JUDGMENT Hon’ble Mrs. Poonam Srivastav, J.—The present appeal was preferred on behalf of the two appellants namely Shodan and Bhagmal. Accused-appellant No. 2, Bhagmal, is reported to have died thirty years back. Appeal in respect of appellant No. 2,Bhagaml, stands abated. 2. Bail bonds of appellant was cancelled by this Court vide order dated 31.8.2009. Pursuant to the aforesaid order, appellant, Shodan was taken into custody and sent to jail. He moved a bail application. He was released on bail by this Court on 9.10.2009. 3. Appellant, Shodan, was convicted by IInd Additional Sessions Judge, Muzaffar Nagar, and sentenced to four years R.I. for an offence under Section 307, I.P.C. in Session Trial No. 31 of 1979. Seven accused, Brahma, Bhagmal, Bohram, Ikbal, Surendra, Chotu and Shodan were committed to the Court of Session by Sri D.S. Mishra, Chief Judicial Magistrate, Muzaffar Nagar. Accused Shodan was charged with the offences punishable under Sections 148 and 307 read with Section 149 of Indian Penal Code while remaining six accused were charged with the offences punishable under Sections 147 and 307 read with Section 149 of Indian Penal Code. All the accused persons have pleaded not guilty. 4. According to the prosecution, on 21.6.1978 at about 10:00 a.m. Tara, father of Shodan accused, Mainer father of Bohram and one Jal Singh were demolishing the boundary mark between their field and field of Kalyan Singh PW-3. Kalyan Singh objected to the demolition of the boundary marks whereupon the aforesaid persons Tara, Mainer and Jal Singh had beaten him. At that time, his son Prem Singh also accompanied him. They went to P.S. Titavi where Kalyan Singh lodged a written report Ex. Ka.6 at about 12:30 p.m. on the same day. He also got himself medically examined at District Hospital, Muzaffarnagar, on the same day at 5:10 p.m. Thereafter, Kalyan Singh and his son Prem Singh were returning to their village Mukunpur, P.S. Titavi in their tractor and while they were near the bridge situated at the boundary of village Haider Nagar and Mukandpur at about 7:00 p.m. seven accused with the common object of killing Kalyan Singh and Prem Singh formed an unlawful assembly. While Shodan accused was armed with a spear and remaining accused were armed with clubs. Accused Shodan stabbed Kalyan Singh with spear on his abdomen while Bhagmal hit Prem Singh with a club. While Shodan accused was armed with a spear and remaining accused were armed with clubs. Accused Shodan stabbed Kalyan Singh with spear on his abdomen while Bhagmal hit Prem Singh with a club. As a result of the same, the speed of the tractor decreased and remaining five accused also wielded their clubs which hit top of the tractor. Suba PW-5, Pooran PW-6 and one Onkar arrived and on their alarm, seven accused fled away. Kalyan Singh and Prem Singh first returned to their homes and narrated the incident to Harphool Singh, father of Kalyan Singh. Harphool Singh got written report Ex. Ka-7 written by one Karam Singh and taking Kalyan Singh and Prem Singh with him lodged the report at Police Station Titavi, on the same day at 9:30 p.m. Police registered a case against seven accused and sent Kalyan Singh and Prem Singh for medical examination. Kalyan Singh was examined at 11:20 p.m. while Prem Singh was examined at 11:30 p.m. on the same day at District Hospital, Muzaffar Nagar. 5. In support of the case, the prosecution examined 10 witnesses in all. Dr. S.S. Khanna, PW-1, was posted as Medical Officer, District Hospital, Muzaffar Nagar, on 21.6.1978. He examined the injuries of Kalyan Singh at 11:20 p.m. on that day and found following injuries on the person of Kalyan Singh : (i) Stab incised wound 2 cm x 0.25 cm x not proved, on the left side abdomen 6 cm away at 3 O’ clock. Entry inward. Oblique. (ii) Stitched wound 1" in leagth on the right side head 2 ½” above eyebrow. Dressed. (iii) Traumatic swelling 1 ½” x ¼ on the left side chest 2" below lower end of left collar bone. 6. Injury No. 1 could be caused by sharp edged weapon. Cause, duration and nature of injury Nos. 2 and 3 could not be opined. 7. He also examined Prem Singh on the same night at 11:30 p.m. and found following injuries on his person:- (i) Contusion 3 cm x 2 cm on the right side chest, 2 cm away at 2 O’ clock. (ii) Abrasion 1 ½ cm x ¼ cm on the base and web of right little and ring finger with traumatic swelling 5 cm x 3 cm around it. Advised X-ray for hand. 8. Both injuries were caused by some hard blunt weapon. 9. (ii) Abrasion 1 ½ cm x ¼ cm on the base and web of right little and ring finger with traumatic swelling 5 cm x 3 cm around it. Advised X-ray for hand. 8. Both injuries were caused by some hard blunt weapon. 9. Learned Sessions Judge, disbelieved participation of four accused persons and convicted appellant, Shodan, under Section 307, I.P.C and appellant Bhagmal under Section 307 with aid of Section 34, I.P.C. 10. First argument of counsel for appellant is that charges framed by IInd Additional Sessions Judge, Muzaffar Nagar, were under Sections 307 with aid of Sections 148, 149, I.P.C., which are quoted below:- “First that you along with co-accused Brahma, Bhagmal, Bahoram, Iqbal, Surendra and Chhotu, on 21.6.1978 at about 7:00 p.m. near the bridge situated at the boundary of village Haider Nagar and Mukundpur P.S. Titavi, District Muzaffarnagar, were member of an unlawful assembly and did in prosecution of the common object of such assembly namely to assault Kalyan Singh, committed the offence of rioting and at that time you were armed with a deadly weapon and you thereby committed an offence punishable under Section 148 I.P.C. and within the cognizance of this Court; Secondly that you on the aforesaid date, time and place being members of an unlawful assembly the common object of which was to assault Kalyan Singh and in prosecution of the common object of such assembly, assaulted said Kalyan Singh with such intention and under knowledge and under such circumstances that if by that act the death of said Kalyan Singh had been caused, you would have been guilty of murder and you thereby committed an offence punishable under Section 307 read with Section 149, I.P.C. and within cognizance of this Court; And I hereby direct that you be tried on the said charges by this Court”. 11. The counsel for appellant has raised legal question that since accused were acquitted for offences under Sections 148, 149, I.P.C. and five other accused were given a clear acquittal under Sections 307, I.P.C., no charge having been framed simplicitor under Section 307, I.P.C. against the present appellant whether he could be convicted for the said offence or not. 11. The counsel for appellant has raised legal question that since accused were acquitted for offences under Sections 148, 149, I.P.C. and five other accused were given a clear acquittal under Sections 307, I.P.C., no charge having been framed simplicitor under Section 307, I.P.C. against the present appellant whether he could be convicted for the said offence or not. Admittedly, charge was for an assault on Kalyan Singh not alone for Shodan but in prosecution of a common object by constituting an unlawful assembly, therefore, conviction by Additional Sessions Judge, cannot be maintained in the present case. 12. Learned A.G.A. has though objected this argument as he has laid emphasis on his argument by stating that Section 307, I.P.C. was already shown in the memo of charge, therefore, it cannot be said that the present appellant had no intention to commit offence. 13. Learned A.G.A. has placed paragraph No. 22 of the judgment in support of his contention. Extract of which is quoted below : “.....Coming to the question as to what offence or offences were committed by the accused persons, having come to conclusion that participation of five accused persons was doubtful, only accused Shodan and Bhagmal, remained to have participated in the occurrence. Naturally, therefore, charges under Sections 147 and 148 of Indian Penal Code fall. For the very reason, charge under Section 307 read with Section 149 of Indian Penal Code also cannot be said to have been made out. However, it is clear that accused Shodan has committed an offence punishable under Section 307 of Indian Penal Code. No doubt, in the charge against Shodan, an offence punishable under Section 307 read with Section 149 of Indian Penal Code was mentioned, wordings were clear enough to show that it was he who assaulted Kalyan Singh with such intention and knowledge and in such circumstances that if by that act, death of Kalyan Singh had been caused, he would have guilty of his murder. It cannot be said that Shodan did not know that there was a charge of causing hurt to Kalyan Singh with the aforesaid intention and knowledge and in the aforesaid circumstances. In the circumstances, accused Shodan, can very well be convicted for an offence punishable under Section 307 of Indian Penal Code for the offence in respect of Kalyan Singh”. 14. In the circumstances, accused Shodan, can very well be convicted for an offence punishable under Section 307 of Indian Penal Code for the offence in respect of Kalyan Singh”. 14. Next argument is that first information report has not been proved by first informant. Therefore, first information report remains unproved and cannot be read in evidence. No doubt, factum of incident has been narrated by injured PW-3 himself. 15. Sri Sengar, has argued that PW-3 was examined for the first time under Section 161 Cr.P.C. after 17-18 days. Thereafter, during the trial, insertion of names of such persons, who are inimical to the injured, cannot be ruled out and the prosecution has not been able to establish beyond doubt. He has placed statement of accused recorded under Section 313 Cr.P.C. where they have admitted to have been falsely implicated on account of grudge and partybandi in the village. 16. Learned counsel for appellant has commented on the nature of injury No. 1 caused to PW-3, which is stab incised injury. Thus, it is evident that after puncturing skin, it was pulled to 3 O’ clock position, which could only be caused by sharp edged weapon. This question was evidently put to the doctor in his cross examination, who was examined as PW-1. He has stated in his examination in chief that injury No. 1 was caused by sharp edged weapon such as Bhala or Ballam but with a rider, its edge should have been sharp, PW-5 on the other hand stated in paragraph No. 8 that weapon of assault though pointed at the end but was round on the back side and on its basis, it is argued that it could not have been weapon of assault. 17. Besides, PW-5 also admits in his statement that there was no blood found on the tractor but assault was made while tractor was moving and injured was sitting on the tractor. 18. Sri J.S. Sengar, has pointed out that PW-1 has clearly stated that blood must have oozed out from injury No. 1 and the said injury can only be caused by wielding sharp edged weapon, which has straight sharp edges. There was no supplementary injury report. Prosecution has failed to substantiate that injuries as stated by the doctor were caused by the alleged weapon of assault. There was no supplementary injury report. Prosecution has failed to substantiate that injuries as stated by the doctor were caused by the alleged weapon of assault. In fact, if statement of the doctor, PW-3 and PW-5 are read together, the prosecution case falls apart. 19. Cross examination of PW-5 has been commented at length and the learned counsel has pointed out a number of infirmities to substantiate the argument that prosecution case is highly doubtful without any evidence and completely belies medical version. 20. After hearing counsels for the respective parties at length, going through injury reports, statements of witnesses and other document on record, it appears that manner of assault as narrated by prosecution witnesses is not feasible. The doctor has clearly admitted in his cross examination that when he examined the injured Kalyan Singh, it was apparent that he was medically examined earlier also and his injuries were subjected to medical aid. At the relevant time, the doctor did not see any blood oozing out from the wound but he was of definite opinion, seeing nature of injury, which was caused by sharp edged weapon that blood must have oozed out. There was no blood stained cloth. The doctor expressed his inability to remember whether injured was wearing some clothes or not. This anomaly alone is sufficient to come to a conclusion that injuries were received previously, which was already given medical aid. Dr. S.S. Khanna, PW-1 examined his injuries at a subsequent stage after the alleged incident in the evening. 21. It is noteworthy that previously injuries were examined at 5:10 p.m. and subsequently injuries of Kalyan Singh was examined at 11:20 p.m., he had one additional injury, which is said to be a stab wound in addition to injuries found in the previous injury report prepared on the same day. 22. I am not in agreement with findings of IInd Additional Sessions Judge where he has concluded that injuries corroborate version of prosecution and incident did take place in the manner suggested by prosecution, and also conclusion arrived at that prosecution has been able to establish its case beyond doubt. After examining the entire evidence, it cannot be conclusively said that injuries were of subsequent incident alone for which accused were convicted. Admittedly, injuries were examined of both sides on the same day relating to another incident alleged to have taken place earlier. 23. After examining the entire evidence, it cannot be conclusively said that injuries were of subsequent incident alone for which accused were convicted. Admittedly, injuries were examined of both sides on the same day relating to another incident alleged to have taken place earlier. 23. I am also not in agreement with findings of IInd Additional Sessions Judge, that though no charge was framed simplicitor under Section 307, I.P.C. but it was with aid of Section 149, I.P.C. along with other accused. Having given a clear acquittal to the other member of unlawful assembly, conviction of appellant cannot be maintained simplicitor under Section 307, I.P.C. Learned Additional Sessions Judge should have altered charge and thereafter given an opportunity to appellant since the entire manner of occurrence changes; if the sole appellant or two of them had shared a common intention to kill Kalyan Singh and committed offence, a separate charge was liable to be framed and prosecution case should have been proved. 24. In the circumstances, I am, therefore, of the view that conviction recorded by IInd Additional Sessions Judge, cannot be upheld by this Court legally and otherwise also on the basis of contradictory stand taken by prosecution as discussed hereinbefore. Conviction and sentence awarded to appellant is set at naught. Bail bonds and sureties of appellant are discharged. Criminal revision No. 1762 of 1982 filed against judgment of acquittal, is also dismissed. The instant appeal is allowed. ————