JUDGMENT 1. - These two cross appeals are filed by the accused- appellant and by the State of Rajasthan against the judgment dated 8th May, 1992 of Additional Sessions Judge No. 2, Alwar, whereby he has convicted the accused- appellant Hussain under Section 302 IPC and accused- appellant Idrees under Section 302 read with Section 34 IPC and sentenced each of them to undergo life imprisonment and pay fine of Rs. 200/- each, in default of payment of fine, further to undergo one month rigorous imprisonment. The State appeal is against the acquittal of accused Fazruddin, Taiyab and Ayub under Section 302/149 IPC and against the acquittal of all accused under Section 148 IPC. 2. The facts giving rise to the appeals are that the Sub- inspector of police recorded the parcha-bayan of one Hameed son of Hasan at 4.00 p.m. on 1.6.89. In parcha-bayan it has been alleged that at about 6-7.00 a.m., when he was on the roof of his house along with his bhabhi Fatta and Bassi, deceased Subban was climbing up the stairs along with a cot to prepare 'sevaiyan' the sevaiyan machine was also fitted on the cot. At that time accused-appellants Idrees, armed with a tanchiya, Hussain armed with kulhari, Taiyab armed with Farsi, Fazru armed with daranti (sickle), Ayub armed with lathi and Nuru armed with gandasi came with the common intention to commit murder of Subban. Idrees gave one tanchiya-blow on the head of Subban, Hussain gave one kulhari-blow on the neck of deceased, Taiyab gave farsi-blow on the neck of deceased, Fazru gave daranti-blow at nose, Ayub gave lathi-blow at the back and Nuru gave gandasi-blow on the right hand of deceased. The deceased fell down under the three which was in front of the house of deceased. It is further alleged that when a alarm was raised by the informant and his bhabhis, Pappu @ Taj Mohammed and Mehtab son of Mana came on the spot. After beating Subban, all the accused persons ran away. They gave beating to Subban for the reason that 3-4 years back some quarrel had taken place between Subban and Idrees. That Parcha-bayan was sent to the police station and FIR was registered and then Babulal came back to the spot, and thereafter the investigation was conducted. After beating Subban, all the accused persons ran away. They gave beating to Subban for the reason that 3-4 years back some quarrel had taken place between Subban and Idrees. That Parcha-bayan was sent to the police station and FIR was registered and then Babulal came back to the spot, and thereafter the investigation was conducted. During investigation inquest-report and site- plan were prepared, the post-mortem was got conducted and the statements of the witnesses were recorded, the accused-appellants were arrested and at their instance the arms/weapons used in the incident were recovered. The blood smeared soil and control soil were also taken from the place of incident; The blood stained clothes were seized and sent to FSL for examination. After investigation, the challan was filed in the court of Addl. Chief Judicial Magistrate No. 2, Alwar who in his turn committed the case to the trial court. The charges were framed by the trial court. The accused-appellants did not plead guilty and claimed trial. During trial, the prosecution examined 10 witnesses. The statements of accused-appellants were recorded under Section 313 Cr.P.C. After discussing the evidence on record the trial court came to the conclusion that the cause of death is head and neck injury, which have been attributed to Idrees and Hussain. Therefore, the trial court convicted and sentenced the accused-appellants Idrees and Hussain as aforesaid. 3. Heard learned counsel for the accused-appellants Mr. N.A. Naqvi, learned Public Prosecutor Mr. S.R. Yadav and Mr. H.P. Singh counsel for the complainant. 4. Learned counsel for the appellants Mr. Naqvi has submitted that the incident took place at about 6-7.00 am and FIR has been lodged at 4.00 p.m., therefore, it is delayed FIR. The prosecution has not produced independent witnesses while the incident has taken place at about 6- 7.00 a.m. in the morning in village. He further submitted that while on the same evidence, in trial court has acquitted some co-accused persons, the conviction of these appellants is not justified. One injury at neck has been attributed to two accused-persons, out of which one has been acquitted, then other cannot be convicted for the same injury. No motive has been brought out. Lastly, he submitted that only PW 7 Dhupi Khan has been produced as recovery-witness, but he has not supported the case of prosecution. In such circumstances, no case is made out for conviction, the accused-appellants be acquitted. No motive has been brought out. Lastly, he submitted that only PW 7 Dhupi Khan has been produced as recovery-witness, but he has not supported the case of prosecution. In such circumstances, no case is made out for conviction, the accused-appellants be acquitted. 5. On the other hand, learned PP Mr. Yadav has submitted that the incident took place at 6-7.00 am on 1.6.89. The matter was reported to police chowki at 12.00 noon and the police chowki has sent a wireless to police station Ramgarh immediately informing about the incident. The police came on spot at 2.00 pm. Parcha-bayan of Hameed has been recorded at 2.00 p.m. Father of the deceased was out of village, therefore the FIR could not be lodged. Otherwise also considering the period of delay in lodging the FIR no adverse inference can be drawn and wireless is not an FIR. 6. The FIR has been recorded on the basis of the parcha-bayan, therefore, there is no question of investigation before FIR. Whether accused Hussain and Taiyab have caused neck-injury on the same place the court can form its own opinion. Lastly he submitted that if no individual act has been assigned to the accused, the conviction cannot be set aside, the whole assembly is equally liable for the offence. 7. The prosecution case is that on 1.6.89 at about 6-7.00 am while deceased Subban was climbing up stairs of his house, and attack was made by Idrees, Hussain, Taiyab, Fazru, Ayub and Nuru. The' deceased fell down. This has been witnessed by PW. 1 Hameed, PW. 2 Mehtab, P.W. 3 Bassi, P.W. 4 Mst. Falta and P.W. 5 Pappu @ Mohammed and as per the statements of these eye-witnesses all these accused gave beating as aforesaid to the deceased with the arms they possessed. P.W. 6 Dr. S.C. Gupta has conducted the post-mortem and found the following five injuries on the person of deceased : "1. Sharp wound about 4" X ⅓" bone deep on (R) side of frontoparietal region of skull parallel to mid line of scalp. Wound filled with blood clots. 2. Large sharp wound on neck about 41/2" X 2" (in middle) X Oesophagus & trachea deep, encircling almost front of neck at the level of crocoid cartilage, filled with blood clots. 3. Sharp wound about 4" X ⅓" bone deep on (R) side of frontoparietal region of skull parallel to mid line of scalp. Wound filled with blood clots. 2. Large sharp wound on neck about 41/2" X 2" (in middle) X Oesophagus & trachea deep, encircling almost front of neck at the level of crocoid cartilage, filled with blood clots. 3. Abrasion linear on face in an area of 3" X 1/2" on right side just in front of triangle of ear vertically placed. 4. Sharp wound on left side of face. Parallel to side of nose about 31/2" X 1/2" X bone deep. Part of nasal bone cut, filled with clotted blood. 5. Sharp wound on dorsum of right hands extending from proximinal phalanyx of middle finger to base of thumb, about 31/2" X 1/2" X bone deep wound filled with clotted blood." In the opinion of doctor, the death of deceased was as a result of injuries on neck and head resulting in 'haemorrhage and shock. 8. First we will consider whether there is unreasonable delay in reporting the matter to police. The incident has taken place at about 6-7.00 am on 1.6.89. The distance of police station is 19 kms. The matter was reported to police chowki at about 12.00 noon and on wireless, the message has been passed on by police chowki to police station. The S.H.O., P.W. 10, Hukam Singh reached on the spot at about 2.00 pm on the same day. Though the matter has been reported to police chowki at about 12.00 noon but reason has been given for the delay in lodging FIR, that the father of the deceased was out of village, therefore, they waited for some time. Considering the explanation given by the prosecution and the distance of police station and also the fact that SHO, PS Ramgarh had come at 2.00 pm on the spot, it cannot be said that no information was given by the police chowki to police station Ramgarh. Further considering the reason that Hassi father of deceased who was not present at the time of incident and in the absence of father of deceased they waited for him for some time. It is evident from the fact that he has not been shown as eye-witness by the prosecution. Further considering the reason that Hassi father of deceased who was not present at the time of incident and in the absence of father of deceased they waited for him for some time. It is evident from the fact that he has not been shown as eye-witness by the prosecution. In view of these facts, we are of the opinion that there is no unreasonable delay in reporting the matter to the police. 9. Mr. Naqvi has next submitted that the motive has not been proved. The prosecution case is that about 3-4 years back, there was some dispute between Idrees and Subban. Therefore, the accused-appellants were having ill-will against deceased. No material has been brought on record as to exactly what was the dispute ? Whether the dispute was so serious which was enough for the accused-appellants to take steps for murder of deceased ? In view of these facts, we agree with the trial court and the submission of Mr. Naqvi that in the absence of sufficient material on record, the motive in this case has not been proved. 10. Next question for our consideration is whether prosecution witnesses can be believed and on the basis of that accused-appellants can be convicted ? 11. The prosecution has examined five eye-witnesses namely Hamid, Fatta, Mehtab, Bassi and Taj Mohammad @ Pappu. They all are consistent on the fact that while Subban was taking sevaiyan machine, which was fitted on a cot, to roof of the house, the accused-person Idrees, Hussain, Fazru, Ayub and Taiyab came armed with deadly-weapons and Idrees gave one Tanchia-blow on the head of deceased. He fell down under the shade of neem-tree, which was in front of the house of deceased, then Hussain inflicted kulhari- blow on the neck of deceased, Taiyab inflicted farsi-blow on the neck of deceased. Ayub gave lathi-blow on the stomach of deceased and Fazru inflicted Daranti (sickle)-blow on the nose of deceased. 12. Post-mortem was got conducted by Dr. Subhash Chand Gupta. He found 5 injuries and in his opinion the case of death is neck & head injury. There is only one injury on the neck and that has been attributed to Hussain and Taiyab. The trial Court has convicted the accused Hussain, as it believed that Hussain had caused the injury at first than Taiyab also gave one farsi-blow on the neck of deceased. There is only one injury on the neck and that has been attributed to Hussain and Taiyab. The trial Court has convicted the accused Hussain, as it believed that Hussain had caused the injury at first than Taiyab also gave one farsi-blow on the neck of deceased. In the opinion of trial court the neck injury has been caused by Hussain only as first below has been given by Hussain. 13. In our considered opinion the trial court has erred in attributing the neck-injury to Hussain only on the ground that Hussain has caused the injury at neck, first. Whether Hussain has causd the injury on neck first or Taiyab does not make any difference. The consistent case of prosecution is that Hussain has caused the injury on neck by kulhari then Taiyab also caused injury on neck by farsi. Both are armed with sharp-edged weapon and the injury on neck of deceased is only one incised wound. 14. The similar issue was raised before their Lordships of Supreme Court, that when one specific injury was attributed to two co-accused, whether both can be convicted or either of them can be convicted or none can be convicted ? 15. The Hon'ble Apex Court" in case of Mohan Singh and others v. State of Rajasthan [1980 (Supp.) SCC 655] in para No. 8 of the judgment has observed as under:- "However, all these witnesses have named Tej Singh and Charan Singh accused for giving lathi blows to deceased Baloo, but from his post-mortem report Ex.P. 30, which has been proved by the doctor, we find only one injury on the body of Baloo. These discrepancies which have pointed out in respect of the statement of Smt. Bhauti are also present in the statements of other witnesses namely PW 8, PW 9, PW 12, PW 13, PW 14, PW 15 and therefore we do not feel it safe to fasten the guilt on the accused persons because these partisan witnesses have named them as the assailants of individual victims." 16. Similarly in case of Mangu v. State of Rajasthan (1976 RLW 385) this court in para No. 28 of the judgment has observed as under : "From the aforesaid evidence, it transpires that all the eye-witnesses deposed that Ramu and Ruda hit the deceased on the head but as stated by Dr. Similarly in case of Mangu v. State of Rajasthan (1976 RLW 385) this court in para No. 28 of the judgment has observed as under : "From the aforesaid evidence, it transpires that all the eye-witnesses deposed that Ramu and Ruda hit the deceased on the head but as stated by Dr. Banwari Lal PW 16 there was only one injury on the head; the other two haematoma noticed later on by Dr. Mathur PW 14 appear to be consequential to the internal injury of the head. If there is only one injury assigned to two persons by the witnesses, then it amounts to saying that either both or none can be held responsible for the same. Since there is no evidence of common intention, Section 341 IPC cannot be pressed into service. The result is that both Ramu and Ruda become entitled to the benefit of doubt. No individual liability can therefore be fastened on any of the appellants in respect of the head injury though it was certainly in excess of the legitimate exercise of the right of defence of person or property." 17. When the eye-witnesses have attributed the neck injury to Taiyab also, there is no justification to convict the accused Hussain for the same neck-injury. 18. Shri Naqvi has further submitted that eye-witnesses Hamid, Fatta, Bassi, Mehtab & Pappu @ Taj Mohammad were on the roof of the house and after first blow given by Idress, deceased Subban fell down under the shade of tree, which was in front of the house of deceased. They could not see the incident which took place under the shade of tree of neem. As the branches of neem tree were between the place of incident and place where eye-witnesses have been shown by prosecution. 19. There appears some substance in the submission of Shri Naqvi. From the perusal of site-plan (Ex.P. 2) it is revealed that neem tree was in front of the stair-case and the major quantity of blood found under the shade of tree, only some stains of blood were found on staircase. That supports the submission of Shri Naqvi that after Tanchia-blow given by Idrees, subsequent injuries have been caused under the shade of neem-tree by other co-accused persons. Therefore, it cannot be said, with all certainly that eye-witnesses Hamid, Fatta, Bassi, Mehtab & Pappu @ Taj Mohammad have seen the injuries caused by accused-persons. That supports the submission of Shri Naqvi that after Tanchia-blow given by Idrees, subsequent injuries have been caused under the shade of neem-tree by other co-accused persons. Therefore, it cannot be said, with all certainly that eye-witnesses Hamid, Fatta, Bassi, Mehtab & Pappu @ Taj Mohammad have seen the injuries caused by accused-persons. Not only that, even the trial court has also not believed the statements of eye-witnesses with regard to accused Fazru, Taiyab and Ayub and they have been acquitted. 20. As per prosecution case, the SHO has reached on spot at 2.00 pm on 1.6.89 and the FIR (Ex.P. 14) has been chalked out at 6.30 am on 2.6.89. While the site-plan has been prepared on 1.6.89 at 3.10 pm. Blood stained soil has been taken from the place of incident, statements of witnesses were recorded on 1.6.89 and other enquiries also made on spot. Thus the FIR is post investigation document. This also creates doubt on the case of prosecution. 21. The prosecution has also failed to prove the recovery. As the recovery witness PW has been declared hostile. Even trial Court has also observed that police has failed to conduct fair investigation. 22. Considering these facts, in our considered.opinion, the prosecution has failed to prove its case beyond ail reasonable doubt that Hussain, Fazru, Taiyab and Ayub have caused specific injury to deceased. But all the witnesses are consistent on the fact that Idrees has caused first tanchia-blow on the head of deceased, while Subban was climbing up on stairs. Accused-persons came armed with deadly weapons to attack on a person, as happened in this case. It is natural that when 5-6 persons armed with dealy weapons came to place of incident in that case if any person who is on the roof of the house can easily see the person who first inflicted the injury to a person who was climbing up the stairs at that time. It is, therefore, in our opinion Fatta, Hamid, Bassi, Mehtab and Pappu who were on the roof, shown in site-plan, have seen the incident while Idrees gave tanchia-blow on the head of deceased. 23. When the eye-witnesses are not wholly reliable as the prosecution failed to prove who caused neck-injury, Hussain or Taiyab ? The rest of the injuries were caused under the shade of tree, where the major quantity of blood has been found. 23. When the eye-witnesses are not wholly reliable as the prosecution failed to prove who caused neck-injury, Hussain or Taiyab ? The rest of the injuries were caused under the shade of tree, where the major quantity of blood has been found. It is an admitted case of prosecution that neem tree branches are in between the place of incident, where major quantity of blood was found and persons who were on the roof of the house, shown in site-plan, therefore, it is not possible for persons, who were on the roof of the house, to see specific injuries when caused by accused- persons. It also, therefore, creates doubt on the story of prosecution that eye-witnesses, who were on the roof of the house, have seen accused-persons causing injuries on other parts of body of deceased. In view of these facts we are of the view that the trial court has rightly acquitted the accused Fazru, Taiyab and Ayub. But the trial court has wrongly convicted the accused Hussain, specifically when Taiyab has been acquitted. There is no justification for conviction of Hussain for the same neck-injury, which has been attributed to Hussain and Taiyab both. 24. In respect of the head-injury all the eye-witnesses are consistent on the fact that first head-injury has been caused by Idrees by inflicting tanchia-blow and that found corroboration with one medical report as one sharp-edged injury has been found on the head of deceased and the witnesses on roof were in a position to see the incident when first tanchia-blow has been given by Idrees. 25. The next question for our consideration is that whether Idrees can be convicted for the offence under section 302 or 302 read with 34 IPC ? When all co-accused persons cannot be convicted on the basis of evidence adduced by the prosecution, then Idrees cannot be convicted for the offence under section 302 IPC even with the aid of Section 34 IPC. When Idrees cannot be convicted with the aid of Section 34 IPC, then he cannot be convicted for the offence under section 302 IPC also ? In the opinion of doctor the cause of death is head-injury as well as neck-injury. When the head-injury alone is not sufficient to cause death of deceased, in the ordinary course of nature, accused Idrees cannot be convicted for the offence under Section 302 IPC. 26. In the opinion of doctor the cause of death is head-injury as well as neck-injury. When the head-injury alone is not sufficient to cause death of deceased, in the ordinary course of nature, accused Idrees cannot be convicted for the offence under Section 302 IPC. 26. The statement of P.W. 6 Mr. Subhash Chand Gupta further clarifies this issue regarding cause of death of deceased that injury No. 2, which is on the neck of deceased, is cause of death. That injury has been attributed to Taiyab & Hussain both. In such circumstances the case of the accused Idrees does not travel beyond the scope of Section 326 IPC and we feel it proper to convict him under Section 326 IPC.In the result, the appeal of Idrees is partly allowed. The conviction of Idrees under section 302/34 IPC is set aside and instead he is convicted under section 326 IPC. As the accused Idrees has remained in custody for more than six years, his sentence is reduced to the period already undergone. He be released forthwith, if not required in any other case.The appeal of Hussain is allowed. He is acquitted from the charges levelled against him. The conviction and sentenced of Hussain is set aside. He also be released .forthwith, if not required in any other case. When we have acquitted, we find no justification to convict the other co-accused Taiyab, Fazru and Ayub. Therefore, the appeal of State is dismissed. *******