Judgment S.K. Garg, J.-The aforesaid two appeals are being decided by this common Judgment as both of them have been preferred against the common Judgment and order dated 06.03.2002 passed by the learned Additional Sessions Judge (Fast Track), Jodhpur in Sessions Case No. 63/2001 by which he convicted and sentenced the accused-appellants in the following manner:- Name of accused appellantsConvicted under Section Sentence awarded to each accused-appellant Accused-appellants of Appeal No. 264/2002 1.Champa Lal 302, IPC Life imprisonment and to pay fine of Rs. 1,000/-, in default of payment of fine, to further undergo six months RI. 2.Bhagwan Singh @ Bhaggaram 302/34, IPC Life imprisonment and to pay fine of Rs. 1,000/-, in default of payment of fine, to further undergo six months RI. Accused-appellant of Appeal No. 287/2002 3. Om Prakash 302/34, IPC Life imprisonment and to pay fine of Rs. 1,000/-, in default of payment of fine, to further undergo six months RI. By the same Judgment and order, the learned Additional Sessions Judge (Fast Track) acquitted the accused-appellants of the charge for the offence under Section 120-B, IPC. 2. It arises in the following circumstances:-On 13.05.2000 at about 10.30 PM PW. 3 Rajendra Singh lodged a written report Exhibit-P/6 before PW. 8 Ramlal, who was at that time Head Constable in Police Station Bilara stating inter-alia that on 13.05.2000 at about 8-8.30 PM, his father Himmat Singh (hereinafter referred to as the deceased) had left the house for the purpose of walking and when deceased was returning back at about 9-9.15 PM and when deceased reached near Hanuman temple, which was near to his house, accused persons, namely, Gop Singh, Shyam Singh, Dariyav, Biramram, Kisnaram (not challaned by the police) and Champalal and Om Prakash (accused-appellants) made a murderous attack on the deceased and at that time, these accused persons were lashed with lathies and dhariya and when his father (deceased) cried and as soon as he came out from the house, the accused persons had run away from the place of occurrence. On this report Exhibit-P/6, police registered the case and chalked out regular FIR Exhibit-P/15 and started investigation. It may be stated here that the name of accused-appellant Bhagga Ram was not mentioned in that report Exhibit-P/6, which was lodged by PW. 3 Rajendra Singh. During investigation, site description memo Exhibit- P/3 was got prepared by PW. On this report Exhibit-P/6, police registered the case and chalked out regular FIR Exhibit-P/15 and started investigation. It may be stated here that the name of accused-appellant Bhagga Ram was not mentioned in that report Exhibit-P/6, which was lodged by PW. 3 Rajendra Singh. During investigation, site description memo Exhibit- P/3 was got prepared by PW. 17 Rajendra Prasad and from the site, blood smeared soil and control sample soil were taken and the same were seized through fard Exhibit-P/4. Through fard Exhibit-P/5 blood stained clothes of deceased i.e., bushirt (Article-2) and pent (Article 1) were seized by PW. 17 Rajendra Prasad in presence of PW. 3 Rajendra Singh as well as motbirs PW. 2 Jassaram and Bhinyaram. The accused-appellant Champalal was got arrested by PW. 17 Rajendra Prasad on 18.05.2000 through arrest memo Exhibit-P/9 and he pointed out the place of occurrence to PW. 17 Rajendra Prasad and the fard in this respect is Exhibit-P/7. The accused-appellant Om Prakash was got arrested by PW. 17 Rajendra Prasad on 18.05.2000 through arrest memo Exhibit-P/10 and he identified the place of occurrence and the fard in this respect is Exhibit-P/8. The accused-appellant Bhagga Ram was got arrested by PW. 17 Rajendra Prasad on 25.05.2000 through arrest memo Exhibit-P/14. In this case, though the incident had taken place on 13.05.2000, but deceased died on 18.05.2000, in Bilara Hospital at about 1.30 AM and the post-mortem of the dead body was got conducted by the Medical Board and PW. 11 Mohd. Yakub was one of the members of the Medical Board and the post mortem report is Exhibit-P/21, where it was opined by the Medical Board that deceased died because of subdural haematoma as a result of head injury. It may be stated here that before the death of the deceased, he was also got medically examined by PW. 12 Dr. Bheem Dan on 15.2000 and his injury report is Exhibit-D/6. The further case of the prosecution is that during arrest, the accused-appellant Champalal gave information Exhibit-P/30 to PW. 17 Rajendra Prasad about recovery of dhariya (Article 3) and in pursuance of that information, the accused-appellant got recovered dhariya (Article 3) from his house, which was stained with blood and the same was seized by PW. 17 Rajendra Prasad through fard Exhibit-P/16 in presence of motbirs Hanumanram and PW. 9 Yusuf . 17 Rajendra Prasad about recovery of dhariya (Article 3) and in pursuance of that information, the accused-appellant got recovered dhariya (Article 3) from his house, which was stained with blood and the same was seized by PW. 17 Rajendra Prasad through fard Exhibit-P/16 in presence of motbirs Hanumanram and PW. 9 Yusuf . The further case of the prosecution is that during arrest, the accused-appellant Bhaggaram gave information Exhibit-P/31 to PW. 17 Rajendra Prasad about recovery of lathi (Article 4) and in pursuance of that information, the accused-appellant got recovered lathi (Article 4), which was stained with blood, and the same was seized by PW. 17 Rajendra Prasad through fard Exhibit-P/18 in presence of motbirs Hanumanram and PW. 9 Yusuf . The further case of the prosecution is that during investigation, statement of the deceased was recorded by PW. 17 Rajendra Prasad under Section 161, CrPC on 16.5.2000 and the same is marked as Exhibit-P/27. The gist of the statement of deceased Exhibit-P/27 may be summarized as follows:- .(i) That on the date of incident when he was talking with PW. 1 Sukhram, accused-appellant Om Prakash came towards him and referred him as lawyer and asked him to go home and upon this, he told him to wait for some time and thereafter, he went with accused-appellant Om Prakash and PW. 7 Papuram and Bholaram, Chowkidars also followed them. .(ii) That when he reached near vacant plot, accused-appellant Om Prakash asked him to stay there and thereafter, he found that the accused-appellant Om Prakash by making gesture was calling somebody and then accused-appellants Champalal and Bhagga Ram rushed towards him and at that time, the accused-appellant Champalal was armed with dhariya and the accused-appellant Bhagga Ram was armed with lathi. (iii) That accused-appellant Bhagga Ram gave lathi blow on his thigh and upon this, he cried and thereafter, accused-appellant Champalal gave dhariya blow on his head, which was saved by him by his left hand, as a result of which, he received injuries on elbow and thereafter accused-appellant Bhaggaram gave 2-3 more lathi blows to him. .(iv) That before his son PW. 3 Rajendra Singh, his wife Rukmani and daughter-in-law Tara, PW. 13 reached on the spot, accused-appellant Champalal gave another dhariya blow to him, which struck on back side of head, as a result of which, he fell down and blood was coming out. .(iv) That before his son PW. 3 Rajendra Singh, his wife Rukmani and daughter-in-law Tara, PW. 13 reached on the spot, accused-appellant Champalal gave another dhariya blow to him, which struck on back side of head, as a result of which, he fell down and blood was coming out. .(v) That accused-appellant Om Prakash also gave fist and leg blows to him. .(vi) That seeing the members of his family, accused-appellants ran away from the scene. (vii) That thereafter, he was taken to Bilara hospital. (viii) That there is a well which was joint with Dariyav, Chowkidar and near to that well, his land is situated and upon this, there was dispute and for that, he was beaten by the accused-appellants. After usual investigation, police did not find any case against some of the accused persons whose names were mentioned in the report Exhibit-P/6 and therefore, no challan was filed against them, but police submitted challan against the present accused-appellants Champalal, Bhagga Ram and Om Prakash for the offence under Sections 120-B and 302, IPC in the Court of Magistrate and from where the case was committed to the Court of Session. On 29.8.2000, the learned Additional Sessions Judge No. 2, Jodhpur framed the charges against the accused-appellants in the following manner:- Name of accused-appellants Charges 1. Champalal 120-B and 302, IPC 2. Bhaggaram 120-B and 302/34, IPC 3.Om Prakash 120-B and 302/34, IPC The charges were read over and explained to the accused-appellants, who pleaded not guilty and claimed trial. During the course of trial, the prosecution got examined as many as 17 witnesses and exhibited several documents. Thereafter, statements of the accused-appellants under Section 313 CrPC were recorded. In defence, four witnesses were produced by the accused-appellants. After conclusion of trial, the learned Additional Sessions Judge (Fast Track), Jodhpur through impugned Judgment and order dated 06.03.2002 convicted the accused-appellant Champalal for the offence under Section 302, IPC and the accused-appellants Bhaggaram and Om Prakash for the offence under Section 302/34, IPC and sentenced each of them in the manner as indicated above holding inter-alia that the prosecution has proved its case beyond all reasonable doubts against the accused-appellants for the said offences and in coming to that conclusion, he has placed reliance on the following evidence:- .(i) That learned trial Judge has placed reliance on some portions of the statements of PW. 1 Sukhram and PW. 7 Papuram. 1 Sukhram and PW. 7 Papuram. .(ii) That learned trial Judge has treated PW. 3 Rajendra Singh, son of the deceased, as an eye witness of the alleged incident and he has placed reliance on his statement. (iii) That statement Exhibit-P/27, which was given by deceased on 16.05.2000 to PW. 17 Rajendra Prasad, which was recorded under Section 161 CrPC during investigation, was treated as dying declaration by the learned trial Judge as after giving that statement Exhibit-P/27, deceased died on 18.05.2000 and he has placed reliance on it. .(iv) That learned trial Judge has also placed reliance on the recovery of blood stained dhariya (Article 3) at the instance of accused-appellant Champalal. .(v) That learned trial Judge has also placed reliance on the recovery of blood stained lathi (Article 4) at the instance of accused-appellant Bhagga Ram. Aggrieved from the said Judgment and order dated 06.03.2002 passed by the learned Additional Sessions Judge (Fast Track), Jodhpur, the aforesaid two appeals have been filed by the accused-appellants. .3. In these appeals, the following submissions have been raised by the learned Counsel appearing for the accused-appellants:- .(i) That true assailants have been suppressed by the police as some persons, whose names were mentioned in the report Exhibit-P/6, have not been challaned and accused-appellant Bhagga Ram, whose name does not find place in the report Exhibit-P/6, has been challaned and thus, PW. 3 Rajendra Singh, who lodged the report Exhibit-P/6, should have not been treated as an eye-witness of the occurrence. Hence, findings of the learned trial Judge in this respect cannot be sustained and liable to be set aside. .(ii) That so far as PW. 1 Sukhram is concerned, he is an interested witness as he has enmity with the accused-appellants and apart from this, if his statement is read as a whole, he does not appear to be an eye-witness of the occurrence. .(iii) That so far as PW. 7 Papuram is concerned, he could also not be regarded as an eye-witness as he reached on the spot when occurrence had already taken place. .(iv) That learned trial Judge has committed, grave error in treating the so-called statement of deceased dated 16.05.2000 (Exhibit-P/27) recorded by PW. 17 Rajendra Prasad as dying declaration because that statement was not taken in the expectancy of death of deceased. .(v) That after the incident, deceased did not disclose the names of assailants to PW. .(iv) That learned trial Judge has committed, grave error in treating the so-called statement of deceased dated 16.05.2000 (Exhibit-P/27) recorded by PW. 17 Rajendra Prasad as dying declaration because that statement was not taken in the expectancy of death of deceased. .(v) That after the incident, deceased did not disclose the names of assailants to PW. 8 Ramlal and PW. 12 Dr. Bheem Dan and therefore, his subsequent version in the statement Exhibit-P/27 is an after thought and no reliance should have been placed on it. .(vi) That since there was no fracture on the head of the deceased, therefore, if the Court comes to the conclusion that any offence was committed by the accused-appellant Champalal, it does not travel beyond Section 324, IPC or at the most it does not travel beyond Section 304 Part-II, IPC and thus, he was wrongly convicted under Section 302, IPC. .(vii) That since the name of the accused-appellant Bhagga Ram does not find place in the report Exhibit-P/6, therefore, he was wrongly convicted by the learned trial Judge. .(viii) That accused-appellant Om Prakash has not caused any specific injury on the person of the deceased and he was also not armed with any weapon whatsoever and though he might be present, but his mere presence on the scene of occurrence cannot make him liable under Section 34, IPC especially when no specific overt act has been proved against him. Thus, conviction of the accused-appellant Om Prakash with the aid of Section 34, IPC cannot be sustained and liable to be set aside and he is entitled to acquittal. 4. On the other hand, the learned Public Prosecutor and the learned Counsel for the complainant supported the impugned Judgment and order dated 06.03.2002 passed by the learned Additional Sessions Judge, (Fast Track) Jodhpur. 5. We have heard the learned Counsel for the accused-appellants and the learned Public Prosecutor and the learned Counsel for the complainant and gone through the record of the case. 6. Before proceeding further, first medical evidence of this case has to be seen. Injury report of deceased: 7. The injury report of deceased is Exhibit-D/6 and to prove the same, the prosecution has produced PW. 12 Dr. Bheem Dan. .8. PW. 12 Dr. 6. Before proceeding further, first medical evidence of this case has to be seen. Injury report of deceased: 7. The injury report of deceased is Exhibit-D/6 and to prove the same, the prosecution has produced PW. 12 Dr. Bheem Dan. .8. PW. 12 Dr. Bheem Dan in his statement recorded in Court has stated that on 13.05.2000 he was Senior Medical Officer in Government Hospital, Bilara and on that day, he medically examined deceased and found following injuries on his person:- 1. Cut wound 5 cm x 2 cm x 2cm on occipital region scalp. 2. Cut wound 3 cm x ½ cm x ½ cm on Lt. elbow dorsal side. 3. Haematoma 3 cm x 2 cm on Rt. forearm upper 1/3rd dorsal side. 4. Bruise10 cm x 2 cm on Rt. thigh middle half . 5. Lacerated wound 1 cm x ½ cm x ½ cm on Rt. hand dorsal side. 9. He has further stated that for injury No. 1, he advised for X-ray and the remaining four injuries were simple in nature and the injuries No. 1 and 2 were caused by sharp edged weapon and the remaining injuries were caused by blunt weapon. He has further stated that blood was coming out profusely, as a result of which, his condition was deteriorating and therefore, deceased was referred to MDM Hospital, Jodhpur for treatment. He has proved the injury report Exhibit-D/6. 10. Thus, from the statement of PW. 12 Dr. Bheem Dan, it is very much clear that deceased received five injuries as mentioned above and blood was profusely coming out from his body, as a result of which, his condition was deteriorating and, therefore, deceased was referred to MDM Hospital for treatment. Post mortem report of deceased: 11. The deceased died on 18.05.2000 at about 1.30 AM and on that day, the post mortem of the dead body of the deceased was got conducted by the Medical Board and the post mortem report is Exhibit-P/21 and to prove it, the prosecution has produced PW. 11 Dr. Mohd. Yakub. .12. PW. 11 Dr. Mohd. The deceased died on 18.05.2000 at about 1.30 AM and on that day, the post mortem of the dead body of the deceased was got conducted by the Medical Board and the post mortem report is Exhibit-P/21 and to prove it, the prosecution has produced PW. 11 Dr. Mohd. Yakub. .12. PW. 11 Dr. Mohd. Yakub in his statement recorded in Court has stated that on 18.05.2000 he was Medical Officer in the Government Community Health Center, Bilara and on that day, post-mortem of the dead body of the deceased was got conducted by Medical Board and he was one of the members of that Medical Board and during post mortem, the following injuries were found on the body of the deceased:- 1. A stitched wound 7 cm long obliquely placed from occipital to right side of skull and upwards. 2. A stitched wound 3 cm long on post. lateral aspect, left elbow. 3. A dark brown coloured bruise 8 cm x 4 cm lateral aspect of left upper 1/3rd thigh. 4. A dark brown coloured bruise 4 cm x 3 cm antero lateral aspoect of middle 1/3rd of left thigh. 5. A dark brown coloured bruise 12 cm x 10 cm left lumber, iliac area of ant. abdominal wall. 6. A dark brown coloured bruise 7 cm x 5 cm antero lateral aspect of lower half of right arm. 7. Multipleabrasions of varying size and shape in an area of 4 x 3 cm, crust formation on lateral aspect of middle 1/3rd Rt. arm. He has further stated that on opening the skull, it was found that “membrane black, congested, a large subdural haematoma about size of 10 cm x 8cm at Rt. post. lobe of brain extending downward towards brain stem”. He has further stated that deceased died because of subdural haematoma as a result of head injury. He has further stated that head injury was sufficient in the ordinary course of nature to cause death. He has proved the post mortem report Exhibit- P/21. 13. Thus, from the statement of PW. 11 Dr. Mohd. Yakub, it is very much clear that the deceased died because of subdural haematoma as a result of head injury, which was found sufficient in the ordinary course of nature to cause death and thus, the death of the deceased may be classified as homicidal one. 13. Thus, from the statement of PW. 11 Dr. Mohd. Yakub, it is very much clear that the deceased died because of subdural haematoma as a result of head injury, which was found sufficient in the ordinary course of nature to cause death and thus, the death of the deceased may be classified as homicidal one. No doubt there is some difference in the number of injuries, which are found in the injury report Exhibit-D/6 and the post mortem report Exhibit-P/21. 14. The first question that arises for consideration is whether PW. 3 Rajendra Singh, who lodged the report Exhibit- P/6, can be regarded as an eye-witness of the alleged incident or not and for that, first we have to look into the statements of PW. 8 Ramlal and PW. 12 Dr. Bheem Dan. Statement of PW . 8 Ramlal: 15. PW. 8 Ramlal is that witness before whom PW. 3 Rajendra Singh produced the report Exhibit-P/6 in the hospital on 13.05.2000. This witness states that on 13.05.2000 he was Head Constable in the Police Station, Bilara and on that day in the night he received information that deceased had been admitted in the Hospital and beating had taken place with him and upon this, he went to Government Hospital, Bilara where he found that condition of the deceased was serious one and he was not in a position to give statement. He has further stated that thereafter, son of deceased, namely, Rajendra Singh, PW. 3 produced report Exhibit-P/6 before him and on the basis of that report Exhibit-P/6, FIR Exhibit-P/15 was chalked out for the offence under Sections 147, 148, 149, 323 and 307, IPC. In cross-examination, this witness admits the following facts:- .(i) That when he reached hospital, he asked from the deceased how he received injuries and upon this, deceased told him that he did not know. .(ii) That deceased was in a serious condition, but for that he did not take any certificate from the treating doctor, but doctor told him that condition of the deceased was serious one. (iii) That since doctor told him that condition of the deceased was serious one, therefore, today he has stated that condition of the deceased should be treated as serious one and he was not in a position to give statement. Statement of PW . 12 Dr. Bheem Dan: 16. PW. 12 Dr. (iii) That since doctor told him that condition of the deceased was serious one, therefore, today he has stated that condition of the deceased should be treated as serious one and he was not in a position to give statement. Statement of PW . 12 Dr. Bheem Dan: 16. PW. 12 Dr. Bheem Dan is that witness, who treated deceased when admitted in Bilara hospital on 13.05.2000. This witness states that on 13.05.2000 he medically examined deceased and found five injuries, as mentioned above, and for injury No. 1, he advised for X-ray. He further states since blood was coming out profusely and his condition was deteriorating, therefore, deceased was referred to MDM Hospital, Jodhpur for treatment. In cross-examination, this witness admits the following facts:- .(i) That it is correct to say that deceased came to the hospital on foot and when primary treatment was given to him, his condition was appearing normal. .(ii) That when deceased came back from Jodhpur and on being enquired, deceased told him that the report of Ct-scan was normal. (iii) That X-ray report in respect of injury No. 1 had not been received by him. .(iv) That when deceased was admitted in the hospital, he informed the police and thereafter, PW. 8 Ramlal came there. .(v) That he also enquired from the deceased how he received injuries, but he did not answer. 17. Thus, from the statements of PW. 8 Ramlal and PW. 12 Dr. Bheem Dan, one thing has become clear that when deceased was got admitted in Bilara Hospital on 13.05.2000, his condition was serious one and since blood was profusely coming out and his condition was deteriorating, therefore, deceased was referred to MDM Hospital, Jodhpur for treatment. 18. Therefore, when condition of the deceased was serious one and deteriorating as a result of coming