A. R. TIWARI, J. ( 1 ) THIS judgment shall also govern the disposal of Cr. Appeal No. 2 16/86 (Ramsingh v. State), filed by Ramsingh from Jail who is also one of the appellants in Cr. Appeal No. 121/86. ( 2 ) BOTH these appeals are directed against the judgment Gated 7/3/1986 rendered by the Additional Sessions Judge, Barwani in Sessions Trial No. 52/84 there by convicting the appellants under section 302 and sentencing each of them to suffer imprisonment for life under section 302 of the Indian Penal Code and rigorous imprisonment of six months under section 147 of the Indian Penal. Code with the direction that the sentences shall run concurrently. ( 3 ) THE prosecution story in brief is that the appellant Madan and the deceased Mazid used to carry on the business of illicit liquor and this was the root cause of difference between them. On 28/1/1984, a day before the incident, the Excise Officers had seized the illicit liquor from the deceased Mazid and as such, the deceased Mazid and his mother Gafuranbai (also deceased) entertained suspicion against the appellant Madan. This had led to some dispute between them on 28/1/1984. On 29/1/1984, the appellants armed with lathis, reached the house of the deceased Mazid. At that time Majid was sitting on a cot in front of his house. The appellants mounted attack on him. Gafuranbai (mother of the deceased Mazid) came out of the house and declared that she was going to lodge a report in Thana. The appellants chased her and assaulted her too. Salauddin Sheikh (P. W. 3), an Advocate, also reached the spot and witnessed the incident. His request to stop assaulting proved painful. After some time, the appellants left the spot and went towards their house. Mazid succumbed to the injuries on the spot, and Gafuranbai was lying injured on the spot. P. W. 3 Salauddin Sheikh went to the Police Station and lodged the First Information Report marked in this case as Ex. P/i. Gafuranbai was medically examined by Dr. H. M. Modi (P. W. 8 ). The injury report is Ex. P/28. She, however, succumbed to the injuries at night. The postmortem was conducted by the same doctor and the postmortem report is Ex; P/30. The autopsy of Majid was conducted by Dr. Jagdish Prasad (P. W. 10 ). The post-mortem report is Ex. P/40. H. M. Modi (P. W. 8 ). The injury report is Ex. P/28. She, however, succumbed to the injuries at night. The postmortem was conducted by the same doctor and the postmortem report is Ex; P/30. The autopsy of Majid was conducted by Dr. Jagdish Prasad (P. W. 10 ). The post-mortem report is Ex. P/40. The spot map (Ex. P/2) was prepared. The lathis, the alleged weapons of assault were seized. Other article like cloths, simple and blood stained earth were also seized and submitted for Chemical Examination. The report of Chemical Examiner is Ex. P/39. The intimation of the report of lodged by P. W. 3 as First Information Report was sent to the court. The copy of this report is marked in. this case as Ex. D/5. The appellant Shantabai also complained of the injuries sustained by her in the course of the same incident. She was also medically examined by Dr. Sofia Khan (P. W. 6 ). She found no visible injury on the person of Shantabai. The injury report is Ex. P/5. After completion of investigation, the charge-sheet was, filed. The appellants were charged under section 147, 302 as regards death of Mazid and section 302 as regards death of Gafuranbai and in the alternative under section 302/149 of the Indian Penal Code on both these counts, to which they pleaded not guilty. On trial, the Court examined C. W. 1 to C. W. 5 as Court-witnesses. The appellants examined D. W. 1 to D. W. 3 as defence witnesses. The appellants were convicted and sentenced as above. ( 4 ) WE have heard Shri Jaisingh, learned counsel for the appellants and Shri Ashok Kutumbale, learned Government Advocate, for the State and perused the record. ( 5 ) SHRI Jaisingh urged that the First Information Report Ex. P/1 is prima facie ante-timed in the face of Ex. D/5, signed by the maker of the FIR wherein it was mentioned that both (Majid and Gafuranbai) had died contrary to Ex. P/1 where only Majid was shown to have died till then. He, therefore, urged that the entire case on account of this position is rendered suspicious and for this reason, the testimony of P. W. 3 Salauddin was not dependable. P/1 where only Majid was shown to have died till then. He, therefore, urged that the entire case on account of this position is rendered suspicious and for this reason, the testimony of P. W. 3 Salauddin was not dependable. He also submitted that the appellants Shantabai w/o the appellant Madan and Dhan nubai, daughter of the appellant Madan have been wrongly implicated just because they were members of the same family. He also submitted that the appellant Jagdish, a public servant has been falsely involved due to enmity with P. W. 3 Salauddin. Winding up his submissions, he urged that the conclusion reached by the trial Court was perverse and the appellants deserve to be acquitted. ( 6 ) SHRI Kutumbale, learned Government Advocate on the other hand, submitted that the conclusion was fully justified and was on firm foundation. He said that nothing tamed on Ex. D/5 because Gafuranbai had also succumbed to the injuries only at night of 29/1/1984. He, therefore, explained that by the time this Ex. D/5 was prepared the information about Ther death had become known to the police and as such, it had come to be recorded in Ex. D/5. There is sufficient evidence as regards Shantabai, Dhannubai as well. Criticism about the appellant Jagdish is also non- meritorious. He, therefore, submitted that the submissions made by the counsel are without substance and deserve to be rejected. On these contentions, he submitted that the appeals deserved to be dismissed. ( 7 ) IT is not disputed before us that the deceased Mazid and Gafuranbai died a homicidal death. Even otherwise the statements of P. W. 8 Dr. Modi and P. W. 10 Dr. Jagdish Prasad fully established this fact and arc corroborated by the postmortem reports Ex. P/30 and Ex. P/40. The essential question, however, is whether who did them to death and whether the case against all the appellants has been proved beyond reasonable doubt. ( 8 ) WE will first take up the case of the appellant Jagdish, a Jail Worder. His name appears in the First Information Report (Ex. P/1) lodged by Salauddin Sheikh Advocate (P. W. 3 ). The appellant has stated in his statement recorded under section 313 of the Code of Cr. ( 8 ) WE will first take up the case of the appellant Jagdish, a Jail Worder. His name appears in the First Information Report (Ex. P/1) lodged by Salauddin Sheikh Advocate (P. W. 3 ). The appellant has stated in his statement recorded under section 313 of the Code of Cr. Procedure that P. W. 3 was annoyed with him as he had not offered any assistance to him in arranging the meeting with one Iqbal who was before the incident incarcerated in jail. P. W. 3 has, however, denied such suggestion while in cross-examination. However, we find that this witness in his Court-statement has not specifically named the appellant Jagdish. P. W. 1 Nanuram although a child of tender years being of 12 years of age and tied down by the statement recorded under section 164 of the Cr. P. C. has implicated this appellant in his statement before the Court, but this was omitted by him in his police-statement (Ex. D/1) and the statement under section 164 of the Cr. P. C. (Ex. D/2) (para 14 ). P. W. 2 Govind, another witness tied down under section 164 of the Cr. P. C. has, however, not named him. Moreover, it is significant to note that the Court-witnesses C. W. 2 Kusumbai and C. W. 3 Meerabai both named as witnesses in the First Information Report, have not involved this appellant in their statements before the Court. This appellant has also examined D. W. 1 to D. W. 3 as defence witnesses in disproof of the charges against him and to show his innocence. In such kind of evidence, we entertain considerable doubt about the complicity of this appellant. ( 9 ) AS regards the other- four appellants (Madanlal, Shantabai, Ramsingh and Dhannabai), we find that no such doubt existed about their participation in the crime in question. They are named in the First Information Report (Ex. P/1) as the assailants. P. W. 1 although tied down under section 164 of the Cr. P. C. on ( ) has deposed that the appellant Ramsingh and Madan assaulted the deceased Mazid by lathis where as the appellants Shantabai and Dhannabai both armed with lathis exhorted. They caught hold of the deceased Gafuranbai and assaulted her. The other appellants also assaulted Gafuranbai. To the same effect is the statement of P. W. 2 Govind. P. C. on ( ) has deposed that the appellant Ramsingh and Madan assaulted the deceased Mazid by lathis where as the appellants Shantabai and Dhannabai both armed with lathis exhorted. They caught hold of the deceased Gafuranbai and assaulted her. The other appellants also assaulted Gafuranbai. To the same effect is the statement of P. W. 2 Govind. P. W. 3 Salauddin Sheikh also reached the scene of occurrence and found these appellants present on the spot and attacking the deceased Mazid. In order to dissuade Gafuranbai from lodging the report of the incident, the appellants also attacked her. C. W. 2 Kusumbai has also implicated the appellants. C. W. 3 Meerabai has also spoken about the attack by the appellants. The prosecution has, thus, proved the case against these four appellants beyond reasonable doubt. We find that the trial Court has correctly appreciated the evidence and there is no reason to disbelieve the testimony of the witnesses. The case is found to be proved on the evidence adduced by the prosecution. The counsel for the appellants could not point out any such infirmity which may vitiate the conclusion. ( 10 ) WE are aware of the fact that P. W. 1 Nanuram and P. W. 2 Govind were tied down by the statements under section 164 of the Cr. P. C. the position of law in such cases is well settled. In Balak Ram and another v. State of U. P. , it is held as under:the evidence of witnesses cannot by discarded merely because their statements were recorded under section 164. Their evidence must be approached with caution. Such witnesses feel tied to their previous statements given on oath and have but a theoretical freedom to depart from the earlier version. A prosecution for perjury could be the price of that freedom. It is, of course, open to the Court to accept the evidence of a witness whose statement was recorded under Section 164, but the salient rule of caution must always be borne in mind. It is thus clear that the evidence of the witnesses tied down under section 164 of the Cr. P. C. is not just discardable on that ground. All that is required is that the testimony must be subjected to close scrutiny. It is thus clear that the evidence of the witnesses tied down under section 164 of the Cr. P. C. is not just discardable on that ground. All that is required is that the testimony must be subjected to close scrutiny. We have done so and agreeing with the trial Court, conclude that the testimony of P. W. 1 and P. W. 2 inspires confidence. Moreover, it is corroborated by P. W. 3 Salauddin as also the aforesaid two witnesses examined by the Court as Court-witnesses. There is further corroboration from the medical evidence. It is, therefore, safe to act upon the testimony of the aforesaid eyewitnesses to the incident. ( 11 ) AS regards the criticism about Ex. D 15. vis-a-vis Ex. P/i and the submission with regard to the testimony of P. W. 3 Salauddin, we find that this did not destroy the warp and wood of the prosecution case fact, Gafuranbai had died at 12. 40 A. M. on 30/1/1984 i. e. on the same night, a night intervening between 29th and 30th January, 1984. It is inbred that a copy like Ex. D15 must have been prepared only on 30/1/1984 as a result of which there was some viaration as compared to Ex. P/1 on the point of the death of another person i. e. Gafuranbai. This small inconsistency is totally inconsequential and docs not deliver any dent on the prosecution story. The fact remains that the investigation had started right on 29/1/1984, and several steps in the course of investigation as evidenced by number of memos prepared and placed on record, has been taken. In view of this, there is no force in the contention about any inconsistency between Ex. P/1 and Ex. D/5. The investigation in the face of the aforesaid prompt steps like inspection of spot reparation of repot map, seizure of simple and blood-stained earth and few other things, cannot be dubbed as tainted. In Stale of U. P. v. Gokaran and others, it is observed as under:in the present case the incident took place on the night between March 27 and 28, 1972 and steps in investigation by way of drawing inquest report and other Panchanamas had been taken in the early morning of March, 28, and these could only follow the handing over of FIR to the station officer at about 2. 15 a. m. hi view of these facts the delayed receipt of the special report by the District Magistrate on March 29 would not enable the Court 10 dub the investigation as tainted one nor could the FIR be regarded as ante-timed or ante-dated. For the same reasons the delay in sending the necessary papers to the medical officer which were received by him on March 29, will De of no significance. There is motive available on record. Both the sides indulged in carrying the illegal business of illicit liquor and interests of one part clashed with those of the others. A criminal case, registered a day before the incident, furnished a cause which ignited the incident. It is really unfortunate that it was so enormous that two precious lives were lost. ( 12 ) WHEN such an incident occurs, it is natural that all the members of the family flock together and join with active participation. We find that they acted with preconcert and committed the acts with common intention. Although the appellants were charged under section 147 of the Indian Penal Code, They had full notice about common intention as well and as such, no prejudice can be said to be caused if conviction is altered to section 302/34 of the Indian Penal Code. It is seen that they were charged under section 302 of the Indian Penal Code and in the alternative under section 302/149 of the Indian Penal Code. We have read the particulars of the charge and find that they can appropriately be held guilty under section 302/34 of the Indian Penal Code instead of Section 302 simpliciter. ( 13 ) IN view of the aforesaid analysis, we find that the prosecution has discharged the burden of proof and the appellants conviction as above deserves to be maintained. ( 14 ) IN the circumstances, we allow the appeal so far as the appellant Jagdish is concerned and setting aside his conviction under sections 302 and 147 of the Indian Penal Code as also the sentences awarded to him under these sections, acquit him of all the charges. He is reported to be on bail. His bail-bonds arc cancelled. As regards the other four remaining appellants, we set aside their conviction under section 147 of the Indian Penal Code as also the sentence awarded to them under this section. He is reported to be on bail. His bail-bonds arc cancelled. As regards the other four remaining appellants, we set aside their conviction under section 147 of the Indian Penal Code as also the sentence awarded to them under this section. As regards their conviction under section 302 of the Indian Penal Code we alter this as under section 302/34 of the Indian Penal Code and maintain the sentence of imprisonment for life as awarded to them by the Trial Court. They are reported to be on bail. They are directed to surrender their bail-bonds to serve out the remaining part of their sentences and in default, the Chief Judicial Magistrate shall take appropriate steps for their arrest and commitment to custody. ( 15 ) THE appeal thus stands partly allowed in terms indicated above. The appeal in case of 4 others is dismissed as above, as far as L. I. is concerned. ( 16 ) LET a copy of this judgment be placed in the records of Criminal Appeal No. 216/86. 5/12/1992 The judgment is delivered by us today. After going through the judgment, placed for perusal, Shri Jaisingh, learned counsel for the appellants brought to our notice that one of the appellants, Shantabai had already expired. This fact may be left on record. The Registry is directed to see that whenever, a copy of this judgment is supplied to any parties, or anyone it shall be supplied alongwith certified copy of this proceeding so that the record is upto date. Appeal of Appellant No. 1 allowed. Appeal of remaining appellants dismissed. .