JUDGMENT & ORDER : BALA KRISHNA NARAYANA, J. 1. Heard Sri R.P.S. Chauhan, learned counsel for the appellants and Sri Awadesh Narayana Mulla, learned A.G.A. for the State. 2. This criminal appeal has been preferred by the appellants, Membar Pal and Satyendra Singh, against the judgment and order dated 28.03.1987 passed by Ist Additional Sessions Judge, District- Shahjahanpur in Sessions Trial No. 183 of 1986, State Vs. Membar Pal and Another, convicting and sentencing the appellant no. 1, Membar Pal to imprisonment for life u/s 302 I.P.C. and three months rigorous imprisonment u/s 323/34 I.P.C. and appellant no. 2, Satyendra Singh to imprisonment for life u/s 302/34 I.P.C. and three months rigorous imprisonment u/s 323 I.P.C. Both the sentences were directed to run concurrently. 3. Briefly stated the facts of this case are that on 26.03.1986 at about 5:30 p.m. while the festival of Holi was being celebrated, Satya Pal Singh, nephew of Shiv Pal Singh, in an inebriated state, pushed Bhumi Raj Singh, father of Satyendra Singh (A2) and on coming to know about the aforesaid incident, Satyendra Singh (A2) and his cousin brother, Membar Pal (A1) got very angry and after abusing Satya Pal Singh, started searching for him with the object of teaching him a lesson. When Yudhisthir and Shiv Pal Singh came to know that the appellants were looking for him, they along with their cousin brother, Rameshwar went to the house of the appellants and chided them for abusing Satya Pal on the auspicious occasion of festival of Holi which resulted in an altercation between them and which was followed by the appellants attacking them with lathis. It was alleged that Membar Pal (A1) dealt a lathi blow to Yudhisthir and when Shiv Pal Singh tried to save him, Satyendra Singh (A2) gave him lathi blows causing injuries to Shiv Pal Singh also. The occurrence was witnessed by Bishnu Dayal and several other villagers. After the occurrence, P.W.2 Shiv Pal Singh left for the police station which was at a distance of about six miles from the place of occurrence in a bullock cart together with Yudhisthir who was unconscious. Yudhisthir died on way to P.S.- Paraur on account of which Shiv Pal Singh returned to the village. After the occurrence, P.W.2 Shiv Pal Singh left for the police station which was at a distance of about six miles from the place of occurrence in a bullock cart together with Yudhisthir who was unconscious. Yudhisthir died on way to P.S.- Paraur on account of which Shiv Pal Singh returned to the village. There he got the written report of the incident scribed (Ext.Ka.2) and sent it to the police station through Rameshwar who lodged the same at P.S.- Paraur, District- Shahjahanpur at about 11:30 p.m. on the same day. The police registered a case u/s 304 I.P.C. against the appellants and P.W.5 S.I. Chhutanna Singh took up the investigation of the case in his hands and immediately reached the place where the dead body of deceased Yudhisthir was kept in village- Khajuri, prepared the inquest report of the dead body of Yudhisthir (Ext.Ka.4) and other necessary papers (Ext.Ka.5 to Ka.9) and dispatched his dead body in a sealed cover to Budayun mortuary for conducting postmortem. He inspected the place of occurrence and prepared the site plan and also recorded the statements of the witnesses present. The autopsy on the body of the deceased was conducted by P.W.6 Dr. S.R. Gupta, Medical Officer, District Hospital, Budayun on 27.03.1986 at about 4 p.m. He found one lacerated wound 3.5 cm x 0.5 cm x bone deep present on right side of deceased's head 9 cm above the right ear 1.5 cm lateral to midline place obliquely ante-posterior and a contusion 8 cm x 6 cm on the left side of head 4 cm above the left ear pinna, placed transversally. He further found haematoma present in the scalp tissues under the above injuries. Right parietal and left parietal bones were found fractured, fracture line passing transversally on the left parietal bone. On right side, there was depressed fracture under injury no.1. There was subdural haematoma present under injuries nos.1 and 2. 4. The doctor opined that the deceased had died about one day before due to coma as a result of the antemortem head injury. 5. Shiv Pal Singh got himself medically examined on 27.03.1986 at about 10:30 a.m. by Dr. V.K. Arya, Medical Officer, Primary Health Centre, Kalan who also prepared his injury report. His medical examination disclosed following injuries on his person:- 1. 5. Shiv Pal Singh got himself medically examined on 27.03.1986 at about 10:30 a.m. by Dr. V.K. Arya, Medical Officer, Primary Health Centre, Kalan who also prepared his injury report. His medical examination disclosed following injuries on his person:- 1. Lacerated wound 1 cm x 0.5 cm x skin deep over head 13 cm from right ear, margins irregular torn, dry clotted blood and present swelling. 2. Abrasion 8 cm x 0.4 cm over the right side of chest front aspect. 6. P.W.1 Dr. V.K. Arya opined that the injuries found on the person of Shiv Pal Singh could be caused by a blunt weapon and were simple in nature and about a half a day old. 7. After completing the investigation, the Investigating Officer submitted charge-sheet against the appellants before the Chief Judicial Magistrate, Budaun. Since the offence mentioned in the charge-sheet was triable exclusively by the Court of Sessions, Chief Judicial Magistrate, Budaun committed the case for trial of the accused to the Court of Sessions Judge, Budaun where it was registered as S.T. No. 183 of 1986, State Vs. Membar Pal and Another and made over for trial from there to the Court of Ist Additional Sessions Judge, District- Shahjahanpur who on the basis of material collected during investigation and after hearing the prosecution and the accused on the point of charge, framed charge u/s 304 I.P.C. against both the accused on 26.03.1986. The charge as originally framed u/s 304 I.P.C. against the appellants was amended and charge was framed u/s 302 I.P.C. and u/s 323/34 I.P.C. against Membar Pal (A1) and u/s 302/34 I.P.C. and u/s 323 I.P.C. against Satyendra Singh (A2). The appellants pleaded not guilty and claimed trial. 8. The prosecution in order to prove its case against the accused-appellants examined as many as seven witnesses of whom P.W.2 Shiv Pal Singh, P.W.3 Bishnu Dayal and P.W.4 Satya Pal Singh were examined as witnesses of fact while P.W.1 Dr. V.K. Arya, P.W.5 S.I. Chhutanna Singh, P.W.6 Dr. S.R. Gupta and P.W.7 Dharampal Singh were produced as formal witnesses. 9. The prosecution also adduced documentary evidence which has been referred to and dealt with by the learned trial Judge in the impugned judgment and order which need not be reproduced herein but to which we shall refer to as and when the context so requires. 10. S.R. Gupta and P.W.7 Dharampal Singh were produced as formal witnesses. 9. The prosecution also adduced documentary evidence which has been referred to and dealt with by the learned trial Judge in the impugned judgment and order which need not be reproduced herein but to which we shall refer to as and when the context so requires. 10. The appellants in their statements recorded u/s 313 Cr.P.C. stated that the alleged occurrence did not take place at all at the place mentioned in the F.I.R. and that Yudhisthir was murdered somewhere else but a false story was concocted falsely implicating the accused due to previous enmity between the parties. The appellants did not examine any witness in defence. 11. Learned Ist Additional Sessions Judge, District- Shahjahanpur after considering the submissions advanced before him by the learned counsel for the parties and scrutinizing the evidence on record, both oral as well as documentary, convicted both the appellants and awarded aforesaid sentences to them. 12. Hence, this appeal. 13. Sri R.P.S. Chauhan, learned counsel for the appellants submitted that the F.I.R. in this case is ante-timed. There is an inordinate and unexplained delay of more than 4 and hours in lodging of the F.I.R. which considering the distance between the place of occurrence and the police station which is about six miles, is in itself indicative of the fact that after the dead body of the deceased was found, a false prosecution story was concocted implicating the appellants. He next submitted that the inherent contradictions and discrepancies in the evidence of the two witnesses of fact examined on behalf of the prosecution during the trial put a big question mark on the authenticity of their claim of having witnessed the occurrence. He next submitted that the inherent contradictions and discrepancies in the evidence of the two witnesses of fact examined on behalf of the prosecution during the trial put a big question mark on the authenticity of their claim of having witnessed the occurrence. The prosecution has miserably failed to prove by any cogent evidence that the incident had taken place in the manner, at the time and the place described in the F.I.R. He in the alternative, further submitted that even if the entire evidence on record, both oral as well as documentary, is accepted to be fully reliable, offence if any, committed by Membar Pal (A1) does not travel beyond Section 304 (ii) I.P.C. and that by Satyendra Singh (A2) u/s 323 I.P.C. The conviction of Membar Pal (A1) recorded by the trial court u/s 302 I.P.C. by taking aid of Section 304 (ii) I.P.C. is wholly unwarranted as there is no evidence on record even remotely indicating that the criminal act in question was done by the appellants in furtherance of a common intention and hence, the conviction of Membar Pal (A1) deserves to be converted to one u/s 304 (iii) I.P.C. and Satyendra Singh (A2) deserves to be acquitted of the charge framed against him u/s 302/34 I.P.C. The medical evidence on record does not support the prosecution case at all. This appeal deserves to be allowed and the impugned judgment and order set-aside. 14. Per contra Sri Awadesh Narayana Mulla, learned A.G.A. submitted that there is no evidence on record indicating that the F.I.R. of the case is ante-timed. The delay in lodging the F.I.R. has been satisfactorily explained in the F.I.R. He next submitted that it is fully proved from the oral evidence on record that both the appellants had dealt lathi blows to the deceased in furtherance of common intention and their act was pre-meditated and pre-planned so as to bring the same within the purview of Section 302 of I.P.C. The discrepancies and contradictions, if any, in the evidence of the two witnesses of fact produced by the prosecution during the trial are not so material so as to create a doubt about their presence at the place and time of the occurrence. Both the eye-witnesses have consistently supported the prosecution case and the complicity of the appellants stands fully proved from their evidence. Both the eye-witnesses have consistently supported the prosecution case and the complicity of the appellants stands fully proved from their evidence. The medical evidence on record fully corroborates the prosecution case. There is no discrepancy in the medical evidence vis-a-vis the oral evidence. 15. The only question which arises for our consideration in this appeal is that whether the prosecution has been able to prove its case against the accused-appellants beyond all reasonable doubts or not ? 16. We therefore, proceed to decide the aforesaid issue in the light of the submissions made by the learned counsel for the parties and the evidence on record. 17. As already noted, the prosecution had examined P.W.2 Shiv Pal Singh, P.W.3 Bishnu Dayal and P.W.4 Satya Pal Singh as witnesses of fact while Dr. V.K. Arya, who had examined the injuries of the injured Shiv Pal Singh, S.I. Chhutanna Singh, who had investigated the case, Dr. S.R. Gupta, who had conducted postmortem on the dead body of Yudhisthir and Constable Dharampal Singh, who had taken the body of the deceased from the place of occurrence in village- Khajuri to Budayun mortuary, were examined as P.W.1, P.W.5, P.W.6 and P.W.7 respectively. 18. Learned counsel for the appellants has not been able to demonstrate that the F.I.R. of the case is ante-timed. 19. Record shows that the F.I.R. of the incident, which had taken place at 7 p.m. was lodged at 11:30 p.m. The delay of almost 4 and hours in lodging the F.I.R. of the incident although the distance between the place of occurrence and the police station is hardly six miles strongly suggests that after the dead body of Yudhisthir, who was murdered somewhere else, was recovered, a false written report containing a concocted story implicating the appellants was prepared and sent to P.S.- Paraur through one Rameshwar. The explanation given in the F.I.R. as well as by the two witnesses of fact in their evidence for the delay in lodging of the F.I.R. is absolutely vague, unreliable and does not conform to the normal human reaction in such a contingency. P.W.2 Shiv Pal Singh admittedly being the cousin brother of the deceased in the natural course of human conduct, after the deceased had received injuries on his head and fallen on the ground, should have taken him to the hospital and not to the police station, as deposed by him. P.W.2 Shiv Pal Singh admittedly being the cousin brother of the deceased in the natural course of human conduct, after the deceased had received injuries on his head and fallen on the ground, should have taken him to the hospital and not to the police station, as deposed by him. Neither P.W.2 Shiv Pal Singh nor P.W.3 Bishnu Dayal have given any details of the time consumed in the process which had occasioned the delay in lodging of the F.I.R. The two witnesses are also silent with regard to the means of transport resorted to by Rameshwar, to whom P.W.2 Shiv Pal Singh had entrusted the task of lodging the F.I.R., for going to the police station. There is further no explanation for P.W.2 Shiv Pal Singh himself having not gone to the police station to lodge the F.I.R. Rameshwar, whom P.W.2 Shiv Pal Singh had sent to police station for lodging the F.I.R. after getting the same scribed, was not produced in evidence. It is not the case of the prosecution that after Yudhisthir had died, P.W.2 Shiv Pal Singh had gone to the hospital for getting his injuries examined as the evidence on record shows that P.W.2 Shiv Pal Singh got his injuries examined on the next date i.e. on 27.03.1986 at 10:35 a.m. Thus, we find that the prosecution has not been able to come up with any satisfactory explanation for the delay of 4 and hours in lodging of the F.I.R. which does shatter the credibility of the F.I.R. to a great extent. 20. Record further shows that the incident which had taken place at about 7 p.m. was an offshoot of another incident which had taken place on the same day at about 4 p.m. in the village- Khajuri, P.S.- Paraur, District- Shahjahanpur in which as per the prosecution version, as is evident from the perusal of the written report of the occurrence (Ext.Ka.2) and the evidence of P.W.4 Satya Pal Singh, nephew of first informant P.W.2 Shiv Pal Singh that while the Holi revelry was in full swing on 26.03.1986, he had pushed Bhumi Raj Singh, father of Satyendra Singh (A2) while trying to touch his feet in an intoxicated state. When the aforesaid act of P.W.4 Satya Pal Singh was narrated by Bhumi Raj Singh to his son Satyendra Singh (A2) and nephew Membar Pal (A1), they became very angry and started abusing P.W.4 Satya Pal Singh and set forth in his search. When the informant P.W.2 Shiv Pal Singh learnt about the reaction of the appellants to the incident which had taken place involving P.W.4 Satya Pal Singh and Bhumi Raj Singh, father of Satyendra Singh (A2), he, his brother Yudhisthir Singh and one Rameshwar Singh, went to the house of Bhumi Raj Singh at about 7 p.m. and found Satyendra Singh (A2) and Membar Pal (A1) standing in front of their house and on seeing them, P.W.2 informant Shiv Pal Singh remonstrated them for abusing P.W.4 Satya Pal Singh on which they started abusing him. When his brother Yudhisthir asked them to stop abusing his brother, they became very angry and Membar Pal (A1) dealt a lathi blow on the head of Yudhisthir on which P.W.2 Shiv Pal Singh raised a cry for help and ran to save his brother Yudhisthir on which Satyendra Singh (A2) hit him on his head with a lathi. On hearing the noise made by P.W.2 Shiv Pal Singh, P.W.3 Bishnu Dayal, son of Parsu Singh and several other villagers reached the place of occurrence and saved him and his brother from the wrath of the appellants. In the F.I.R., it was also alleged that while P.W.2 Shiv Pal Singh and his brother Rameshwar Singh were taking injured Yudhisthir in a bullock cart to the police station, he died on the way on which P.W.2 Shiv Pal Singh returned to his village along with his brother Rameshwar Singh. One Sukhpal, resident of the same village, scribed the F.I.R. on the dictation of P.W.2 Shiv Pal Singh which was sent by him to the police station through Rameshwar. P.W.2 Shiv Pal Singh who had allegedly received injury himself in the occurrence, in his evidence tendered before the trial court apart from supporting the facts spelt out in the F.I.R, proved the written report of the occurrence (Ext.Ka.2) and stated that he and his brother Yudhisthir were attacked and dealt lathi blows by the accused. 21. P.W.2 Shiv Pal Singh who had allegedly received injury himself in the occurrence, in his evidence tendered before the trial court apart from supporting the facts spelt out in the F.I.R, proved the written report of the occurrence (Ext.Ka.2) and stated that he and his brother Yudhisthir were attacked and dealt lathi blows by the accused. 21. P.W.3 Bishnu Dayal, the other eye-witness of the occurrence produced during the trial, corroborated the evidence of P.W.2 Shiv Pal Singh on all material facts stated in the F.I.R. relating to the time, place and manner of assault as well as the identities of the perpetrators of the crime. From the perusal of the statements of P.W.2 Shiv Pal Singh and P.W.3 Bishnu Dayal, it transpires that the incident had taken place in front of the house of the appellants. The informant P.W.2 Shiv Pal Singh and deceased Yudhisthir had themselves gone to the house of the appellants with the object of remonstrating them for abusing and speaking ill about P.W.4 Satya Pal Singh, nephew of the first informant on his having unintentionally pushed Bhumi Raj Singh, father of Satyendra Singh (A2) during the Holi celebrations. From their evidence, it further follows that when P.W.2 Shiv Pal Singh remonstrated the appellants, they responded by hurling abuses at P.W.2 Shiv Pal Singh on which deceased Yudhisthir asked them not to abuse P.W.2 Shiv Pal Singh whereafter Membar Pal (A1) dealt a lathi blow to deceased Yudhisthir on his head. As a result, he fell on the ground and when P.W.2 Shiv Pal Singh tried to lift Yudhisthir then Satyendra Singh (A2) dealt two lathi blows to P.W.2 Shiv Pal Singh causing injuries to him. Thus, even if their evidence is believed to be true, it does not follow that the attack on the deceased Yudhisthir and P.W.2 Shiv Pal Singh was either pre-meditated or pre-planned or the same was done in furtherance of any common intention by both the appellants. The oral evidence on record clearly indicates that the incident had taken place on the spur of the moment due to sudden provocation and it cannot be said that the lathi blow dealt by Membar Pal (A1) to the deceased Yudhisthir was pre-meditated or pre-planned. There is absolutely no evidence on record proving that Satyendra Singh (A2) had caused any injury to the deceased. There is absolutely no evidence on record proving that Satyendra Singh (A2) had caused any injury to the deceased. The evidence on record shows that he had inflicted injury only on the injured P.W.2 Shiv Pal Singh which as per the evidence of the P.W.1 Dr. V.K. Arya was found to be simple in nature. 22. However a very material aspect of this case which renders the prosecution story extremely doubtful and lends support to the defense version is that although the prosecution has come up with a specific case that the appellants had assaulted the deceased Yudhisthir and P.W.2 Shiv Pal Singh with lathis but none of the two witnesses deposed that when they had gone to the house of the appellants and found them standing in front of their house, they were armed with lathis. There is further no evidence on record showing as to how both the accused-appellants came to possess lathis after the altercation started. None of the witnesses have deposed that either both or one of the appellants had after the arguments had started, gone inside his house and returned with lathis. Moreover, the Investigating Officer did not make any effort to recover the lathis allegedly used by the appellants in the commission of crime in question. 23. As we have already noted, both the witnesses have consistently deposed that while Membar Pal (A1) had dealt a single lathi blow to the deceased on his head, Satyendra Singh (A2) had struck two lathi blows to P.W.2 Shiv Pal Singh but the postmortem report of the deceased Yudhisthir (Ext.Ka.15) indicates two injuries on the head of the deceased, one a lacerated wound while the other a contusion. 24. P.W.6 Dr. S.R. Gupta, who had conducted autopsy on the dead body of Yudhisthir, in his cross-examination on page 37 of the paper book, has categorically deposed that the two injuries which were noticed by him on the dead body of Yudhisthir could not be the result of a single blow and the two antemortem injuries noted by him on the dead body of Yudhisthir could be caused only if two or three lathi blows were dealt to him. Thus, there is a very material discrepancy in the ocular version vis-a-vis the medical evidence regarding manner of assault as alleged by the prosecution which creates a strong doubt about the presence of the two eye-witnesses at the place of occurrence. The two witnesses of fact have failed to come up with any explanation for the second injury found on body of the deceased Yudhisthir. 25. Sri Awadesh Narayana Mulla, learned A.G.A. has vehemently argued that since P.W.2 Shiv Pal Singh had himself received injuries in the occurrence, his presence at the place of occurrence cannot be doubted for a moment and his evidence cannot be dis-believed on the basis of aforesaid minor discrepancy. The contention raised by the learned A.G.A. at the first glance appears to be attractive but it has been held in a catena of decisions that although the injuries received by an injured witness may be a proof of his presence at the time and place of the occurrence but it does not mean that whatever he deposes is to be accepted as gospel truth. It has been next submitted by learned A.G.A. that even if it is assumed for the sake of arguments that P.W.2 Shiv Pal Singh had seen the occurrence but the evidence of Rameshwar, who is an independent witness, has throughout remained consistent, clinching and sufficient to convict the appellants. 26. In the instant case after going through the injury report of P.W.2 Shiv Pal Singh and the evidence of P.W.1 Dr. V.K. Arya, who had examined his injuries on 27.03.1986 at 10:30 a.m. and proved his injury report as (Ext.Ka.1), it transpires that the estimated time at which P.W.2 Shiv Pal Singh could have received the injuries as opined by P.W.1 Dr. V.K. Arya does not coincide with the time of incident as mentioned in the F.I.R. Moreover, P.W.1 Dr. V.K. Arya in his cross-examination on page 14 of the paper book, had clearly deposed that the injuries noted by him on the person of P.W.2 Shiv Pal Singh were simple and could be manufactured and thus, in view of the above, the presence of P.W.2 Shiv Pal Singh at the time and place of the occurrence and his claim that he had witnessed the occurrence does not appear to be trustworthy. 27. 27. Two other striking features of this case which suggest that P.W.2 Shiv Pal Singh had neither witnessed the occurrence nor the written report of the incident was scribed on his dictation, inter-alia are that P.W.2 had himself not gone to the police station to lodge the F.I.R. and omission on his part for which no explanation is forthcoming and his statement u/s 161 Cr.P.C. was recorded by P.W.5 S.I. Chhutanna Singh, the Investigating Officer of the case, on 03.04.1986 almost seven days after the occurrence, as deposed by him in his examination-in-chief on page 32 of the paper book. 28. Thus, upon a critical evaluation and analysis of the evidence of two so-called eye witnesses of fact produced by the prosecution during the trial, we do not find their evidence to be reliable and trustworthy. 29. Another argument which has been advanced by learned counsel for the appellants is that the prosecution has failed to prove by any cogent evidence that the incident had taken place in front of the house of the appellants as alleged in the F.I.R. and subsequently deposed by the two witnesses of fact. Record shows that although P.W.5 S.I. Chhutanna Singh, the Investigating Officer of the case, has in his examination-in-chief deposed that he had collected plain and blood-stained earth from the place of occurrence but on page 35 of his cross-examination, he has categorically admitted that the blood-stained clothes and earth recovered by him from the place of occurrence were not sent by him to the chemical examiner. Moreover, it is the own case of the prosecution that Yudhisthir after being shot, was removed from the place of occurrence and put on a bullock cart by P.W.2 Shiv Pal Singh for taking him to the police station but since he died on the way, P.W.2 Shiv Pal Singh returned with the dead body of Yudhisthir and placed it in a galiyara where the inquest was conducted, which as per the site plan of the occurrence prepared by P.W.5 S.I. Chhutanna Singh, the Investigating Officer of the case, was at a distance of 40 steps from the place from where he had allegedly collected plain and blood-stained earth. The aforesaid facts find mention in the examination-in-chief of P.W.5 S.I. Chhutanna Singh. 30. The aforesaid facts find mention in the examination-in-chief of P.W.5 S.I. Chhutanna Singh. 30. Thus, in view of the foregoing discussion, we find that the prosecution has not been able to prove that the incident had taken place at the time, place and in the manner as spelt out in the F.I.R. by any cogent evidence. The testimony of the two witnesses of fact produced by the prosecution during the trial does not inspire confidence. The medical evidence does not corroborate the ocular version. Thus, we hold that the prosecution has not been able to prove its case against the appellants beyond all reasonable doubts and thus, recorded conviction of the appellants cannot be sustained and is liable to be set-aside. 31. The appeal is allowed. 32. The impugned judgment and order is hereby set-aside. 33. The accused-appellants are acquitted of all the charges. They are on bail. They need not surrender. Their bail bonds are cancelled and their sureties discharged. However, they will comply with provisions of Section 437A of Cr.P.C.