JUDGMENT 1. - This appeal is directed against the judgement dated 21.4.2007 by which the learned Additional District and Sessions Judge (Fast Track) No. 3, Bharatpur Camp Bayana in Sessions Case No.28/2006 has convicted the accused-appellants in the following manner: "(i) Accused-appellants Subran and Sonu have been convicted for offence under section 148/149 IPC and sentenced to one year rigorous imprisonment each with fine of Rs. 100 each and in default whereof, to further undergo simple imprisonment of one month each; for offence under section 323/149 IPC and sentenced to one year rigorous imprisonment each; for offence under section 341 IPC and sentenced to one month rigorous imprisonment each; for offence under section 325/149 IPC and sentenced to one year rigorous imprisonment each with fine of Rs. 500 each and in default whereof, to further undergo simple imprisonment of three months each; for offence under section 302/149 IPC and sentenced to undergo life imprisonment each along with fine of Rs. 1,000 each and in default whereof, to further undergo simple imprisonment of three months. (ii) Accused-appellant Jagdamba has been convicted for offence under section 148/149 IPC and sentenced to one year rigorous imprisonment with fine of Rs. 100 each and in default whereof, to further undergo simple imprisonment of one month; for offence under section 323/149 IPC and sentenced to one year rigorous imprisonment; for offence under section 341 IPC and sentenced to one month rigorous imprisonment; for offence under section 325 IPC and sentenced to three years rigorous imprisonment with fine of Rs. 500 and in default whereof, to further undergo simple imprisonment of three months; for offence under section 302 IPC and sentenced to undergo life imprisonment along with fine of Rs. 1,000 and in default whereof, to further undergo simple imprisonment of three months. All the sentences were ordered to run concurrently." 2. Brief facts giving rise to this appeal are that on the basis of parcha bayan (Ex.P1) of one Suresh recorded on 17.12.2004 at General Hospital, Bharatpur, a first information report bearing no. 247/2004 for offence under section 147, 148, 149, 323, 341 and 302 IPC was registered and investigation commenced. It was alleged in the report that day in the morning at 6.00 AM, he (Suresh)and his brother Vishnu had gone to their fields near river. Ajit @ Baniya, Sumran, Ramboli, Sunita, Sonu @ Sohanlal, Naresh and Jagdamba were already there. 247/2004 for offence under section 147, 148, 149, 323, 341 and 302 IPC was registered and investigation commenced. It was alleged in the report that day in the morning at 6.00 AM, he (Suresh)and his brother Vishnu had gone to their fields near river. Ajit @ Baniya, Sumran, Ramboli, Sunita, Sonu @ Sohanlal, Naresh and Jagdamba were already there. Ajit Singh inflicted a baank blow on Vishnu while Sumran inflicted a spade blow on the person of informant. Sonu was armed with danda and Jagdish was armed with katta. Naresh inflicted a danda blow. Jagdamba was also armed with a farsa. He inflicted a farsa blow on Vishnu while Ajit inflicted a farsa blow on his hand. Jagdamba inflicted a farsa blow on his person. Thereafter, Jagdamba fired from katta, which passed through feet of informant. He became unconscious and he was taken to Bharatpur Hospital where he regained consciousness. Ajit was also armed with baank. His cousin brother Kishori was in the field of Sumran and he saw the entire incident. His brother Vishnu died in the hospital. The postmortem of the body of deceased Vishnu was conducted and the doctors opined that the cause of death was coma along with shock brought about as a result of ante mortem injury to skull and brain, multiple fractures and cutting of blood vessels of left knee joint as mentioned in the postmortem report, which was sufficient to cause death in the ordinary course of nature. During the course of investigation, accused-appellants were arrested and after completing the investigation, police filed the challan for offence under section 147, 148, 149, 323, 341, 325 and 307 IPC. Charges were framed for offence under section 148/149, 323/149, 341, 325/149, 302 and 302/149 IPC. Accused denied the charges and claimed to be tried. Prosecution produced as many as 18 witnesses along with 33 documents. The accused were examined under Section 313 Cr.P.C. and they produced 3 witnesses and 24 documents in their defence. After hearing both the parties, the learned trial court convicted and sentenced the accused-appellants vide impugned judgement in the manner as stated above. Hence this appeal. 3. Shri Biri Singh Sinsinwar, learned senior counsel for the appellants argued that the learned trial court has erred in law in not correctly appreciating the evidence in the instant case. Parcha bayan (Ex.P1) of Suresh (PW1) was recorded at 3.30 PM on 17.12.2004. Hence this appeal. 3. Shri Biri Singh Sinsinwar, learned senior counsel for the appellants argued that the learned trial court has erred in law in not correctly appreciating the evidence in the instant case. Parcha bayan (Ex.P1) of Suresh (PW1) was recorded at 3.30 PM on 17.12.2004. On the basis of parcha bayan, an FIR No. 247/2004 was registered at Police Station Uchchain on 17.12.2004 at 6.30 PM. Panchnama (Ex.P3) was prepared on 17.12.2004 at 12.40 PM in the presence of Laxmikant (PW15), Bhagwan Singh (PW16), Kishori (PW13), who happened to be the brothers of deceased and Girija Kant. The prosecution produced Kishori (PW13) as eye witness of the incident but he has not informed the Investigating Officer Manoj Singh (PW14), who prepared panchnama at that time, about the accused persons, who gave beating to the deceased Vishnu and Suresh. Though the incident has taken place on 17.12.2004 in early hours, Suresh (PW1) was medically examined on 17.12.2004 at 1.30 PM. He was fully conscious and he put his signatures on the injury report. At that time also Suresh (PW1) did not utter anything about the incident either to the doctor or to the Investigating Officer, who prepared the panchanama or to other persons. Therefore, no reliance can be placed on the pancha bayan (Ex.P1) of the injured Suresh. Learned senior counsel further submitted that in the parcha bayan allegations were levelled against seven persons. The prosecution did not choose to file challan against three persons. Neither the complainant, nor the Public Prosecutor took any action for making rest of the persons as accused. It was mentioned in the parcha bayan that it is Ajit Singh, who inflicted a baank blow on the person of Vishnu and Subran inflicted a spade blow on the skull of the injured. It was also alleged that Jagdamba was armed with farsa and katta both and he used both the weapons. There is no specific allegation against Jagdamba of inflicting the injury on the person of deceased. This parcha bayan did not bear the right thumb impression though he put his signatures on his injury report. From this, it is clear that parcha bayan has been manipulated later on. Hence no reliance can be placed on such parcha bayan. 4. Learned senior counsel submitted that Suresh (PW1) has changed his version from stage to stage. This parcha bayan did not bear the right thumb impression though he put his signatures on his injury report. From this, it is clear that parcha bayan has been manipulated later on. Hence no reliance can be placed on such parcha bayan. 4. Learned senior counsel submitted that Suresh (PW1) has changed his version from stage to stage. He made a specific allegation in his parcha bayan that it is Ajit, who inflicted a baank blow on the skull of Vishnu. There is no specific allegation against the accused-appellant Jagdamba of inflicting injury on the person of deceased either in the parcha bayan or in the statement recorded under Section 161 of Cr.P.C. Hence conviction of the accused appellant for offence under section 302 IPC is ex-facie illegal and perverse and liable to be set aside. It is argued that the learned trial court has not considered the site plan (Ex.P2) in the instant case though the site plan was prepared on 24.12.2004 at 12.15 PM. Manoj Singh (PW14), the Investigating Officer has found the flood near the tube-well of Arjun Singh (DW2). SHO also seized vide Ex.P20 some mustard crop plant and leaves, which were smeared with the blood and also seized engine of Arjun Singh vide Ex.P21 on 17.12.2004 itself. Both these documents have been prepared on 17.12.2004 in presence of Girija Kant and Kishori Lal (PW13). Investigating Officer has specifically stated that Kishori Lal (PW13) did not say any word about the incident as to how the deceased received the injury at the time of preparing seizure memos Ex.P20 and P21 and panchnama (Ex.P3). If Kishori Lal was eye witness of the incident then certainly he would have narrated the whole story to the Investigating Officer. He did not narrate anything to the Investigating Officer, which shows that he was not the eye witness of the incident at all. Hence the conviction of the accused-appellants deserves to be set aside. 5. Learned senior counsel for the appellants further argued that from the evidence of Suresh (PW1) and other witnesses, it is clear that there was a land dispute between the complainant Suresh and accused Subran. Receiver was appointed on that land and Arjun Singh (DW2) took that land from the Receiver in auction and installed his engine there. He also admitted that the said land was in possession of Subran where the incident has taken place. Receiver was appointed on that land and Arjun Singh (DW2) took that land from the Receiver in auction and installed his engine there. He also admitted that the said land was in possession of Subran where the incident has taken place. Suresh (PW1) has stated that it is Ajit who put his engine there. He stated that it is wrong to state that he and his brother had not gone at that time. From this it is clear that he and deceased Vishnu went there for taking forcible possession of that field from Arjun Singh and then the incident has taken place in that field. Learned senior counsel submitted that the learned trial court has erred in not correctly appreciating the evidence of Suresh (PW1). He stated in his cross examination when he was confronted with his parcha bayan (Ex.P1) regarding infliction of single injury on his person and that he could not see because his eyes were full of mud and blood was oozing from his ear. From this answer of Suresh, his whole testimony becomes unreliable and conviction of the appellants based on such testimony deserves to be set aside. 6. Shri Biri Singh Sinsinwar, learned senior counsel argued that the trial court has erred in not taking into consideration that all the prosecution witnesses have changed the place of incident. As per the site plan (Ex.P2), seizure memo of mustard crop plant (Ex.P20) and water engine and fan (Ex.P21), the incident has taken place inside the field of Arjun Singh (DW2). Before the court all the witnesses have stated that incident has taken place on the way though the incident has taken place near the tube-well of Arjun Singh. They changed the place of incident as suited to them only for showing that they were not aggressors, but it is the accused who encircled them when they were going on way. All these facts go a long way to show that the complainant party were aggressors. 7. Shri Biri Singh Sinsinwar, learned senior counsel for the appellants submitted that conduct of Kishori Lal (PW13) is highly unnatural. All these facts go a long way to show that the complainant party were aggressors. 7. Shri Biri Singh Sinsinwar, learned senior counsel for the appellants submitted that conduct of Kishori Lal (PW13) is highly unnatural. He did not inform to either witnesses about the incident, nor he went with the injured persons to the hospital, nor he narrated about the incident at the time of preparation of panchnama as well as at the time of preparation of seizure memos of mustard plant and water engine & fan (Ex.P20 and P21 respectively), but the learned trial court has ignored all these facts, which goes to the root of the case. 8. It is argued that the Investigating Officer Manoj Kumar (PW14) has specifically stated that on 17.12.2004, he was at the police station from the morning. He received a telephonic message that the incident took place in village Madoli. Thereupon, he went at Village Madoli and reached there at about 10.30 AM, but nobody told him about the incident. Jhaman (PW3), Laxmikant (PW15) and Bhagwan Singh (PW16) took the injured and deceased from village Madoli to Bharatpur via Uchchain. They crossed the police station in Uchchain as the police station was situated at the main road, but did not inform to anybody. Hence no reliance can be placed on parcha bayan (Ex.P1) of injured Suresh and conviction of the accused-appellants is bad in law. It is contended that the trial court has not correctly appreciated the evidence on record. It was a blind murder and nobody had seen as to who inflicted the injury in the early hours on 17.12.2004. There was no reason for the deceased Vishnu and injured Suresh to go in the early hours at the tubewell of Arjun except this that they went there to dispossess Arjun as there was a dispute between the parties. Learned senior counsel submits that the learned trial court has erred in not extending the benefit of right of private defence of person and property to the accused persons in the instant case as the incident has taken place in the field of Arjun Singh and the deceased party had no right to go there. 9. Learned senior counsel submits that the learned trial court has erred in not extending the benefit of right of private defence of person and property to the accused persons in the instant case as the incident has taken place in the field of Arjun Singh and the deceased party had no right to go there. 9. Shri Biri Singh Sinsinwar, learned senior counsel for the appellants argued that the complainant and the prosecution witnesses on one side and accused Subran and others on the other side belonged to one family and there was a land dispute between them. On account of the said dispute, the land was attached under Section 145 Cr.P.C. and the Receiver auctioned that land and in the auction that land was given to Arjun. For irrigating his land, Arjun installed tubewell and engine. Therefore, the complainant and the deceased had no right to go there at all. From the site plan (Ex.P1) as well as seizure memos of mustard plant and water engine & fan (Ex.P20 and P21 respectively), it is clear that the incident had taken place on the standing crop of Arjun. 10. Shri Biri Singh Sinsinwar, learned senior counsel for the appellants has submitted that the certified copy of the impugned judgement dated 21.4.2007 passed in the trial of co-accused Ajit @ Bania and the certified copy of the statement of the star witness of the prosecution Suresh, who was examined as PW10 in that case and has been examined as PW1 in the present case has been placed on record. In the evidence that has been led in the present case, Suresh has attributed the main role of vital injury on the head of deceased to Ajit @ Bania, but in the trial, he has not supported this allegation against him and has been declared hostile by the prosecution. The trial court vide its judgement dated 29.7.2008 acquitted Ajit @ Bania of all the charges including that of Section 302 and 149 IPC. The charge against the accused-appellant also, therefore, cannot survive. 11. Learned Public Prosecutor and learned counsel for the complainant have opposed the appeal and supported the judgement passed by the learned trial court. 12. We have given our anxious consideration to the rival submissions and perused the material on record. 13. The charge against the accused-appellant also, therefore, cannot survive. 11. Learned Public Prosecutor and learned counsel for the complainant have opposed the appeal and supported the judgement passed by the learned trial court. 12. We have given our anxious consideration to the rival submissions and perused the material on record. 13. The argument of learned counsel for the appellants that Suresh (PW1) in his statement recorded when he appeared as PW10 in the trial of co-accused Ajit @ Bania, has not supported the case of prosecution and on that basis, his acquittal by the Court should be basis for also acquitting the accused-appellants herein is noted to be rejected. We may in this connection place reliance on the judgement of Supreme Court in Ashwani Kumar @ Ashu & Anr. v. State of Punjab, Criminal Appeal No. 1041-1042 of 2008 dated 16.04.2015 . The Supreme Court in the aforesaid case rejected the argument that the subsequent judgement in the trial of the co-accused will operate as issue of estoppel. Their Lordships held that the rule regarding "issue estoppel" relates to admissibility of evidence in subsequent proceedings, which is designed to upset a finding of fact recorded previously and mandates that the finding so rendered on earlier occasion must operate as issue estoppel in subsequent proceedings. It makes it impermissible to lead any such evidence at a subsequent stage or occasion. The Supreme Court has held that attempt made in that case was quite opposite, in fact, relying on the finding in subsequent stage to upset a finding of fact recorded on a previous occasion. The Supreme Court therein relied on its earlier judgement in Sangeetaben Mahendrabhai Patel v. State of Rajasthan (2012) 7 SCC 621 , in para 23 of which it was held as under: "23. This Court has time and again explained the principle of issue estoppel in a criminal trial observing that where an issue of fact has been tried by a competent court on an earlier occasion and a finding has been recorded in favour of the accused, such a finding would constitute an estoppel or res judicata against the prosecution, not as a bar to the trial and conviction of the accused for a different or distinct offence, but as precluding the acceptance/reception of evidence to disturb the finding of fact when the accused is tried subsequently for a different offence. This rule is distinct from the doctrine of double jeopardy as it does not prevent the trial of any offence but only precludes the evidence being led to prove a fact in issue as regards which evidence has already been led and a specific finding has been recorded at an earlier criminal trial. Thus, the rule relates only to the admissibility of evidence which is designed to upset a finding of fact recorded by a competent court in a previous trial on a factual issue....." 14. The argument of learned senior counsel for the appellants in this behalf is therefore rejected. 15. We have analysed the evidence in the light of the submissions made by the learned counsel for the defence and the prosecution. Perusal of parcha bayan (Ex.P1) of Suresh indicates that he while making principal allegation against Ajit @ Bania also alleged the role of Subran @ Sumran, his wife Ramboli, his daughter Sunita, his sons Sonu @ Sohan Lal and Naresh and Jagdamba. Thus, the whole family of Subran was sought to be implicated. While the police did not file any charge sheet against his wife Ramboli and his daughter Sunita, the charge sheet was filed against Subran and his three sons Sonu @ Sohan Lal, Naresh and Jagdamba. The trial court has in the impugned judgement, convicted Subran as also his two sons, Sonu @ Sohan Lal and Jagdamba. Naresh, who was a juvenile was proceeded separately before the Juvenile Justice Board. We have to therefore examine the correctness of the conviction of the aforementioned three accused on the basis of evidence led in this case. 16. Suresh (PW1) in his statement has alleged that Ajit was having baank in his hands, Jagdamba had farsa in one hand and katta in another hand and Subran had a fawra. Sonu had a lathi and Naresh also had a lathi. Ajit delivered a blow by baank on the head of deceased Vishnu. Jagdamba inflicted farsa blow on the head of deceased, which he received on his hand and his fingers were cut. Jagdamba then opened fire, which passed through both legs of this witness. Sonu inflicted a danda blow on the elbow of left hand of Vishnu. Naresh inflicted a danda blow on his left hand. Subran inflicted a fawra blow on the knee of left leg of deceased Vishnu. Jagdamba then opened fire, which passed through both legs of this witness. Sonu inflicted a danda blow on the elbow of left hand of Vishnu. Naresh inflicted a danda blow on his left hand. Subran inflicted a fawra blow on the knee of left leg of deceased Vishnu. Subran inflicted another fawra blow slightly below the knees of the same leg of deceased. Ajit inflicted a blow of baank on his (Suresh) head. Sonu inflicted a lathi below on his head. Naresh also inflicted a lathi blow on his head. Jagdamba inflicted a farsa blow, which hit on the shoulder of his right hand. Ajit inflicted a blow of baank on his leg. The contention of learned senior counsel appearing for the appellants is that this statement of Suresh (PW1) has also been made to suit the case of the prosecution based on the postmortem report of deceased (Ex.P7) and injury report of Suresh (Ex.P4) after he came to know about the exact location of injuries and accordingly he has assigned the role, whereas his version given to the police on the date of incident i.e. 17.12.2004 under Section 161 Cr.P.C. (Ex.D1) is entirely different with which he was confronted and he failed to give any explanation, rather his explanation clearly show that he made a deliberate attempt to falsely implicate all family members of the appellants. If his explanation in the context of contradiction between what he has stated in the Court and in the Police Station is accepted, his testimony becomes unreliable because in parcha bayan he did not indicate the injuries to deceased and this witness himself because his eyes were frozen and his ears were full of blood and therefore he was not in a position to see what had transpired. In police statement also, he further stated that it is for this reason that in Police Station also, he did not aver anything except the head injury caused by Ajit to this witness and did not attribute any specific role to any other accused for his own injuries and for the injuries of the deceased. In police statement also, he further stated that it is for this reason that in Police Station also, he did not aver anything except the head injury caused by Ajit to this witness and did not attribute any specific role to any other accused for his own injuries and for the injuries of the deceased. When we examine his statement recorded under section 161 Cr.P.C., we find that all that he alleged was that Ajit inflicted a blow of baank on the person of Vishnu and thereafter Jagdamba inflicted a farsa blow on the head of deceased Vishnu and thereafter Jagdamba inflicted a farsa blow on the person of this witness i.e. Suresh. Subran inflicted a fawra blow on this witness. Sonu and Naresh inflicted a danda blow and Ajit inflicted a farsa blow on his head. Jagdamba then opened a fire by katta, which passed through his both legs and then he and his brother became unconscious. 17. Kishori Lal Sharma (PW13) has also been cited as an eye witness. He too has stated that Ajit inflicted a blow of baank on the head of deceased Vishnu and thereafter Jagdamba inflicted a farsa blow on the hand of deceased Vishnu. Thereupon, Vishnu fell on the ground and thereafter Subran inflicted a fawra blow on the knee of Vishnu. He inflicted another blow immediately below that injury. Sonu and Naresh inflicted lathi blow on the hand of Vishnu. Thereafter, Ajit inflicted a blow of baank on the head of Suresh. Then Jagdamba inflicted a farsa blow on the head of Suresh, as a result of which Suresh fell down. He too was confronted with his police statement recorded under Section 161 (Ex.D4) where he made omnibus allegations against all the accused, but alleged that mainly they gave beating to Vishnu and injured Suresh and accused then taking them as dead left. Therein, he has not assigned any specific role to any accused. 18. Much emphasis has been laid by the learned senior counsel for the appellants on that part of the statement of Suresh (PW1) wherein he has stated that Ajit Singh @ Chittar used to come to the house of Subran to meet his daughter and wife and Vishnu used to object to it. Subran gave a sum of Rs. 18. Much emphasis has been laid by the learned senior counsel for the appellants on that part of the statement of Suresh (PW1) wherein he has stated that Ajit Singh @ Chittar used to come to the house of Subran to meet his daughter and wife and Vishnu used to object to it. Subran gave a sum of Rs. 5,00,000 to Ajit Singh for committing murder of Vishnu, but he could not explain why this fact was not mentioned in his parcha bayan (Ex.P1) and the police statement (Ex.D1). Jamman (PW3) in cross examination has also stated that Kishori told him that Ajit has murdered deceased Vishnu. Ajit @ Bania has illicit relations with the wife of Subran, which was objected to by Vishnu and therefore he paid a sum of Rs. 5,00,000 to Ajit to murder Vishnu. 19. While the recovery of a lathi was shown at the instance of accused Naresh, juvenile vide Ex.P12 from the agriculture field, a danda (wooden stick) was shown to have been recovered at the instance of Sonu @ Sohan Lal vide Ex.P13. In cross examination Om Prakash (PW7), the motbir witness of this recovery has stated that neither lathi, nor danda had blood stains and the lathi and danda were recovered from the same place with the time gap of only ten minutes. Recovery of fawra is shown to have been made at the instance of Subran from his house vide Ex.P15. Prem Singh (PW8), Police Constable has been taken as motbir witness of recovery, who was also the motbir witness of danda at the instance of Sonu @ Sohan Lal and fawra at the instance of Subran. In the cross examination, he has stated that he has faulted in stating that in one place, he has stated that fawra was not recovered on the same day on which the lathi and danda were recovered and later he has stated that lathi was recovered earlier in point of view than fawra was recovered but in the third sentence he has stated that fawra was recovered first and thereafter lathi was recovered and that no independent witness was associated with the recovery of fawra and that he was not sure whether any blood stains were present on that fawra. 20. 20. Perusal of Ex.P13, the recovery of danda at the instance of Sonu @ Sohan Lal indicates that it was recovered on 5.1.2005, whereas recovery of fawra as per Ex.P15 has been made on 4.3.2005. The recoveries from Sonu @ Sohan Lal and Subran thus become doubtful, particularly when we find great variation in the version given by the eye witnesses in the first statement before the police and thereafter in the court statement, which we will analyse later. 21. While Ajit @ Bania has been arrested much later, Jagdamba, who has been tried in the present case has been convicted by the learned trial court in substantive offence of Section 302 and has been assigned the main role. The recovery of farsa has been shown at the instance of Jagdamba vide Ex.P30. Darab Singh (PW17), is the motbir witness of this recovery. This recovery has also been proved by Deen Mohammad (PW18), SHO, Police Station Uchchain. 22. We have to now analyse the injuries of deceased Vishnu and injured Suresh. Dr. Banne Singh (PW4), who prepared the medical report of injured Suresh has stated that out of seven injuries, all injuries except injury no.5 are simple in nature as per the injury report (Ex.P4). Since x-ray report (Ex.P5) was not clear therefore the Doctor advised another x-ray, the report of which is (Ex.P6), but no bone injury was seen on the skull, though fracture was seen at ⅓rd part of left humerus bone, which is corresponding to injury no.5, supra. Banne Singh (PW4) has also conducted the postmortem of the deceased Vishnu, according to him deceased Vishnu sustained six injuries. While injury nos. 1, 2 and 6 are from blunt weapon, injury no.3, 4 and 5 were by sharp edged weapon. His cause of death was opined to be shock brought about as a result of antemortem injuries to skull and brain and multiple fractures, which resulted in cutting of blood vessels of left knee joint, which was sufficient to cause his death. 23. The first version of Suresh (PW1) under Section 161 Cr.P.C. on 17.12.2004 was that Ajit inflicted a blow of baank on the person of Vishnu. Jagdamba delivered a farsa blow on Suresh. Subran inflicted a fawra blow on Suresh and Sonu and Naresh inflicted danda blows on him and Ajit inflicted a farsa blow. Thereafter, Jagdamba opened fire by katta. The first version of Suresh (PW1) under Section 161 Cr.P.C. on 17.12.2004 was that Ajit inflicted a blow of baank on the person of Vishnu. Jagdamba delivered a farsa blow on Suresh. Subran inflicted a fawra blow on Suresh and Sonu and Naresh inflicted danda blows on him and Ajit inflicted a farsa blow. Thereafter, Jagdamba opened fire by katta. In this statement, Suresh, the star witness of the prosecution, has merely alleged that Sonu @ Sohan Lal inflicted danda blow on him and that Subran inflicted a fawra blow on him. He has not attributed any injury to both of them as far as deceased is concerned, but he appeared as witness in Court wherein he has substantially improved upon his original version and tried to implicate each one of accused with reference to the specific injuries as has been rightly argued by learned senior counsel appearing for the accused-appellant. This witness has tried to match his version with the nature and location of injury on the person of deceased and the injured Suresh after perusal of their injury report and the postmortem report. As regards Sonu @ Sohan Lal, he has alleged that he inflicted a danda blow on the person of deceased Vishnu. Regarding Subran, he has alleged that he delivered a blow of fawra on the knee of his left hand and thereafter he delivered another blow of fawra on the same left leg slightly below the knee. This clearly appears to be an improvement on the original version because when we see even from the parcha bayan of injured Suresh, we do not find any such injury on the person of deceased attributed to either Subran or Sonu @ Sohan Lal. Both in his first version given to the police under Section 161 Cr.P.C. and the parcha bayan, his focus has been on Ajit @ Bania and Jagdamba. He has not even repeated his allegation against Subran in Court statement, which he mentioned in his statement under section 161 Cr.P.C. and parcha bayan that Subran inflicted a fawra blow on him. At both the places in the parcha bayan and statement under section 161 Cr.P.C., he did not specifically mention the part of the body on which the fawra blow was allegedly inflicted by Subran. But in any case, Suresh has not repeated this allegation against Subran in his statement before the Court. At both the places in the parcha bayan and statement under section 161 Cr.P.C., he did not specifically mention the part of the body on which the fawra blow was allegedly inflicted by Subran. But in any case, Suresh has not repeated this allegation against Subran in his statement before the Court. Kishori has also tried to improve upon his version by stating in the Court that Subran inflicted two fawra blows on the person of deceased, but he did not make such allegation in his statement recorded by the police under section 161 Cr.P.C. on the same day i.e. 17.12.2004 and when confronted with the statement, he failed to give any explanation. It is thus evident that guilt of accused-appellant Sonu @ Sohan Lal and Subran cannot be held to have been proved beyond reasonable doubt. In fact, in the very first version given in the parcha bayan there was clear intention on the part of injured Suresh to implicate all members of family namely; wife, daughters and three sons. 24. Coming now to the case of Jagdamba, we find that allegation against him has been proved beyond reasonable doubt in so far as injury caused to deceased and injured is concerned. He has been convicted for offence under section 302 IPC simpliciter, whereas the two eye witnesses have made allegations against Ajit @ Bania. Injuries on the person of deceased have been attributed to both of them. The cause of death as given in the postmortem report and the statement of Dr. Banne Singh does not prove any single injury on the person of deceased as the cause of his death. The opinion given by Dr. Banne Singh in the postmortem report is that the deceased died due to coma with shock brought about as a result of ante-mortem injury to skull and brain and multiple fractures and cutting of blood vessels of left knee joint as mentioned in the postmortem report, which was sufficient to cause death in ordinary course of nature. The accused-appellant Jagdamba alone cannot be therefore held guilty of culpable homicide amounting to murder punishable under Section 302 IPC, although his guilt would certainly fall in the scope of Part-I of Section 304 IPC as his act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death. He must be, therefore, held guilty of committing offence under section 304 Part-I of IPC in so far as injuries on the person of deceased are concerned and his conviction for offence under section 148 and 149 deserves to be set aside while conviction for offence under section 323, 341 and 325 is liable to be maintained for the injuries caused on the persons of injured Suresh. 25. In view of above discussion, while we are persuaded to allow the appeal filed on behalf of accused-appellants Subran and Sonu @ Sohanlal and acquit them of the charges, we partly allow the appeal filed by accused-appellant Jagdamba and set aside his conviction and sentence for offence under section 148/149 IPC. However, his conviction for offence under section 323, 341 and 325 IPC is maintained. His conviction and sentence for offence under section 302 IPC is set aside and he is instead convicted for offence under section 304 Part-I IPC. Considering that he is in jail for last ten years and two months, he is sentenced to the period already undergone by him. He may be released forthwith, provided he is not required to be detained in connection with any other case. The bail bonds of Subran and Sonu @ Sohanlal are discharged. 26. Keeping in view, however, the provisions of Section 437A of the Code of Criminal Procedure, the appellants are directed to forthwith furnish a personal bond in the sum of Rs. 20,000 each and a surety bond in the like amount before the Deputy Registrar (Judl.) of this Court, which shall be effective for a period of six months, undertaking that in the event of Special Leave to Petition being filed against this judgement or on grant of leave, these appellants, on receipt of notice thereof, shall appear before the Supreme Court.Appeal partly allowed. *******