JUDGMENT (Surjit Singh, J.) (Oral) - The present two appeals are directed against the same judgment of the trial Court and, therefore, they are being disposed of by a common judgment. One appeal, titled Varinder Paul v. State, No. 365 of 1995, is directed against that part of the judgment of the trial Court whereby appellant has been convicted of offence, under Section 304 (second part) IPC and sentenced to undergo rigorous imprisonment for five years and to pay fine of Rs. 5,000/- in default of payment of fine to undergo rigorous imprisonment for a further period of one year. Second appeal by the State, which is titled State v. Varinder Paul and others, No. 263 of 1996), is directed against that part of the judgment of the trial Court whereby four other persons, who were put on trial alongwith convict Varinder Paul, appellant in the first mentioned appeal, have been acquitted and also against the finding of the trial Court that the act of convict Varinder Paul amounts to an offence punishable under Section 304 (second part) and not Section 302 IPC, with which offence he was charged. 2.First, we may sum up the prosecution case. PW-2 Tara Chand, the father of deceased Sat Pal, had been having a dispute with respondent Ishwar Dass over a piece of land measuring few Marlas. The dispute arose after the consolidation that had taken place in the year 1978-79. PW-2 Tara Chand filed an application before the Revenue Officers alleging that in the consolidation of 1978-79 the area of his land had been reduced and shown to be a part of the adjoining land of respondent Ishwar Dass. Respondent Ishwar Dass claimed that the land, which had been shown as part of his holding, was in use as passage to his adjoining property and so it had rightly been excluded from the area re-allotted to PW-2 Tara Chand, on consolidation. Naib Tehsildar (Settlement) told the parties that he would be visiting the spot on 6.9.1993 to verify whether there existed any path or not. On 6.9.1993, the said Naib Tehsildar reached the village and went to Palwarkhana. Respondent Ishwar Dass, accompanied by his three sons, named Varinder Paul, Jatinder Paul, Surinder Paul, who are his co-respondents in the State appeal, and respondent Sanjay Mathur, went to the spot and started uprooting the fence put up by PW-2 Tara Chand. On 6.9.1993, the said Naib Tehsildar reached the village and went to Palwarkhana. Respondent Ishwar Dass, accompanied by his three sons, named Varinder Paul, Jatinder Paul, Surinder Paul, who are his co-respondents in the State appeal, and respondent Sanjay Mathur, went to the spot and started uprooting the fence put up by PW-2 Tara Chand. on coming to know that the fence was being uprooted/damaged, PW-2 Tara Chand went to the spot and asked respondent Ishwar Dass and his sons not to disturb the spot position, as the Naib Tehsildar was to carry out the inspection that very day. That enraged the respondents and they started giving beatings to PW-2 Tara Chand. When PW-2 Tara Chand raised alarm, his son deceased Sat Pal rushed to the spot. As soon as he reached the spot, convicted Varinder Paul uprooted a pole, forming part of the fence, and hit deceased Sat Pal on the right temporal region, as a result of which he fell on the ground. Other four respondents also picked up dandas and started hitting the deceased. PW-3 Shukardin, one Pritam Singh, one Rajinder and one Suresh reached the spot on hearing commotion. They rescued PW-2 Tara Chand and his deceased son Sat Pal. PW-4 Sukh Chain, PW-5 Rachna Devi and PW-8 Satya Devi, not named in the FIR as witnesses, also reached the spot and they too helped in rescuing PW-2 Tara Chand and his deceased son Sat Pal. Residents of the village proceeded with injured Sat Pal to the hospital at Dehra. On the way he succumbed to the injuries. Dead body was taken to the said hospital. Medical Officer of the hospital informed the police telephonically. Entry was made in the Rojnamcha. Copy of that entry is Ex.P-30. 3.SHO, Police Station Dehra, PW-15 Kishan Chand then went to the hospital. There he recorded statement (Ex.P-4) of PW-2 Tara Chand, under Section 154 of the Code of Criminal Procedure, and sent that statement to the Police Station for formal registration of the case. Case was registered vide FIR Ex.P-31. Inquest was conducted. Dead body was sent to District Hospital at Dharamshala, where PW-1 Dr. Rita Pathania conducted the postmortem examination. She noticed a haematoma on a large portion of the right side of head behind the right ear extending to right side of the neck. Case was registered vide FIR Ex.P-31. Inquest was conducted. Dead body was sent to District Hospital at Dharamshala, where PW-1 Dr. Rita Pathania conducted the postmortem examination. She noticed a haematoma on a large portion of the right side of head behind the right ear extending to right side of the neck. On removing the scalp, she noticed irregular depressed fracture of the right mastoid process extending to the right temporal region. The bony spicules were piercing the underlying brain tissue which was badly lacerated. There was massive subdural haematoma. Soft tissues of the right side of the neck were badly lacerated and suffused with blood. The doctor opined that the cause of death was the aforesaid head injury and that the death had taken place immediately or within a few minutes of the sustenance of the injury. 4.PW-2 Tara Chand was medically examined. PW-14 Dr. Anita Mahajan conducted the medico legal examination. PW-2 Tara Chand complained of pain in the left parietal region, lower half right forearm and left shoulder, but the doctor did not notice any injury, except tenderness of right forearm. 5.Trial Court charged all the persons, named as respondents in the appeal filed by the State, with offences punishable under Sections 147, 148, 447 read with Section 149 IPC, and Section 302 read with Section 149 IPC. Respondents pleaded not guilty and were, therefore, ordered to be tried. 6.Prosecution examined PW-2 Tara Chand, PW-3 Shukardin, PW-4 Sukh Chain, PW-5 Rachna Devi and PW-8 Satya Devi to bring the charge home to the respondents. Out of these witnesses, only one, i.e., PW-3 Shukardin is named in the FIR, that was lodged by PW-2 Tara Chand, the father of the deceased. Others are not named. 7.Trial Court has believed the testimony of the above named witnesses to the effect that it was convict Varinder Paul who gave the fatal blow on the head of the deceased and convicted and sentenced him, as aforesaid. It has disbelieved the prosecution version as also the testimony of the abovenamed witnesses with regard to the allegation that the other respondents also dealt danda blows on the head of deceased Sat Pal. 8.It has been submitted on behalf of convict Varinder Paul that in the FIR he is not named as the author of the fatal blow given to deceased Sat Pal. 8.It has been submitted on behalf of convict Varinder Paul that in the FIR he is not named as the author of the fatal blow given to deceased Sat Pal. It has also been submitted that the medical evidence, in the form of testimony of PW-1 Dr. Rita Pathania, gives a lie to the prosecution story that more than one danda blows were given to the deceased. Another submission made on behalf of the convict is that PW-3 Shukardin, the witness named in the FIR, did not support the prosecution story and the other three persons, examined by the prosecution as the witnesses of the occurrence, were not present on the spot, as their names do not figure in the FIR and also because these witnesses, by the very fact of their testimony being exaggerated and improved, are shown to be interested in the prosecution and hostile to the respondents. 9.Learned Additional Advocate General submitted that trial Court’s finding that the other four respondents are not guilty of any offence is perverse and contrary to the evidence on record and that evidence of the abovenamed four eye-witnesses conclusively proves their guilt and so their acquittal is liable to be reversed. 10.We have been taken through the evidence by the learned Counsel representing both the sides. The aforesaid submissions have been considered by us, in the light of the evidence. 11.Incident had taken place at 12 noon. Dead body of deceased Sat Pal reached Dehra hospital before 12.50 p.m., because at 12.50 p.m. the Medical Officer of the said hospital made a telephonic call at Police Station, Dehra, informing that a dead body, with head injury, had been brought to the hospital. This fact is borne out from copy of the entry in the Rojnamcha copy Ex.P-30. SHO was stationed at Dehra itself. PW-15 Kishan Chand, SHO, rushed to the hospital immediately, as is clear from a reading of Ex.P-30 itself. While in the witness-box, PW-15 Kishan Chand, SHO, stated that the hospital is a 4-5 minutes walk from the Police Station. That means, he reached the hospital around 1 p.m. Statement of PW-2 Tara Chand, under Section 154 of the Code of Criminal Procedure, Ex.P-4, was recorded by him at 2 p.m. The incident had taken place two hours prior to the recording of the said statement. That means, he reached the hospital around 1 p.m. Statement of PW-2 Tara Chand, under Section 154 of the Code of Criminal Procedure, Ex.P-4, was recorded by him at 2 p.m. The incident had taken place two hours prior to the recording of the said statement. In Ex.P-4 with which Tara Chand was duly confronted, when in the witness-box as PW-2, it is not recorded that blow on the head of the deceased was given by convict Varinder Paul. What is recorded in Ext.P4 is that when deceased Sat Pal reached the spot, all the respondents dealt Lathi blows on his person, as a result of which he fell down and became unconscious. Thus the testimony of PW-2 Tara Chand that blow was given by Varinder Paul is an improvement over the earliest version given by him to the police. It has been pointed out by the learned Counsel for appellant Varinder Paul that there was game plan on the part of PW-2 Tara Chand and other PWs to name Varinder Paul as the author of head injury, as he is the only person in the family, who is in service (in a bank), so that on account of conviction he loses his job and the only source of income in the family dries up. 12.Again four eye-witnesses are named in Ext.P4. They are PW-3 Shukhardin, one Pritam Singh, one Rajinder and one Suresh. Only one of these, named four witnesses, i.e.,, PW-3 Shukardin, was examined. He did not support the prosecution version. Other three were given up, on the plea that they had been won over. Instead of the aforesaid three named witnesses, in the FIR, prosecution examined, three other persons viz., PW-4 Sukh Chain, PW-5 Rachna Devi and PW-8 Satya Devi. Even though these three witnesses are not named in the FIR, their names figure as eye-witnesses/rescuers in the supplementary statement of PW-2 Tara Chand, which was recorded on the spot, on the very day of the occurrence, lateron. 13.We are aware of the legal proposition that the mere fact that a person examined as an eye-witness, is not named in the FIR, as such, by itself is not a ground for outrightly rejecting his testimony and what is required in such a case is that the testimony of such witness(es) is required to be examined with extra caution and circumspection. 14.In the present case, even though PW-4 Sukh Chain, PW-5 Rachna Devi and PW-8 Satya Devi, have stated that they were present on the spot and saw convict Varinder Paul hitting the deceased on his head with a Danda, at the same time they have stated that other respondents also gave danda blows to the deceased, which fact is belied by the testimony of PW-1 Dr. Rita Pathania, who very categorically sated that there was only one injury on the dead body of deceased Sat Pal, i.e. head injury. The abovenamed three witnesses have thus by their own contradictory statements proved themselves to be liars. PW-5 Rachna Devi has demonstrated herself to be a liar, in one more way. She stated that she saw convict Varinder Paul giving the blow on the head of the deceased, but she could not see the role of other respondents, because she was at a considerable distance. Now, if she could see convict Varinder Paul giving the first blow on the head of the deceased, there could not have been any reason for her having not witnessed the alleged role of the other respondents. It is not claimed by her that after the first blow was given by convict Varinder Paul to the deceased, she walked away from the place from where she saw convict Varinder Paul giving the first blow and, therefore, the distance increased and so she could not witness the alleged role of the other respondents. 15.On the basis of the earlier version, which was given to the police vide Ex.P-4 by the father of the deceased who was himself present on the spot, the fatal blow on the head of the deceased cannot be attributed to any particular accused. Also, there is nothing on the record suggesting if the respondents formed an unlawful assembly with the common object of killing deceased Sat Pal or causing injuries to PW-5 Tara Chand or in any other way using force or indulging in violence. Admittedly, there was a dispute between the parties with regard to a part of the land of PW-2 Tara Chand, which prior to consolidation of 1978-79 formed part of his property but on consolidation it was shown to be a passage of the respondents. It has been admitted by PW-2 Tara Chand that gate of the respondents is approachable through the land in dispute. It has been admitted by PW-2 Tara Chand that gate of the respondents is approachable through the land in dispute. A fence had been put up on the spot, meaning thereby that access to the gate of the respondents had been blocked. Convict and respondents had gone to remove the blockade and in fact they were only doing so, as is clear from the testimony of PW-2 Tara Chand as also the earliest version Ex.P-4, which he gave to the police. Therefore, it cannot be said that they formed as unlawful assembly or that their object was to assault PW-2 Tara Chand or his son deceased Sat Pal. PW-2 Tara Chand and deceased Sat Pal went to the spot to prevent the respondents and the convict from removing the fence which had caused blockade and it was then that one of the respondents, whose identity does not stand established beyond reasonable doubt, as discussed hereinabove, happened to hit the deceased on his head, with one of the poles of the fence uprooted from the spot. That means the convict and the respondents went unarmed to the spot, which fact also negates the charge of their having formed unlawful assembly with the aforesaid alleged common object. Also, we find that there is absolutely no evidence, so far as respondent Sanjay Mathur is concerned. 16.As a result of the above discussion, appeal filed by convict Varinder Paul is accepted. His conviction and sentence for offence under Section 304 (second part) IPC are set aside. He is acquitted. Appeal filed by the State is dismissed. Both the appeals stands disposed of. M.R.B. ——————-