Chandrashekhar, J.- The State has filed this appeal against the acquittal of respondents-accused 1 to 8 by the Sessions Judge, Bidar, in S.C. No. 15/8 of 1962. The accused were charged with the following offences: (i) That accused 1 to 8 formed themselves into an unlawful assembly on 211st January, 1962 at Kurub Khelgi, in prosecution of the common object of committing the murder ofVaijnath, son of Channappa Birdar, and committed rioting with deadly weapons, namely, axes and lathis and thereby committed an offence punishable under section 148 of the Indian Penal Code; (ii) That accused 1 to 8 who were members of the unlawful assembly and, inprosecution of their common object intentionally caused the death of the said Vaynath and thereby committed offence punishable under section 302 read with section 149 of the Indian Penal Code. The learned Sessions Judge acquitted all the eight accused on both the charges. Aggrieved by the decision of the learned Sessions Judge, the State has come up in appeal. The prosecution case stated briefly is as follows: The accused and the deceased are residents of Kurub Khelgi, a village about seven miles from Bhalki. Accused 1 to 5 and 7 and 8 and the deceased are closely related. One Chennamallappa had five sons. Sangappa (Senior), Basappa, Rudrappa, Bhimappa and Shivaram. Accused 1 and 2 are the sons of the said Shivaram Accused 3 to 5, 7 and 8 are the sons of Bhimappa. Rudrappa had two sons, P.Ws. Chennappa and Sangappa. Deceased Vaijnath is the only son of the said Chennappa. The relationship between Rudrappa and Bhimappa was strained on account of some dispute over a land called ‘Somannana Hola’ which was in the possession of the daughters of their cousin Basappa. While Rudrappa claimed this land, Bhimappa supported the said two daughters of their cousin Basappa. Ultimately, this litigation was compromised and Rudrappa got a share in the said field ‘Somannana Hola ‘while Bhimappa did not get any share in it. One Satewwa, wife of Sangappa (senior) who had no issue, had sold away a field known as ‘Turkuti Hola’ or ‘Satawwana Hola’ to two strangers to the family about twenty years ago. Chennappa, the father of the deceased, purchased this land from the purchasers a few years prior to the occurrence. A-6, Mukundarao, was the Patwari of Kurub Khelgi village and in that capacity wielded power and influence. Chennappa, the father of the deceased, purchased this land from the purchasers a few years prior to the occurrence. A-6, Mukundarao, was the Patwari of Kurub Khelgi village and in that capacity wielded power and influence. When the Grama Panchayat was constituted in the village in the year 1959, deceased Vaijnath was nominated as Sarpanch. Accused 6 felt that his importance, power and influence were waning after the deceased became the Sarpanch. Hence there was rivalry between the deceased and accused 6. There were several disputes between the deceased and accused 6 over certain vacant sites in the village. There were two proceedings under section 107 of the Code of Criminal Procedure against accused 6 initiated by Vaijnath and his supporters. On account of this ill-will, accused 6 set up accused 1 to 5 and 7 and 8 to put forth their claim for a share, against Chennappa and Sangappa, father and uncle of the deceased in respect of ‘Somannana Hola’ and ‘Satawwana Hola.‘During Dasara of the year 1960, accused 1 to 5, 7 and 8 approached the deceased and his father Chennappa and demanded a share in ‘Somannana Hola’ and ‘Satawwana Hola.‘Chennappa expressed surprise that these accused who had remained silent all these years should have put forth all of a sudden their claim for a share in these two fields. Then these accused persons stated that they were advised by accused 6 to put forth their claim. Accused 6 was then sent for. After coming there, accused 6 supported the claim put forward by the other accused. Chennappa contended that these accused could not have any claim to these lands as they belonged to him and his brother Sangappa exclusively. Then angry words were exchanged between accused 1 to 5, 7 and 8 on the one hand and the deceased and his father Chennappa on the other. Thus, there was ill-will between the accused on the one hand and the deceased on the other. On the fateful day, namely, 21st January, 1962, Eeramma, the step-mother of the deceased, went to ‘Somannana Hola’ after breakfast in order to clear the plants and prepare the thrashing-floor. At about 2-30 or 3 p.m. the deceased also went to ‘Somannana Hola’ to make payments to the labourers who had come to the field for work on that day. On the fateful day, namely, 21st January, 1962, Eeramma, the step-mother of the deceased, went to ‘Somannana Hola’ after breakfast in order to clear the plants and prepare the thrashing-floor. At about 2-30 or 3 p.m. the deceased also went to ‘Somannana Hola’ to make payments to the labourers who had come to the field for work on that day. A little later, Chennappa, the father of the deceased, went to his flour mill in the village. Deceased Vaijnath paid wages to the labourers, sent them away and at about 5 p.m. he and his step-mother left the field towards their home, the deceased walking a few paces ahead of her. When they came near one Bandeppa’s land along Yemlur road, all the eight accused came there. Accused 1 to 3 were armed with axes, accused 4 to 6 and 8 were armed with lathis (clubs) and accused 1 to 3 assaulted the deceased with axes and when he fell down, accused 7 was holding him by his legs and accused 4 to 6 and 8 assaulted the deceased with sticks. When Eeramma pleaded with the accused to save her son, accused 4 pushed her away. When the attack was yet in progress, P.Ws. Kashappa and Sanjani Basappa came there. Then all the accused went away from that place. P.W. Kashappa rendered help to Vaijnath who had fallen down and who was unable to speak. P.W. Sanjani Basappa went to Chennappa’s flour mill and informed him that his son Vaijnath was beaten severely by the accused. Chennappa was dazed by the tragic news. Other persons who were with him in the flour mill went to the scene of occurrence and brought the injured Vaijnath home on a blanket. He was in an unconscious state. In an attempt to save his life, he was put on a charpoy and carried to the Bhalki dispensary by the friends and relatives of Chennappa. Chennappa, Sangappa and Eeramma also accompanied the injured Vaijnath to Bhalki. At about 10-30 p.m. on that day, Chennappa, father of the deceased, got a complaint written in Urdu by another person at Bhalki; signed it and sent it to the Police Station at Bhalki through his brother Sangappa. A little Liter, Vaijnath expired at the Dispensary at Bhalki. The next morning the Police held an inquest in the presence of the panchayatdars. A little Liter, Vaijnath expired at the Dispensary at Bhalki. The next morning the Police held an inquest in the presence of the panchayatdars. The dead body was sent to post mortem examination. The Police proceeded to Kurub Khelgi and reached the scene of occurrence at about 4 p.m. on 22nd January, 1961. A panchanama of the scene of offence was drawn up, the blood-stained earth and four pieces of bones found at the scene of occurrence were seized and sealed in the presence of panchayatdars and were sent to the Chemical Examiner. The Police recorded the statements of the eye-witnesses to the occurrence on that day itself, namely, 22nd January, 1962. Accused 1 to 6 and 8 were arrested in Kurub Khelgi on 23rd January, 1962 at 6 a.m. Accused 7 who was said to be absconding, was arrested on 29th January, 1962. On 23rd January, 1962, accused 1 to 3 made statements separately in the presence of panchayatdars and each of them produced an axe from his house. These axes were seized and sealed in the presence of panchayatdars and were sent to the Chemical Examiner for test. On 24th January, 1962, accused 4 to 6 and 8 made statements separately and each of them produced a stick from his house. These sticks were seized in the presence of panchayatdars under a mahazar. The reports received from the Chemical Examiner and the Serologist disclosed that human blood was found on the axes (M.Os.9 and 10), produced by accused 3 and 2 respectively. Traces of blood were not detected on the axe produced by accused 1. After completing the investigation, the Police placed a charge-sheet before the Munsiff-Magistrate at Bhalki, who framed charges against the accused for offences under section 302 read with section 149 and under section 148 of the Indian Penal Code and committed the accused to take their trial before the Court of Sessions. The learned Sessions Judge, Bidar, amended the charges and proceeded with trial. The prosecution examined 16 witnesses including the Investigating Officer. The post mortem certificate was filed as an exhibit. The Doctor who issued the post-mortem certificate was not examined as a witness either before the committal Court or before the Sessions Court. The learned Sessions Judge, Bidar, amended the charges and proceeded with trial. The prosecution examined 16 witnesses including the Investigating Officer. The post mortem certificate was filed as an exhibit. The Doctor who issued the post-mortem certificate was not examined as a witness either before the committal Court or before the Sessions Court. But, an affidavit of the said Doctor was filed in which the injuries found on the dead body of the deceased and the opinion of the Doctor as to the cause of these injuries were incorporated. It was also stated in the affidavit that the Doctor was studying for Master of Surgery at Delhi and hence was unable to attend the Court. During the course of the examination under section 342 of the Code of Criminal Procedure, accused 1 to 5, 7 and 8 denied practically all the prosecution allegations. They further stated that some of the prosecution witnesses were inimically disposed towards them on account of several disputes. Accused 6 admitted that there were disputes between him and the deceased in respect of certain vacant sites and that the deceased had initiated proceedings against him (A-6) under section 107 of the Code of Criminal Procedure. But he denied all other allegations of the prosecution. He even set up an alibi to the effect that he was busy collecting land-revenue in the village on the date of the incident. He further stated that prosecution witnesses, Kashappa and Basappa had grievance against him because he did not oblige them in certain official matters. The accused examined one witness as a defence witness. He was the scribe of the First Information Report in the case. The learned Counsel for the respondent did not dispute that deceased Vaijnath died of homicidal injuries. There is also ample evidence in the case to show that deceased Vaijnath was alive till the afternoon of 21st January, 1962 and that he died at the Hospital at Bhalki on account of the serious injuries inflicted on him. The inquest report which has been spoken to by the Panch witnesses also refers to 9 injuries, of which 5 were incised, on the head and other parts of the body of the deceased. The only question that falls to be determined in this appeal is wheher the accused were responsible for the death of the deceased. The inquest report which has been spoken to by the Panch witnesses also refers to 9 injuries, of which 5 were incised, on the head and other parts of the body of the deceased. The only question that falls to be determined in this appeal is wheher the accused were responsible for the death of the deceased. The evidence adduced by the prosecution to connect the accused with the offence, can be summarised under the following three heads: “(i) Evidence of motive; (ii) Evidence of direct witnesses to the occurrence; and (iii) Evidence relating to the recovery of weapons on the information alleged to have been furnished by the accused. * * * * *” We do not think that the learned Sessions Judge was right in disbelieving the prosecution evidence regarding this talk and the consequent strained relationship between all the accused on the one hand and the deceased and P.W.1 on the other. ****** Before examining the evidence of the direct witnesses, we may deal with one other contention advanced by Mr. Jagirdar, the learned Counsel for the respondents. “The police produced before the Courts below typed copies of the statements of the witnesses recorded by the police. The accused were also furnished with such typed copies. Mr. Jagirdar, their learned Counsel, contended that the police must have recorded these statements in hand-writing and that the original statements rcorded in hand-writing were not forthcoming. We requested Mr. Ashrit, the learned High Court Government Pleader, to secure the originals of these statements recorded by the police in hand-writing. Mr. Ashrit informed us that he had written to the Circle Inspector at Bhalki and to the Superintendent of Police at Bidar and that he had been informed that the original statements were not available. We think that this is a serious lapse on the part of the police. They should have maintained the original of the statements recorded by them under section 162 of the Code of Criminal Procedure. Their failure to preserve the originals will undoubtedly rouse suspicion. We are told that the Circle Inspector of Police who conducted the investigation in this case has been kept under suspension and that certain departmental enquiries are pending against him. Mr. Their failure to preserve the originals will undoubtedly rouse suspicion. We are told that the Circle Inspector of Police who conducted the investigation in this case has been kept under suspension and that certain departmental enquiries are pending against him. Mr. Jagirdar contended that the failure on the part of the police to produce the originals of the statements leads to a reasonable inference that the typed copies of the statements produced by the police before Court were subsequently got up and that the accused were prejudiced in their defence on account of the non-availability of the original statements. We are unable to accept this contention of Mr. Jagirdar although we consider the conduct of the police in not preserving the original statements as highly objectionable. The defence did not call for the original statements at any earlier stage nor did it take up a contention either before the committal Court or before the trial Court that the typed copies of the statements were notgenuine. No suggestion was made to the Investigating Officers or to the witnesses that the statements recorded by the Police under section 162 of the Code of Criminal Procedure were different from the statements contained in the typed copies produced before Court or furnished to the accused. It is also unlikely that the police would have suppressed the original of these statements and got up different statements purporting to be the statements of these witnesses even at the stage when the matter was before the committal Court. The police could not have envisaged what the prosecution witnesses would have deposed either in the Magistrate’s Court or in the Sessions Court. Mr. Jagirdar has also not shown how the accused were prejudiced in their defence on account of the originals of the statements not forthcoming. In Noor Khan v. State of Rajasthan1, the Investigating Officer did not record the statements of witnesses in detail. He merely noted certain points when he examined the witnesses during the investigation. Later, the Investigating Officer got detailed statements of witnesses written out by the Head Constable in the absence of the witnesses and he destroyed the notes thereafter. It was contended for the accused:n that case that the accused were deprived of their right to cross-examine and thereby denied the opportunity of effectively shaking the testimony of the prosecution witnesses. Later, the Investigating Officer got detailed statements of witnesses written out by the Head Constable in the absence of the witnesses and he destroyed the notes thereafter. It was contended for the accused:n that case that the accused were deprived of their right to cross-examine and thereby denied the opportunity of effectively shaking the testimony of the prosecution witnesses. Rejecting the contention, the Supreme Court observed as follows: "But failure to furnish statements of witnesses recorded in the course of investigation may not vitiate the trial. It does not affect the jurisdiction of the Court to try a case, nor is the failure by itself a ground which affects the power of the Court to record a conviction, if the evidence warrants such a course. The provision relating to the making of the copies of statements recorded in the course of investigation is undoubtedly of great importance, but the breach thereof must be considered in the light of the prejudice caused to the accused by reason of its breach............“ In the light of the above pronouncement of the Supreme Court, we do not think that the evidence for the prosecution should be rejected on the sole ground that the originals of the statements recorded by the police under section 162 of the Code of Criminal Procedure are not forthcoming. However, this circumstances may warrant our scrutinising the evidence of the prosecution evidence with greater care. * * * * * * The only ground on which the learned Sessions Judge has rejected the evidence of P.Ws. 6 and 8 is that these two witnesses were either parties to or witnesses in the proceedings under section 107 of the Code of Criminal Procedure, initiated against accused 6. We do not think that this circumstance by itself is sufficient to reject the testimony of these two witnesses. As observed by the Supreme Court in Rameshwar Kalyan Singh v. State of Rajasthan1, the statement made by a person soon after the occurrence can be used to corroborate his testimony under section 157 of the Evidence Act. Thus, the fact that P.W.12 Sanjani Basappa stated before P.W.1 Chennappa, P.W.3 Sangappa, P.W.8 Ramanna and P.W.6 Yemgal Mahadappa, of the assault on the deceased, would corroborate his testimony as to his having witnessed the occurrence. Thus, the fact that P.W.12 Sanjani Basappa stated before P.W.1 Chennappa, P.W.3 Sangappa, P.W.8 Ramanna and P.W.6 Yemgal Mahadappa, of the assault on the deceased, would corroborate his testimony as to his having witnessed the occurrence. In view of this corroboration, his testimony cannot be rejected on the mere ground that his having gone to meet Gundappa at Bhangenagar was improbable. Further, the fact that the names of P.Ws.10 to 12 have been mentioned in the First Information lends further assurance that all these witnesses were present at the scene of occurrence and had witnessed the occurrence. * * * * * * Mr. Jagirdar, the learned Counsel for the accused, contended that even if the prosecution evidence as against accused 2 and accused 3 is considered sufficient in view of the recovery of blood-stained weapons the evidence against the other accused is insufficient as no such blood-stained weapons had been recovered from them. The evidence of the eye-witnesses and the semi eye-witnesses by itself would have been sufficient to bring home the guilt of all the accused. The evidence relating to the recovery of blood-stained weapons from accused 2 and 3 would only lend further assurance to the conclusion of guilt of accused 2 and 3. But, merely because such blood-stained weapons have not been seized from the other accused (A-1 and A-4 to 8), it cannot be said that the prosecution evidence as against them (A-1 and A-4 to A-8) is insufficient to establish their complicity. ****** The evidence of the eye-witnesses and the semi eye-witnesses clearly establishes that accused 6 was also present along with the other accused and participated in the assault on the deceased Vaijnath in the evening on that day. Now, the question for consideration is the offence for which the accused should be convicted for having voluntarily caused injuries to the deceased Vaijnath which resulted in his death. The post-mortem certificate which has been marked as an exhibit by the learned Sessions Judge, no doubt, states that injury No. 1 was incised one measuring 4” X 3“X 3” on the left frontal region just above the lateral half of left eye-brow fracturing the underlying bone, exposing and injuring the brain. In the said post-mortem report the cause of death is stated as shock and haemorrhage from a fracture of the left skull and injury to the underlying brain from external violence. In the said post-mortem report the cause of death is stated as shock and haemorrhage from a fracture of the left skull and injury to the underlying brain from external violence. It the post-mortem certificate was admissible in evidence, it would have establised that the accused caused injuries which, in the ordinary course of nature would have been sufficient to cause the death of a person and the accused could have been convicted tor an offence punishable under section 302 of the Indian Penal Code. But, unlike the report of the Chemical Examiner or the Serologist, the postmortem report of the Doctor will not be evidence by itself without the Doctor being; examined to prove it. As stated earlier, the Doctor who conducted the post-mortem examination and issued the certificate, has not been examined; but his affidavit has been filed in the case. The Doctor was also not examined before the committal Court or before any other Magistrate in the presence of the accused to invoke the provisions of section 509 of the Code of Criminal Procedure which enable the report of a Civil Surgeon before such Magistrate, being treated as evidence without his being examined in the trial. Under section 510-A of the Code of Criminal Procedure, the evidence of any person whose evidence is of a formal character, may be given by an affidvait and may subject to all just exceptions, be read in evidence in any trial. But, when the Court has to form an opinion as to the nature of the injuries, the degree of violence used and hence the gravity of the offence, the evidence of the Doctor cannot be said to be of a formal character. Hence, the affidavit of the Doctor cannot, in the circumstance of the case, be treated as evidence. In is unfortunate that the prosecution did not choose to summon the Doctor and examine him in the Sessions Court or to examine him on commission. When eight persons were charged with serious offences for which capital sentences are provided, it is not too much to expect the prosecution to secure the presence of the Doctor from Delhi where he was studying or to examine him on commission. In these days of quick transport it would not have been difficult to secure lis presence. When eight persons were charged with serious offences for which capital sentences are provided, it is not too much to expect the prosecution to secure the presence of the Doctor from Delhi where he was studying or to examine him on commission. In these days of quick transport it would not have been difficult to secure lis presence. On account of the non-examination of the Doctor, neither his affidavit nor the post-mortem certificate can be treated as evidence in this case. In the absence of medical evidence, the question is whether the Court itself can form an opinion as to the nature and consequences of such injuries. In Brij Bhukkan v. State of Uttar Pradesh1, the Supreme Court took the view that although the medical evidence did not say that any of the injuries on the body of the deceased was sufficient to cause death in the ordinary course of nature, it was open to the Court to look into the nature of the injuries found on the body of the deceased and infer from them whether assailants intended to cause the death of the deceased. As the post-mortem report is not legally admissible in evidence, we can only look into the inquest report to find out the nature of the injuries. In Exhibit P-15, the inquest report, the first injury is stated as a cut injury about the left eye-brow, 3“X 3” X 4”. It is well known that just above the eye-brow, there arc no thick muscles or fat. Just ¼“or ½” underneath the skin, there will be the skull. An injury which is 3” deep, must necessarily cause fracture of the skull. Hence it can safely be presumed that the injury inflicted on the deceased must have caused the fracture of the skull of the deceased and there cannot be any doubt about this. In the absence of the evidence of the Doctor or the post-mortem certificate, it is not possible for us to infer whether the aforesaid, injury to the skull would have been sufficient in the ordinary course of nature to cause the death of the person. Hence, we consider it safe to convict the accused only for the offence of causing grievous injury with a deadly weapon punishable under section 326 r;ad with section 149 of the Indian Penal Code. Hence, we consider it safe to convict the accused only for the offence of causing grievous injury with a deadly weapon punishable under section 326 r;ad with section 149 of the Indian Penal Code. All the eight accused had formed themselves into an unlawful assembly and in prosecution of the common object of assaulting the deceased, all of them except accused 7 carried weapons with them. But, only the axes carried by accused 1 to 3 can be considered as deadly weapons. In the absence of any evidence as to the nature of sticks carried by accused 4 to 6 and 8, such sticks cannot besaid to be deadly weapons. Hence only accused 1 to 3 can be said to be guilty of rioting with deadly weapons punishable under section 148 of the Indian Penal Code, while the remaining accused are only guilty of the offence of rioting punishable under section 147 of the Indian Penal Code. Having re-asssessed the evidence carefully, we are satisfied that there is ample evidence to establish satisfactorily that all the eight accused formed themselves into an unlawful assembly; that except accused 7 the rest of the accused were armed with weapons and that they assaulted the deceased Vaijnath and caused severe injuries to him which resulted in his death. Hence the acquittal of the accused of all the offences, by the learned Sessions Judge was not justified. Reversing the judgment of the learned Sessions Judge, we convict all the accused of the offence punishable under section 326 read with section 149 of the Indian Penal Code; accused 1 to 3 of the offence punishable under section 148 of the Indian Penal Code; accused 4 to 8 of the offence punishable under section 147 of the Indian Penal Code. Regarding the sentence, we have taken into account the facts that the accused had the benefit of an acquittal in the Sessions Court and that three years elapsed since the occurrence in the Sessions Court. We, therefore, feel that they should be dealt with rather leniently. For the offence of causing grievous hurt with deadly weapon, punishable under section 326 read with section 149 of the Indian Penal Code accused 1 to 8 are sentenced to suffer rigorous imprisonment for seven years. We, therefore, feel that they should be dealt with rather leniently. For the offence of causing grievous hurt with deadly weapon, punishable under section 326 read with section 149 of the Indian Penal Code accused 1 to 8 are sentenced to suffer rigorous imprisonment for seven years. For the offence of rioting armed with deadly weapons, punishable under section 148 of the Indian Penal Code, accused 1 to 3 are sentenced to suffer rigorous imprisonment for one year; for the offence of rioting, punishable under section 147 of the Indian Penal Code, accused 4 to 8 are sentenced to rigorous imprisonment for six months. We direct these two sets of sentences in respect of each accused to run concurrently. That is, in the case of accused 1 to 3, the sentence of rigorous imprisonment for seven years for the offence punishable under section 326, Indian Penal Code and the sentence of rigorous imprisonment for one year for the offence punishable under section 148, Indian Penal Code, shall run concurrently. In the case of accused 4 to 8, the sentence of rigorous imprisonment for seven years for an offence punishable under section 326 of the Indian Penal Code and the sentence of rigorous imprisonment for six months for the offence punishable under section 147 of the Indian Penal Code, shall run concurrently. In the result, this appeal is allowed as stated above. S.V.S. ----- Conviction altered.