UMA NATH SINGH, J. ( 1 ) THE appellants have preferred the instant criminal appeal against the impugned judgment and findings recorded by the 1st Additional Sessions Judge, Raisen in S. T. No. 115/89 whereby they were held guilty for the offence under section 302/34 of the Indian Penal Code for committing murder of Ajab Singh and sentenced to life imprisonment, but were acquitted of the charges under sections 307 and 307/34. Indian Penal Code for attempt to murder Radhelal. Instead accused Lakhan alone was convicted for lesser offence under section 323, Indian Penal Code on that count and sentenced to undergo rigorous imprisonment for three months. However, all the accused persons were acquitted of the charge under section 148, Indian Penal Code and accused Munna and Chetu were acquitted of all the charges. ( 2 ) SUCCINCTLY narrated the facts of the case are that on 24/3/1985 at 2 OTclock in the day time Kublabai, daughter of Radhelal (P. W. 7), had gone to the village water tank for fetching water where accusedappellant Summa Gond made some indecent comments of which she complained to her parents. Her father Radhelal (P. W. 7) in order to chasten and forbid accused Summa against any such advance proceeded with deceased Ajab Singh to make a complaint to Summas father-in- law accused Veeran. At that moment, accused appellants appeared on the spot armed with deadly weapons. Accused Veeran and Summa were armed with Gandasa and the rest with lathis. Visualising a danger, when they started retreating towards their houses, they were attacked by the accused. That very moment, accused Munna (since acquitted) also arrived and exhorted of her accused persons to cause assaults. Accused appellant Summa caused Gandasa blows on the head and shoulder of Radhelal (P. W. 7) whereas accused Lakhan dealt a lathi blow on his hand. Accused Summa also caused Gandasa blows to deceased Ajab Singh and others dealt lathi blows. As a result, Radhelal and Ajab Singh collapsed and became unconscious. An F. I. R. was lodged on 24/3/1985 at 17. 45 hours by Radhelal (PW. 7) whicn contained a mention that Summa and Lakhan caused Gandasa and lathi injuries to deceased Ajab Singh and further the deceased was also assaulted by other accused persons but since the F. I. R. was not proved and exhibited it lost its corroborative value. An F. I. R. was lodged on 24/3/1985 at 17. 45 hours by Radhelal (PW. 7) whicn contained a mention that Summa and Lakhan caused Gandasa and lathi injuries to deceased Ajab Singh and further the deceased was also assaulted by other accused persons but since the F. I. R. was not proved and exhibited it lost its corroborative value. The incident was witnessed from a distance by Tulsiram (P. W. 1 ). Nanhelal (P. W. 2) Onkar Singh (P. W. 3) and Gomtibai (P. W. 8) who objected but could do nothing. Having dealt blows the accused returned homes. The injured were carried in a tractor trolley by Nanhelal etc. to police station where Radhelal (P. W. 7) injured witness lodged a report and thereafter they were sent for medical examination. Dr. L. C. Kasturiya (P. W. 6) found five injuries on the body of Radhelal (P. W. 7) and advised x-ray as per his report Ex. P /16. Dr. Kasturiya (P. W. 6) also examined deceased Ajab Singh and found following three injuries; (i) lacerated wound on right parietal region along midline itt lateral 3 x 1/4t1 bone deep. Fresh bleedings, advised X-ray of skull; (ii) Incised wound on left parietal region oblique downward laterally margin smooth clear cut 4 x 1/3 bone deep. Fresh bleeding advised X-ray of skull; (iii) Bruise and swelling on left forearm 114th dorsals 2t1 x itt. According to him, the injury No. 1 was caused by a hard and blunt object and the injury No. 2 by a sharp edged weapon within a duration of 4 to 6 hours, whereas the injury No. 3 was found to be simple and also caused by a hard and blunt object. As his condition was deteriorating. Ajab Singh was referred to Hamidia Hospital, Bhopal. During his medical treatment there Ajab Singh died on 25/3/1985. The inquest of his dead body was prepared by Head Constable Khubnarayan P. W. 9 as per Ex. P/14 and the dead body was sent for post-mortem as per memorandum Ex. P/15. The postmortem was conducted by Dr. D. K. Satpathi (P. W. 11) who found as many as 17 injuries. In his opinion death was caused due to shock and haemorrhage as a result of injuries to the head and chest region. The injuries were caused by hard and blunt object and were homicidal in nature. P/15. The postmortem was conducted by Dr. D. K. Satpathi (P. W. 11) who found as many as 17 injuries. In his opinion death was caused due to shock and haemorrhage as a result of injuries to the head and chest region. The injuries were caused by hard and blunt object and were homicidal in nature. The duration of death was within 24 hours from the Post-mortem examination. After usual investigation, a challan was a laid against six accused persons including the present appellants and charges were drawn up for offences under sections 148, 302, 307 and alternatively under sections 302/149 and 307/149 of Indian Penal Code against all the accused persons which they denied and sought a trial. The prosecution led direct evidence by examining as many as five eyewitnesses and produced six other Witnesses on different circumstances including the 4 medical evidence and spot map etc. ( 3 ) ON a minute scrutiny of the prosecution evidence the trial Court came to a conclusion that accused Munna and Cheru were not present on the spot but held accused appellants Summa. Lakhan. Ramcharan and Veeran guilty of the assaults. All the accused were absolved of the charge of forming an unlawful assembly and being the members thereof. From an analysis of their evidence. Tulsiram (P. W. 1) Nanhelal (P. W. 2), Onkarsingh (P. W. 3) and Gomtibai (P. W. 8) were found to be present and to have seen the incident. Their evidence on record established that all the four accused appellants caused injuries to deceased Ajab Singh by the weapons they carried. The injuries assigned to each of them found corroboration from the seizure of their weapons as Gondasa from accused Summa and Veeran and lathis from Ramcharan and Lakhan, although they displayed no blood stains is the premises, the trial Court recorded the aforesaid convictions and sentences. ( 4 ) HEARD the arguments of Ku. H. L. Rai, learned Legal Aid counsel for the appellants and Sbri S. K. Rai, Panel Lawyer for the State and perused the records. ( 5 ) CONTENTIONS of Ku. H. L. Rai amongst others rested on the discrepancy about number of injuries recorded by Dc L. C. Kasturiya (P. W. 6) and Dr. H. L. Rai, learned Legal Aid counsel for the appellants and Sbri S. K. Rai, Panel Lawyer for the State and perused the records. ( 5 ) CONTENTIONS of Ku. H. L. Rai amongst others rested on the discrepancy about number of injuries recorded by Dc L. C. Kasturiya (P. W. 6) and Dr. D. K. Satpathi (P. W. 11); secondly, the credibility of eyewitnesses; thirdly, reasons for not proving the F. I. R. and fourthly, absence of overt acts to be attributed to accused appellants Veeran and Ramcharan in the examination-in-chief and the cross-examination of Radhelal (P. W. 7 ). She also pleaded that in view Of inadequate evidence in respect of these two accused coupled with their old age, as they may be 70 and 60 years of age at present, their case may be considered sympathetically. On the other hand. Shri S. K. Rai, learned counsel for the State countered the submissions contending that non-exhibition of First Information Report is not fatal to the prosecution case which is based on preponderance of direct evidence. The eye-witness accounts ascribing specific overt acts to the accused-appellants get necessary corroboration from the medical reports and the substantive evidence of the doctors. ( 6 ) TO appreciate the rival contentions it is necessary to scan through and elucidate the evidence on records. ( 7 ) TULSIRAM (P. W. 1) in examination-in-chief said that accused Summa and Veeran both caused Ganlasablows on Ajab. Singh who collapsed on the spot. He further stated that apart from accused Sumina Lakhan and Veeran one more person by name Ramcharan was present on the spot with whom he no acquaintance. In cross-examination he stated that he was waiting for a bus to go to Khargaon. He is an independent witness and nothing worth material emerged from his cross- examination to doubt his credibility, Nanhelal (P. W. 2) also attributed Gandasa injuries to accused Summa and Veeran and Lathi blows to accused Ramcharan and Lakhan. He is specific about the presence of eye-witnesses Tulsiram, Onkarsingh and Mohan Singh Raguvansi. In para 5 of his cross-examination he stated that firstly, deceased Ajab Singh was assaulted and thereafter Radhelal. He also gave a vivid description of injuries caused by each of the accused persons to the deceased as also to Radhelal (P. W. 7 ). He is specific about the presence of eye-witnesses Tulsiram, Onkarsingh and Mohan Singh Raguvansi. In para 5 of his cross-examination he stated that firstly, deceased Ajab Singh was assaulted and thereafter Radhelal. He also gave a vivid description of injuries caused by each of the accused persons to the deceased as also to Radhelal (P. W. 7 ). He stated that he saw two Gandasa injuries one on the front arid other on the back of the head of deceased Ajab Singh; As all the accused resided in the house of accused Veeran, therefore, incriminating articles were seized only from that place. Another witness Onkar Singh (P. W. 3), nephew of the deceased narrated that accused Summa and Veeran with Gandasa and Lakhan and Ramcharan with lathis participated in causing assaults on the head of Ajab Singh. However he also stated that Radhelal (P. W. 7) was not assaulted in his presence. He has stood the rigours of the cross-examination Gomtibai (P. W. 8) who is wife of deceased Ajab Singh, in her examination-in-chief, has described the acts of all the accused and precisely stated that accused Veeran carried a Kularhi (axe), Summa a Gandasa and the rest lathis. From cross- examination it appears that accusers Veeran and Lakhan initially questioned the conduct of accused Summa towards Kublabai. ( 8 ) IN the instant case. Testimony of Radhelal (P. W. 7) an injured witness, who was accompanying deceased Ajab singh at the time of incident appears to be absolutely credible; therefore to ensure correct decipherment of evidence on the record it is necessary to test the credibility of the prosecution case on the anvil of his testimony. In his examination-in-chief, Radhelal (P. W. 7) categorically stated that only accused Lal;chan and Summa caused Lathi and Gandasa blows to deceased Ajabsingh and to him. In his cross-examination he simply mentioned that accused caused assaults but did pot mention their names. Thus accused Veeran and Lakhan do not find mention by names either in the examination-in-chief for the cross-examination of this star witness. Omission of their names; in the testimony of this witness if viewed witht reference to the evidence of Dr. L. C. Kasturiya (P. W. 7) who has stated only one incised wound on the body of the deceased and Dr. D. K. Satpathi (P. W. 11) Autopsy Surgeon. who has. Omission of their names; in the testimony of this witness if viewed witht reference to the evidence of Dr. L. C. Kasturiya (P. W. 7) who has stated only one incised wound on the body of the deceased and Dr. D. K. Satpathi (P. W. 11) Autopsy Surgeon. who has. found no incised wounds on any part of the body of the deceased, creates a doubt about the credibility of evidence of other witnesses to the extent they attributed overt acts to accused; Veeran and Ramcharan and therefore. these accused become entitled to get benefit of doubt as their case is distinguishable from the rest of the accused namely Summa and Lakhan, even in the absence of corroboration from the FIR who is not exhibited although the F. I. R. also does not ascribe any overt act of actual assault to accused Veeran and Ramcharan. An injured witness is the best witness and he would not substitute wrong person for his actual assailant, nor should he be disbelieved for minor discrepancies. It seems to us that accused Veeran and Ramcharan being elderly persons and related to both the sides came out of anxiety from their houses and therefore, their presence find mention in the record of the case, although their actual participation appears to be doubtful for the reasons stated hereinabove. ( 9 ) THUS, on a reappraisal of the entire incriminating materials on the records and considering the fact of old age of accused Veeran and Ramcharan, I we are of the opinion that submissions on their behalf merit consideration. Therefore, this appeal is partly allowed and the order of conviction and sentence in respect of accused Veeran and Ramcharan is set aside. They are stated to be on bail, therefore their bail bonds shall stand discharged. As regards, accused Lakhan and Summa, presence of preponderant consistent evidence on the records against them dissuades us from disagreeing with the findings of the learned trial Judge. There is no gainsaying that the evidence in that respect is firm inasmuch as their names find place in the statements of all the witnesses and more importantly, they have been uniformly ascribed overfacts of causing assaults to the deceased. In the result, the instant appeal qua accused Lakhan and Summa fails and is hereby dismissed. Appeal allowed partly. .