serious he also sent a note to the Magistrate for recording his dying declaration. Thus, the statement Ex. kha 1 was made as early as could reasonably be expected, in the circumstances of the case. The statement should, therefore, be taken to have been made at or about the time of the occurrence. It is obvious that there was no tutoring of Raja Ram before he made the statement Ex. kha 1. The reason for saying so is that the statement Ex. kha 1 was not in line with the contents of the first information report. It was different in material particulars. It mentioned only three assailants and excluded the presence of other persons including any eye-witness. If Lotan or any other interested person had tutored Raja Ram; he would not have made the statement Ex. kha 1. The tutored statement would have been, in all probability, inconformity with the first information report. It was different in material particulars. It mentioned only three assailants and excluded the presence of other persons including any eye-witness. If Lotan or any other interested person had tutored Raja Ram; he would not have made the statement Ex. kha 1. The tutored statement would have been, in all probability, inconformity with the first information report. The learned trial Judge rightly emphasised that the statement Ex. kha 1 was not a result of tutoring and was a true statement. All the ingredients of section 157, Evidence Act are made out in relation to the statement Ex. kha 1 and, therefore it can be used to corroborate the testimony of Raja Ram. ( 21 ) THE statement Ex. kha 1 corroborates the testimony of Raja Ram injured so far as it relates to the date, time and place of occurrence and the participation of the present appellants Raj Karan Singh, Lala Singh and Baura in it. Here it may also be pointed out that though at the trial Raja Ram stated about the presence of the remaining three co-accused (who were acquitted) he did not assign any role to them. This shows that his statement with regard to those three coaccused was half hearted. In his statement at trial Raja Ram made only one improvement. He introduced names of three more persons amongst his assailants. He made one variation by saying that Lala and Baura had a lathi and a Barchhi respectively. His entire statement need not be rejected on these grounds. It is possible to separate the improvement made by him and that part may be rejected as unacceptable. His statement regarding participation of the present appellants deserves to be accepted because it receives corroboration from his earlier statement Ex. kha 1. The medical evidence is also not inconsistent with the case of the injured. Dr. R. N. Gupta, P. W. 8 stated that injuries might have been cause to the injured on 19. 7. 76 at 7 a. m. ( 22 ) IN view of what has been said above, I hold that the statement of Raja Ram injured (P. W. 2) to the effect that the present appellants had caused injuries to him, is worthy of acceptance. 7. 76 at 7 a. m. ( 22 ) IN view of what has been said above, I hold that the statement of Raja Ram injured (P. W. 2) to the effect that the present appellants had caused injuries to him, is worthy of acceptance. ( 23 ) THE nature and number of injuries and other circumstances go to prove that the three appellants bad made a preplan and had caused injuries to Raja Ram in furtherance of their common intention. It was a murderous assault. The three appellants were, therefore, rightly held guilty of an offence under section 307 read with section 34, Indian Penal Code. ( 24 ) THE offence under section 148 Indian Penal Code could not be held to have been made out against the appellants because it became obvious that the total number of assailants was only three and not five or more. The conviction of the appellants under section 148 Indian Penal Code cannot stand. ( 25 ) NEXT I come to the question of sentence. Having regard to the number and nature of the injuries inflicted on the injured. I do not find any justification for reducing the sentence for the offence under section 307/34 Indian Penal Code. ( 26 ) IN the result, the appeal is dismissed with slight modification. Conviction of the appellants Raj Karan Singh, Lala Singh and Baura for an offence under section 307/34, Indian Penal Code and the sentence of rigorous imprisonment for seven years on this count are upheld and maintained. The conviction and sentence of the appellants for the offence under section 148 Indian Penal Code are set aside. The appellants are on bail. They shall be taken into custody to serve out the sentence according to law. Their bail bonds are cancelled. Appeal dismissed with modification. .