JUDGMENT : Kanwaljit Singh Ahluwalia, J. Prem Singh and Ram Charan, two brothers being sons of Bhola Ram, along with Niranjan s/o Ram Charan were sent for trial in case arising out of FIR No.31/86 (Ex.P.5) registered at Police Station Basedi, District Dholpur. The above said FIR was investigated and local police under Section 173 Cr.P.C., 1973 filed report of investigation. The said report of investigation was committed to the Court of Sessions and was entrusted for trial to Special Judge, Dacoity Affected Area-cum-Additional Sessions Judge, Dholpur. The said court formulated charge for offence under Section 302 IPC, in alternate, under Section 302/34 IPC against all the three accused. The charge in nutshell stated that on 13.3.1986 in the evening at 5.00 PM accused in Village Songori caused lathi injuries to Dataram, as a result of which on 16.3.1986 Data Ram expired. 2. Prosecution in all, to prove its case, examined 17 witnesses, namely Sultan Singh (PW.1), Lakhan Singh (PW.2), Smt. Puran Dei (PW.3), Hazari (PW.4), Rameshwar (PW.5), Smt. Ramdulari (PW.6), Dulheram (PW.7), Ramswaroop (PW.8), Parmal Ji (PW.9), Churaman (PW.10), Virbal (PW.11), Ram Sahai (PW.12), Guru Prasad (PW.13), Dr. Babu Lal Baghela (PW.14), Prem Chand Sharma (PW.15), Dr. Shri Narain Swaroop Sarin (PW.16), Hanuman Singh Ji (PW.17). Thereafter statements of accused were recorded under Section 313 Cr.P.C., 1973 They denied all incriminating evidence put to them and pleaded false implication. No witness was examined in defence. The trial court vide impugned judgment dated 31.3.1989 recorded acquittal of all the three accused. Aggrieved against the same State of Rajasthan preferred an application for leave to appeal. Same was allowed and hence, instant State appeal preferred was registered. 3. Criminal proceedings were set into motion on the basis of written report (Ex.P.4) submitted by Lakhan Singh (PW.2) before Head Constable Hanuman Singh (PW.17) who at the relevant time was in-charge of police station Baseri, District Dholpur. Hanuman Singh (PW.17) stated that on the basis of written report (Ex.P.4) he had registered FIR (Ex.P.5) bearing No.31/86. Written report (Ex.P.4) when translated into English reads as under:- "To, S.H.O. Sahab, P.S. Baseri. Sir, It is submitted that I am an agriculturist and resident of Village Songoli. Today on 13.3.1986 at about 5.00 PM my uncle Dataram was transporting mustard on his tractor. Written report (Ex.P.4) when translated into English reads as under:- "To, S.H.O. Sahab, P.S. Baseri. Sir, It is submitted that I am an agriculturist and resident of Village Songoli. Today on 13.3.1986 at about 5.00 PM my uncle Dataram was transporting mustard on his tractor. Meanwhile, Ram Charan, Prem sons of Bhola and Niranjan s/o Ram Charan, caste Gurjar, residents of Sangoli armed with lathis came and started giving abuses. Ram Charan, in order to cause death, gave a lathi blow on his head. All three started giving lathi blows. Dataram received injuries and at the time of occurrence, Ramswaroop s/o Sirmor, Churaman s/o Madan, Rameshwar s/o Majua were present. At that time Dulheram was also present. When their help I got my uncle who was unconscious admitted in the hospital. He has been medico legally examined. Medical examination is annexed. Legal action be taken. Sd/ 13.3.1986" 4. A perusal of above written report (Ex.P.4) on the basis of which formal FIR (Ex.P.5) was registered, reveals that:- (a). all three accused namely Ram Charan, Prem Singh and Niranjan came together armed with lathis. Ram Charan had opened an attack by giving first blow on the head of Data Ram and thereafter all the three accused caused injuries with lathi. (b). the occurrence was witnessed by Lakhan Singh (PW.2), Rameshwar (PW.5), Dulheram (PW.7), Ramswaroop (PW.8) and Churaman (PW.10). Thus, the entire case of prosecution is based on eyewitnesses account. 5. Dr. Babu Lal Baghela (PW.14) on 13.3.1986 being posted at Primary Health Center, Baseri, at 7.45 PM conducted medico legal examination of Dataram. The injuries suffered by Dataram were noted in the injury report (Ex.P.20). We reproduce injuries noted in injury report (Ex.P.20) as under:- "1. Lacerated wound 7 cm x 1 cm x bone deep on parietal region of head. Simple, blunt. 2. Lacerated wound 1 cm x cm x bone deep on the middle of head. Simple, blunt. 3. Swelling 8 cm x 8 cm on the medial malleolus of left ankle. Simple, blunt." 6. Dr. Babu Lal Baghela (PW.14) has further stated that on 13.3.1986 at about 8.40 PM police was informed vide Exhibit-P.21 that the patient was not in a condition to speak. 7. Dataram on 16.3.1986 at 6.00 PM died while admitted in Male Surgical Ward, Sadar Hospital, Dholpur. 8. Dr. Simple, blunt." 6. Dr. Babu Lal Baghela (PW.14) has further stated that on 13.3.1986 at about 8.40 PM police was informed vide Exhibit-P.21 that the patient was not in a condition to speak. 7. Dataram on 16.3.1986 at 6.00 PM died while admitted in Male Surgical Ward, Sadar Hospital, Dholpur. 8. Dr. Shri Narayan Swaroop Sareen (PW.16) on 17.3.1986 in the morning at 10.00 AM conducted autopsy on the dead body of Dataram. We need not mention injuries mentioned in post-mortem report as they are operational wounds being stitched wounds. Suffice it to say, as per opinion of the Doctor noted in postmortem report (Ex.P.23), Dataram died as a result of fracture of frontal bone leading to hemorrhagic shock. Thus, the prosecution has conclusively proved that Dataram died due to injury caused to him on head by a lathi. 9. Even though the prosecution has examined 17 witnesses, we shall confine ourselves to the ocular account which has emerged in the testimony of Lakhan Singh (PW.2), Rameshwar (PW.5), Dulheram (PW.7), Ramswaroop (PW.8) and Churaman (PW.10), to decide the present appeal against acquittal. 10. Lakhan Singh (PW.2) while appearing in court as PW.2 not only reiterated the version given by him in written report (Ex.P.4), but also made improvements by assigning specific injuries to the accused. 11. Lakhan Singh (PW.2) stated that Prem Singh caused an injury on forehead, on right eye. Ramcharan caused injury in the middle of head and Niranjan caused injury on left foot. 12. Smt. Pooran Dei (PW.3) who was not named as eye-witness in court has deposed that she is not aware as to how Dataram had died and who caused him injuries. In cross-examination she denied that Prem Singh under the influence of liquor came to her house or Dataram had not reprimanded him. 13. Hazari (PW.4) has also not supported the prosecution case and he also turned hostile to the prosecution. 14. Rameshwar (PW.5) in court deposed that he was not present at the scene of occurrence. This witness was also declared hostile to the prosecution. 15. Smt. Ram Dulari (PW.6) who was not named as eye-witness in the court, projected herself as an eye-witness and supported the testimony of Lakhan Singh (PW.2). 16. Dulheram (PW.7) has only deposed regarding the first incident which had happened at the house of Churaman where deceased and the accused exchanged hot words. 15. Smt. Ram Dulari (PW.6) who was not named as eye-witness in the court, projected herself as an eye-witness and supported the testimony of Lakhan Singh (PW.2). 16. Dulheram (PW.7) has only deposed regarding the first incident which had happened at the house of Churaman where deceased and the accused exchanged hot words. This witness deposed that after switching off his motor, he went to his house. Thus, this witness regarding the sequence and causing of injuries, has not advanced the case of prosecution. Ramswaroop (PW.8) has also not supported the prosecution case. 17. Parmal Ji (PW.9) has stated that in his presence police has not prepared the site plan and thus, turned hostile to the prosecution. 18. Churaman (PW.10) stated that in front of his house an altercation had ensued. Ramcharan and Dataram exchanged abuses. However, this witness stated that in his presence no injury was caused to Dataram. The witness stated, in his presence no beating had taken place. 19. Veerbal (PW.11) denied recovery of lathi in his presence. Therefore, this witness was also declared hostile to the prosecution. 20. Similarly, Ram Sahai (PW.12) has also not supported the case of the prosecution regarding recovery of weapon and has turned hostile to the prosecution. 21. The learned trial court in the impugned judgment held that all independent witnesses named in the written report (Ex.P.4) leading to registration of FIR (Ex.P.5) have not supported the case of the prosecution. The trial court further held that after medico legal examination was conducted to bring occular version in consonance with medical evidence, written report (Ex.P.4) was drawn leading to registration of FIR (Ex.P.5). The court further held that testimony of Lakhan Singh (PW.2) is not probable and natural as on the day of occurrence at 3.00 PM deceased Dataram had an altercation with Ramcharan in front of house of Churaman (PW.10). The court held that if the testimony of Lakhan Singh (PW.2) is read in the context of deposition of Dulheram (PW.7) and Churaman (PW.10), then it is apparent that the deceased Dataram along with nephews and son had gone to the house of accused armed with lathis. The trial court further rightly held that the prosecution has introduced Smt. Ramdulari (PW.6) as eye-witness even though she was not named in the written report (Ex.P.4). 22. The trial court further rightly held that the prosecution has introduced Smt. Ramdulari (PW.6) as eye-witness even though she was not named in the written report (Ex.P.4). 22. After hearing learned counsel for the parties, we are convinced that the prosecution evidence is not reliable. Initially, Dataram had an altercation with Ram Charan and in the written report (Ex.P.4) which was recorded at a belated stage, after medical examination was conducted, first blow was only specifically assigned to Ram Charan. The testimony of Lakhan Singh (PW.2) is full of embellishments. He cannot be said to be a truthful witness. The trial court has rightly held his testimony to be false, as to how the occurrence had erupted and taken place. We cannot ignore that on material aspects independent witnesses have not supported Lakhan Singh (PW.2). We are convinced that in the present case FIR (Ex.P.5) was lodged at belated stage and delay was used for consultations and deliberations to widen the net. To us, it look probable that the injuries were caused by Ram Charan as stated in the written report (Ex.P.4) and as a result of consultations and deliberations, Prem Singh and Niranjan were named as accused. 23. Shri R.S. Shekhawat learned Public Prosecutor has placed on record death certificate of Ram Charan duly attested by SHO, Police Station Baseri. We take the death certificate of Ram Charan on record and dismiss the appeal preferred by the State against Ram Charan as having abated. 24. To us, the trial Judge having discarded the implication of Prem Singh and Niranjan had thrown the entire prosecution case. Even if we believe that initially altercation had taken place between Ram Charan and Data Ram and thereafter injury was caused by Ram Charan, we cannot proceed against Ram Charan as he has died and his appeal has been dismissed as having abated. The view formulated by the trial court cannot be faulted with for the reasons stated by the trial Judge. 25. Consequently, no ground is made to cause interference in the appeal preferred by the State as the view formulated by the trial court is one view which is possible in the facts and circumstances of the case. 26. In view of above, present appeal preferred by the State of Rajasthan is dismissed.