JUDGMENT 1. - The seven appellants before us have been convicted by the Additional Sessions Judge No. 2 Bharatpur, for offences under Sections 148 and 302/149 Indian Penal Code and sentenced as under : Under Section 302 read with Section 149 Life Imprisonment and fine of Rs. 2,000/- each and in default of payment of fine to undergo two R.I. and under Section 148 Indian Penal Code one year R.I. and fine of Rs. 500/- and in default of payment fine six months R.I. Both the sentences have been ordered to run concurrently. Against this judgment' dated 30th Nov. 1991 all these persons have preferred this appeal. 2. The incident out of which this case arises occurred on 27th July, 1989 at about 6.00 p.m. at the bus stand of village Sait. The deceased in this case in Sher Singh, brother of Bheem Singh, who lodged the first information report by giving a written report to the SHO of Police Station Kumher on 28th July, 1989 at 7.30 a.m. on the site. This report contains the following facts. On 27th July, 1989 at 6.00 O'clock in the evening Hari Singh and Arjun were sitting at the Sait crossing for going to the village at that time his brother Sher Singh came there on a motor cycle and parked the same in front of the shop of Har Govind. At the crossing Bachu, Narain, Phoola, Sahab Singh Virmpal, Suresh and Daulal were standing and were armed with katta, chaku, farsa and lathies. Bachu had a katta, Sahab Singh had a farsa and knife. All the accused surrounded him and Bachu fired at him with the intention of causing death. Sher Singh ran towards the village Sait but fell down because of the gun shots. Then he was beaten by all the accused by lathies, farsas and knives. The people at the bus stand tried to intervene but they were threatened not to come near and a katta was fired to frighten them. The accused ran away. It was mentioned that they had killed Sher Singh on account of old enmity. 3. Then he was beaten by all the accused by lathies, farsas and knives. The people at the bus stand tried to intervene but they were threatened not to come near and a katta was fired to frighten them. The accused ran away. It was mentioned that they had killed Sher Singh on account of old enmity. 3. This written report Ex.P/10 was handed over to the SHG Incharge, Police Station Kumher at the site of the occurrence in village Sait by Bhim Singh and he also gave out that he could not go to the police station in the evening as he was afraid of the accused persons. This report was sent to the Police Station Kumher for registering a case and the first information report Ex. P./ll was registered. Bhim Singh submitted a report in continuation which is Ex. P. 17 saying that one Devi Singh was also alongwith the accused persons and he had a knife by which he gave blows on the face of the deceased and that the informant had failed to mention the name of Devi Singh as he was not in proper senses. This Devi Singh was not made an accused. 4. A Q.S.T. message had been received at Police Station Kumher on the night of 27th July, 1989 from Police Station Deeg informing about the incident in village Sait and on this basis PW. 19 Ram Snehi, Station House Officer, Police Station Kumher had proceeded to the site alongwith his staff. According to him, he found the dead body at the place of occurrence and no one else was present there. He left two constables and returned to the Police Station and it was only when he went there the next morning that the written report Ex.P./lO was submitted by Bhim Singh and then further investigation was done. Ram Snehi proceeded to the site on receiving this Q.S.T. message but at that time the names of the accused were not known. 5. He conducted the usual investigation and filed a challan. On the post mortem conducted on the body of the deceased following internal and external injuries were found: 1. Incised wound oblique 6 cm. X 2 cm. B.D. It. side forehead 2. I.W. 4 cm. X 2 cm. BD Rt. side forehead 3. I.W. oblique 6 cm. X 2 cm. b.d. Lt. cheek. 4. I.W. 7 cm. x 2 cm. b.d. It. Incised wound oblique 6 cm. X 2 cm. B.D. It. side forehead 2. I.W. 4 cm. X 2 cm. BD Rt. side forehead 3. I.W. oblique 6 cm. X 2 cm. b.d. Lt. cheek. 4. I.W. 7 cm. x 2 cm. b.d. It. side of Mandible (body) lower border 5. I.W. 6 cm. x 2 cm. b.d. Just below Rt. eye. 6. I.W. 4 cm. x 2 cm. x b.d. interdegital space of Rt. Index and Middle finger. 7. I.W. 5 cm. x 2 cm. b.d. Rt. side occipito-Perietal region 8. Abrasion 6 cm. x 4 cm. Dorsal surface of Rt. fore arm. 9. Lacerated wound oval in shape 3/4 cm. x 1/2 cm. (wound of Entry Ed 9 cm. inverted) just laterally to the Lt. Nostril No smoking No Totooing and blackening was seen. 10. Lacerated wound oval in shape 1 cm. x 3/4 cm. 4 cm. Anterior (wound or Exit) to the Lt. Ear edges of wound Everted and torn. 11. Contusion 6 cm. X 4 cm. Neck Anterior surface around Thyroid bone 12. Abrasions two in numbers varying in size from 3 cm. X 21/2 cm. X 11/2 cm. both side of Thyroid bone (Anterior to the neck) All above mentioned injuries were ante mortem in nature 1 to 7 injuries were caused by sharp weapon and 8, 11 and 12 were caused by blunt weapon. Injuries No. 9 and 10 were caused by fire arm duration of injuries were within 24 hrs. Internal examination of Neck - Muscles of the Neck congested - Fracture of Larynx of trachea present / - Hyoid bone fractured - Corotid arteries lacerated. 6. In the opinion of the doctor the cause of death was excessive haemorrhage caused due to the multiple injuries leading to shock and coma alongwith asphyxia caused by strangulation of neck. 7. The learned Sessions Judge on an appraisal of the material produced in the case arrived at the finding that all the accused had the common object of causing the death of the deceased and that they acted in furtherance of their common intention as such they were all liable for the offence under Sections 302/149 Indian Penal Code alongwith section 148 Indian Penal Code and convicted and sentenced them as stated above. 8. 8. Two main witnesses in the case are PW 4 Pushpa wife of the deceased and PW 13 Bhim Singh, who is brother of the deceased. Some other witnesses have turned hostile while many witnesses who could be present at the site of their shops at the bus stand could have witnessed the incident but they have not been examined, mainly because they were not prepared to come forward as witnesses. 9. PW 4 Pushpa has stated that her father resides in Delhi and on 27.7.1989 she came from Delhi along with her brother-in-law and at about evening time on that day they were at Sait crossing there she met her cousin brother-in-law Bhim Singh. At that time Bhim Singh stated that Sher Singh had gone to Deeg to move an application and soon after Sher Singh came there on his motor-cycle along with Banno. He parked the his motor-cycle and the accused persons who have been named along with Devi, who was standing near the shop came there and Bachu fired a shot at Sher Singh, Devi and Sahab Singh gave knife and farsa blows, Sher Singh fell down as a result of the bullet injuries and could not run away. Sahab Singh kept his foot on the neck of Sher Singh and gave knife blow on the face and neck. Devi fired a katta to frighten the witnesses and then ran away. Without giving the details she also said that the accused had old enmity with her husband Sher Singh. In cross examination the back ground of Sher Singh has been revealed. He was a man of 28 to 30 years with an injury in his left bee on account of which his leg could not move properly. He had remained in jail for about 8 to 9 months, but the reason has not come out. Sher Singh used to drive motor-cycle 4487, but she could not give out as who was the owner of this motor-cycle. She had travelled from Delhi to Deeg and Deeg to Sait in bus and from Sait to Sinsini her village they were to go in Tonga as no bus was available for covering this distance. Sher Singh used to drive motor-cycle 4487, but she could not give out as who was the owner of this motor-cycle. She had travelled from Delhi to Deeg and Deeg to Sait in bus and from Sait to Sinsini her village they were to go in Tonga as no bus was available for covering this distance. According to her Sher Singh got down from the motor-cycle and was going to Water Piau when Bachu fired at him, all the accused persons had been hiding behind a shop and suddenly came out from there. This fact of hiding behind a shop had not been given out in her police statement. According to her she and other persons were near the dead-body for the whole night and the police came from Kumher had come there and two three constables stayed there. She denied the suggestion that Sher Singh met with an accident and died as a result of the injuries sustained in the accident. 10. PW 13 Bhim Singh has stated that on 27.7.1989 he was at the bus stand of village Sait when Arjun, Pushpa, Murari, Hari Singh were also present; at that time Sher Singh came from Deeg on a motor-cycle along with Banno. He parked the motor-cycle and the accused persons came there and Bachu fired a katta, Sahab Singh and Devi gave knife blows. Sahab Singh stood with his foot on the neck of Sher Singh and gave beating to him. Devi had also fired a katta to frighten the persons standing there. This incident is said to have occurred on account of old enmity. This witness Bhim Singh gave a report about this incident to the SHO at the place of occurrence itself. Thereafter he gave another report saying that the name of Devi was omitted as this witness was grief stricken. In cross examination it has come out that in the report Ex.R/10, names of the person who were sitting with him at the bus stand have not been mentioned. 11. From the narration it has come out that even though Devi was present alongwith the accused and had fired to frighten the persons standing there and had even inflicted the injuries on the deceased but he has not been made accused in Ex.R/10 but was named in the subsequent continuation report Ex.P./17. 12. 11. From the narration it has come out that even though Devi was present alongwith the accused and had fired to frighten the persons standing there and had even inflicted the injuries on the deceased but he has not been made accused in Ex.R/10 but was named in the subsequent continuation report Ex.P./17. 12. In this background we have to see whether on the basis of the statement of the two witnesses a case against the accused appellants can be said to be established or not. The learned counsel for the appellants has argued that one Gopali had already given an information about the incident at the Police Station Deeg and QST message was sent from Police Station Deeg to Police Station Kumher on which PW 19 Ramsnehi, SHO, Police Station Kumher proceed to the site. According to him he found the dead-body at the site but no one was present there and he left the two constables to keep a watch over the dead-body. it was only in the morning that Bhim Singh handed over a written report Ex.R/10. It is contended that the QST message is the first information report in this case and Ex.R/10 and Ex.P./17 are hit by section 162 Criminal Procedure Code and can be looked into only for purposes of contradiction and not for corroboration. Reliance has been placed on Satyapal and another v. State of U.P. (1992(3) Crimes 124) , wherein the conviction of the accused was set aside when the material facts were suppressed in the FIR, which were doubtful and legally not liable to be considered. The place of occurrence had not been proved and there was no motive to commit the murder or even to cause injury. The statement of the witnesses was unbelievable and oral evidence was inconsistent with the medical evidence. 13. In Naheshwar Shri Krishna Choube v. State of Maharashtra (1973 Cr.L.R.(SC) 920) , the statement of a witnesses was taken to be an FIR but it was held that when his statement was first recorded the investigation had already started and his statement would fall under section 161 Criminal Procedure Code and could only be utilised as provided by section 162 Criminal Procedure Code. contradicting him. 14. contradicting him. 14. In Somappa v. State of Mysore (AIR, 1979 SC 1831) , the police after reaching the scene, sent the deceased to the hospital, and arrested accused and seized his clothes and thereafter recorded the statements of the witnesses, it was held that the statement could not be used as FIR as it was the statement recorded during investigation. It was further held that the rejection of the statement as FIR, would not detract the testimony of eye witnesses which will have to be assessed on its own merits, the conviction was upheld. 15. In Nanda v. State of Rajasthan (1979 RCC 204) there was delay in lodging the FIR, which was not explained and it appears that the true version has been suppressed and it was difficult to separate the grain from the chaff and in view of this the conviction was set aside. 16. Referring to the delay in lodging of the FIR it is argued that it cannot be used for purposes of corroboration and it cannot be ruled out that there was over implication of the accused. 17. In Madho and seven others v. State of Rajasthan (1979 Cr.L.R. (Raj.) 200) the delay of 33 hours in lodging the FIR was considered and it was held that over involvement could not be ruled out. 18. It has not come out on record as to what was the QST message which was sent to the Police Station, Kumher on the basis of which PW 19 Ramsnehi, SHO, proceeded to the scene of occurrence. However, when an incident occurs in a village in which a gun is also fired then normally the information which reaches the Police Station is that there has been firing and not the details as to who fired the gun and who received the injuries. After receiving this information the police cannot sit and wait for a proper FIR and register the case before starting the investigation. A cryptic message could not amount to saying that the names of the accused were not known or that there were no witnesses to the incident. It would ultimately depend upon the evidence in the case as to whether the evidence of the witnesses can be accepted as trustworthy or not. While doing so the delay in lodging the FIR is also to be considered. It would ultimately depend upon the evidence in the case as to whether the evidence of the witnesses can be accepted as trustworthy or not. While doing so the delay in lodging the FIR is also to be considered. Ultimately the decision would rest on the statements of PW 4 Pushpa and PW 13 Bhim Singh. 19. It has been contended that in the FIR Ex.P./10, overt act has been attributed to accused Bachu only and now there is a development in the statements of the witnesses wherein they have attributed specific role to Sahab Singh also. There were general allegations in the FIR Ex.P./10 that after Bachu had fired at Sher Singh which hit him on the face, all the other accused gave beating to him by lathies, farsa and knives. Now in evidence injuries No. 11 and 12 have been attributed to accused Sahab Singh and other injuries have been attributed to Devi Singh, who was not been made accused. Referring to the medical evidence, it is also pointed out that none of the witnesses have stated that deceased Sher Singh was strangulated by any of the accused and this is also said to be the ground for disbelieving the witnesses. Other reasons given out are that Murari and Arjun have not supported the prosecution case while others who worked at the shops have not been produced in the case. 20. This aspect of the matter has been considered by the learned Addl. Sessions Judge. It is too common that the witnesses do not want to come forward to involve themselves in cases and specially when the incident has taken place due to long standing enmity between two groups. No one wants to take risk of being included in the hit list. It is also natural that persons, whose relation is killed become emotionally upset, immediately after incident they cannot be expected to give the detailed version of the incident by mentioning the act of each accused. Had it been their intention to attribute specific acts to all the accused they would have done so in their statements before the court or even before the police but specific role has been assigned only to Bachu Singh and Sahab Singh. When Devi Singh was not made an accused, the witnesses could have shifted his act to others, but they have not done so. When Devi Singh was not made an accused, the witnesses could have shifted his act to others, but they have not done so. In these circumstances we do not find the omission in the FIR or minor inconsistency of such a nature so as to disbelieve the two main witnesses in the case. The accused have not been able to shake the witness Pushpa PW 4 in her cross examination and omission in the statement of Bhim Singh PW 13 in giving specific role to Sahab Singh and Devi Singh while making the written report, this would not be fatal to the prosecution so as to disbelieve the whole case. 21. We may observe that the absence of specific role to all the accused may lead to the inference that all of them did not participate in the incident and there should have been specific evidence in order to show that the assembly was unlawful and all of them had the common object of causing death of Sher Singh at the time the incident occurred. According to the witnesses all the accused were standing behind the shop and it cannot be said that they had concealed themselves because they were visible to some of the witnesses. It is also not on record that they knew that the deceased Sher Singh would be coming there, therefore they waited there. In such circumstances forming of unlawful assembly is difficult to be believed. It has also not been given out as to who were the persons with whom the deceased had enmity. In our opinion in absence of proof of formation of unlawful assembly only those accused can be convicted who have been assigned with specific roles and in this case, they are Bachu Singh and Sahab Singh. The injuries No. 9 and 10 which were caused by gun shot and are wounds of entry and exit had been attributed to Bachu Singh, while injuries 11 and 12 and other knife blows have been attributed to the appellant Sahab Singh. The doctor in his report and statement has mentioned that the asphyxia was caused on account of strangulation i.e. pressure on the neck and this pressure can be by putting any pressure on the neck. We may say that strangulation does not mean that the neck has to be pressed by both the hands. The doctor in his report and statement has mentioned that the asphyxia was caused on account of strangulation i.e. pressure on the neck and this pressure can be by putting any pressure on the neck. We may say that strangulation does not mean that the neck has to be pressed by both the hands. There can be asphyxia of the thyroid and hyoid bones, even by some other pressure and in this case it was provided by the foot of the appellant Sahab Singh, who inflicted knife blows on the deceased by keeping his foot on his neck. Oral evidence in this case stands corroborated by the medical evidence. 22. The learned counsel for the applicants has made an attempt to argue that the deceased could have received the injuries on account of accident or a fall from the motor cycle as he was already having a knee injury an had only recently started driving his motor cycle. We are of the opinion that this argument has been advanced only for being refuted as even the learned Addl. Sessions Judge has held that by one fall there cannot be injuries of both the sides. 23. On the basis of the above discussion we arrive at the conclusion that conviction of appellants Bachu Singh and Sahab Singh is to be maintained for the offences under Sections 302 and 302 read with section 34 Indian Penal Code, while the other appellants are entitled to be acquitted of all the charges. 24. In the result the conviction and sentence of appellants Narain Singh, Phool Singh, Suresh, Daulat Singh and Prem Pal under section 148 and section 302 read with section 149 Indian Penal Code, is set aside. The appellants Sahab Singh and Bachu Singh are acquitted of the offence under Section 148 Indian Penal Code and their conviction is altered from section 302 Indian Penal Code read with section 149 Indian Penal Code to section 302 Indian Penal Code read with section 34 Indian Penal Code. They are sentenced to life imprisonment and a fine of Rs. 4000/- each and in default of payment of fine they shall suffer rigorous imprisonment for one year. *******