JUDGMENT Per Deepak Gupta, J 1. These two appeals are being disposed of by a common judgment since they arise out of the same incident and judgment. 2. The learned trial Court has convicted the accused of having committed the offences punishable under Sections 304(I), 341, 447 and 506 of IPC read with Section 34 IPC and sentenced them as follows:- Sr. No Offence Sentence 1. 304(I) IPC/34 IPC Imprisonment for life and to pay a fine of Rs.10,000/- each and in default of payment of fine amount to undergo rigorous imprisonment for one year each. 2. 341/34 IPC Simple imprisonment for one month and to pay a fine of Rs.500/- each and in default of payment of fine, to undergo further simple imprisonment for seven days, each. 3. 447/34 IPC Simple imprisonment for three months and to pay a fine of Rs.500/- each and in default to undergo simple imprisonment for 20 days each. 3. Criminal Appeal No. 209 of 2007 has been filed by appellants Aisha and Khatiza whereas Criminal Appeal No. 210 of 2007 has been filed by appellant Noor Ahmad. At this stage it would be pertinent to mention that one other person, who was also alleged to be a part and parcel of the offences was a juvenile (hereinafter referred to as “G”). It is not in dispute that G was discharged by the Juvenile Court and no revision has been filed against the said judgment, which has become final. 4. The first information with regard to the occurrence which led to the trial is a daily diary report No.25 recorded in Police Station Sadar Chamba at 5.45 p.m. to the effect that the Medical Officer has sent a telephonic information that one person has been brought in a seriously injured condition and has been admitted in the hospital and necessary be taken. After lodging this daily diary report the police officials including PW-9 HC Rajesh Kumar went to the hospital. The doctor opined that Shaffi Mohammad was not in a fit condition to make statement, therefore, PW-9 recorded the statement under Section 154 Cr. P.C. of the son of Shaffi Mohammad i.e. PW-1 Ali Hussain. 5. This statement is Ext. PW-1/A and as per this statement on 7th January, 2005 Ali Hussain along with his father Shaffi Mohammad had come to make some purchases from Chamba bazaar. P.C. of the son of Shaffi Mohammad i.e. PW-1 Ali Hussain. 5. This statement is Ext. PW-1/A and as per this statement on 7th January, 2005 Ali Hussain along with his father Shaffi Mohammad had come to make some purchases from Chamba bazaar. At 3.00 p.m. they were returning to their village Luneth and when they were near a bridge at Luneth accused Noor Ahmad came from the opposite side. He was hurling abuses at Shaffi Mohammad and Ali Hussain and stopped them from going on the road. He asked Shaffi Mohammad and his son as to what was their problem. Shaffi Mohammad replied that he had no problem but why was the accused abusing them. As soon as Shaffi Mohammad said this, Noor Ahmad, who was carrying a danda in his hand attacked Shaffi Mohammad with the danda. When Ali Hussain tried to intervene, Noor Ahmad picked up a stone from the road and hit Shaffi Mohammad with the same. Thereupon, Shaffi Mohammad fell down on the road. In the meanwhile, Aisha, wife of accused Noor Ahmad and Khatiza, daughter of Noor Ahmad also reached the spot and started hurling abuses. Thereupon Ali Hussain raised an alarm and PW-7 Fateh Mohammad and one Kasam reached the spot and accused Noor Ahmad etc. ran away from the place of occurrence. While running away, they threatened Ali Hussain and his father that they had escaped on this day but next time they would be dealt properly. Then Ali Hussain along with other persons present on the spot took Shaffi Mohammad to the hospital at Chamba for treatment. In this statement it was also mentioned that Noor Ahmad had some animosity with the complainant side because of some land dispute. 6. On the basis of this statement Ext. PW-1/A, FIR Ext. PW-8/A was registered under Sections 341, 323 and 506 IPC at about 7.20 p.m. Shaffi Mohammad was referred from the hospital at Chamba to the Zonal Hospital, Dharamshala where he unfortunately expired on 9.1.2005. Thereafter the FIR was converted to one under Section 302 IPC. Postmortem on the body of Shaffi Mohammad was carried out. Other investigation was also carried out. Two stones and a danda allegedly used in the occurrence were recovered. After completion of investigation, the accused were charged with having committed the offences punishable under Sections 302, 341, 447, 506 IPC read with Section 34 IPC. Postmortem on the body of Shaffi Mohammad was carried out. Other investigation was also carried out. Two stones and a danda allegedly used in the occurrence were recovered. After completion of investigation, the accused were charged with having committed the offences punishable under Sections 302, 341, 447, 506 IPC read with Section 34 IPC. They were acquitted of the offence under Section 506 IPC read with Section 34 IPC but convicted for the other offences as detailed hereinabove. Hence these appeal by the accused-appellants. 7. We have heard Mr. Anup Chitkara, learned counsel for the accused and Mr. Vivek Thakur, learned Additional Advocate General for the State. 8. Ali Hussain, the informant, appeared in the witness box as PW-1. His version is totally different to his statement under Section 154 Cr. P.C. In Court he stated that all the accused persons Noor Ahmad, his wife Aisha, daughter Khatiza and G came together and stopped Shaffi Mohammad and this witness and when Shaffi Mohammad asked why they were hurling abuses, Noor Ahmad lifted a stone and pelted the same on his father, as a result of which his father sustained injuries on the head. Thereafter, Khatiza, daughter of Noor Ahmad dealt a danda blow on the back of Shaffi Mohammad. Accused Aisha caught hold of the neck of Shaffi Mohammad and pressed his neck and then G also pelted a stone at Shaffi Mohammad which struck at the same place where the earlier stone had struck. After seeing this scene, PW-5 Khatiza @ Khijo, sister of this witness i.e. the daughter of Shaffi Mohammad rushed to the spot along with Kasam and Fateh Mohammad. According to this witness Kasam had been won over by the accused. Thereafter his uncle Gulam Nabi also came to the spot and then the accused persons fled away. Thereafter, Shaffi Mohammad was taken to the hospital. He admits that in the hospital his statement Ext. PW-1/A was recorded which bears his signatures. 9. There are material contradictions between the statement of this witness Ext. PW-1/A and his statement in Court. In his first statement Ext. PW-1/A he had clearly mentioned that Noor Ahmad had blocked the path of this witness and his father Shaffi Mohammad. He also stated that Noor Ahmad had hurled abuses and when this was objected to by Shaffi Mohammad, accused Noor Ahmad gave a blow of the danda. In Ext. PW-1/A and his statement in Court. In his first statement Ext. PW-1/A he had clearly mentioned that Noor Ahmad had blocked the path of this witness and his father Shaffi Mohammad. He also stated that Noor Ahmad had hurled abuses and when this was objected to by Shaffi Mohammad, accused Noor Ahmad gave a blow of the danda. In Ext. PW-1/A it was clearly mentioned that in the meanwhile accused Aisha and Khatiza came to the spot and hurled abuses. It was not stated that they caused any injury to the deceased or even caught hold of him. There is no mention of G in the statement Ext. PW-1/A. His name has been introduced later and even what has been ascribed to accused Aisha and Khatiza is not there in the first report. 10. It is true, that the statement under Section 154 Cr.P.C. is not required to be an encyclopedia of the entire occurrence but it must give essential facts. In the first statement it was mentioned that accused Noor Ahmad gave a blow with a danda and in the statement in Court it is mentioned that Noor Ahmad only threw one stone. In the statement in Court many improvements have been made ascribing the role of Khatiza and G. These cannot be believed to be true. This witness was confronted with the improvements made and it was clearly pointed out to him that what he was saying in court was different to what he has stated in his first statement Ext. PW-1/A. According to this witness, he has stated to the police that accused Noor Ahmad and the other accused came to the spot together but what has recorded in Ext. PW-1/A is totally different. He also states that he did not disclose to the police that accused Khatiza had given a danda blow to his father or that G had thrown a stone at his father. His explanation is that he was perplexed at that time. A suggestion has been put to this witness on behalf of the accused that Noor Ahmad was carrying a danda in his hand and it was he who gave the blow to Shaffi Mohammad. 11. As far as PW-5 is concerned, her name does not even find mention in the first statement made by Ali Hussain Ext. A suggestion has been put to this witness on behalf of the accused that Noor Ahmad was carrying a danda in his hand and it was he who gave the blow to Shaffi Mohammad. 11. As far as PW-5 is concerned, her name does not even find mention in the first statement made by Ali Hussain Ext. PW-1/A. She was only 12 or 13 years old and therefore, has to be treated like a child witness. She could have been easily tutored by the other members of her family. In examination-in-chief she has supported the prosecution case. She states that she was grazing her sheep and goats near the place of occurrence and she was only 3-4 feet from her father. Ali Hussain has not stated this fact even in his statement in Court. According to Ali Hussain PW-5 Khatiza had lifted the stones and danda from the spot and taken them to her house and she had produced same at the house on 9th January, 2005. 12. At this stage it would be pertinent to mention that the statement of PW- 5 Khatiza was recorded on 9th January, 2005 and she also states that when the police came to her village she produced both the stones and the danda. Though in examination-in-chief she has given the same version that her father was given two blows of stones and one of the danda in cross-examination she admitted that her father sustained only one blow on his head. At this stage it would be pertinent to important to refer to the statement of PW-11 Inspector Madan Lal who states that the stones and danda were produced by PW-5 at the spot and not at her house. We are clearly of the view that the statement of PW-5 cannot be relied upon because her presence at the spot itself is doubtful. She was not named in Ext. PW-1/A. Her statement was recorded only after 3 days. She is stated to have produced the stones and danda but whereas she and her brother state that she produced these items from the house, according to the police these were produced at the scene of occurrence. We fail to understand how or why a 12 or 13 year old girl would be wise enough to lift the stones and danda and take them to her house. We fail to understand how or why a 12 or 13 year old girl would be wise enough to lift the stones and danda and take them to her house. It would also be pertinent to mention that the age of PW-5 Khatiza in her statement recorded under Section 161 Cr. P.C. is mentioned as 20 years. She also admits that she has given her age as 20 years. According to her she did this because she was perplexed. 13. The next other important witness is PW-7 Fateh Mohammad. His version is similar to that of PW-1 and according to him all the four accused came together and accosted Shaffi Mohammad and Ali Hussain. Noor Ahmad gave a blow with stones after which Shaffi Mohammad fell down on the ground. Then accused Khatiza gave a danda blow and G gave a stone blow which hit the head of Shaffi Mohammad and accused Aisha caught hold of Shaffi Mohammad from the neck. If Shaffi Mohammad had already fallen to the ground how could Aisha have caught him from behind. According to him the danda blows were given on the back of Shaffi Mohammad and the quarrel continued for 10 to 15 minutes but despite this he did not intervene in the matter. This cannot be believed. 14. As far as the medical evidence is concerned, the statement of PW-2 doctor Rakesh Verma, who examined Shaffi Mohammad at the hospital at Chamba, clearly shows that there was only one external injury on the person of Shaffi Mohammad. This is also stated by PW-12 doctor A.K. Sharma who carried out the postmortem. This, therefore, clearly indicates that the prosecution witnesses are not telling the truth when they talk of three or more injuries being caused to the deceased at the hands of the accused. 15. Another disturbing aspect of the matter is that according to PW-2 the patient was conscious, well orientated and responded to the question when he was examined. This is also apparent from a perusal of the MLC Ext. PW-2/B which was recorded between 6.00 p.m. and 6.30 p.m. In fact PW-2 goes on to state that Shaffi Mohammad was conscious on 7th January, 2005 and became unconscious only on the next day of 8th January, 2005. This is also apparent from a perusal of the MLC Ext. PW-2/B which was recorded between 6.00 p.m. and 6.30 p.m. In fact PW-2 goes on to state that Shaffi Mohammad was conscious on 7th January, 2005 and became unconscious only on the next day of 8th January, 2005. He states that he opined that Shaffi Mohammad was not in a fit condition to make the statement because he was in a state of agony. We are not at all happy with the manner in which this doctor has so casually dealt with such a serious matter. If Shaffi Mohammad’s statement had been recorded the truth would have been easy to find out. The mere fact that he was in pain was not sufficient to hold that he was unfit to make a statement. Be that as it may, no statement of Shaffi Mohammad was recorded. 16. From the discussion above, it is apparent that the medical evidence does not support the prosecution version. The statements of PW-5 Khatiza and PW-7 Fateh Mohammad cannot be believed because it is apparent that they reached the spot later on. The statement of PW-1 Ali Hussain is full of improvements. As far as accused Aisha and Khatiza are concerned, there is no evidence whatsoever to convict them. 17. We are constrained to observe that the manner in which this case has been dealt with by the learned trial Court shows very little application of mind and also indicates that the learned trial Court was not aware of the basic principles of criminal law. 18. As far as accused Noor Ahmad is concerned, a suggestion put on his behalf to PW-1 was that he gave the danda blow. It is, however, apparent that this was not done with the intention of killing the deceased or with the knowledge that it would result in the death of the deceased. Therefore, the offence would be one which would fall under Section 304 Part II and not under Section 304 Part I. There is no evidence to show that there was any meeting of minds between the accused or even to show that any of the other offences were committed. Therefore, Cr. Appeal No. 209 of 2007 is allowed and the conviction of both Aisha and Khatiza along with sentence is set aside. Bail bonds are discharged. 19. As far as Cr. Therefore, Cr. Appeal No. 209 of 2007 is allowed and the conviction of both Aisha and Khatiza along with sentence is set aside. Bail bonds are discharged. 19. As far as Cr. Appeal No. 210 of 2007 filed by Noor Ahmad is concerned, the same is partly allowed. He is acquitted of having committed the offences punishable under Sections 341 and 447 IPC but is convicted of having committed an offence punishable under Section 304 Part-II. He has been behind bars for more than seven years and we are of the considered opinion that the ends of justice would be served in case he is sentenced for the period already undergone and he may now be released forthwith. The Registry is directed to issue release warrants immediately.