Judgment Mehtab S.Gill, J. 1. Criminal Appeal Nos. 193-DB of 1995 and 330-DB of 1995 emanate from the common judgment rendered by the Additional Sessions Judge, Sirsa convicting the appellants for offence punishable under Sections 302, 323 read with Section 34 of the Indian Penal Code and sentencing them to undergo life imprisonment and to pay a fine of Rs. 500/- and in default of payment of fine to undergo further rigorous imprisonment for three months, for the offence under Section 302 read with Section 34 I.P.C. and to undergo six months rigorous imprisonment under Section 323 read with Section 34 I.P.C. The appellants did not feel satisfied with their conviction and sentence and have preferred these appeals which are being disposed off by this common judgment. 2. Shorn of unnecessary details the prosecution case is epitomised as under :- 3. Rana alias Ran Singh accused who is from the brotherhood of the complainant had a tiff with Om Parkash son of the complainant. That dispute was patched up with the intervention of Bhoop Singh Sarpanch. 4. Shishpal deceased was employed as a Chowkidar in the office of Chief Medical Officer, Sirsa. On April 25, 1994, Shishpal deceased after taking leave from the office had gone to village Chaharwala in connection with the matrimonial alliance of his daughter. His brother-in-law had also gone with him. 5. Krishan son of Shishpal deceased had gone to the village for fetching Desi ghee. Prabhu complainant was sitting in the house of Shishpal deceased and were discussing about the matrimonial alliance. Sarswati wife of Prabhu came there and told that Krishan and Dalip accused were exchanging hot words near a culvert on the road near the house of Chando and she expressed her apprehension that they might have a quarrel. Shishpal deceased and Prabhu complainant went towards that side. On seeing them coming, Dalip accused fled away towards his house. When Shishpal and Prabhu were standing near the house of Jagdish Chowkidar, all the four accused armed with lathis and Gandasis came there raising Lalkaras to the effect that they would teach them (complainant party) a lesson. Saying so, all the four accused gave blows with their respective weapons on the head, face and chest of Shishpal. On receipt of the injuries, Shishpal fell down on the ground. Saying so, all the four accused gave blows with their respective weapons on the head, face and chest of Shishpal. On receipt of the injuries, Shishpal fell down on the ground. When Prabhu went near his brother to save him, Dalip gave a Gandasi blow from its reverse side on his head. Prabhu raised an alarm of Bachao Bachao. On hearing his alarm, Jagmal member panchayat and Mahabir rushed to the spot to rescue them from the onslaught of the accused. Then all the four accused ran away from the spot. Prabhu and Shishpal were removed to General Hospital, Sirsa by Om Parkash. 6. Dr. N.K. Mittal, sent intimation Exhibit PZ regarding admission of Shishpal and Prabhu in the hospital to the Station House Officer, Police Station City Sirsa. On receipt of intimation, SI Hoshiar Singh went to the hospital and moved application Exhibit PAA seeking opinion of the doctor regarding the fitness of Shishpal and Prabhu to make statements. The doctor vide his endorsement Exhibit PAA/1 declared them unfit to make statements. Thereafter V.T. message Exhibit PY was sent to Police Station Nathusari Chopta as the case related to that Police Station. Head Constable Kanwaljit Singh after getting the opinion of doctor regarding the fitness of Prabhu recorded his statement. On return to the police station, he made entry in the Daily Diary Register. By that time Shishpal had been referred to Medical College Rohtak. Head Constable Kanwaljit Singh went to Medical College on April 26, 1994 and sought the opinion of the doctor as to whether Shishpal was fit to make a statement. The doctor declared Shishpal unfit. Shishpal succumbed to the injuries on April 27, 1994. Then Head Constable Kanwaljit Singh sent intimation Exhibit PS to the police station on the basis of which First Information Exhibit PS/1 was recorded. 7. Dr. N.K. Mittal P.W. 15 medico-legally examined Prabhu injured on April 25, 1994 and found the following injury on his person :- "A lacerated wound size 8 x 2 cm bone deep on the left parietal region 4 cm. lateral to mid line, vertical in direction. Clotted blood was present round the wound. Blood was oozing from the wound. X-ray was advised." The doctor opined that the injury was caused by a blunt weapon within probable duration of six hours. 8 Dr. lateral to mid line, vertical in direction. Clotted blood was present round the wound. Blood was oozing from the wound. X-ray was advised." The doctor opined that the injury was caused by a blunt weapon within probable duration of six hours. 8 Dr. Subhash Juneja, P.W. 13 conducted postmortem examination on the dead body of Shishpal and found the following injuries :- 1. Stitched wound on the tempero parietal region left side with eight stitches intact. 2. A stitched wound on the left side of upper lip with incisor missing and clotted blood was present. 3. A stitched wound on chin was present with three stitches. 4. A depressed area was present on right side of face. It was fracture mandible. 5. A contusion would on left side of face, bluish black in colour involving area below eyelid. 6. Partially healed contusion would on mid clavicular region on left side. 7. A bluish black contusion on abdomen left side and obliquely situated on left shoulder. On dissection, there was clotted blood present between scalp and skull bone. Skull bone was fractured (Y shaped) in front of parietal and temporal region with parietal region depressed and separate three pieces were present. There was massive extra dural haematoma in the left parietal region with the underlying meninges and brain matter was injured in lower part of parietal region on left side. The posterior end of fracture line was going upto occupital suture and anteriorily upto orbit. On dissection of chest and abdomen, there was ecchymosis of subcutaneous tissue and muscular tissue was present on left side in lower and middle part of chest. 9. In the opinion of the doctor the cause of death was head injuries with its complication along with other injuries. All the injuries were ante mortem in nature and sufficient to cause death in the ordinary course of nature. He opined the probable duration between death and postmortem as 6 to 36 hours. 10. On April 28, 1994 SI Ujjagar Singh, P.W. 11 inspected the spot and prepared rough site plan Exhibit PT with correct marginal notes. He also lifted blood stained earth from the spot and prepared sealed parcel thereof. 11. On May 3, 1994 ASI Punjab Singh, P.W. 12 interrogated accused Dalip, Rajinder and Rana in the presence of Jagmal Singh and Constable Mahinder. The accused suffered disclosure statements and got recovered Gandasi and Lathis. He also lifted blood stained earth from the spot and prepared sealed parcel thereof. 11. On May 3, 1994 ASI Punjab Singh, P.W. 12 interrogated accused Dalip, Rajinder and Rana in the presence of Jagmal Singh and Constable Mahinder. The accused suffered disclosure statements and got recovered Gandasi and Lathis. After the completion of investigation, the accused were challaned to face trial. 12. All the accused when examined under Section 313 Cr.P.C. admitted that 1-1/2 months before the occurrence, Om Parkash and Rana accused had altercation but that matter was got settled by Sarpanch Bhoop Singh. Accused Dalip took up the following stand :- "It is a false case and the witnesses have deposed falsely. Rana had caused injuries to Om Parkash which matter was compromised. This was cause of enmity due to which we have been falsely implicated. Our family never had cordial relations with the family of complainant. There was rumour in the village that Shishpal and Prabhu had fought with each other and Prabhu in order to save himself has implicated us falsely." 13. Rajinder and Ran Singh adopted the plea of Dalip accused. 14. Accused Jagat Pal in his statement took up the following plea :- "It is a false case. The witnesses have deposed falsely. I had no concern with the parties or the occurrence and I have been falsely implicated in this case." 15. The accused produced five witnesses in their defence. 16. We have heard Mr. R.S. Cheema, Senior Advocate (Mr. J.S. Waraich and Mr. Prithvi Raj Advocates with him) for the accused-appellants and Mr. Amol Rattan, A.A.G. Haryana and have carefully gone through the record. 17. Assailing the conviction of the appellants, the learned counsel of the accused-appellants has contended that the learned Trial Court has completely erred in appreciation of evidence, inasmuch as the version of the prosecution is totally improbable. It is his submission that the finding of guilt is incompatible with the material on the record. The learned counsel has argued that the prosecution version as has been put forth during the trial is not truthful and the acceptance of the said version by the trial Judge clearly exhibits the vulnerability of his reasonings. It is canvassed by him that the conjoint appreciation of oral and medical evidence would go a long way to show that the allegations of murder are adroitly contrived and do not deserve notice. It is canvassed by him that the conjoint appreciation of oral and medical evidence would go a long way to show that the allegations of murder are adroitly contrived and do not deserve notice. It is also submitted that the version of the prosecution has not received any corroboration from the medical evidence. It is further argued by the learned defence counsel that there is unexplained delay, in the lodging of the First Information Report; that the evidence of Prabhu injured does not inspire confidence and that the other two witnesses namely Jagmal Singh and Mahabir have not been examined by the prosecution which is fatal to the prosecution case. 18. Resisting the aforesaid submission of the learned counsel for the appellants Mr. Amol Rattan, A.A.G. Haryana has contended that the conclusions arrived at by the learned Trial Court the impRegulation ble inasmuch as he has shown a threadbare analysis of the material on the record and no fault can be found with his scrutiny. 19. The occurrence, in this case, is alleged to have taken place on April 25, 1994 at about 7.30 P.M. Prabhu complainant remained unfit to make his statement till 8.10 A.M. on April 26, 1994 when his statement was recorded. His statement Exhibit PQ was completed at 8.50 A.M. On its basis a report in the Daily Diary Report was recorded at 10.30 A.M. First Information Report on the basis of statement Exhibit PQ was recorded on April 27, 1994 at 9.45 P.M. Even minute details of occurrence are contained in the said statement. Special report reached the Illaqa Magistrate at 12.15 A.M. during the intervening night of April 27/28, 1994. Although the first version which forms the basis of First Information Report was given after 12/13 hours of occurrence but this delay has been fully explained. Prabhu remained unconscious and unfit to make a statement during this period. Shishpal was also not conscious and fit to make his statement till his death. The anxiety of Om Parkash and Dalip at that time was to take Shishpal who was seriously injured and Prabhu to the hospital to provide medical aid to them in order to save their lives. Thus, there is no delay in reporting the matter to the police. It is now well settled that delay per se is not fatal to the prosecution case. Thus, there is no delay in reporting the matter to the police. It is now well settled that delay per se is not fatal to the prosecution case. Even if there is any delay, it puts the Court on its guard to scrutinise the evidence of the witnesses carefully and cautiously to separate grain from the chaff. 20. The evidence of Prabhu injured is consistent with his earlier version contained in the First Information Report. Prabhu being injured is a stamped witness, his presence at the spot at the time of occurrence is natural. The evidence of Prabhu is fully corroborated by the medical evidence. There was no reason for Prabhu to falsely implicate the appellants (except Jagat Pal whose case will be discussed later on) and to screen the real culprits. He was subjected to a lengthy searching cross-examination but nothing favourable to the prosecution could be elicited from him. The non-examination of Jagmal Singh and Mahabir alleged eye witnesses alone is not sufficient to discard the sworn testimony of Prabhu. It is now well settled that it is not the quantity but quality of evidence that is needed. Moreover they have been given up by the prosecution as having been won over by the accused. This conclusion of ours is fortified by the fact that Jagmal Singh appeared in the defence evidence. It is also a matter of common knowledge that people in this modern society are averse to become witnesses so that they may not incur wrath of either party. 21. The ocular evidence is fully corroborated by the medical evidence and the counsel for the appellants has not been able to find any fault with the same. 22. So far as Jagat Pal appellant is concerned, his case stands on different footing. He is not related to the other appellants. He had no animosity with the complainant party. Thus, there was no motive for him to belabour Shishpal deceased and Prabhu complainant. Earlier quarrel took place between Om Prakash son of the complainant and Ran Singh accused. Therefore, Ran Singh, Dalip Singh and Rajinder accused who are real brothers had a strong motive to attack Shishpal and Prabhu and not Jagat Pal appellant. In Exhibit PN, which contains the defence version of the accused the name of Jagat Pal accused is conspicuously missing. Therefore, Ran Singh, Dalip Singh and Rajinder accused who are real brothers had a strong motive to attack Shishpal and Prabhu and not Jagat Pal appellant. In Exhibit PN, which contains the defence version of the accused the name of Jagat Pal accused is conspicuously missing. Hence, we have strong reasons to doubt the participation of Jagat Pal accused in the occurrence. We are, therefore, inclined to acquit him by giving him the benefit of doubt. 23. Now, the only question for determination by us is as to what offence is made out against Dalip, Rajinder and Ran Singh accused. It is pertinent to notice that in the certificate contained in the treatment record Exhibit PA, the cause of death has been given as "Cardiac Arrest". The prosecution has miserably failed to prove on the record as to which of the three appellants caused the fatal blow to Shishpal deceased. Prabhu who is the only eye witness of the occurrence has made a general statement that all the accused caused blows with Lathis and Gandasis on the person of Shishpal deceased. From the totality of facts and circumstances brought on the record, we are of the considered view that Dalip Singh, Rajinder and Ran Singh accused-appellants are liable for an offence punishable under Section 325 read with Section 34 of the Indian Penal Code and not under Section 302 read with Section 34 of the Indian Penal Code. 24. No other point has been urged. 25. In the light of above discussion, we accept the appeal of Jagat Pal accused-appellant, set aside his conviction and sentence and acquit him of the charge framed against him. 26. The conviction and sentence imposed upon Dalip, Rajinder and Ran Singh under Section 302 read with Section 34 of the Indian Penal Code is set aside and instead they are convicted under Section 325 read with Section 34 of the Indian Penal Code. Their conviction under Section 323 read with Section 34 of the Indian Penal Code is, however, maintained. Accordingly, it is directed that qua Dalip, Rajinder and Ran Singh sentence on both the counts be reduced to the one already undergone by them. However, the sentence of fine of Rs. 500/- imposed on each of three appellants is maintained. 27. The appeal of Dalip, Rajinder and Ran Singh is disposed of in the above terms.