JUDGMENT 1. - This appeal is directed against the judgment dated April 6, 1990 passed by the Additional Sessions Judge, No.2, Udaipur, by which appellant Khema was convicted under Sections 148, 307 and 450 I.P.C. and sentenced to one years' R.I. on the first count, five years' R.I. and a fine of Rs. 200/-, in default of payment of fine to undergo two months' R.I. on the second count and three years' R.I. and a fine of Rs. 200/-, in default of payment of fine to undergo two months' R.I. on the third count. The remaining appellants were convicted under sections 147, 307/149 and 450 I.P.C. and each of them was sentenced to six months' R.I. on the first count, five years' R.I. and a fine of Rs. 200/- in default of payment of fine to undergo two months' R.I. on the second count and three years' R.I. and a fine of Rs. 200/-, in default of payment of fine to undergo two months' R. I. on the third count, with an order that all the substantive sentences awarded to all the appellants on all the counts shall run concurrently. 2. Succinctly narrated the prosecution case against the appellants was that on September 29,1986 Dhuli, wife of Dhula Garasia resident of Bakavas lodged information at Police Station Bekria to the effect that Bhura's goats and she-goats died of diseases but Bhura was suspecting her husband Dhula of killing them by magic. That, on September 29, 1986 at about 5.00 P.M. she along with her husband Dhula and daughter Devli (P.W.4) were at their house when Bhura along with his sons, Khema, Goma, Ghuria and four others viz. Hima, Hira, Jora and Vajja armed with lathis, axe and 'Chhuri' (small dagger), raising a cry came to her house. Bhura caught hold of her husband and fell him down. All the accused asked Khema to do away with the enemy meaning thereby Dhula, by 'Chhura'. At this Khema caused injury on the neck of Dhula with 'Chhuri' he had with him. Dhula started bleeding from the injury. Dhuli and her daughter Devli tried to intervene but Goma, who was having axe, threatened them. At this she raised a cry and Kala son of Vaga came there. The accused party, on seeing him took to ' against the judgment dated 6.4.90 passed by Shri Janld Vallabh Joshi. Addl. Dhula started bleeding from the injury. Dhuli and her daughter Devli tried to intervene but Goma, who was having axe, threatened them. At this she raised a cry and Kala son of Vaga came there. The accused party, on seeing him took to ' against the judgment dated 6.4.90 passed by Shri Janld Vallabh Joshi. Addl. Sessions Judge No. 2, Udaipur in Sessions case No. 35/87. heels. That, if she and her daughter would not have been there, the assailants would have killed Dhula. That, Megha and Bhura also reached thereafter. On this information Amar Singh (P.W.12), S.H.O. of Police Station Bekria recorded the F.I.R. (Ex. P/20) and registered the case. He, at the instance of Dhuli inspected the site and prepared the site inspection memo Ex.P/22. Dr. N.S. Kothari (P.W.9), Medical Jurist, General Hospital, Udaipur on September 30,1986 at 1.00 A.M. examined Dhula and prepared the injury report Ex.P/1. The Doctor noted as under: "Incised wound 6.0 cm x 1.0 cm on the front of neck at the end of thyroid cartilage, transuerse, cutting the crico-thyroid cartilage with Bronchial from thracleo. Injured was unable to speak and was leaking from the wound during respiration and coughing". 3. The injury was caused by sharp edged weapon and was dangerous to life. The S.H.O. arrested all the appellants. in pursuance of the information of Khema appellant 'Chhuri' (small dagger) was recovered. In pursuance of the information furnished by the remaining appellants, lathis were recovered. 4. Upon completion of necessary investigation charge-sheet against all the appellants was filed in the Court of Munsif and Judicial Magistrate, Gogunda. The learned Magistrate committed the case to the Court of Sessions Judge, Udaipur. The case on transfer reached the Court of Additional Sessions Judge, No.2, Udaipur. The learned Judge charge-sheeted the appellants under Sections 147, 148, 307/149 and 450 I.P.C. and recorded their pleas. All of them denied the indictments and claimed to be tried. In order to substantiate its case prosecution examined 12 witnesses in all. In their statements under Section 313 of the Code of Criminal Procedure all the accused denied the allegations levelled against them. No defence witness was examined. The learned Judge placed reliance on the prosecution evidence and passed the judgment under appeal. 5. I heard Mr. A. K. Acharya, learned counsel for the appellants and Mr. In their statements under Section 313 of the Code of Criminal Procedure all the accused denied the allegations levelled against them. No defence witness was examined. The learned Judge placed reliance on the prosecution evidence and passed the judgment under appeal. 5. I heard Mr. A. K. Acharya, learned counsel for the appellants and Mr. K. L. Thakur, learned Public Prosecutor for the State and carefully examined the record of the case. 6. The learned counsel for the appellants strenuously contended that the prosecution case rests on the testimony of Dhula injured and his daughter Devli (P.W.4) and there is no independent witness to support their version. The learned counsel emphasised that the fact of Dhula sustaining only one injury shows that a number of persons of Bhura's family have been falsely implicated in the matter so as to make it a case of an unlawful assembly with common object to cause injuries to Dhula. It has also been argued that the recovery of the weapon from the appellants has not been supported by the motbirs nor is there only evidence to connect any weapon with the commission of the crime. 7. The learned Public Prosecutor controverting the arguments of the learned counsel for the appellants submitted that Dhula and Devli (P.W.4) have fully established the prosecution case about eight persons, armed with weapons, going to the house of Dhula and Khema at the instigation of others causing injuries on his neck. The learned Public Prosecutor argued that the learned Judge has rightly taken the recovery of 'Chhuri' at the instance of appellant Khema as a connecting circumstance against him because the motbirs have at least admitted their signatures on the recovery memo. 8. Prosecution has led direct as well as circumstantial evidence. For the direct evidence, prosecution has examined Dhula (P.W.2), his daughter Devli (P.W.4), Kala son of Vagga, Megha (P.W3), and Ogha (P.W.1). The circumstantial evidence is the alleged recovery of various weapons on the informations furnished by the appellants. 9. So far as the recovery of the weapon is concerned, suffice it to say that there is no material to connect those weapons with the commission of the crime. Jeeva (P.W.8) and Dharma (P.W.10), the motbirs to the various recovery memos have not supported the prosecution case. 9. So far as the recovery of the weapon is concerned, suffice it to say that there is no material to connect those weapons with the commission of the crime. Jeeva (P.W.8) and Dharma (P.W.10), the motbirs to the various recovery memos have not supported the prosecution case. Apart from it, even taking the prosecution case as it is, it is only dagger which is said to have been used by Khema for causing injury to Dhula. The axe said to be with Goma and the lathis with other appellants were not used in the incident. 'Chhuri' (Ex. 8) had no blood on it. It has not been shown to the Medical Jurist Dr. N.S. Kothari (P.W. 9) to state that injury on the person of Dhula could have been caused by that weapon. This being the position, the recovery of any weapon from any appellant cannot be taken to be circumstance against him. 10. Out of the eye witnesses examined by the prosecution Kala son of Vagga has only stated about his reaching the site on hearing the cry and seeing the backs of the miscreants when they were running from the site. This witness happens to be the real nephew of injured Dhula and as such interested in him. He has stated about Ogha, Megha and Kala son of Bhura reaching the site. The prosecution has examined three witnesses Ogha (P.W.1), Megha (P.W.3) and Jeeva (P.W.8) to state that they had reached the site immediately after the incident. All of them have been disowned by the prosecution as they did not support the prosecution case. 11. Dhuli, wife of Dhula, who is said to have lodged the information at Police Station, has since died and therefore, could not be examined in the case. The prosecution case as such rests on the testimony of injured Dhula and his daughter Devli. Dhula has stated that all the accused went to his house and were crying that as he had killed the she-goats by magic, he should be killed. At this Khema caused injury at his neck. Devli (P.W.4), daughter of Dhula have corroborated the version given by her father. Dhula has stated that all the accused went to his house and were crying that as he had killed the she-goats by magic, he should be killed. At this Khema caused injury at his neck. Devli (P.W.4), daughter of Dhula have corroborated the version given by her father. On a superficial view of the statement of these witnesses, the prosecution case may appear to be true but the careful scanning and sifting of their evidence casts doubt on the prosecution case about there being an unlawful assembly of eight persons and Khema causing injury in furtherance of the common object of that assembly. 12. It is important to note that Dhuli was the first informant in the case. She having since died could not be examined at the trial and therefore, the contents of the F.I.R. could not be corroborated and contradicted from her. From the prosecution witnesses, it has come on recorded that prior to the information by Dhuli another information was lodged by Kala son of Vaga (P.W.5) accompanied by Kala son of Bhura (P.W.6). Kala son of Bhura has stated that on the date of the incident at about 5.00 P.M. Kala son of Vaga went to him in the village and informed about there being a quarrel with Bhura and Dhula and told him that matter is to be reported at the Police Station. The witness stated that he and other Kala son of Vaga went to the Police Station to report the matter and returned at 8.00 P.M. and then went to the house of Dhula. This information has not been brought on record. If Kala son of Vaga, the real nephew of Dhula, as stated by him, had reached the site on hearing the cry of Dhuli, he, in the natural course of events must have gone to the Police Station instead of sending Dhuli his aunt alone for lodging the report. Another factor coming from the version of Kala son of Bhura (P.W.6) is that Kala son of Vaga had told him only about some quarrel between Bhura and Dhula. If Kala son of Vaga had reached the site and seen the assailants returning with arms, he would have told this fact to Kala son of Bhura, instead of telling him only about some quarrel taking place between Bhrua and Dhula. If Kala son of Vaga had reached the site and seen the assailants returning with arms, he would have told this fact to Kala son of Bhura, instead of telling him only about some quarrel taking place between Bhrua and Dhula. These facts cast a doubt upon the truthfulness of the prosecution case about a number of persons having gone to the house of Dhula and Khema causing injury to him at the instigation of other members of the alleged unlawful assembly. Kala son of Vaga (P.W.5) appears to have been implanted as a witness in order to substantiate the prosecution case that all the appellants were the miscreants and all of them were having arms with them. The reason for this opinion is that Kala son of Vaga has stated that Police had recorded his statement three months after the occurrence. 13. So far as the injury by sharp edged weapon on the neck of Dhula is concerned Dhula's statement has been supported by Devli (P.W.4). The fact of the injury being on the neck also stands corroborated by the medical evidence. Dhula and Devil are unanimous on the point that the author of the injury on the neck by sharp edged weapon was Khema. The pertinent question however, would be whether all the appellants had formed an unlawful assembly and had gone to the house of Dhula with the common object of killing him. As already observed,Kala son of Vaga (P.W.5) who has claimed to have seen the miscreants returning from the site of occurrence had not told their names to Kala son of Bhura (P.W.6) when he just after the incident went to him in the village and asked him to accompany him to the Police Station to lodge the report of the quarrel between Bhura and Dhula. 14. As observed above, the F.I.R. said to have been lodged by Kala son of Vaga going to the Police Station in the company of Kala son of Bhura has not been brought on record and therefore, it cannot be said as to what was exactly the prosecution story. 14. As observed above, the F.I.R. said to have been lodged by Kala son of Vaga going to the Police Station in the company of Kala son of Bhura has not been brought on record and therefore, it cannot be said as to what was exactly the prosecution story. There is substance in the argument of the learned counsel for the appellant that in order to bring the case within the definition of an unlawful assembly, the prosecution has involved all the family members and relatives of Bhura who is said to be annoyed with Dhula because of his she -goats having died a few days prior to the incident. 15. Dhula injured, as stated by him had been examined ten days after the incident. The learned Public Prosecutor submitted that his condition might be precarious and for that reason Police might not have recorded his statement for such a long period. It has been mentioned in Ex.P/1 that the patient was conscious but was unable to speak. For how long he was unable to speak has not come on record. Be that as it may, even if it is taken for granted that for ten days Dhula was not in a position to give statement, still the fact remains that during all that period he might have met his family members and others. The learned counsel for the appellants as such argued that during that period he might have thought over the matter as to how many persons are to be involved in the case. Devli (P.W.4) daughter of Dhula, in her examination-in-chief has stated about the incident as stated by her father adding something more such as Bhura catching hold of Dhula and then Khema inflicting blow on the neck by 'Chhuri'. Dhula has not stated about any over-act by Bhura. He has rather stated that all the persons were uttering that as he i.e. Dhula had killed the she-goats by magic and he should be killed and then Khema caused injury on his neck. He had denied about anybody else catching hold of his feet. Devli could not stand the cross- examination well. There is a note in the cross-examination that the witness after remaining quiet for a long time was replying the questions put to her with great difficulty. He had denied about anybody else catching hold of his feet. Devli could not stand the cross- examination well. There is a note in the cross-examination that the witness after remaining quiet for a long time was replying the questions put to her with great difficulty. On being questioned as to whether his father was reprimanded by the Panchas of the village, the witness kept quiet. A pertinent question was asked to the witness as to which accused caused injury on the neck of her father and the witness remained quiet and did not answer the question. The learned judge while recording the statement has made a note about the demeanour of the witness. However, in the judgment, this fact has not been given due importance. The conduct of the witness has been ignored by the learned judge by holding that as the witness has stated the facts in examination-in-chief, her not answering the questions put in the cross-examination and keeping quiet about the pertinent question about the author of the injury of her father being asked, is not a serious infirmity. If a witness states something in examination-in-chief but in cross-examination cannot give the answer to a question in that regard and on important question being put keeps quiet, it casts doubt about the truthfulness of her version given in the examination-in- chief. The inference in such cases ordinarily would be that the witness has been coached up about the story and parrot like narrated the same in examination-in-chief. The veracity of the testimony of the witness is to be judged not only from the version given in examination-in-chief but to the version in examination-in-chief and cross-examination taken together, the very purpose of cross-examination of the witness is to shatter the testimony with a view to point out that the witness is not a truthful witness and the version in examination-in-chief is not the correct version. 16. From the statement of Devli (P.W.4) taken as a whole it appears that she, in order to substantiate the prosecution case, exaggerated the real facts and falsely involved a number of persons and for that reason could not stand the cross-examination well. It is important to note that Devli was a grown up lady of 27 years of age and there was no question of her getting nervous or feeling perturbed by the Court atmosphere. 17. It is important to note that Devli was a grown up lady of 27 years of age and there was no question of her getting nervous or feeling perturbed by the Court atmosphere. 17. From the statement of Dhula corroborated by the medical evidence, this much is established that Dhula sustained injury at the neck with sharp edged weapon at the hands of Khema. The question would be whether the charges against all the appellants for forming an unlawful assembly and the conviction of the appellants other than Khema with the aid)of Section 149 I.P.C. is justiciable. As admitted by Dhula, and not disputed by the learned Public prosecutor, except Khema no other appellant has been assigned any overt-act in the incident. Dhula has stated about Bhura throwing him down and sitting on his chest. He has not stated so in his Police statement Ex.D/1 to which omission his attention was drawn and he could not explain the reason. Devli has not supported this version. She has rather stated that Bhura caught hold of her father and Khema caused injury' with 'Chhuri'. Dhula has stated that nobody caught hold of his legs. He has stated that all the miscreants all of a sudden fell on him This fact also does not appear in the statement of Devli. Dhula has admitted that nobody caused any injury with lathi nor anybody gave a beating to him with fist blows or kicks. 18. It does not appeal that eight persons armed with sharp edged weapons and lathis might have gone to kill Dhula for his killing the she-goats by magic and all of them except one remained bystanders and only one of them caused only one injury to him. The fact of Dhula sustaining only one injury casts a doubt on the prosecution case about a number of persons having gone to his house with the common object of killing him. 19. The F.I.R. by Kala son of Vaga, as evident from the statement of Kala son of Bhura, accompanying the former to the Police Station has not been produced. 19. The F.I.R. by Kala son of Vaga, as evident from the statement of Kala son of Bhura, accompanying the former to the Police Station has not been produced. It raises a suspicion about the prosecution story and lends support to the argument of the learned counsel for the appellants that there might have been some quarrel and Khema might have caused some injury to Dhula but subsequently a number of persons of the complainant party, being of the family of Bhura, have been falsely implicated. There is also substance in the submission of the learned counsel for the appellants that the information, even if any, by Dhuli might have been recorded by the Police on reaching the site at the information given by Kala son of Vaga, after confrontation and a number of persons might have been made accused in the case. In order to give support to the statement of Dhula and Devli, prosecution has after three months of the incident examined Kala son of Vaga, the real nephew of Dhula to state that he had also seen the miscreants armed with weapons going from the site. 20. In view of the facts and circumstances of the case and the single injury sustained by Dhula at the hands of Kheme, the prosecution case about the accused forming an unlawful assembly becomes doubtful. In view of this finding, the conviction of the appellants Bhura, Vajja, Jora, Hansa, Hima, Hooriya and Goma under Section 147 and appellant Khema under Section 148 I.P.C. is not sustainable. The conviction of the appellants other than Khema under section 307 read with section 149 and section 450 I.P.C. is also not sustainable. 21. So far as Khema appellant is concerned, injury on the neck of Dhula by sharp edged weapon is established by the medical evidence. According to Devli (P.W.4) Khema was the author of that injury. Devli's testimony to this limited aspect is to be believed. Dr. N.S.Kothari (P.W.9) has prepared the injury report Ex.P/1. It has been written therein that the patient was unconscious and unable to speak. The injury was considered to be dangerous to life. If a person causes injury with sharp edged weapon on the neck of a person which is designated as dangerous to life and the condition becomes serious, the case of the assailant would fall within the ambit of section 307 Indian Penal Code. The injury was considered to be dangerous to life. If a person causes injury with sharp edged weapon on the neck of a person which is designated as dangerous to life and the condition becomes serious, the case of the assailant would fall within the ambit of section 307 Indian Penal Code. The conviction of Khema under section 307 I.P.C. is therefore, justiciable. It has nowhere come on record that Dhula at the time of the occurrence was inside his house. Devli is said to be in the field nearby at the time. Her claiming to have seen the incident from a distance at the field also suggests that Dhula might not be inside the house at the time. As such, conviction under Section 450 I.P.C. against Khema is not made out. 22. Consequently, the appeal of Bhura, Vajja, Jora, Hansa, Hima, Hooriya and Goma is allowed. Their conviction and sentences for the various offences are set aside. They are acquitted of the charges. All of them are on bail. Their bail bonds stand discharged. Appeal of Khema appellant is partly allowed. His conviction and sentences for the offences under sections 148 and 450 Indian Penal Code.Appeal Partly Allowed. *******