JUDGMENT 1. 1. The present appellants Chhotya and Mohan Lal @ Hari Mohan have preferred the appeal against an order of conviction under Section 302 Indian Penal Code and sentence of imprisonment for life along with a fine of Rs. 200/- each, in default, simple imprisonment for a further period of three months, as passed on 26th July, 1996, by the learned Sessions Judge, Sawai Madhopur in Sessions Case No. 3/96. 2. The prosecution case inter alia was to the effect that on 26.9.95 at about 8 p.m. when Smt. Andhokh Bai (PW 9) and her husband Jamna Lal along with their children were returning to their own house from the house of her husband's younger brother Chhotu (PW 8), the present appellants Chhotya and Mohan Lal @ Hari Mohan,' the latter being the brother-in-law of the former, attacked Jamna Lal on the small path-way in front of their house, armed with lathis and surrounded Jamna Lal. According to the testimony of Smt. Andokhi Bai (PW 9) (wife of the deceased Jamna Lal) each of the accused persons inflicted lathi blow on the head of the deceased Jamna Lal, as a result whereof Jamna Lal fell down on the ground and Smt. Andokhi Bai (PW 9) in order to guard her husband, placed herself in such a manner so as to shield further attack on her husband Jamna Lal. Attracted by her cries, her husband's younger brother Chhotu (PW 8), Ram Kalyan (PW 7). another younger brother of Jamna Lal, Jamna Lai's mother Kanya (PW 4) and Jamna Lai's sister Rama Bai (PW 3) came to the scene of the occurrence but none of them saw the actual infliction of the lathi blows on the head of Jamna Lal. Attracted by her cries, her husband's younger brother Chhotu (PW 8), Ram Kalyan (PW 7). another younger brother of Jamna Lal, Jamna Lai's mother Kanya (PW 4) and Jamna Lai's sister Rama Bai (PW 3) came to the scene of the occurrence but none of them saw the actual infliction of the lathi blows on the head of Jamna Lal. Jamna Lal was carried to Indragarh having been placed on a cot and from Indragarh he was taken by a Jeep to Sawai Madhopur hospital where he was admitted on 27.9.1995 at about 5 p.m. The prosecution case further was to the effect that Jamna Lal was not in a position to give any dying declaration or make any statement before the doctors and he was in an unconscious state and he died on the night intervening 27th and 28th September, 1995 and according to the doctor, he died on 28.9.95 at about 2 a.m. Police was obviously informed at about 2.20 a.m. on 28th September, 1995 after Jamna Lai's death and the police investigation started at about 7 a.m. on 28.9.95. Between 7 a.m. and 8 a.m. on 28.9.95 there was an inquest made by the police where admittedly the widow Smt. Andokhi Bai (PW 9), two brothers and a sister of the deceased and some other relations were present but we do not find anywhere the mention of the names of anyone of the accused persons in the inquest report. 3. According to the post mortem doctor, there were as many as five injuries on the person of the deceased, out of which two injuries were on the head, being injury No. 1 and 2, as mentioned in the post mortem report. Injury No. 1 was a fracture wound on the right frontal bone on the head which caused injury to the brain as well as was otherwise fatal which was sufficient in course of nature to cause death. This injury was over a lacerated wound which was caused by a lathi and the doctor was not very much sure as to whether this injury could only be inflicted by a lathi embedeed with an iron cover. The second injury which was found on the head of Jamna Lal was another lacerated wound which was of obliquely vertical nature on the right frontal part of the scalp 10 c.m. above eye brow caused by blunt weapon. The second injury which was found on the head of Jamna Lal was another lacerated wound which was of obliquely vertical nature on the right frontal part of the scalp 10 c.m. above eye brow caused by blunt weapon. Police treated the statement made by Smt. Andokhi Bai (PW 9) recorded on 28.9.95 at 2.30 a.m. as an FIR and after completion of investigation, submitted charge-sheet against two accused appellants. Ultimately, charges Under section 302 as well as under Section 323 Indian Penal Code against the accused persons were framed. 4. The accused appellants pleaded not guilty to the respective charges framed against them. Their defence inter alia was that they have been falsely implicated in the case out of previous grudge and enmity. It was further case of the accused appellant Mohan Lal @ Hari Mohan that he was nowhere in the village and he has been implicated in the case only because of his relationship with the appellant No. 1 Chhotya, who was on inimical terms with Jamna Lal and his brothers. Nothing transpired in the alleged FIR about the motive of the crime except that in the testimony before the court, PW 9 Smt. Andokh Bai and other witnesses spoke about a previous incident which happened about eight days before because of the cattle of the accused entering into the field of the deceased and destroying (sic) crops. 5. As many as 20 witnesses were examined in the trial on behalf of the prosecution. Defence examined only one witness DW 1 Bhawani Shankar, in its favour. The defence witness, however, sought to prove that there were many neighbourers living around the place of occurrence with their families but it transpired in course of evidence that none of such neighbourers were called to the witness box as prosecution witnesses in support of the prosecution case. 6. Be that as it may, learned Sessions Judge declared PW 8 Chhotu, brother of the deceased Jamna Lal, as hostile to the prosecution and solely relying on the testimony of the only eye-witness to the case, PW 9 Smt. Andokhi Bai, while acquitting the accused persons of the charges Under section 323 Indian Penal Code, found both of them guilty Under section 302 Indian Penal Code and convicted and sentenced them as stated earlier. 7. 7. Shri Biri Singh Sinsinwar, Advocate appearing on behalf of the appellants contended before us that in absence of a charge Under section 34 Indian Penal Code along with Section 302 Indian Penal Code, it was not possible on the part of the learned Sessions Judge to safely convict both the appellants substantively of the charge Under section 302 Indian Penal Code so as to make them guilty of their own acts by way of inflicting lathi blows on the head of the deceased Jamna Lal. Even though it was emanating from the testimony of PW 9 Smt. Andokhi Bai that appellant Chhotya inflicted the first lathi blow on the head of the deceased and Mohan Lal @ Hari Mohan allegedly inflicted the second lathi blow on the head of the deceased, it was not evidently clear from the testimony of the only eye-witness PW 9 Smt. Andokh Bai as to whose lathi blow caused the fatal injury which according to the post mortem doctor was sufficient in the ordinary course of nature to cause death. 8. Shri Biri Singh Sinsinwar Advocate for appellants further contended before us that since none of the co-villagers who are likely to be independent persons, testified in the case so as to prove the prosecution story as regards the complicity of Mohan Lal @ Hari Mohan having transpired on that very night of the occurrence, had Mohan Lal @ Hari Mohan been really present at the scene of occurrence in the village itself, there was every possibility on the part of PW 3, 4, 7, 8 and 9 to implicate in their overzealousness Mohan Lal, the brother-in-law of Chhotya with whom they had previous enmity by way of making out an embellished story. When none of the persons accompanying the victim to the hospital gave a statement before the doctor as regards how the fatal injury was inflicted on Jamna Lal and none of them went of his/her own to the police station so as to lodge an FIR in the natural sequence of events and the police started investigation on being informed in this regard by the hospital doctor, there was no clinching evidence worth the name that the names of the red culprits really did divulge at the first blush immediately after the incident when the persons accompanying the victim had their earliest opportunity to meet the police officials at the Police Station which was not far away from the hospital. FIR that was lodged at a point of time when the police investigation has already started lost its probative value and could not be relied upon for the purpose of corroborating the version as given out by PW 9 Smt. Andokhi Bai who was the maker of the same. Shri Biri Singh Sinsinwar Advocate further contended before us that even if PW 9 Smt. Andokhi Bai could be relied upon as a sole eye-witness as regards the complicity of Chhotya, she could as well be disbelieved as regards her testimony implicating Mohan Lal because there was every likelihood of her brothers-in-law or sister-in- law or even mother-in-law pouring into her ears the impelling necessity to implicate Mohan Lal as well, since Mohan Lal happened to be on the camp of Chhotya. There is no manner of compulsion in the eye of law that in the inquest report even if the complicity of the accused would have transpired at that stage, the accused persons have to be named specifically in this regard but then if the inquest was made before the very presence of the near relations of the victim Jamna lal, it was most likely that the complicity of the present accused persons ought to have transpired at the time of making the inquest, but unfortunately that was not so. 9. We have with our own circumspection, scrutinised the testimony of PW 3, 4, 7, 8 and 9, even though PW 8 Chhotu was declared hostile. 9. We have with our own circumspection, scrutinised the testimony of PW 3, 4, 7, 8 and 9, even though PW 8 Chhotu was declared hostile. PW 9 Smt. Andokhi Bai was the only eye-witness that has been relied upon by the trial court and we can also place credibility on her in so far as her testimony regarding to complicity of Chhotya is concerned. Taking the entire prosecution evidence as a whole, we do not think that in the absence of any charge Under section 34 Indian Penal Code calling to the aid of the substantive charge Under section 302 Indian Penal Code, the guilt of Mohan Lal @ Hari Mohan for having caused murder of Jamna Lal, can be said to have been proved beyond reasonable doubt. In that view of the matter, we acquit Mohan Lal @ Hari Mohan of the charge Under section 302 Indian Penal Code. Charge Under section 323 Indian Penal Code has already ended in an order of acquittal in so far as Mohan Lal @ Hari mohan is concerned and we cannot sit on judgment upon the same. 10. As regards the complicity of Chhotya, appellant No. 1, we believe the testimony of PW 9 Smt. Andokhi Bai in so far as it stands corroborated by the other witnesses is that it was Chhotya who inflicted the fatal blow on the head of Jamna Lal on the fateful night i.e. 26.9.95. Regard being had to the nature of the injury, the manner of its infliction and the fact that the victim Jamna Lal died on 28th September, 1995 after midnight, we think that the ends of justice would be sufficiently met if we alter the conviction of Chhotya to one Under section 304 Part-I Indian Penal Code and alter the sentence to seven years R.I. 11. In the result, the appeal stands partly allowed, as indicated above. Let appellant No. 2 Mohan Lal alias Hari Mohan S/o Onkar, by caste Keer, r/o Jhali Ji Ki Barana, Police Station Gonoli, Distt. Bundi, at present in Central Jail, Jaipur be released forthwith. Appellant No. 1 Chhotya who is now in Central Jail, Jaipur should serve out the remainder of his sentence.Appeal Partly Allowed. *******