JUDGMENT Om Prakash-VII, J. 1. The present criminal appeal has been filed by the appellant Ram Lachhan Singh against the impugned judgment and order dated 18.1.1988 passed by II Additional District and Sessions Judge Varanasi in Sessions Trial No. 171 of 1986 (State v. Ram Lachhan Singh and others) whereby the appellant has been convicted and sentenced for the offence under Section 307 read with section 34 IPC to undergo five years rigorous imprisonment. 2. Appellants Sobha Singh, Sitthu and Mitthu have died during pendency of the appeal, hence appeal filed in their respect was abated vide order dated 28.3.2017. Thus, there remains the appeal filed by appellant Ram Lachhan Singh to be decided. 3. Heard Sri Nirvikar Gupta and Sri Vinod Singh, learned counsel for the appellant and Sri R.D. Yadav, learned learned A.G.A. and gone through the entire record. 4. Prosecution story in brief is that written report Ex. Ka (1) was submitted by informant Kripa Shankar Singh (P.W. 1) mentioning therein that on 17.7.1984 at about 5 p.m. Vikram Singh, father of the informant, was irrigating his paddy crop. At about 5.30 p.m. Accused appellant Ram Lachhan Singh alongwith other co-accused Sobha Singh, Sitthu and Mitthu (appellants since died) came there. As per version of the written report, present appellant and one Sobha Singh (appellant since died) made exhortation to kill Vikram Singh and on this exhortation Sitthu armed with a ‘lathi’ shod with iron and Mitthu armed with a ‘Dao’ started beating to Vikram Singh. Injured received severe injuries, both legs and one hand were fractured, injury was also sustained by the injured in his mouth. Several person reached on the spot, thereafter accused person ran away. It is also the prosecution case that at the time of said incident, informant was present in the Chhawni situated in the field which was being irrigated by the injured. Informant also reached on the spot hearing hue and cry of his father and saw the entire incident. 5. On this written report Ex. Ka (1) chik First Information Report Ex. Ka (6) was registered at police station concerned on 15.7.1984 itself at 7.30 p.m. G.D. entry was also made. Matter was investigated. Investigating Officer took the bloodstained cloth from the place of occurrence and prepared fard memo Ex. Ka (4) in this respect. 5. On this written report Ex. Ka (1) chik First Information Report Ex. Ka (6) was registered at police station concerned on 15.7.1984 itself at 7.30 p.m. G.D. entry was also made. Matter was investigated. Investigating Officer took the bloodstained cloth from the place of occurrence and prepared fard memo Ex. Ka (4) in this respect. Since injured was taken to the hospital as is clear from the written report itself, injury report prepared in respect of injured is Ex. Ka (2). X-ray report is Ex. Ka (8). Site plan prepared by the Investigating Officer is Ex. Ka (3). The Investigating Officer after completing the entire formalities, interrogated the witnesses and submitted charge sheet as Ex. Ka (5) against the present appellant and other co-accused. 6. Concerned Magistrate took the cognizance in the matter and committed the case to the court of Sessions. Accused-appellant appeared and initially charge against the appellant was framed for the offence under Section 307 /34 IPC. Again on 11.6.1987 charge was amended clarifying the facts in the charge. Accused appellant denied from the charge framed against him and pleading not guilty, claimed his trial. 7. In order to prove its case, prosecution examined, five witnesses in all i.e. P.W. 1 Kripa Shankar Singh (Informant), P.W. 2 Vikram Singh (Injured), P.W. 3 Dr. R.A. Goal (Medical Officer), P.W. 4 S.P. Singh (Investigating Officer) and P.W. 5 Dr. S.K. Singh (Radiologist). After completing the prosecution evidence statement of the accused-appellant was recorded in which he has specifically stated that he was falsely implicated in this matter. Present prosecution was started due to previous enmity, no active role has been assigned to the appellant. 8. Learned trial court after hearing the parties vide impugned judgment and order convicted and sentenced the appellant as above, hence this appeal. 9. Submission of the learned counsel for the appellant is that no over tact has been assigned to the appellant in the prosecution evidence. Learned court below did not appreciate the prosecution evidence in right perspective and without discussing the prosecution evidence on point of involvement of the present appellant illegally held the guilty to the appellant. It was further submitted that Kripa Shankar Singh was not an eye witness. Chhawni where P.W. 1 is said to be present, is situated about the 100 paces away from the place of occurrence. It was further submitted that Kripa Shankar Singh was not an eye witness. Chhawni where P.W. 1 is said to be present, is situated about the 100 paces away from the place of occurrence. It is improbable and unbelievable that he would have heard the words of exhortation from the Chhawni. Referring to the statement of P.W. 1 regarding his presence on the spot as has come in his statement, it was further submitted that this fact itself shows that P.W. 1 was not present on the spot. It was next submitted that statement made by the P.W. 1 on point of exhortation said to have been made by the present appellant is also not believable. Actual words spoken by the present appellant have not been made clear by the prosecution in its evidence. Offence under Section 307 IPC is also not attracted in the present matter. Appellant was implicated in this matter only to refrain him from doing paravi in the cases pending against informant. Incident of murder committed by the family members of the informant took place on the same day in the village concerned. It was next submitted that prosecution has developed a new story during trial. Referring to the statement of the P.W. 4, the Investigating Officer, it was also argued that Investigating Officer recorded the statement of the prosecution witnesses at belated stage. Thus, on this score also prosecution case is doubtful. It was lastly submitted that if the entire prosecution evidence are scrutinize minutely, it is evident that, there is no evidence on record to establish the fact of prior meeting of mind to attract the offence under Section 34 IPC. Site plan is also not prepared on the pointing out of the eye witnesses. Investigation in the present matter is perfunctory. There is contradiction in the statement of the said eye account witness on point of manner, date, time and place of the incident. Thus, referring to the entire evidence, it was lastly submitted that appellant is innocent and trial court has illegally convicted and sentenced the appellant in this matter. In support of his submissions, learned counsel for the appellant placed reliance on the following case laws. I. Nagaraja v. State of Karnataka, AIR 2009 SC 1522 . II. Suresh and another v. State of U.P. (2001) 3 SCC 673 . III. Sahiya v. State of Uttar Pradesh 2002 Law Suit(SC) 637. In support of his submissions, learned counsel for the appellant placed reliance on the following case laws. I. Nagaraja v. State of Karnataka, AIR 2009 SC 1522 . II. Suresh and another v. State of U.P. (2001) 3 SCC 673 . III. Sahiya v. State of Uttar Pradesh 2002 Law Suit(SC) 637. 10. Per-contra learned A.G.A. argued that P.W. 2 is an injured witness. P.W. 1 was present near the spot in his Chhawni. He reached on the spot hearing hue and cry of his father and has seen the entire incident. Accused appellant was present on the spot and has committed the present offence. Enmity is double edged weapon, hence appellant cannot take benefit on that ground. Contradictions occurred in the prosecution evidence are not fatal to the prosecution case. Trial court has correctly appreciated the prosecution evidence. There is no need for interference in the impugned judgment and order. 11. I have considered the rival submissions made by the learned counsel for the parties and have gone through the entire record including the case laws relied upon by the parties. 12. In this matter as is evident from the record, injured Vikram Singh was medically examined at Joint Hospital, Chandauli on the same day at 7 p.m. and following injures were recorded by the doctor concerned. 1. Incised wound 6 cm. x 1 cm. x through and through upto mucus membrane on the left side of face starting from the lift nostril on the upper border of moustache hair line. Margins were sharp and bleeding was present. 2. Incised wound 1 cm. x 1 cm. x muscle deep on the front of right shoulder. Bleeding was present. 3. Incised wound 1 cm. x 1/2 cm. x muscle deep on the anterior aspect of upper left arm 5 cm. below the top of shoulder. Bleeding was present. 4. Incised wound 1 cm. x 1/2 cm. x muscle deep on the anterior aspect of left upper arm 10 cm. below injury No. 3. 5. Multiple lacerated wounds in an area of 7 cm. x 6 cm. on the anterior and medial aspect of right leg in its lower third. Each wound was measuring 1 cm. x 1/2 cm. to 2.5 cm. Profuse bleeding was present. Bone fragments were coming out from two wounds. The wounds were bone deep and muscle deep. 6. Lacerated wound 2 cm. x 1 1/2 cm. x 6 cm. on the anterior and medial aspect of right leg in its lower third. Each wound was measuring 1 cm. x 1/2 cm. to 2.5 cm. Profuse bleeding was present. Bone fragments were coming out from two wounds. The wounds were bone deep and muscle deep. 6. Lacerated wound 2 cm. x 1 1/2 cm. x muscle deep on the front of left leg 15 cm. below knee joint. Bleeding with evidence of fracture of under lying bones was present. 13. Learned trial court while passing the impugned judgment was of the view that there is no delay in lodging the F.I.R. Place of occurrence is also established from the prosecution evidence. P.W. 1 Kripa Shankar Singh was also present on the spot and he is eye witness. Prosecution case is supported by the medical evidence. Present appellant Ram Lachhan Singh was involved in this matter as he has instigated the co-accused Sitthu and Mitthu (appellants since died) to cause injuries to the injured. Minor contradiction occurred in the statement of the injured witness and eye account witness are not fatal to the prosecution case on material point, appellant was guilty for committing the offence under Section 307 read with Section 34 IPC. 14. If the submissions raised by the learned counsel for the appellant are confronted with the facts and evidence of the present matter and also with the findings recorded by the trial court in the impugned judgment and order, it is evident that in the F.I.R. Ex. Ka (1) role assigned to the present appellant Ram Lachhan Singh is only that present appellant and co-accused Sobha Singh (since died) made exhortation as follows: “Sale ko jan se mar dalo”. P.W. 1 Kripa Shankar Singh in his statement recorded before the court has stated that when he came out from his Chhawni he saw that Ram Lachhan Singh (present appellant) and Sobha Singh (since died) were standing southern side of the injured and they were making exhortation as follows: “Maro sale ko bachane na pai”. P.W. 2 Vikram Singh (injured) has stated that “Sobha Singh ne lalakara ki mauka acchha hai jan se mar dalo”. P.W. 2 Vikram Singh (injured) has stated that “Sobha Singh ne lalakara ki mauka acchha hai jan se mar dalo”. Findings recorded by the trial court in the impugned judgment and order that P.W. 2 Vikram Singh has made on oath statement that accused Ram Lachhan Singh (present appellant) and Sobha Singh (appellant since died) instigated accused Sitthu and Mitthu (appellants since died) to beat the injured, is perverse. Thus, from the above factual aspect, it emerges that no role except standing at the place of occurrence was assigned to the present appellant by the P.W. 1 Kripa Shankar Singh regarding the involvement of the accused appellant Ram Lachhan Singh. P.W. 1 Kripa Shankar Singh was present in his Chhawni situated about 100 paces away from the place of occurrence where the injured was repairing the ‘mend’ of the paddy crop. He heard hue and cry of the injured, thereafter came out from the Chhawni and saw the accused person. From the statement of this witness it is not clear what actual words were used by the appellant in making exhortation. If the statement made by this witness in regard to exhortation is taken into consideration then also it is joint statement of present appellant and Shobha Singh (appellant since died). Actual words said to have been spoken are not clear. 15. On close scrutiny of the statement of the witnesses, keeping in view the role assigned to the present appellant when he was not armed with any weapon, P.W. 2 (the injured) has not assigned any role to the appellant, thus, only on the basis of statement of P.W. 2 on point of exhortation, finding recorded by the trial court cannot be said to be correct or legal one. It appears that trial court while passing the impugned judgment and order did not peruse the statements minutely. If the statements of witnesses were perused minutely, this fact that P.W. 2 Vikram Singh has made on oath statement that Ram Lachhan Singh (present appellant) and Sobha Singh (appellant since died) instigated the co-accused Sitthu and Mitthu (appellants since died) did not come in the findings. Thus findings recorded by the trial court regarding the role of the present appellant is strange to the evidence available on record. Thus findings recorded by the trial court regarding the role of the present appellant is strange to the evidence available on record. Since enmity is admitted to both the parties, P.W. 1 Kripa Shankar Singh was 100 paces away from the place of occurrence and when he reached on the spot as per his admission itself, accused person had ran away, thus submissions raised by the learned counsel for the appellant regarding the false implication of the accused appellant Ram Lachhan Singh in the present matter cannot be ruled out. It is pertinent to mention here that there must be some clear and cogent evidence to involve the present appellant in committing the present offence with the aid of Section 34 IPC. For the sake of argument if the prosecution case is taken into consideration as proved then also appellant Ram Lachhan Singh was only standing near the place of occurrence. P.W. 2 Vikram Singh (injured) was the best witness and was all alone on the spot but he did not assigned any specific role to the accused appellant. Thus, involvement of appellant Ram Lachhan Singh in the present matter taking recourse to the provision of Section 34 IPC appears doubtful. P.W. 2 Kripa Shankar Singh has made contradictory statement on point of presence of other witnesses who reached later on the spot. Thus, there is no need to discuss other issues raised by the parties in the present matter. 16. Thus, on the basis of above discussions and applying the rule of caution, I am of the view that appeal is liable to be allowed. Findings recorded by the trial court in the impugned judgment and order regarding guilt of accused appellant Ram Lachhan Singh for committing the present offence under Section 307 read with Section 34 IPC is not sustainable. Appellant Ram Lachhan Singh is not found guilty. Prosecution was not able to prove its case beyond reasonable doubt. 17. Thus the appeal is allowed. Impugned judgment and order dated 18.1.1988 passed in respect of appellant Ram Lachhan Singh is hereby set aside. 18. Since appellant is on bail he need not surrender. His personal bond and sureties bonds are cancelled and sureties are discharged from their liabilities. Material exhibit, if any, be dealt with in accordance with law. 19. Let copy of this judgment be sent to the court concerned for compliance.