JUDGMENT S.K. KULSHRESTHA, J. The above appeals have been filed by the convicted accused against the judgment dated 25-1-1999 passed by the learned IInd Additional Sessions Judge, Ujjain in Sessions Trial No. 237/1997 whereby, while acquitting the co-accused, the appellants have been convicted under Section 302/34 of the Indian Penal Code and each sentenced to imprisonment for life. 2. The appellants were tried along with four others for the said offence as also for offences under Section 147 and 148 for having voluntarily caused the death of Prahlad Singh after forming an unlawful assembly. It was, in particular, stated that the deceased Prahlad Singh had given loan of Rs. 40,000/- to accused Bhanwerlal about two years prior to the date of the incident but Bhanwerlal had not returned the money. On 15-5-1997 at about 8.30 P.M., deceased Prahlad Singh along with his son Ajaysingh P.W.10 and nephew Manoharsingh P.W.7 had left for Village Bichrod as the wife of the deceased was not well. En route P.W.6 Mangu Chamar and P.W.8 Rameshwar Bargunda and boarded the Tractor. When the Tractor reached the 'otla' of Nag Maharaj in Village Bichrod, the accused persons blocked the way with the result the deceased lost his balance and the Tractor overturned. All the accused persons then caught hold of the deceased and beating him, took him to their house and fell him down on the ground. It is alleged that the appellant Bhanwerlal then brought a sword from his house while other accused persons armed themselves with sticks and all of them assaulted the deceased and fled. The incident was witnessed by Ajaysingh P.W.10, Manohar Singh P.W.7, Mangu P.W.6 and Rameshwar P.W.8 from a distance. P.W.10 Ajaysingh then informed the brother of the deceased and a Tractor was brought in which the deceased was taken to the Hospital where FIR Ex.P./42 was lodged by P.W.10 Ajaysingh. On the basis of the said FIR, P.W.13 Praful Kshotriya, SHO, registered an offence. 3. Prahlad Singh was promptly sent to the Hospital under Requisition Ex.P/44. However, on way, he succumbed to the injuries. On account of the death of Prahlad Singh, witnesses were summoned for holding inquest and, accordingly, inquest memo Ex.P/37 was prepared and the body was sent for Post-Mortem Examination under requisition Ex.P/38. Post-Mortem was conducted by P.W.9 Dr. Anil Sinha who gave P.M. Report Ex.P/41. However, on way, he succumbed to the injuries. On account of the death of Prahlad Singh, witnesses were summoned for holding inquest and, accordingly, inquest memo Ex.P/37 was prepared and the body was sent for Post-Mortem Examination under requisition Ex.P/38. Post-Mortem was conducted by P.W.9 Dr. Anil Sinha who gave P.M. Report Ex.P/41. According to the testimony of Doctor and the report Ex.P/41, the deceased had the following injuries :- 1) Incised wound over left fronto zygoma maxillary and cheek region 10" x 3½ " x bone deep. All structure skin deepfacia, muscles and bone cut in single plane, left cerebral hemuphai is also cut and protruding out of the wound, margins regular, clotted blood around the wound with mud particles present. 2) Incised wound over right zygoma maxillary and bridge of nose 8½" x ½" x ½ semi circular clotted blood around the wound, margins sharp cut mud particle seen in the wound. 3) Incised wound over nape of neck 1" x 1½" x ½" just over cricoid cartridge transverse no injury to underline trachea. 4) Incised wound over dorsum of left hand 3½" x 1½" x 1½ " just over the base of second, third and fourth metacarpal. Margin regular clotted blood around margin and hand. 5) General swelling over left forearm lower third region, on opening radius and ulna bones are fractured and lower 3rd region, clotted blood around fracture site. 6) Incised wound over right wrist 2½" x 2" x 2½" just over. Joint exposed. All tendering arteries and nerves served and soaked with mud, margin regular. 7) Incised wound over dorsum of right hand 4½" x 2½" x 2" overlying the bone of second, third, fourth metacarpal bone, joint open, clotted blood around wound, common ext. tender cut dorsal arteries cut. 8) Incised wound over right upper arm 2½" x ½" x ½" lateral aspect 2½" above the elbow joint, regular margin clotted blood around the wound, no injury to bone. In the opinion of the Doctor, the death occurred as a result of shock due to excessive blood loss from injuries and injury to brain matter. 4. In further investigation, IT53.O. proceeded to the spot where he prepared Spot-Map Ex.P/43. He also took samples of blood stained and control earth vide Ex.P/32. From the house of accused Parmanand also, blood stained and control earth was seized vide Ex.P/34 and Ex.P/35. 4. In further investigation, IT53.O. proceeded to the spot where he prepared Spot-Map Ex.P/43. He also took samples of blood stained and control earth vide Ex.P/32. From the house of accused Parmanand also, blood stained and control earth was seized vide Ex.P/34 and Ex.P/35. The accused persons were arrested on 18-5-1997 and on the basis of the disclosure made by them, the weapons used in the commission of the offence were seized at their instance. Clothes suspected of having blood stains were also seized and all seized articles were forwarded to the Forensic Science Laboratory for examination. According to the Report Ex.P/9 of the Serologist the Bu-shirt of accused Bhanwerlal had stains of human blood. After completion of the investigation, the appellants and the four co-accused were prosecuted. 5. On charges being framed, the accused persons denied having committed any offence. They pleaded that they had been falsely implicated. Accused Parmanand also took the defence that he was the President of the Union and in connection with the business of the Union, he was in Ujjain from 7 AM till 9 PM. The learned Additional Sessions Judge however, found the appellants guilty and convicted and sentenced them as hereinabove stated. 6. Learned Senior Counsel for the appellants has pointed out that out of the seven persons prosecuted by the State, four persons have been acquitted on the ground that they were wielding 'lathis' and since no injury of 'lathi' was found, it was doubtful that they were members of the group which had assaulted the deceased. Learned Counsel thus contends that the case of Parmanand S/o Kishanlal is no different as according to the eye-witnesses he was also similarly armed and similarly situate. He has further pointed out that the learned Additional Sessions Judge has committed a gross perversity in referring to the statements under Section 161 of the Criminal Procedure Code and the FIR and rendering decision on that basis. He has further submitted that the use of the statements under Section 161 Criminal Procedure Code is restricted by the provisions of Section 162 thereof and these statements could not have been taken as substantive evidence. He has further submitted that the use of the statements under Section 161 Criminal Procedure Code is restricted by the provisions of Section 162 thereof and these statements could not have been taken as substantive evidence. He has further pointed out that in the statement of P.W.7 Manohar Singh, nephew of the deceased, he has stated that while Ajaysingh P.W.10, son of the deceased had narrated the incident to him, he did not mention the name of Parmanand and for that reason also, the complicity of Parmanand was not only doubtful, but ruled out. 7. Shri Girish Desai, learned Dy. Advocate General, has submitted that P.W.10 Ajaysingh lodged FIR and narrated the incident immediately thereafter and has been throughout consistent in his testimony indicating the complicity of Bhanwerlal, Nandram and Parmanand. Under these circumstances, the learned Counsel contends that the appeal deserves to be dismissed being bereft of merit. 8. The death of Prahlad Singh having not been disputed and the same being homicidal being patent and the inquest conducted by P.W.5 Ramkumar Rai SHO and there being corroboration by the eye-witnesses, the death of the deceased Prahlad Singh being homicidal is unassailable. The core question that arises in both the appeals is, whether the appellants can be connected with the commission of the said offence. 9. The prosecution has examined in all 13 witnesses while appellant Parmanand examined D.W.1 Anokhilal to support the plea of alibi. Out of the eye-witnesses examined by the prosecution. P.W.6 Mangu, P.W.8 Rameshwar did not support the prosecution and were declared hostile while P.W.10 Ajaysingh son of the deceased, and P.W.7 Manohar Singh Nephew of the deceased have supported the case. It is, therefore, necessary to first consider the ocular testimony of other circumstances to see whether a case for conviction has been made out against the three appellants, aforesaid. 10. As already stated, Ajaysingh is the son of the deceased. He deposed that he knew the accused persons well and when according to him, on 15-5-1997 while they were going on their Tractor at about 8 or 9 PM, for bringing medicine for his mother and the accused persons had also called them in the evening to collect the amount he had lent to Bhanwerlal, they met Mangu Chamar and Rameshwar who also boarded the Tractor. He has stated that before Bichrod, there is one temple of Nag Maharaj where there is a 'kachha' road. As they reached the temple, the accused persons came in front of the Tractor with the result his father lost balance and the Tractor over-turned. The accused persons then took his father Prahlad Singh dragging him up to the house of Bhanwerlal and Parmanand and started belabouring him. He has stated that Bhanwerlal, Parmanand and Nandu brought swords from their house and assaulted his father with the said weapon. The other persons were wielding Dharia and Farsi. On account of the number of the accused, he watched the incident from a distance and after his father was belaboured, he telephoned his uncle Phulsingh to bring a Tractor and his father was taken to the Hospital at Ujjain where Doctor informed him that he was already dead. He has referred to the motive for the said commission of the crime. According to him his father had given a loan of Rs. 40,000/- to Bhanwerlal which Bhanwerlal had not paid back the amount for two years and in order to save himself from the said liability, the accused persons had gathered and caused his death. He has further stated that he had reached the hospital and lodged report Ex.P/42. 11. In his cross-examination, he has admitted that the accused persons were armed with sticks and while Parmanand, Bhanwerlal, and Nandu had caught hold of the deceased, the other persons had assaulted. From the testimony of P.W.10 Ajaysingh, it is clear that Nandu and Parmanand were carrying lathi and not swords as projected by the prosecution in the case. P.W.7 Manoharsingh, Nephew of the deceased, has also been examined as an eye-witness. He has stated that he had learnt about the names of the accused from P.W.10 Ajaysingh but Ajaysingh did not mention that Parmanand was one of the miscreants. The other two witnesses, P.W.6 Mangu and P.W.8 Rameshwar have not supported the prosecution and nothing has been elicited by the prosecution incriminating the accused. 12. P.W.10 Ajaysingh has been confronted with the FIR lodged by him as also his statement Ex.D/2. On being asked, he stated that while giving statement to the Police, he had mentioned that two accused were armed with Dharia while two others with Swords. 12. P.W.10 Ajaysingh has been confronted with the FIR lodged by him as also his statement Ex.D/2. On being asked, he stated that while giving statement to the Police, he had mentioned that two accused were armed with Dharia while two others with Swords. He has further been confronted with his statement to the Police in which he had not stated that two miscreants were armed with Dharia, two with Farsi and the remaining three with Sword. He had stated in his statement that Nandram and Parmanand were armed with Lathis but he has resiled from the same. He has stated that may be that in confusion he had not given the said statement to the Police. We may stop here to record that the omission of the fact with which he had been confronted was an omission amounting to contradiction and, therefore, his testimony will have to be considered in the light of the said omission. In respect of the accused Parmanand he has stated that inadvertently he had mentioned the name of Chitu as the father of accused Parmanand though his fathers name is Kishan. The explanation that he has given is that he had mentioned the name Chitu on account of mistake. 13. From the testimony of P.W.10 Ajaysingh and P.W.7 Manoharsingh, both eye-witnesses, it is clear that Ajaysingh has stated that Parmanand and Nandram were armed with lathi, while P.W.7 Manoharsingh has emphatically stated that Parmanand's name was not given out by P.W.10 Ajaysingh. Learned Counsel for the appellant Parmanand has submitted that even the Trial Court has given advantage of benefit of doubt to the persons who were wielding lathi as there was no lathi injury. He has referred to the Medical Report Ex.P/41 in which the Doctor had recorded incised injuries except for an minor abrasion. Learned Counsel submits that since the Trial Court has given advantage to four accused on the ground that they were armed with weapons and their complicity was ruled out on account of the absence of injury having been caused by lathi, on parity also, accused Parmanand deserves to be acquitted. 14. In paragraph 20 of the impugned judgment, the learned Judge has observed that the complicity of accused Bhanwerlal, Parmanand and Nandu was made out from the testimony of P.W.10 Ajaysingh and he stood corroborated by the prompt report Ex.P/42 made by him. 14. In paragraph 20 of the impugned judgment, the learned Judge has observed that the complicity of accused Bhanwerlal, Parmanand and Nandu was made out from the testimony of P.W.10 Ajaysingh and he stood corroborated by the prompt report Ex.P/42 made by him. He has observed that though this witness has mentioned that Parmanand and Nandu were having sticks and in FIR through oversight he had mentioned sword but in his testimony he has stated that the said statement had not been given by him. He has also denied having mentioned the name of Chitu as the father of accused Parmanand. Testimony of Praful Kshotriya P.W.13 has also been referred to, who has stated that the witness Ajaysingh had been read over the FIR but significantly, in the body of the report, fathers name of Parmanand has been mentioned as Kishan. 15. P.W.13 has deposed that on 15-5-1997 he was posted as SHO at P.S. Ghatia. On that day Ajaysingh had brought his father Prahladsingh in an injured condition and according to the report made by him Ex.P/42 FIR was prepared and thereafter the deceased was sent to the Hospital. There is nothing in his testimony to suggest that he had himself manipulated the FIR or the statement Ex.D/2 in order to give advantage to appellant Parmanand and Nandu. We are, therefore, not impressed by the logic of the learned Additional Sessions Judge and his peculiar approach of taking into account the statement under Section 161 of the Criminal Procedure Code, use whereof is constricted by Section 162 Criminal Procedure Code. In this view of the matter, we find that appellant Parmanand sails in the same boat as the acquitted accused persons. 16. Proceeding further with the testimony, P.W.10 Ajaysingh, has stated in his Police statement Ex.D/2 that Nandu and Parmanand both were carrying lathis. He has tried to explain that because he was bewildered at the time of the incident, out of confusion he may have mentioned that. He has also denied that he had stated before the Police that his father had been thrown on the ground and assaulted with sticks. 17. P.W.7 Manoharsingh has also been confronted with his statement Ex.D/1 stating that the son of the deceased had mentioned the names of all persons. He has not been, however, able to explain the omission of the said statement in Ex.D/2. 17. P.W.7 Manoharsingh has also been confronted with his statement Ex.D/1 stating that the son of the deceased had mentioned the names of all persons. He has not been, however, able to explain the omission of the said statement in Ex.D/2. Learned Counsel for the appellant submits that since the deceased was taken to the Hospital and P.W.10 Ajaysingh has admitted that no statement was recorded nor any report was lodged, the report appears to be ante timed. The said contention of the learned Senior Advocate, however, stands negatived by the testimony of P.W.7 Manoharsingh who has stated, in his cross-examination, that Police had asked him about the incident and so also Ajaysingh. He has however, stated that report was taken down in the Hospital. It appears that the statement recorded has been treated to be FIR by this witness on account of ignorance. The said fact is fortified by the evidence of P.W.13 who has stated that the statements of Ajaysingh and Manoharsingh were recorded in the Hospital. 18. Considering the case of Bhanwerlal, it is quite evident from the statement of P.W.10 Ajaysingh and P.W.7 Manoharsingh that he had participated with a sharp weapon. The additional incriminating piece of evidence against Bhanwerlal is the human blood found on his Bu-shirt. 19. We now propose to consider the prosecution evidence against accused Bhanwerlal. According to the testimony of the Investigating Officer Praful Kshotriya P.W.13, this accused was arrested and disclosed that he had concealed the sword which he had used in the commission of the offence. This statement was recorded vide Memo Ex.P./8 in pursuance whereof the accused got the sword recovered from near a 'Nala' (rivulet) which was seized vide Ex.P/17. Bu-shirt of Bhanwerlal was seized vide Ex.P/15. According to the statement of Investigating Officer, these articles were sent to the Forensic Science Laboratory from where they were forwarded to the Serologist whose Report Ex.P/49 was received. According to this report, the Bu-shirt of this accused was found stained with human blood of 'O' Group. 20. Bu-shirt of Bhanwerlal was seized vide Ex.P/15. According to the statement of Investigating Officer, these articles were sent to the Forensic Science Laboratory from where they were forwarded to the Serologist whose Report Ex.P/49 was received. According to this report, the Bu-shirt of this accused was found stained with human blood of 'O' Group. 20. The testimony of the eye-witness P.W.10 Ajaysingh and P.W.7 Manoharsingh, though of interested persons, passes the test of closer scrutiny and sofaras the complicity of Bhanwerlal is concerned, he has been attributed a sharp weapon and since numerous sharp injuries were found on the body of the deceased and his Shirt was also found stained with human blood of 'O' Group, about which he has not given any plausible explanation, we find that his conviction does not call for any interference. 21. In the result, Criminal Appeal No. 156/1999 is allowed and the appellant Parmanand s/o Kishanlal is acquitted of the charge against him and the conviction and the sentence passed against him is set-aside. Parmanand is on bail. His bail bonds shall stand discharged. 22. Criminal Appeal No. 201/1999 is partly allowed. While appellant No.2 Nandram s/o Chitu Balai is acquitted of the charges against him and his conviction and the sentence passed against him is set-aside, the appeal in respect of Bhanwerlal s/o Chitulal is dismissed. Nandram is on bail. His bail bonds shall stand discharged. 23. Bhanwerlal s/o Chitulal is also on bail. Since his conviction has been maintained, he shall now surrender before the Trial Court within 15 days for being sent to Jail to serve out his sentence. Simultaneously, a warrant of arrest be issued by the Trial Court against Bhanwerlal s/o Chitulal to procure his presence for sending him to Jail to serve out the sentence awarded to him by the Trial Court.