S. C. JAIN ( 1 ) THE facts giving rise to this appeal are that on 27. 12. 1974 at about 6. 30 p. m. accused Arjan Dass came to the shoe making workshop of Om Parkash, Public Witness- 5 and asked Moti Lal, Public Witness-13 one of the workers working in that factory as to where the said Om Parkash was. At that time the other accused Om Parkash, Babu Lal and Lila Ram were with Arjan Dass accused. On being told that said Om Parkash had gone to the market, the accused persons waited outside. Shortly; thereafter Om Parkash, Public Witness-5 returned from the market and immediately all the four accused attacked Om Parkash, Public Witness-5 giving him slaps and fist blows. Thereafter, accused Arjan Dass, Lila Ram and Babu Lal secured Om Parkash. Public Witness- 5, while accused Om Parkash inflicted Rampi blows on the right side stomach, the chest, left fore-arm, front upper side of right thigh and the back of Om Parkash,public Witness-5. When Bhagwan Dass, Public Witness-6, brother of Public Witness-5 tried to rescue Public Witness-5, he was also given a Rampi blow on his back. Both Om Parkash, Public Witness- 5 and Bhagwan Dass, Public Witness-6 fell on the ground as a result of the blows received at the hands of Om Parkash and other accused. Both the injured were removed to the hospital. S. I. Ram Chander, Public Witness-19, who was entrusted with the investigation of the case reached the spot where he was informed that the injured have already been removed to the Willingdon Hospital. He went to the Willingdon Hospital, collected M. L. C. of the two injured. Since the two injured were declared unfit for making statements, he recorded the statement of Moti Lal, Public Witness-13 who was present there. On the basis of that statement formal F. I. R. No, 1233 under sections 307/341. P. C. was registered at P. S. Karol Bagh,new Delhi and the investigation was done. ( 2 ) THE trial court after appreciating the evidence on record and hearing counsel for the accused and the prosecution found all the four accused persons guilty under Section 307/34 I. P. C. and sentenced them to undergo rigorous imprisonment for three years and a fine of Rs. 200 each; and in default of payment of fine, to further undergo rigorous imprisonment for three months on 4. 6. 200 each; and in default of payment of fine, to further undergo rigorous imprisonment for three months on 4. 6. 1976. ( 3 ) OM Parkash. accused has since died and the judgment and order has been challenged by Babu Lal, Arjan Dass and Lila Ram, who are the present appellants. ( 4 ) MY attention has been drawn by the learned counsel for the appellants to the statements of the various witnesses and to the medical report also. Learned counsel for the appellants submitted that both the injured Om Prakash and Bhagwan Dass were in senses when they were removed to the hospital and intentionally their statements were not recorded and the FIR was recorded on the basis of the statement of Moti Lal, Public Witness-13. He also pointed out material contradictions in the statements of both the injured, Om Parkash and Bhagwan Dass. It has also been brought to my notice that Moti Lal, Public Witness-13, on the basis of whose statement the FIR was recorded did not support the case of the prosecution while deposing before the Court and he deposed that he had not witnessed the occurrence. According to the learned counsel, in view of this glaring material contradiction in the statements of the witnesses examined; and not recording the statements of the injured at the first available opportunity, the judgment and order passed by the learned trial court cannot be sustained. The complainant, Public Witness-13 has not supported the case of the prosecution at all. The alleged weapon of offence, Rampi was not sent to the doctor for examination. Even from the medical report no case under Section 307 I. P. C. is made out The main accused, Om Parkash has since died and. these appellants have been implicated only on the basis of provisions of Section 341. P. C. No overt act has been alleged as far as these three appellants are concerned. ( 5 ) - Learned counsel for the State countering the arguments of the learned counsel for the appellants submitted that admittedly, Om Parkash, Public Witness-5 and Bhagwan Das,public Witness-6 received injuries. They were admitted in the hospital. Their statements could not be recorded as the doctor declared them unfit to make statements. ( 5 ) - Learned counsel for the State countering the arguments of the learned counsel for the appellants submitted that admittedly, Om Parkash, Public Witness-5 and Bhagwan Das,public Witness-6 received injuries. They were admitted in the hospital. Their statements could not be recorded as the doctor declared them unfit to make statements. According to him, the contradictions in the statements of the witnesses are bound to come because the incident is of the year 1974 and they were examined in the Court after a considerable long time and such type of discrepancies are bound to occur in the statements of the truthful witnesses. According to him, though it is correct that the accused, Om Parkash, who is now dead, was the actual assailant, but these appellants cannot escape their liability in view of the provisions of Section 34 of the I. P. C. ( 6 ) - In this case the prosecution examined as many as 19 witnesses. Out of them Om Parkash. Public Witness-5 and Bhagwan Dass, Public Witness-6 are the injured; Inderjit Public Witness- 7. Jaidev Public Witness-8, Moti Lal Public Witness-13 and Sher Singh Public Witness-14 are the alleged eyewitnesses. Dr. A. P. Bansal Public Witness-11, Dr. Rakesh Dixit, Public Witness-12 and Mr. P. C. Anand, Public Witness-18 are the witnesses from the hospital, who have proved the medical record. The others are police officials. ( 7 ) WHETHER both the injured Om Parkash and Bhagwan Dass were conscious and were in a position to make statement after the incident is the question which needs an answer. In this regard, the statement of Dr. A. P. Bansal, Public Witness-11 is very much material. He has stated that on 27. 12. 1974 he was working as Casualty Medical Officer in Willingdon Hospital. On that day Bhagwan Dass s/o Narain Dass,aged 25 years, r/o 5/2 Tank Road, Karol Bagh, New Delhi was admitted in the casualty department with the history of being stabbed by some persons. The patient was fully conscious at that time. He has proved his medical report Ex Public Witnessha. ( 8 ) MOTI Lal,public Witness-13, who removed injured Om Parkash to the hospital has admitted in his statement that Om Parkash was in senses when he and Jaidev removed him to the hospital in a taxi. He has stated that Om Parkash, injured was in his senses till about 11 or 11. ( 8 ) MOTI Lal,public Witness-13, who removed injured Om Parkash to the hospital has admitted in his statement that Om Parkash was in senses when he and Jaidev removed him to the hospital in a taxi. He has stated that Om Parkash, injured was in his senses till about 11 or 11. 30 p. m. They had reached the hospital at about 8. 30 p. m. and the police had reached the hospital after about 1/2 hour of their reaching there. Similarly, Jaidev, Public Witness-8, deposed that he had brought the taxi and when he approached the spot he saw Om Parkash was sitting in the gali and he was in senses. Even Om Parkash has stated that he regained consciousness when he was admitted in the Willingdon Hospital. It all shows that Om Parkash was in senses when he was in the hospital and the; prosecution story that he was unconscious and not fit to make a statement falls to the ground in view of these statements of the alleged eyewitnesses. The contention of the learned Standing Counsel that in the M. L. C. of Om Parkash, which Ex Public Witness 11/b it has been mentioned by Dr. B. Sarna that the patient is unfit for making statement does not help the prosecution in the present circumstances of the case. Dr. B. Sarna has not been examined by the prosecution and this report allegedly made by Dr. B.-Sarna has remained unproved. Moreover, there is a cutting on the date under the signatures of Dr. B. Sarna,and the date has been changed from 28th to 27th. Consequently, this unproved statement of the doctor cannot be read into evidence, and more particularly when the injured has himself admitted that he regained consciousness after reaching hospital and the other eyewitnesses have stated that he was conscious throughout. Similarly, Bhagwan Dass,though he stated in his examination-in-chief that after the incident he becameunconscious and he regained consciousness in the hospital, but in his cross-examination he stated that he did not render any help to his brother. Om Parkash and after having received injury he ran away from the spot and when he returned to the spot, Om Parkash had already been removed to the hospital and he returned to the spot after 5 or 7 minutes. Om Parkash and after having received injury he ran away from the spot and when he returned to the spot, Om Parkash had already been removed to the hospital and he returned to the spot after 5 or 7 minutes. As per his admission, after getting injuries he was conscious and when he was removed to the hospital he was also conscious. As per the other eyewitnesses Bhagwan Dass was removed to the hospital by the police. Nobody has stated that he was unconscious at that time. The endorsement on the M. L. C. allegedly made by Dr. B. Sama that the patient was unfit for making statement on 27. 12. 1974 stands unproved because Dr. B. S. Sama has not been examined to prove this endorsement. Dr. Bansal, who has proved M. L. C. , Ex. Public Witness 11/a has not stated anything about it and rather he has stated that the patient was fully conscious at that time when he examined him on 27. 12. 1974 in the Casualty Department of Willingdon Hospital. ( 9 ) FROM the evidence on record, it is apparent that both these injured, Om Parkash as well as Bhagwan Dass were fully conscious at the time when they were removed to the hospital and it appears that the 1. 0. intentionally did not record their statements and on the basis of the statement of Moti Lal, Public Witness-13 the FIR was recorded. Moti Lal,public Witness-13 has not supported the case of the prosecution in all material particulars. Moti Lal has stated that when he reached the spot he found Om Parkash having a number of injuries on his person. He cannot be said to be an eyewitness of the incidentas per his own statement. He stated that he along with Jaidev,public Witness-8 took Om Parkash to Willingdon Hospital. On the way to the hospital Jaidev told him that 3 or 4 persons attacked Om Parkash. Jaidev,who has appeared as Public Witness-8, has not supported the version of this witness and he categorically stated that he did not accompany Om Parkash to the hospital. He also stated that he did not remove Bhagwan Dass to the hospital. He had only brought the taxi to the spot. Jaidev,who has appeared as Public Witness-8, has not supported the version of this witness and he categorically stated that he did not accompany Om Parkash to the hospital. He also stated that he did not remove Bhagwan Dass to the hospital. He had only brought the taxi to the spot. ( 10 ) AS far as these appellants,namely Babu Lal, Arjan Dass and Lila Ram are concerned, there are material contradictions in the statements of the two injured, Om Parkash and Bhagwan Dass, who are the real brothers. The otheralleged eyewitnesses have also contradicted themselves on the most material points and the contradictions cannot be said to be minor and have occurred on account of the passage of time. Moti Lal, Public Witness-13 on whose statement the case was registered has also not supported the case of the prosecution inasmuch as he has denied that he has seen the incident or he saw these appellants giving injuries to the injured. S. I. Ram Chander J. O. , Public Witness-19 has not recorded the statements of Om Parkash and Bhagwan Das immediately. It is also admitted that he has not recorded the statements of the witnesses who were present on the spot when he reached there. In his cross-examination he admitted that witnesses Inderjit, Public Witness-7 and Sher Singh,public Witness-14 were present at the spot when he went there for the first time, but he did not record the statement of any of them. Some of the witnesses had stated that the appellants were apprehended from the spot, but according to S. I. Ram Chander, 1. 0. , Public Witness-19, their arrest was shown at 2 a. m. on 28. 12. 1974. There are serious lapses in the prosecution story in connecting these appellants with the offence. The story put up by the prosecution as far as these appellants are concerned is unbelievable and is doubtful. The weapon of offence,rampi, was not sent to the doctor for examination, as such the doctor has not stated that these injuries could have been caused by that Rampi. ( 11 ) THE main accused, Om Parkash, who is alleged to have caused the injuries has died and is not the appellant. The evidence against these appellants is of very weak type and therefore, their conviction on the basis of this evidence is not sustainable. ( 11 ) THE main accused, Om Parkash, who is alleged to have caused the injuries has died and is not the appellant. The evidence against these appellants is of very weak type and therefore, their conviction on the basis of this evidence is not sustainable. Under these circumstances, I allow this appeal and acquit these appellants, Babu Lal, Arjan Dass and Lila Ram by giving them the benefit of doubt. They are on bail. Their bonds shall stand discharged. Ordered accordingly.