JUDGMENT 1. - This Appeal has been directed against the judgment dated 18.7.96 passed by the Additional Sessions Judge, Jhalawar, whereby he convicted appellants (1) Champalal, (2) Chhitarial, (3) Ramkalyan, (4) Kesrilal, (5) Parmanand, (6) Banshilal and (7) Babulal for offences under Sections 147, 148, 449, 302/149, 324/149 & 323/149, Indian Penal Code, and sentenced each one of them as under: On each count, Under sections 147,148 & 324/149, Indian Penal Code One year's RI & a fine of Rs. 1,000/-, in default thereof, further one month's RI. Under section 323/149 Indian Penal Code Six months' RI & a fine of Rs. 1,000/- in default thereof, further One month's RI. Under section 449, Indian Penal Code Five years' RI & a fine of Rs. 1,000/- in default thereof, further one month's RI. Under section 302/149 Indian Penal Code Life imprisonment & a fine of Rs. 1,000/- in default thereof, further one year's RI. The learned trial Judge also directed that all the substantive sentences shall run concurrently and that 75% of the amount of fine, if realised, be paid to the legal representatives of deceased Notiram. 2. Now briefly the factual matrix. It appears that in the evening of 18.10.1991 deceased Nontiram, who is resident of village Devari Khurd had come to the house of his brother in-law (sala) Mangilal in village Khejra to celebrate Dashera festival. On that day at about 9.10 PM. he alongwith his mother-in-law Bhuli Bai (PW 3) & Mangilal (PW 2) was taking meals on the roof of the house. At that time, appellant Champlal came in front of the house of his brother and asked the latter and the deceased to come out of the house. Mangilal told him that they shall be coming after finishing their meals. It is alleged that thereupon appellant Chhitarlal, who was armed with a Gandasi (Farsi) asked appellants Champalal, Ramkalyan, Kesrilal, Parmanand, Banshi Lal and Babulal to enter into Mangilal's house and thereupon all the appellants climbed over the roof of Mangilal's house. At that time, appellants Champalal and Chhitarlal were armed with Gandasi (Farsies) while rest of the appellants had lathies. It is alleged that appellant Chhitarlal dealt a Farsi blow on the head of Mangilal, while appellants, Kesrilal and Banshilal gave lathi blows causing injuries on his right leg and left thigh respectively. Appellant Champalal also dealt a `Farsi' blow on the head of. It is alleged that appellant Chhitarlal dealt a Farsi blow on the head of Mangilal, while appellants, Kesrilal and Banshilal gave lathi blows causing injuries on his right leg and left thigh respectively. Appellant Champalal also dealt a `Farsi' blow on the head of. deceased Nontiram, while appellants Keshrilat and Banshilal dealt lathi blows causing injuries to Nonti Ram on the back side of his right palm and head respectively. Thereafter all the appellants caused multiple injuries to Nontiram, Bhulibai (PW 3) and Balibai (PW 4), who are the mother and wife of Mangilal respectively, intervened and thereupon the appellants fled away. It is alleged that PW 2 Mangilal went to village Devri Khurd which is situated about 2-3 furlongs from village Khejra and informed PW 7 Kesrilal and PW 8 Govindram, who are the cousin and uncle respectively of Nontiram and asked them to go to the police station. It is further alleged that since no means of transport was available in the night, injured Nontiram was taken to police station Javar next morning but in the way, he succumbed to his injuries. 3. It is the case of prosecution that a day prior to the incident, deceased Nontiram had scolded his brother-in-law (sala) appellant Chhitarlal, who neglected to provide meals to Smt. Bhulibai. On 19.-10.91 at 8.30 A.M., P 2 Mangilal lodged an oral report about this incident to PW 13 Abdul Aziz SHO PS Javar, sho drew first information report Ex.P. 2 and registered the case. Abdul Aziz prepared inquest report Ex.P 3, rushed to the place of occurrence and prepared site plan Ex.P 13. He lifted sample of blood stained soil and control sample from the public way near the house of Mangilal. He, however, did not find any blood on the roof of house of PW 2 Mangilal. PW 13 Abdul Aziz seize and sealed aforesaid samples vide memoes Ex.P 11 & P 12. 4. On 19.10.91 PW 15 Dr. K.B. Sharma, Medical Officer, Primary Heath Centre, Harnavda Shahjee examined Mangilal and as per M.L.R. Ex.P 35 found following injuries on his person : (1) Incised wound 4.5 cm x 1 cm x 1/2cm on the frontal region of scalp of head (centrally placed) in anterio posterior direction, (2) Painful swelling 8 cm x 5 cm on the right ankle joint, (3) Swelling 6 cm x 3 cm on left thigh. 5. Injury Nos. 5. Injury Nos. 1 and 3 were simple and caused by blunt and sharp object respectively. He also advised x-ray of the right ankle joint, but, it appears that no x-ray examination was conducted. As such injury No. 3 was also simple in nature. 6. On the same day, PW 15 Dr. K.B. Sharma also conducted medico legal autopsy of deceased Nonti Ram and as per post mortem examination report Ex.P 34 found following injuries:- (1) Incised wound 5 cm x 1 cm x 1 cm on left parietal region of head in anterior posterior direction. (2) Incised wound 5 cm x 1 cm x 1 cm on the vault of scalp of head, obliquely placed. (3) Incised wound 2 cm x 1 cm x 1 cm on the vault of the scalp of head in anterior posterior direction. (4) Incised wound 4 cm x 1 cm x 1 & 1/2cm on the occipital region transversely placed. (5) Incised wound 3 cm x 1 cm x 1 cm on th occipital region obliquely placed towards right side. (6) Swelling 6 cm x 4 cm on the frontal region of head posteriorly. (7) Swelling 9 cm x 4 cm on the left hypochondrium. On dissection, a fracture of left parietal bone 2 cm x 1 cm x 1/2cm was detected on the left parietal bone corresponding to injury No. 1. There was laceration over the membrane and brain underlying left parietal region 2 cm x 1/2cm area. The doctor also found fracture of 9th, 10th and 11th ribs on left side and rupture of spleen with lacerated wound 3 cm x 2 cm x 1 cm on superior surface. However, size of the spleen was normal. The doctor opined that the cause of death was due to the head injury and rupture of the spleen giving rise to excessive loss of blood resulting into haemorrhageic shock causing stoppage of heart action. 7. The appellants were arrested on 26 and 27.10.91. It is alleged that appellants Champalal & Chhitar in pursuance to their disclosure statements Ex.Ps. 25 & 28 respectively got recovered `Farsies' while the remaining appellants at their instance got recovered lathies. However, none of the `Farsies' and `Lqthies' was found to be blood stained. 7. The appellants were arrested on 26 and 27.10.91. It is alleged that appellants Champalal & Chhitar in pursuance to their disclosure statements Ex.Ps. 25 & 28 respectively got recovered `Farsies' while the remaining appellants at their instance got recovered lathies. However, none of the `Farsies' and `Lqthies' was found to be blood stained. The blood stained clothes of the deceased and samples of blood stained soil and control soil were sent to the State Forensic Science Laboratory for chemical examination but the prosecution did not file any F.S.L report. During investigation, it also transpired that FIR No. 146/85 Ex.P 33 was registered Under sections 147, 148, 307, 302/149 Indian Penal Code at RS. Javar District Jhalawar in respect of an incident, which took place on 17.12.1985, against deceased Nontiram and 16 others for the alleged murder of one Hajari the brother of appellants Kesrilal, Champalal & Parmanand and for causing injuries to appellant Kesarilal and his father Ramlal. A counter case vide FIR No. 145/85 PS Javar Ex.P 32 was also registered on the report of Ramkishan against appellant Kesrilal and five others for the offences Under sections 147,148, 307/149 Indian Penal Code. 8. After completion of the investigation, in the case on hand, a challan was filed against the appellants in the Court of the learned Munsif & Judicial Magistrate, Aklera, who in turn committed the case to the trial Court. The appellants denied the indictment and claimed trial. To prove its ^case, the prosecution examined as many as 15 witnesses. The appellants in their plea recorded under Section 313, Criminal Procedure Code denied all the circumstances appearing against them in the prosecution evidence. However, they did not adduce any evidence in defence. The learned trial Judge held that there was no inordinate delay in filing the FIR and the delay has been satisfactorily explained; that the presence of injured PW 2 Mangilal and eye witnesses PW 3 Bhulibai and PW 4 Balibai at the place of incident in their house was quite natural and well established; that their testimony was consistent and convincing, and the same was substantially corroborated by medical evidence, that minor contradictions and inconsistencies in their statements were natural and insignificant; and that the appellants had formed an unlawful assembly to commit the murder of Nontiram and to cause injuries to PW 2 Mangilal. The Trial Judge, therefore, by his impugned judgment convicted and sentenced the appellants in the manner indicated ad ultra. Hence this appeal. 9. We have heard the learned counsel for the appellants and the learned Public Prosecutor at length and carefully perused the record of the trial Court. We have also gone through the evidence recorded by the learned trial Judge. 10. Shri N.A. Naqvi strenuously canvassed that the prosecution has withheld the initial version of the incident, which was given to the SHO by PW 7 Kesrilal and PW 8 Govindram, who had reached earlier at the police station. Thus, FIR Ex.P 2 is a post- investigation document. Moreover the FIR was lodged with inordinate delay of about 10 hours, and this delay has not been satisfactorily explained. He has asserted that the FIR (Ex.P. 2) has been lodged after due deliberations falsely implicating the appellants, that even in the FIR Ex.P 2 overt-act of appellants Chhitarlal, Kesrilal, Banshilal and Champalal only were given and no specific overt-act of other appellants was assigned and thus, it is a clear cut case of false and over implication, which makes the prosecution story highly suspicious. The next plank of his arguments is that during trial the prosecution case has been substantially and materially improved and even the place of incident has been changed. As per FIR Ex.P 2 the incident took place on the roof of the house of Mangilal but the investigating officer did not find any blood stains there. On the other hand, the investigating officer found blood stained soil on the way. Similarly in the FIR there was no mention that Nontiram had been away from the roof of Mangilal by jumping down on the Thachet (Chhappar) of PW 1 Badri, that he was chased by appellants Champalal & Chhitarlal and others and that thereafter they had also belaboured on the way, but during trial these witnesses have substantially changed the initial version given in the FIR. 11. Another thrust of his argument is that the alleged eye witnesses PW 2 Mangilal, PW 3 Bhulibai & PW 4 Baliba are close relatives of the deceased, that they are highly interested witnesses and have unsuccessfully tried to materially improve the prosecution story and that their statements are inconsistent and self-contradictory, which do not find substantial corroboration from the medical evidence. 12. 12. Shri Naqvi has pointed out that as per the testimony of Dr. K.B. Sharma (PW 15) injury No. 7 of the deceased detailed in post mortem report Ex.P 34 namely fractures of 9th, 10th and 11th ribs of left side had caused rupture of the spleen of the deceased, which proved fatal, but for this injury, the doctor has specifically stated that such an injury could have been caused by a fall. He further pointed out that the doctor has not stated that the fractures sustained by the deceased on his left parietal bone was sufficient in the ordinary course of nature to cause death. Thus, even if it is held that appellant Champalal had caused that injury by a Farsi blow on the head of the deceased still then offence against him does not travel beyond Section 326, Indian Penal Code. Shri Naqvi has asserted that the learned trial Judge has not correctly scanned and assessed the prosecution evidence and committed illegality in holding that the appellants were the members of unlawful assembly and in convicting the appellants for offences under Section 148, 302/149, Indian Penal Code. He has also urged that the alleged recovery of the Farsi at the instance of appellants Champlal and Chhitarlal and the lathies at the instance of other appellants are meaningless because, none of those articles were found stained with blood nor the report of F.S.L. was adduced in the evidence by the prosecution. He has, therefore, prayed that the impugned judgment b' set aside and the appellants be acquitted. 13. Shri M.L. Goyal, learned Public Prosecutor on the other hand has vehemently contended that admittedly PW 7 Kesrilal & PW 8 Govindram, who are residents of village Devri Khurd, did not witness the alleged incident; tbat PW 2 Mangilal had simply informed them about the incident and asked them to proceed to the police station, in such circumstances, there was no occasion for them to have lodged the report to the S.H.O. Since the incident had taken place at about 9-10 PM. and no means of transport was available in the night, so on the next morning Mangilal took injured Nontiram in a cart, that in the way near the river, the wheel of that cart also got out of the order and as such, he reached police station Javar at 8.30 A.M., where he lodged FIR Ex.P 2. and no means of transport was available in the night, so on the next morning Mangilal took injured Nontiram in a cart, that in the way near the river, the wheel of that cart also got out of the order and as such, he reached police station Javar at 8.30 A.M., where he lodged FIR Ex.P 2. Thus, there was no inordinate delay in filing the FIR. Moreover, the said delay has also been satisfactorily explained. He asserted that the FIR is not a post investigation document. The learned Public Prosecutor has maintained that place of incident has not been changed, that the presence of PW 2 Mangilal, PW 3 Bhulibai and PW 4 Balibai at the time of the incident stands well established and that there are no material contradictions or inconsistency in their testimony which stands well corroborated by the medical evidence. He has reiterated the reasons given by the learned trial Judge and supported the impugned judgment. 14. We have given our thoughtful consideration to the arguments advanced before us. Before we embark upon the deal with the rival contentions, we proceed to briefly scan & evaluate the evidence recorded in this case. The whole case hinges on the testimony of injured PW 2 Mangilal, eye witnesses PW 3 Bhulibai and PW 4 Balibai and the medical evidence. 15. The alleged eye witness PW 1 Badrinath, whose house is situated just adjacent to the house of PW 2 Mangilal and appellant Chhitar, has not supported the prosecution case. He stated that he did not witness the alleged incident and that in his presence the appellants did not inflict any injuries to the deceased. He has been declared hostile. Thus, this witness does not render any assistance to the prosecution. 16. The presence of PW 2 Mangilal stands well established because he has also received injuries during the incident. He deposed that on the ill-fated night at about 9-10 PM., he alongwith his brother in-law (Bahnoi) Nontiram, who had come there to celebrate Dashera festival, was taking meals on the roof of his house. Appellant Chhitar and Ramkalyan came there on the roof. Appellant Chhitarlal dealt a Farsi blow on his head. In the meanwhile, appellants Champalal, Parmanand, Kesrilal and Banshi also came there. He specifically stated that Babulal had come later on. Appellant Chhitar and Ramkalyan came there on the roof. Appellant Chhitarlal dealt a Farsi blow on his head. In the meanwhile, appellants Champalal, Parmanand, Kesrilal and Banshi also came there. He specifically stated that Babulal had come later on. Thus, from his testimony it becomes manifestly evident that all the seven appellants had not come together on his roof. Mangilal stated that appellant Champalal dealt a Farsi blow on the head of Nontiram and shouted that Nontiram be not left alive. Thereafter appellants Kesrilal and Parmanand gave lathi blows on the head of Nontiram, while appellant Banshilal inflicted a lathi blow on the chest of the deceased. However, in the FIR Ex.P 2 no such version finds mention. In the FIR Mangilal had informed the investigating Officer that appellant Kesrilal had dealt a lathi blow on the back of the right hand of deceased Nontiram while appellant Banshilal dealt a lathi blow on his head. It may be pointed out here that as per the testimony of PW 15 Dr. K.B. Sharma, he did not find any injury on the back of the right palm as also on the head of Nontiram caused by some blunt object. PW 2 Mangilal has failed to give any explanation as to why in FIR Ex.P 2 it was not mentioned by him that appellants Kesrilal and Parmanand had inflicted lathi blow on the head of the deceased or the appellant Banshilal had caused injuries on the chest of the deceased. It is, therefore, abundantly apparent that Mangilal has unsuccessfully tried to materially improved his statement during trial. He has also failed to give any explanation as to why in the FIR Ex.P 2 he did not mention about the fact that deceased Nontiram by jumping down on the thatcht of Badri Nath had fled away, that the appellants had hotly chased and belaboured him on the way. Thus, he has tried to make materially improvement in his earlier version of the incident given in the FIR Ex.P 2, which the learned trial Judge has conveniently ignored. 17. PW 2 Mangilal further deposed that appellant Banshilal had inflicted a lathi blow on his right ankle but in the FIR Ex.P 2 this injury was assigned to appellant Kesrilal. Mangilal has failed to reconcile this inconsistency. 17. PW 2 Mangilal further deposed that appellant Banshilal had inflicted a lathi blow on his right ankle but in the FIR Ex.P 2 this injury was assigned to appellant Kesrilal. Mangilal has failed to reconcile this inconsistency. In our considered opinion, Mangilal is not a wholly reliable witness and is only a partly reliable and partly unreliable witness. However, from his testimony, this fact stands well proved that appellant Chhitar had inflicted a Farsi blow on his head, which stands fully corroborated by the medical evidence. PW15 Dr. K.B. Sharma has proved injury report Ex.P 35 of Mangilal and stated that injury No. 1 of Mangilal's M.L.R. Ex.P 35 was caused by a sharp object which was simple in nature. Mangilal (PW 2) has also stated that appellant Champalal had dealt a Farsi blow on the head of Nontiram. This part of his has been substantially corroborated by testimony of PW 15 Dr. K.B. Sharma, who has proved post mortem report Ex.P 34. Dr. Sharma has specifically stated that on dissection he had found a fracture of the left parietal bone of the deceased which was the internal effect of injury No. 1, detailed in post mortem report Ex.R 34. The doctor has further stated that the said injury had caused laceration over the membrane and brain in an area 2 cm & 1/2cm underlying left parietal region. He has opined that the said head injury and the rupture of the spleen gave rise to the excessive loss of blood resulting in haemorrhegic shock and caused stoppage of heart action resulting into Nontiram's death. 18. PW 3 Smt. Bhulibai is the mother of PW 2 Mangilal and appellant Chhitarlal and mother in-law of deceased Nontiram. She deposed that she alongwith Mangilal and Nontiram were taking their meals on the roof, that her daughter in-law Smt. Balibai was serving them food, that appellant Champalal came outside of their house and asked Nontiram to come out, but the letter did not oblige him. Thereupon, the appellant Champalal armed with a `Gandasi' climbed over their roof and appellants Banshi, Keshav & Parma also followed him On the roof, that appellant Champalal dealt a Gandasi blow on the head of the deceased. Appellants Banshilal and Chhitarlal also inflicted `Farsi' blows on the head of Nonti Ram and appellant Parmanand gave a Gandasi blow on his chest. Appellants Banshilal and Chhitarlal also inflicted `Farsi' blows on the head of Nonti Ram and appellant Parmanand gave a Gandasi blow on his chest. Appellants Champalal, Chhitarlal and Banshilal inflicted blows from their reverse sides of their Gandasis on the leg of the deceased who in order to save his life, jumped down on the thatcht (Tapra) of the house of Badri, were again he was belaboured. She stated that she had seen only five appellants namely, Champalal, Banshilal, Kesrilal, Parmanand and Chhitarlal belabouring the deceased. However, in her cross examination, she in most unambiguous and clear terms stated that appellants, Babulal, Ramkalyan and Parmanand had not climbed over her roof. When she was confronted with her police statement Ex.D. 1 she admitted that it was not mentioned therein that appellant Parmanand had inflicted injury on the chest of the deceased and that appellants Banshilal, Champlal and Chhitarlal had caused injuries by Gandasis on the leg and hand of the deceased. She denied the suggestion that the appellants had not caused any injury to the deceased in the house of Badri, but when se was confronted with her police statement Ex.D. 1, she admitted that it was not mentioned therein that appellants had belaboured Nontiram in the house of Badri. Thus, she has tried to substantially improve her statement during trial on this count, which cannot be believed. She has not stated that she had seen the appellants belabouring the deceased on the way. This witness has not said anything about any injury sustained by Mangilal. But from her testimony it stands well proved that appellant Champalal had inflicted a Farsi blow on the head of deceased Nontiram on the roof and that appellants Babulal, Ram Kalyan and Parma Nand had not climbed over her roof. She is also a partly reliable and partly unreliable witness. 19. PW 4 Smt. Balibai is w/o Mangilal (PW 2). She deposed that on that day, she was cooking meals in the house, that her mother-in-law PW 3 Bhuli Bai, deceased Nontiram and Mangilal (PW 2) were taking their meals on the roof, that on hearing the cries raised by Nonti Ram, she went up stairs and saw him jumping down over the thatcht of Badri. She denied the suggestion that Smt. Bhuli Bai was also cooking the meals with her. She denied the suggestion that Smt. Bhuli Bai was also cooking the meals with her. Thus,' this witness did not see the alleged incident, which took pace on her roof. In such circumstances, her statement in examination in chief to the effect that appellate Champa Lal dealt a Gandasi bow on the head of Chhitar, that appellant Banshi gave a Gandasi blow on the chest ofNonti Ram, that appellants Chhitar and Kesari Mai inflicted Gandasi blows on the shoulder and hand of Nonti Ram and that appellants Parma Nand, Ram Kalyan and Babu had also given lathi blows on Nonti Ram's back leg and chest cannot be believed. She had also resiled from portions A to B and C to D of her police statement Ex.D. 2. Thus she is not a reliable witness. The learned trial Judge has ignored these material infirmities and in consistencies of this witness and committed an error in relying over her testimony. In our considered opinion, PW 4 Bhuli Bai is not an eye witness of the alleged incident, which took place on the roof of Mangilal in the house of Badri Nath or the alleged beatings given to deceased Nonti Ram on the way. 20. A close scrutiny of statements of PW 2 Mangilal and PW 3 Bhooli Bai indicates that appellants Babulal, Ramkalyan & Parmanand had neither committed criminal trespass into the house and climbed over the roof of Mangilal nor they had inflicted any injury to the deceased or Mangilal. It appears that PW 2 Mangilal has tried to falsely implicate them. The presence of other four appellants on the roof of Mangilal, however, stands well established by the prosecution evidence, referred to above. Since these other appellants were only four in number, they cannot be said to be members of an unlawful assembly having formed with a common object for causing injuries to Mangilal and for committing murder of Nonti Ram and as such the prosecution has failed to prove beyond reasonable doubt offences punishable under Sections 147, 148 Indian Penal Code against the appellants, And their conviction for these offences cannot be sustained. 21. Since appellants Champalal, Chhitar, Kesrilal & Banshilal were not members of any unlawful assembly, they cannot be held vicariously liable for the act of other appellant and can be held liable only for their individual overt acts. In re. Injury sustained by PW 2 Mangilal. 21. Since appellants Champalal, Chhitar, Kesrilal & Banshilal were not members of any unlawful assembly, they cannot be held vicariously liable for the act of other appellant and can be held liable only for their individual overt acts. In re. Injury sustained by PW 2 Mangilal. 22. PW 2 Mangilal has consistently stated in FIR Ex.P 2 his police statement as also during trial that appellant Chhitarlal had inflicted a `Farsi' blow on his head. PW 3 Bhuli Bai has also deposed likewise. This oral evidence stands fully corroborated by the testimony of PW 15 Dr. K.B. Sharma, who has proved medico - legal injury report Ex.R 35 of Mangilal and deposed that he had found as incised wound 4.5 cm x 1 cm x 1/2cm on the frontal region of scalp and that the said injury was caused by blunt object and simple in nature. Thus the prosecution has successfully brought home the offence punishable under Section 324, Indian Penal Code against appellant Chhitarlal for intentionally causing hurt by a sharp weapon on the head of Mangilal. 23. PW 2 Mangilal stated that appellant Bansi gave a lathi blow on his right ankle. But, in FIR Ex.P. 2 he had assigned this injury to appellant Kesrilal and mentioned therein that appellant Bansilal had inflicted a lathi blow causing injury on his left thigh. When confronted with these material contradictions, he could not give any satisfactory explanation. Therefore, his statement during trial that appellant Banshilal inflicted a lathi blow causing injury on his right ankle cannot be believed. 24. During trial, PW 2 Mangilal has not stated anything about swelling on his left thigh. Therefore, the prosecution has also failed to successfully bring home offence punishable under section 323, Indian Penal Code for causing injury Nos. 2 & 3 mentioned in injury report Ex.P 35 against appellants Banshilal and Kesrilal and as such, their conviction under Sections 323 and 323/149, Indian Penal Code cannot be sustained. In re. injuries caused to deceased Nontiram. 25. PW 2 Mangilal and PW 3 Bhooliram have consistently deposed that appellant Champalal inflicted a `gandasi' blow on the head of Nontiram. The same version finds place in the FIR Ex.P. 2 as also in their police statements. On this court, their testimony has remained straight forward and unshattered despite searching cross examination. Their testimony on this court further finds substantially corroborated by medical evidence. The same version finds place in the FIR Ex.P. 2 as also in their police statements. On this court, their testimony has remained straight forward and unshattered despite searching cross examination. Their testimony on this court further finds substantially corroborated by medical evidence. PW 15 Dr. K.B* Sharma, who conducted medico- legal autopsy of deceased Nontiram has proved post mortem report Ex.P. 34 and deposed that he had found an incised wound 5 cm x 1 cm x 1 cm on left parietal region of head in anterior posterior direction and that on dissection he noticed a fracture of left parietal bone 2 cm x 1 cm x 1/2cm on the left parietal bone, which was internal effect of injury No. 1. He has further stated that there was laceration over the membrane and brain underlying left parietal region in an area of 2 cm x 1/2cm. He stated that he also fund two incised wounds on the vault of scalp (injury Nos. 2 & 3) and two incised wounds (injury Nos. 4 & 5) on the occipital region of the head. But, those injuries were simple in nature. He further deposed that he also noticed swelling in an area of 6 cm x 4 cm on the head and another swelling 9 cm x 4 cm on the left hypochondrium. On dissection he also found fractures of 9th, 10th and 11th ribs on the left side and rupture of spleen with lacerated wound 3 cm x 2 cm x 1 cm on superior surface. He further deposed that in his opinion, the cause of death was due to the head injury and rupture of the spleen. He stated that injury No. 7 was sufficient in the ordinary course of nature to cause death. He added that the cumulative effect of all the injuries sustained by the deceased was also sufficient to cause the death. However, he admitted that injury No. 7 of post mortem report Ex.P. 34 could be caused, if a person falls from the height and such a fall could also cause underlying injury to the spleen due to compression. 26. It may be mentioned here that in FIR (Ex.P. 2) PW 2 Mangilal did not mention that deceased had sustained any injury on his chest or ribs. 26. It may be mentioned here that in FIR (Ex.P. 2) PW 2 Mangilal did not mention that deceased had sustained any injury on his chest or ribs. It was only after the post mortem report was available, that during trial PW 2 Mangilal assigned this injury to appellant Babulal but as mentioned earlier, as per statement of PW 3 Bhooli Bai, appellant Babulal was not present on the roof where the alleged beating was given to the deceased. It may be just possible that in order to save his life, deceased Nontiram might have jumped down from the roof over the thatch of Badrinarain and might have received injury No. 7 of post mortem report Ex.P. 34. In such circumstances, from the evidence recorded by the trial court, it stands firmly established that appellant Champalal had deliberately inflicted a `farsi' (gandasi) blow on the parietal region of Nontiram causing grievous injury to him, which is described as injury No. 1 in post mortem report Ex.P. 34. Admittedly, the doctor has not stated this injury No. 1 assigned to appellant Champlal was sufficient in the ordinary course of nature to cause death, it cannot be inferred beyond reasonable doubt that appellant Champalal had an intention to commit the murder of Nontiram. The learned trial Judge has, therefore, not correctly assessed and evaluated the oral and medical evidence on this count and has committed illegality of fact as well as of law in convicting appellant Champalal for offence under Section 302/149 Indian Penal Code. In our considered opinion, offence corrtmitted by appellant Champalal by inflicting only one `gandasi' blow on the head of deceased does not travel beyond offence punishable under Section 326, Indian Penal Code. 27. PW 2 Mangilal has deposed that appellant Kesrilal inflicted a lathi blow on the hea'd of deceased Nontiram while Banshilal gave a lathi blow on the chest of deceased but in FIR Ex.P 2, Mangilal had mentioned that appellant Kesrilal dealt a lathi blow on the back side of right palm and appellant Banshilal inflicted a lathi blow on the head of Nontiram. When confronted with these material contradictions appearing in FIR Ex.P 2 and his statement during trial, PW 2 Mangilal could not give any plausible explanation. When confronted with these material contradictions appearing in FIR Ex.P 2 and his statement during trial, PW 2 Mangilal could not give any plausible explanation. On the other hand, PW 3 Bhooli Bai has simply stated that appellant Banshilal inflicted a `gandasi' blow to Nontiram but she has not specified as to on which part of the body of Nontiram, that injury was caused. She also did not depose that appellant Kesrilal had inflicted any injury to Nontiram. In such circumstances, no specific overt act of appellants Kesrilal and Banshilal for causing injuries to the deceased, has been proved beyond reasonable doubt. Therefore, their convictions under Sections 302/149, 324/149 and 323/149, Indian Penal Code are not justified and those cannot be sustained. 28. Since the `farsis' recovered at the instance of appellants Chhitarlal and Champalal and lathies at the instance of other appellants were not blood stained, recoveries thereof are meaningless and those do not connect any appellant with the crime. Therefore, the statements of motbirs, PW 5 Dhannalal and PW 9 Ramkalyan are not of much help to the prosecution. The statements of other witnesses are of formal nature. PW 13 Abdul Aziz SHO has given details of the investigation conducted by him. 29. Now we take up arguments advanced by Shri Naqvi. In this case, FIR Ex.P 2 has been lodged by injured PW 2 Mangilal. He deposed that after the incident, he went to the house of Nontiram situated in a village Debri Khurd and informed Govind Ram, who was the uncle of Nontiram and his son Kesrilal, who asked him to go to the police station alongwith Nontiram. They also assured him that they would also reach the police station. Admittedly, PW 7 Kesrilal and PW 8 Govindram were not eye witnesses nor FIR Ex.P 2 was lodged by them. In such circumstances, from the statement of PW 8 Govindram to the effect that he had earlier informed the SHO PS Javara that his nephew had been murdered and that thereafter Mangilal had lodged the FIR Ex.P 2, it cannot be inferred that the prosecution has withheld the initial version. Shri Naqvi has not pointed out any evidence or circumstance to show that the FIR is a post investigation document. There is also not an iota of evidence to suggest that Mangilal had given details of the incident. Shri Naqvi has not pointed out any evidence or circumstance to show that the FIR is a post investigation document. There is also not an iota of evidence to suggest that Mangilal had given details of the incident. PW 13 Abdul Aziz SHO has categorically denied the suggestion that he had drawn Ex.R 2 in consultation with Govindram and PW 7 Kesrilal. He has categorically stated that he had drawn FIR Ex.R 2 on the oral information given by PW 2 Mangilal and denied the suggestion that the same was a post investigation document. Police Station Javra is situated at a distance of about 10 km. from the place of incident. The incident took place around 9-10 PM. Mangilal first went to village Devri Khurd to inform about the incident, and thereafter he took injured Nontiram in a cart. PW 3 Bhoolibai has deposed that in the way near the river one wheel of the cart went out of order and it took time to repair the same and that they had reached the police station at about 8.30 PM. In such circumstances, to our mind, in this case the FIR was lodged promptly and the delay has been satisfactorily explained. Hence by any stretch of imagination it cannot be inferred that the prosecution has withheld the initial version of the incident. It is true that to some extent there is an over implication of some appellants but the substratum of the prosecution story regarding the overt act of appellants Champlal and Chhitar Mai for causing injuries to Nontiram and Mangilal has been proved beyond any shadow of doubt. 30. The alleged incident took place on the roof of PW 2 Mangilal, where he alongwith his mother Firoja Bai and Bajrang brother of Nontiram were taking meals. The presence of these witnesses on the roof was, therefore, natural. As mentioned earlier, appellant Champalal is the real brother of PW 2 Mangilal and PW 3 Bhooli Bai is their mother. There is no valid reason as to why PW 3 Smt. Bhooli Bai would falsely implicate his son, Champalal. In our considered opinion so far as the overt act of appellants Champalal and Chhitarlal are concerned, those have been well proved by the prosecution beyond reasonable doubt. Simply because the investigation did not find any blood stains on the roof, the entire prosecution case cannot be thrown out of board. 31. In our considered opinion so far as the overt act of appellants Champalal and Chhitarlal are concerned, those have been well proved by the prosecution beyond reasonable doubt. Simply because the investigation did not find any blood stains on the roof, the entire prosecution case cannot be thrown out of board. 31. The upshot of the above discussion is that we partly allow this appeal and acquit all the appellants for offences under Section 147,148, 302/149, 323/149 & 324/149, Indian Penal Code and also acquit appellants, Ramkalyan, Parmanand & Babulal for offence under Section 449, Indian Penal Code and set aside their conviction and sentences. However, we find appellant Champalal guilty for offence Under section 326 Indian Penal Code for intentionally causing grievous injury to Nontiram deceased by a sharp edged weapon and sentence him to five years R.I. and a fine of Rs. 1000/- in default of payment of fine, he shall further undergo R.I. for one month. We also convict appellant Chhitarlal for offence Under section 324, Indian Penal Code for intentionally causing simple hurt by `gandasi' to Mangilal and sentence him to one year's RI with a fine of Rs. 500/-in default, to further undergo 15 days' RI. The conviction of appellants Champlal, Chhitarlal, Kesrilal and Banshilal for the offence Under section 449 Indian Penal Code, is hereby maintained and their sentence is reduced from 5 years' RI to six months' RI and their fine is also reduced from Rs. One thousand to Rs. One hundred each and in default of payment of fine to further undergo rigorous imprisonment for fifteen days. All the substantive sentences shall run con currently. The entire amount of fine for the offence Under section. 326 Indian Penal Code, if realise, shall be paid to the legal representatives of deceased Nonti Ram. 32. Appellants Champalal & Chhitarlal are in jail, while sentences of other appellants were suspended. The jail authorities and the learned trial Judge be informed accordingly.Appeal partly allowed disposed of accordingly. *******