Judgment A. K. SINGH, J. ( 1 ) THIS S. B. Criminal Appeal No. 160/1979 was filed against the judgment dated 10-11-1978 delivered by Shri S. R. Bajwa, learned Additional Sessions Judge, Udaipur in Sessions Case No. 37/78 : State v. Hajari Lal and others. Leave to appeal was given by this Court against the acquittal of Hajari Lal and Kishan Lal and the same was refused in respect of the acquittal of Mangilal and Manakchand. ( 2 ) THE facts of the case may be briefly stated as follows :-ON 24-4-1978 at 11. 30 p. m. Raju son of Khema lodged a first information report No. 72/78 at the police station, Gordhan Vilas, Udaipur. According to that report on 24-4-1978 in the evening after finishing his daily work Raj went to the hotel of Narain for taking tea. When he was taking tea in the hotel Dinesh son of Maganlal started weeping. Thereafter Raju went out of the hotel and proceeded towards Maganlal Harijan and saw that in front of the shop of Kanhaiyalal Mahanjan Hajari son of Veniram, Krishna son of Veniram, Mangilal son of Ganesh Khatik, son-in-law of Veniram and Mohini wife of Manak Khatik were assaulted Magniram alias Maganlal son of Shivlal by lathies and Dharia. Hajari was armed with dharia, Mangilal was armed with a stick, Manak was armed with a hockey stick, Mohini was armed with a stick whereas Kishna caught hold of Maganlal by neck. It was alleged in the first information that Maganlal was given dharia blows on his forehead, waist and stomach, Mangilal inflicted lathi blows to Maganlal and Manak and Mohini also inflicted lathi blows on Maganlal Khyalilal and Dhaluba were named as eye-witness. After the incident the assailants were to the shop a Mangirams wife and Bhanwarlal took Maganlal the hospital. Maganlal was thereafter taken to the hospital at Udaipur and was admitted there. On the basis of the first information report given by Raju the police registered a case under Sections 147, 148, 149 324 and 323, I. P. C. and started the investigation After the investigation the police submitted a report under Section 173, Cr. Maganlal was thereafter taken to the hospital at Udaipur and was admitted there. On the basis of the first information report given by Raju the police registered a case under Sections 147, 148, 149 324 and 323, I. P. C. and started the investigation After the investigation the police submitted a report under Section 173, Cr. P. C. against Hajarilal, Kishanlal, Manakchand, and Mangilal alleging the commission of offences punishable under Sections 307 and 323 read with Section 34, I. P. C. ( 3 ) LEARNED Judicial Magistrate No. 1, Udaipur took cognizance of the offence and committed the case to the Court of Sessions Judge, Udaipur who transferred the case to the Court of Additional Sessions Judge, Udaipur. ( 4 ) MANAKCHAND, Maganlal and Kishnanlal were charged under Section 307 read with Section 34 and 323, I. P. C. and Hajari was charged under Section 307 and 325, I. P. C. The accused pleaded not guilty the charge. The prosecution examined as many a 7 witnesses in support of its case. The accused in examined under Section 313, Cr. P. C. DW 1 Kishanlal and D. W. 2 Kishore were examined in defence. ( 5 ) LEARNED Additional Sessions Judge after hearing the parties came to conclusion that the prosecution has suppressed the genesis of the origin of the occurrence and true version of the incident was not presented before the Court and the evidence of prosecution witnesses was not reliable and the defence version given by the accused persons was probable. He, therefore, held that no offence was proved against the accused. Consequently he acquitted them of offences with which they were charged. ( 6 ) I have gone through the record of the case. J. S. Mattha P. W. 1 is the Medical Jurist who prepared medico legal report Ex. P. 1. He has deposed that injury No. 1 of Maganlal could have been fatal. duration of the injury was 4 hours and injury No 1 could not have been caused by sharp edge of any weapon. G. L. Verma P. W. 2 is the Radiologist. He has deposed that X-ray report was prepared and examination of X-ray he found that there was fracture of the frontal part of the skull and the injury could not have been fatal. Maganlal PW. 3 is the injured. G. L. Verma P. W. 2 is the Radiologist. He has deposed that X-ray report was prepared and examination of X-ray he found that there was fracture of the frontal part of the skull and the injury could not have been fatal. Maganlal PW. 3 is the injured. According to his statement a few months before the occurrence he had borrowed a sum of Rs. 1800/- from Veniram who is the father of accused Hajari and Kishanlal and at that time he had executed a document for a sum of Rs. 9050/- by which he has mortgaged his house and when he reported the matter to the police inspector a reconciliation was made. But Veniram had threatened to kill him. Regarding the occurrence in question he stated that when he was going from the shop where he had gone to take tea he was asked to stop by Hajarialal Kishanlal and Sohanlal. When he looked behind Hajarilal inflicted a dharia blow on his head and then he fell down and one of the accused was armed with lathi and another was armed with hockey stick and they gave him blows with stick as well as lathi. On account of these injuries he fell down and lost his senses and regained his senses in the hospital on the next day. It is also deposed by Maganlal P. W. 3 that his son was also present at the time of occurrence. During his cross-examination he denied the sussestion that he went to the shop of accused with Bhanwarlal, Sohanlal, Rupa and Chandi and gave beating to the accused. He has admitted that a counter case regarding the same incident is pending in another court. ( 7 ) DINESH P. W. 4 is the son of injured Maganlal. According to the prosecution he was present at the site. His age on the date of his examination was only 11 years. He has stated that when he was going to his house with his father, Hajarilal, Kishanlal and Veniram, Mangia and Venirams son in law who were armed with sticks Dharia and sword met him near the Pulia and they inflicted injuries to his father on head, pelvis and his father became unconscious due to injuries and at the time of occurrence wife of Venirams son in law was also present with lathi and she took part in the beating given to his father. During cross-examination the witness could not tell about the particular weapon possessed by each accused nor he could tell which particular injury was caused by each accused. Raju PW. 5 is the first informant. He has supported the version given in the first information report and deposed that on hearing the cries of Magnirams son he went to the place of occurrence and saw that Hajari was armed with Dharia with which he inflicted a blow on the head of Mangiram and Kishan caught hold of the neck of Mangiram and Mangia was armed with a lathi and Manak was armed with a lathi with which he inflicted a blow on legs and pelvis of Maganlal. This witness identified the accused in the court and added that Magniram was taken to the hospital in an unconscious state. He proved the F. I. R. Ex. P3 and further added that site inspection memo Ex. P. 4 was prepared by the police officer in his presence and he put his thumb impression thereon. The witness was confronted during the cross-examination with his police station in which he stated that blow on the head of Maganlal was inflicted with the sharp edge of Dharia. The witness denied having been made that statement. Khyalilal PW. 6 is also one of the eye witnesses of the occurrence who saw the incident while standing on the roof of his house. He has stated that he saw that Kishanlal was fighting with Mangiram. At that time Hajari armed with a dharia reached the spot and Mangilal was armed with a lathi also came and another brother of Hajari Manakchand and his wife were also present and Hajari and his companion inflicted injuries on Maganlal. Kishanlal caught hold of the neck of Maganlal. Hajaris younger brother inflicted blow with stick and Hajari inflicted a Dharia blow on the head of Maganlal. During the cross-examination the witness was confronted with certain portions of his police statement in portion G to H of his police statement. He has stated that he did not see any one inflicting blows to Maganlal. Kishansingh Saktawat P. W. 7 who is the Station House Officer recorded the F. I. R. Ex, P3 and after inspecting the site prepared the site inspection memo Ex. P. 4. and sent the injured Maganlal to the Doctor for medical examination and conducted the investigation. He has stated that he did not see any one inflicting blows to Maganlal. Kishansingh Saktawat P. W. 7 who is the Station House Officer recorded the F. I. R. Ex, P3 and after inspecting the site prepared the site inspection memo Ex. P. 4. and sent the injured Maganlal to the Doctor for medical examination and conducted the investigation. During the cross-examination he told that he made no efforts to recover the dharia because Maganlal had no dharia injury. He has denied that Maganlal made any complaint to him that Veniram gave Rs. 1800/- only and obtained the signatures of Maganlal on a document showing a loan of Rs. 9050/ -. ( 8 ) IN their statements recorded under Section 313, Cr. P. C. the accused denied the circumstances appearing in the prosecution evidence against them. Hajari added that Mangaram, Chandi Bai and Rooplal went to the shop and entered into a quarrel and inflicted 5 to 6 injuries on his brother and that time his brother in order to defend himself cought Maganlal and at that time the head of Maganlal struck against the telephone pole and in consequence thereof Maganlal received injuries on his head and that time Bhanwarlal tried to inflict a lathi blow on the head of Kishanlal but per chance that blow landed on the body of Maganlal. Kishnlal adopted the version of Hajari in his statement under Section 313, Cr. P. C. Manjgilal also supported the version of Hajari and Kishanlal and added that when Maganlal and his companion went to the shop of Hajari he intervened and snatched a lathi and sword from Maganlal and produced the same in the police station. Manakchand pleaded in his statement under Section 313, Cr. P. C. that he was not present at the spot and he was falsely implicated on account of his relationship with Hajari and Kishanlal. ( 9 ) KISHANLAL D. W. 1 deposed that on the date of occurrence when he and his brother Hajari Lal were working at their shop Maganlal, Bhanwarlal, Mohanlal, Rooplal and Chandi Bai came to the shop. Maganlal was armed with a stick and sword and the others were armed with stick and Maganlals wife had a stone in her hand. Maganlal was armed with a stick and sword and the others were armed with stick and Maganlals wife had a stone in her hand. Maganlal asked him to come out of the shop and as soon as he went outside his shop he was cought by Maganlal and a lathi blow was inflicted on his shoulder and another lathi blow was inflicted by Bhanwarlal on his right leg. At that time Maganlal raised sword in order to strike a blow but meanwhile Mangilal reached there and he snatched the sword from the hands of Maganlal. Thereafter Bhanwarlal hurled a lathi blow which landed on the head of Maganlal and Chandi Bai too inflicted a lathi blow. Thereafter Magniram tried to strangulate by pressing the neck and at that time he fell down and Maganlal received a knock on account of which he fell on the telephone pole and received injury on his head and Kishore, Deokishan, Gheesalal and Kishanji intervened and saved him. Kishore D. W. 2 has given a version similar to the version given by Kishanlal D. W. 1 and added that when Hajari Lal and Magnilal were fighting with each other they fell on the ground and Magnilal received an injury on his head because his head is struck against the telephone pole. ( 10 ) THE defence version as given in the statements under Section 313, Cr. P. C. and the statements of Kishanlal DW. 1 and Kishore D. W. 2 has been considered by the learned Additional Sessions Judge who has opined. that the defence version is probable and the prosecution witnesses have not given the true genesis of the occurrence or of the incident. So far as the witness Khyalilal PW. 6 is concerned in view of the statement given by him under Section 161, Cr. P. C. it must be said that he is speaking a lie and he did not see the occurrence with his own eyes. In portion C to D of his statement Ex. P. 2 Khyalilal stated that the incident took place in front of the shop of Kanhaiya Lal. The witness has denied this suggestion. ( 11 ) IN an appeal against acquittal there must be good reasons to reverse the finding given by the trial Judge who had the advantage of noticing the demeanour of the witnesses. P. 2 Khyalilal stated that the incident took place in front of the shop of Kanhaiya Lal. The witness has denied this suggestion. ( 11 ) IN an appeal against acquittal there must be good reasons to reverse the finding given by the trial Judge who had the advantage of noticing the demeanour of the witnesses. The findings of the learned trial Judge cannot be set aside in an appeal against acquittal merely because two opinion can betaken in the same matter. In order to interfere with the findings, it is necessary that it must be shown that the findings are so unreasonable that no prudent man in the facts and circumstances of the case can arrive at the decision given by the learned trial Judge. In the instant case, the learned Additional Sessions Judge has come to the conclusion that the prosecution has suppressed the genesis and origin of the occurrence and has not presented the true version and the injuries of the accused persons have not been properly explained and the defence version appears to be probable and that it is probable that Hazarilal might have inflicted the injury on the head of Magniram in exercise of his right of private defence of body. ( 12 ) LEARNED Public Prosecutor on the other hand has submitted that the findings arrived at by the learned Additional Sessions Judge are unreasonable and against the record and, therefore, they need reversal and the respondents deserve to be convicted and sentenced for the offences with which they were charged. ( 13 ) I have carefully considered the rival contention and perused the record. Out of the seven witnesses examined by the prosecution two witnesses, namely, J. S. Mattha P. W. 1 and G. L. Verma P. W. 2 are the witnesses who have been produced to prove the injuries. They are not the eye-witnesses of the occurrence. Kishan Singh Shakhtawat P. W. 7 is the Investigating Officer, who investigated the case. Maganlal P. W. 3 is the injured and Dinesh P. W. 4. Raju P. W. 5 and Khyalilal P. W. 6 are the alleged eye-witnesses of the occurrence. The first information report was lodged by Raju P. W. 5. Kishan Singh Shakhtawat P. W. 7 is the Investigating Officer, who investigated the case. Maganlal P. W. 3 is the injured and Dinesh P. W. 4. Raju P. W. 5 and Khyalilal P. W. 6 are the alleged eye-witnesses of the occurrence. The first information report was lodged by Raju P. W. 5. The incidence according to the prosecution occurred in broad day light and according to Dinesh P. W. 4 who is the son of injured at the time of incident no body, went to the scene of occurrence to intervene. According to P. W. 5 Raju at the time of incident he was taking tea in the hotel of Narain sindhi and at that time Narain Sindhi and many other persons were present in the hotel. But no body went to the spot on hearing the hue and cry The weapon of offence is stated to be a Dharia having a sharp edge but no injury of a sharp edged weapon was found on the body of Magniram. According to Raju P. W. 5 the appellant Hazari inflicted a blow or the head of Magniram with the blunt side of Dharia In the first information report Ex. P. 3 Raju P. W. 5 categorically stated that the sharp edge side of the Dharia was used for causing, injury to Magan Lal. There is, thus, a very material contradiction between the first information report Ex. P. 3 and the statement given in the Court by Raju P. W. 5 who is the author of the first information report Ex. P. 3 inasmuch as in the first information report Ex. P. 3 he stated that the appellant Hazari used the sharp edge side of the Dharia but in his statement he has changed his version by saying that it was the blunt side of Dharia which was used for causing injury to Maganlal alias Magniram. In view of this it can be said that while lodging the first information report Ex. P. 3 Raju P. W. 5 did not act with absolute honesty and truthfulness or at the time of his giving his statement in the Court he deliberately changed his version because by that time he has come to know that none of the injuries of Magniram were caused by sharp edged weapon. P. 3 Raju P. W. 5 did not act with absolute honesty and truthfulness or at the time of his giving his statement in the Court he deliberately changed his version because by that time he has come to know that none of the injuries of Magniram were caused by sharp edged weapon. The incident is said to have occurred at 7 P. M. but the first information report Ex. P. 3 was lodged at 11. 30 p. m. after a delay of 41/2 hours. The distance of place of occurrence and the police station was only 13 kms. and the first information report Ex. P. 3 was received by the Judicial Magistrate, Udaipur on 25-4-1978. There was thus 41/2 hours time available to Raju P. W. 5 to fabricate the prosecution story and in the facts and circumstances of the case the contradiction between the first information report and the statement given by Raju P. W. 5 in the Court leads to the inference that Raju P. W. 5 is not a witness of sterling character and it is possible that he might have fabricated the prosecution story according to his desire. ( 14 ) DINESH P. W. 4 is a child witness aged 11 years. He could not tell as to which injury was caused by a particular accused. According to him his father Maganlal alias Magniram was assaulted by Hazari, Kishanlal, Veniram Mangia, and son-in-law of Veni Ram and daughter of Veniram. If all these persons have inflicted injuries on Maganlal alias Magniram, he must have received more than 5 injuries but according to the medico-legal report Ex. P. 1 the total number of injuries found on his body are only three, one of them was a lacerated wound on the head, the second injury was a bruise and the third injury was a abrasion and there was a fracture of frontal bone. It is obvious that the statement of Dinesh P. W. 4 is not totally correct. He has implicated six persons but there were only three injuries which shows that at least 3 persons who have been implicated by this witness are innocent. In view of the circumstances it cannot be ruled out that Dinesh P. W. 4 was either tutored before his statement was recorded in the Court or he deliberately implicated 6 persons including the daughter of Veniram. In view of the circumstances it cannot be ruled out that Dinesh P. W. 4 was either tutored before his statement was recorded in the Court or he deliberately implicated 6 persons including the daughter of Veniram. As a result of this, the statement of Dinesh P. W. 4 does not inspire confidence as he cannot be said to be a child of sterling character. ( 15 ) KHYALILAL P. W. 6 is the third eye-witness of the alleged incident. He has been contradicted with his police statement Ex. D. 2. His statement was not recorded on the date of occurrence. In portion A to B of his police statement Ex. D. 2 he has stated that at the time of incident he was working inside his shop and he has admitted this statement. In portion C to D of his police statement Ex. D. 2 it was stated by him that Kishan son of Veniram and Magna Harijan were fighting with each other and were lying on the ground. The witness denied to have made this statement. In portion E to F of his police statement Ex. D. 2 it was stated by him that Hazari had a stick and a lakadi with him and he inflicted an injury on the fore-head of Magna with a lakadi but the witness denied to have made this statement. In portion G to H of his police statement Ex. D. 2 it was stated by him that he did not see any other persons inflicting the blows but he denied this statement. There are, thus, contradictions between the statement made by this witness before the police and the statement made by him in the Court and the contradictions in the facts and circumstances of the case are material. Therefore, it cannot be said that Khyalilal P. W. 6 is a witness of sterling character. ( 16 ) SO far as Maganlal P. W. 3 is concerned, his version that he had taken a loan of Rs. 1800/- from Veniram who is father of respondent Hazari. But Veniram got executed some document for Rs. 9,050/- and also mortgaged the house. According to Maganlal he reported this matter to the police inspector and at that time Veniram threatened to kill him. 1800/- from Veniram who is father of respondent Hazari. But Veniram got executed some document for Rs. 9,050/- and also mortgaged the house. According to Maganlal he reported this matter to the police inspector and at that time Veniram threatened to kill him. ( 17 ) KISHAN Singh Shakhtawat P. W. 7 who was working as the Station House Officer of the Police Station, Gordhanvilas on 24-4-1978 has categorically stated that Magniram never met him to make any complaint that Veniram advanced him a sum of Rs. 1800/- only but got executed a document for Rs. 9,050/ -. This shows that the story given by Maganlal is false as it has not been supported by Kishan Singh Shakhtawat P. W. 7. The statement of Maganlal P. W. 3 cannot be said to be reliable. The medico-legal report Ex. P. 1 clearly shows that at the time of medical examination Maganlal was found to have taken alcohol because the Dr. has reported that he had consumed alcohol and there was smell of alcohol present. But in his cross-examination Maganlal P. W. 3 has categorically denied that before the alleged occurrence he had consumed alcohol. This shows that Maganlal P. W. 3 deliberately spoken a lie and he too does not appear to be a person of sterling character. ( 18 ) FOR the reasons above, Maganlal P. W. 3, Dinesh P. W. 4, Raju P. W. 5 and Khyalilal P. W. 6 do not appear to be reliable witnesses and, therefore, the version given by them does not inspire confidence. I, therefore, find no reason to hold that the statements of these witnesses are sufficient to prove the alleged offence against the respondents beyond reasonable doubt. The prosecution has failed to prove its case. The defence version as unfolded by Kishanlal D. W. 1 and Kishore D. W. 2 may not be said to have been proved beyond reasonable doubt but in the facts and circumstances of the case, it cannot be ruled out that it is probable. I, therefore, do not find any reason to interfere with the finding given by the learned Additional District and Sessions Judge in this behalf. ( 19 ) FOR the reasons mentioned above, this appeal has no merit and it deserves to be rejected and is hereby rejected. Appeal dismissed. .