JUDGMENT 1. - This judgment will also dispose of DB Criminal Appeal No. 197/93 "Gokal and Anr V. State of Rajasthan ' (the other appeal). The appellants in both these appeals were prosecuted in case FIR No. 151/88 of Police Station, Bansoor (Alwar) under sections 302, 307, and 341 Indian Penal Code read with section 34 Indian Penal Code and, after trial, accused-appellant Sunder was found guilty of having committed offences punishable under sections 302 and 307 Indian Penal Code besides under section 341 read with the section 34 Indian Penal Code and was sentenced to undergo life imprisonment and to pay a fine of Rs. 1000/- or in default of payment of fine undergo rigorous imprisonment for a further period of six months in respect of the first offence; to undergo 10 years rigorous imprisonment and to pay a find of Rs. 500/- or in default of payment of fine to undergo rigorous imprisonment for a further period of six months in respect of the second offence and to undergo one month's simple imprisonment and to pay a fine of Rs. 100/- or in default of payment of fine to undergo simple imprisonment for a further period of 15 days in respect of the third offence with a direction that all the sentences would run concurrently. The accused appellants Gokul and Sugan were found to have committed offences punishable under sections 302/34,307/34 ad 341/34 Indian Penal Code and the sentences awarded to appellant-Sunder were also awarded to them. The prosecution story, in short, was as under : 2. On the evening of 30-10-1988, Kumar Sundari (PW-4) her mother Bhagwani (since deceased) and her sister Birma (Since deceased) had gone towards the hill in the jungle for easing themselves. While they were returning at about 5.00/5.30 PM appellant-Sunder, who was having a lathi and a knife in his hand, came there and started abusing them and threatened to kill them. Sundari along with her mother and sister started running, but appellants-Gokal and Sugan came from the opposite side and stopped them and, in the meanwhile, Sundari also reached the spot and tried to hit Bhagwani with the lathi, but Birma snatched the lathi from the hand of Sunder and threw it away. 'Thereupon. Sundari along with her mother and sister started running, but appellants-Gokal and Sugan came from the opposite side and stopped them and, in the meanwhile, Sundari also reached the spot and tried to hit Bhagwani with the lathi, but Birma snatched the lathi from the hand of Sunder and threw it away. 'Thereupon. Sunder stabbed Bhagwani with the knife in his hand and when Birma tried to save Bhagwani, Gokul stabbed Birma with a knife and, thereafter, Sunder also stabbed Birma with knife. On receipt of the knife belows Bhagwani and Birma fell down, and Sunder gave a knife blows to Sunder which struck her at the right armpit. Hearing the alarm, Jhamman (PW-5) and Indraj (PW-6) came to the spot and , thereupon, all the three appellants ran away. Bhagwani and Birma died at the spot. Sundari (P-4) accompanied by Chhajuram (PW-7) went to the Police Station, Bansoor, where a case was registered at 7.30 P.M. vide the FIR No. 151/88. Rajpal Singh (PW-19), the SHO of the Police Station, Bansoor took over the investigation of the case. He recorded the statement (Ex-D-2) of Sundari under section 161 Cr.P.C. and recorded the statements of the witnesses at the spot. Next morning, he prepared site plan (Ex.P. 1), and took into possession the blood stained earth and the control earth besides some pieces of broken bangles. The postmortem examination on the dead bodies of Bhagwani and Birma was conducted on 31-8-1988 by Dr. Murarialal Gupta (PW-20) who found the following injury on the person of deceased Bhagwani : "Stab wound 2 cm x 1/4 cm (blood cloth) below 11th bt rib on lateral aspect deep into the right dome of liver from lateral aspect extending upward. " 3. He prepared postmortem report (Ex.P.29) in respect of Bhagwani and opined that cause of death was due to hemorrhagic shock due to stab wound. The doctor found following injuries on the person of Birma : 1. An incised wound oblique in direction 5x 1 cm (centre'4 cm, above right elbow., clotted blood was there. 2. A stab wound 2cm x 1/2 cm in right lumber region. 18 cm below right nipple, through which a part of small intestine protrading, size 5 cm x 4 cm. 3. An incised wound on the right dome of liver, 2cm x 1/4 cm, deep into tissue of liver. 4. 2. A stab wound 2cm x 1/2 cm in right lumber region. 18 cm below right nipple, through which a part of small intestine protrading, size 5 cm x 4 cm. 3. An incised wound on the right dome of liver, 2cm x 1/4 cm, deep into tissue of liver. 4. He prepared postmortem report (Ex.P.30) in respect of Birma and opined that the cause of death was due to hemorrhagic shock due to stab wound. Sundari (PW-4) was examined by Dr. Ram Kishore Agrawal (PW-17), who found the following injury on the person of Sundari: "Incised wound 2"x 3/4"x 1/4" (muscle deep) on posterior part of right chest near angle of right axilla. Blood clotts. He prepared report (Ex.P.27) in respect of Sundari. On the basis of X-ray examination, the doctor opined that the injury on the person of Sunderi was simple in nature. The 10 arrested the three accused persons and at the instance of appellant-Sunder recovered knife (Ex.P.2). After completion of the investigation, the challan was filed in the court of the learned Judicial Magistrate, who committed the case for trial to the Court of Sessions, where charges were framed against the three accused - appellants, who pleaded not guilty thereto and claimed to be tried. In support. of its case, the prosecution examined 20 witnesses. In their statements recorded under section 313 Cr. P.C., each of the three accused-appellants stated that they had been falsely implicated due to enmity. they examined four witnesses in their defence. After hearing the learned counsel for the parties and going, through the record, the learned Additional Sessions Judge, Behror found the three accused-appellants guilty of the offences and convicted and sentenced them as noted above. Feeling aggrieved, the appellant Sunder has filed this appeal and the other appeal has been filed by the other two accused appellants-Gokal and Sugan. 5. We have heard the learned counsel for the parties and have also perused the record of the case. 6. In support of their case, the prosecution, had produced ocular as well as the circumstantial evidence. PW-4 Sunderi, PW 5 Jhamman lal, PW 6 Indraj, PW 11 Roshan and PW 12 Rohitashav were produced as the eye-witnesses of the ocular. PW-7 Chhaju Ram has been produced as the witness who had reached the spot after the occurrence and had learnt from Sunderi that the three appellants were the assailants. PW-4 Sunderi, PW 5 Jhamman lal, PW 6 Indraj, PW 11 Roshan and PW 12 Rohitashav were produced as the eye-witnesses of the ocular. PW-7 Chhaju Ram has been produced as the witness who had reached the spot after the occurrence and had learnt from Sunderi that the three appellants were the assailants. PW-1 Jagan Ram and PW-9 Lala ram are the witnesses in whose presence appellant Sunderi is stated to have got recovered the knife (Ex.P.2) while he was In police custody after his arrest. 7. During the course of the trial the knife stated to have been recovered from Sunder was not produced in court to be identified either by the above said witnesses or by the 10. It was also not produced before Dr. Murarilal Gupta (PW20), who conducted the postmortem examination on the dead bodies of the two ladies or before Dr. Ram Kishore Agrawal (PW- 17), who examined Sundari (PW-4) for obtaining their opinion as to whether the injuries in question could have been caused by the said knife. 8. The report of the Forensic Science Laboratory which tested the blood stained clothes etc. besides the knife shows that although the blood of 'O' group was found on the clothes of the deceased ladies but the knife was stated to have been stained with human blood but its group could not be determined. the above said evidence is, therefore, of no assistance to the prosecution. 9. Not only the name of Roshan(PW-11) and Rohitashav (PW-12) have not been mentioned in the FIR, even while appearing in the witness box they have not supported the cause of the prosecution and in spite of cross examining them the learned PP could not take out any thing from them. PW-5 Jhamman had deposed that he was sitting at the shop of PW-6 Indraj when he heard small children saying that the three appellants had gone towards the hill to kill Bhagwani and Birma and thereafter he and Indraj had gone towards the hill and had found the three appellants at the spot and on seeing them the three appellants ran away from there and at that time Sunder was having knife in his hand. He was confronted with his statement Ex.D.1 (Under section 161 Cr.P.C.) wherein it has not been found recorded that he had heard the children saying that the three appellants had gone to kill the ladies. He denied the suggestion that he had heard that Sunder was assaulting the laides but was confronted with Ex.D-3 wherein it was so recorded. PW-6 Indraj had deposed that while he was sitting at his shop a boy and girl had come there weeping and saying that their mother and sister had been killed by the three appellants and thereupon he along with Jhammanlal had gone to the spot where he had found the dead bodies of Bhagwani aid Birma besides Sunderi weeping and on his asking Sundari had told him that the three appellants had caused the injuries on their person. In gross examination this witness was confronted with his statement Ex.D-4 (under section 161 Cr.PC) wherein the names of the three appellants had not been mentioned as stated by him in the examination in chief. In further cross examination he admitted that he had heard in the market that Sunder had-killed the ladies. This witness has not supported the statement of Jhammanlal that when they reached the spot the three appellants had run away from there at that time . PW-7 Chhaju lam had deposed that on learning about the incident he had reached the spot where he found Bhagwani and Birma lying dead and Sunderi in injured condition and on asking Sunderi had told him that the three appellants had caused injuries on their person. In cross examination he was confronted with the statement Ex.D-5 (under section 161 Cr.PC) where in it was not recorded that Sunderi had told him that the three appellants had caused injuries on their person. The statements of the above Said witnesses and 'the recovery of the knife are, therefore, of no assistance, of the prosecution and to be fair to the learned PP, he has not relied upon this part of the evidence at the time of the arguments. 10. The Prosecution case thus rests on the sole testimony of Sunderi (PW-4). The statements of the above Said witnesses and 'the recovery of the knife are, therefore, of no assistance, of the prosecution and to be fair to the learned PP, he has not relied upon this part of the evidence at the time of the arguments. 10. The Prosecution case thus rests on the sole testimony of Sunderi (PW-4). This witness had deposed that on the morning of the occurrence she alongwith her mother and sister had gone towards the hill for easing themselves and, while they were returning, the mother of appellant-Sunder had met them and there was a quarrel between her mother and the mother of Sunder and her mother had given slap blows to the mother of the appellant-Sunder and, thereafter,she alongwith her mother and sister had returned to their home and appellant-Sunder had lodged a report about the occurrence in the police station and, in the evening, while they were returning after easing themselves from the 'hill side, Sunder and Sugan met them and at that time Sunder was having a lathi in his hand and he abused them and, thereupon, they and,sugan came from the side of the house of Meena ran and stopped then and Sunder gave a lathi blow to her mother but Birma caught held of the lathi and threw it away and, thereupon, Sunder took out a knife from his pocket and, in the meanwhile, appellant Gokul reached the spot and caught hold of Bhagwani from her hair from the back side and Sunder stabbed her and Bhagwani fell down and thereafter Sugan caught hold of hair of Birma from the back side and Gokal stabbed Birma with the knife which was with Sunder and on Birma falling down, she fell on Birma to save her and Sunder gave a knife blow to her, which hit in the armpit and, on hearing the alarm, Jhammanlal and Indraj came there and the three appellants had run away from the spot an, thereafter, she had gone to the police station, where she had got recorded report Ex.P.21. Not only the case registered was on the basis of the statement (Ex.P.21) of Sunderi the 10 (PW-19- SHO Rajpal Singh) had also recorded her statement (Ex.2) under section 161 Cr.P.C. In cross examination the witness was confronted with her above said statements. Not only the case registered was on the basis of the statement (Ex.P.21) of Sunderi the 10 (PW-19- SHO Rajpal Singh) had also recorded her statement (Ex.2) under section 161 Cr.P.C. In cross examination the witness was confronted with her above said statements. Although she stated that she had got recorded that Sugan was present with Suner when Sugan confronted the three ladies and chased them before the occurrence but presence of Sugan at that time was not found recorded therein. She was also confronted with the statements wherein it was not recorded that. Gokul had used the knife after taking it from Sunder and thereafter Sunder had taken that knife from Gokul and had used it for giving stab blow to her. She was also confronted with the above said statements wherein Gokul's coming to the spot after Sugan and Sunder had chased and Sugan stopped the three ladies-was not found recorded. When confronted with her statement (Ex. P.2) was found that it was not recorded there in that firstly Gokul had Caught hold of the mother of this witness from in hair from back side when Sunder stabbed her and thereafter Sugan had caught hold of the hair of Birma from the back side and Gokul had stabbed her with the knife which was with Sunder. In further cross examination although she deposed that while making statement Ex.D .2 she had mentioned the names of Gokul and Sunder as the assailants she was confronted with the said - statement wherein it was not so recorded. She denied having told the 10 that Gokul and Sugan had surrounded her besides the other two ladies and Sunder 'said given the knife blows but was confront with Ex.D-2 wherein it was so recorded. She denied having told the 10 that while Sunder and Sugan were chasing them Gokul reached the spot but was confronted with, her statement Ex.D-2 wherein it was so recorded. 11. Before discussing the evidence of this witness it may be relevant to note some other facts. She denied having told the 10 that while Sunder and Sugan were chasing them Gokul reached the spot but was confronted with, her statement Ex.D-2 wherein it was so recorded. 11. Before discussing the evidence of this witness it may be relevant to note some other facts. the FIR was recorded by PW-18 Dayaram, A.S.I. This witness stated that since the SHO was not in the police station, he sent him a wireless message about the incidence and he himself proceeded to the spot along with Sundair and that he wanted to enquire from Sundair and record her statement under section 161 Cr.P.C. but she was badly injured and she stated than she was not in a position to make the statement and, as such her statement could not be recorded. PW-7 Chhaju Ram, in his unchallenged statement made on oath in the examination-in-chief, had stated that when he accompanied by Sundair went to the police station, he had got recorded the FIR (E'x.P.21) and had signed it at portion A to B (at the foot of the police 'karyacaahi'). It may be noted that different versions had been given by-PW-4 Sunderi in the FIR, in her statement (Ex.D-2) recorded soon after the FIR and in her statement in Court Whereas in the FIR it has been recorded that when Sunder confronted the three ladies he was alone and when Sunder abused them the' started running and Gokul and Sugan who were coming from the opposite side had stopped them and thereafter Sundair had come to the spot and the incidence took place, in her statement before the court Sundir deposed that when Sunder confronted them Sugan was present with him and wren they started running they followed and Sugan had come from the opposite side (from the side of the house of Meena) and had stopped them and Sunder came and tried to assault with the lathi and, in the re mean while, Gokul came there and caught hold of Bhagwani. It may also be seen that although according to the FIR Sugan did nothing except he stopped the ladies, according to the statement made, in court by Sundair he had caught hold of Birma form the back side of her hair and Gokual had stabbed her. It may also be seen that although according to the FIR Sugan did nothing except he stopped the ladies, according to the statement made, in court by Sundair he had caught hold of Birma form the back side of her hair and Gokual had stabbed her. According to the statement of Sundair (PW-4) Gokul had used the knife which was with Sunder for stabbing Birma, whereas no such thing is found recorded in the FIR Similarly, in court she deposed that Sunder had taken back the knife from Gokul and had used for stabbing which fact did not find mention in the FIR. It may also be noted that in the statement (Ex.D-2) recorded by the IO soon after reaching the spot, this witness did not name either Sugan or Gokul as the assailants. No evidence has been produced to show that appellants-Gokul and Sugan was friendly with Sunder and that Gokul and Sugan had any reason to be annoyed with the ladies and even PW-4 Sundair or her father Suwalal (PW-2) did not state any thing about it At this stage It may be relevant to refer to the statement of ASI Dayaram (PVV-18), who deposed that since Suhdair was injured he could not succeed in making enquiry from her and as such could not record her statement under section 161 Cr.P.C. and the statement of Chhajuram (PW-7), who deposed that on going to the police station along with Sundair he had got recorded the FIR and statement of Chhajuram has remained unchallenged. It, therefore, appears that when Sundair went to the police station along with Chhajuram she was in agony due to the injury caused on her person and Chajuram, who, according to his own version, had not seen the occurrence had got recorded the FIR and Sunderi thumb marked it and owned it as her own statement. If it were not so, the version given in the FIR would not have bee n different from the version given by Sundair in her statement (Ex, D-2) recorded by the 10 Shri Raj pal Singh after taking over the investigation after learning about the incidence, in which Gokul and Sugan were not described as the assailants. 12. If it were not so, the version given in the FIR would not have bee n different from the version given by Sundair in her statement (Ex, D-2) recorded by the 10 Shri Raj pal Singh after taking over the investigation after learning about the incidence, in which Gokul and Sugan were not described as the assailants. 12. In view of the above said contradictions and circumstances, we feel that it is not safe to rely on, the statement made in court by Sunderi (PW-4) in regard to appellants Gokul and Sugan and we are of the view that the learned trial court erred ' in holding that the prosecution had succeeded in proving their case against the appellants Gokul and Sunder of the other appeal. 13. Now coming to the case of the appellant Sunder of this appeal. it may be noted that while appearing as PW-4 Sundair had described the motive of the incidence i.e. the occurrence which took place on the morning of 30-10-1988. Although the said occurrence has not been mentioned in the FIR with which the witness was confronted and has been denied by Sunder in his statement under section 313 Cr.P.C., The prosecution had proved on record Ex.P.26 as the report dated 30-10-1988 got recorded by the mother of the appellant Sunder and the said report shows that since the injuries on her person were found to be simple in nature and the case appeared to be one under section 323 IPC, no case was registered and she was sent to the hospital. The FIR was meant only for the purpose of reporting the crime and non mentioning of the morning incidence in the FIR (Ex.P.21) In the present circumstances is of no consequence. The presence of Sundari (PW-4) at the spot has rightly not been challenged during the course of the arguments as her statement in this regard finds corroboration from the medical report showing that she had received injuries in the incidence and the statements of the witnesses that when they reached the spot they found her in an injured condition remained unchallenged. Although, there are reasons not to believe Sundari in regard to the role of Gokul and Sugan, but no reason is coming forward to term her as a wholly unreliable witness, who has throughout mentioned the name of Sunder as the main actor of the occurrence. Although, there are reasons not to believe Sundari in regard to the role of Gokul and Sugan, but no reason is coming forward to term her as a wholly unreliable witness, who has throughout mentioned the name of Sunder as the main actor of the occurrence. she cannot be termed as wholly unreliable witness and her statement cannot be discarded specially when there is no reason for her to implicate Sunder and to save the real assailants. 14. It may however, be noticed that the injury found on the person of Sundari was opined to be simple in nature and there is no evidence to show that it was dangerous to life. In this view of the matter, the learned trial court erred in holding the appellant-Sunder guilty of offence punishable under section 307 Indian Penal Code in regard to the injury caused on the person of Sunderi (PW-4). Similarly, if during the occurrence the three ladies had been stopped by Sunder who tried to give lathi blow and thereafter stabbed them, it cannot be said that an offence under section 341/34 Indian Penal Code was made out. In this view of the matter the learned trial court erred in holding appellant Sunder guilty under section 341/34 IPC. 15. Consequently, we partly allow this appeal of Sunder and while maintaining his, conviction and sentence under section 302 Indian Penal Code recorded by the learned trial court vide the judgment dated 19-5-1993, set aside his conviction under sections 307 and 341/34 Indian Penal Code and instead convict him under section 324 Indian Penal Code for having caused injury on the person of Sunderi and sentence him to undergo rigorous imprisonment for period of six months, which sentence would run concurrency with his life imprisonment under section 302 Indian Penal Code as awarded by the learned trial, court. We accept the other appeal filed by Gokul and Sugan and set aside the impugned judgment passed by the learned trial court as far as it has convicted and sentenced the appellants Gokul and Sugan and acquit them It is stated that appellant no. 2 Sugan is already on bail, whereas, appellant No.1- Gokul is in Central Jail, Jaipur . Appellant Sugan need not to surrender to his bail bonds, which stand discharged. 2 Sugan is already on bail, whereas, appellant No.1- Gokul is in Central Jail, Jaipur . Appellant Sugan need not to surrender to his bail bonds, which stand discharged. Release warrants be issued in respect of appellant No. 1 Gokul, who should be released forthwith unless wanted in some other case.Appeal Partly Allowed. *******