IMPORTANT POINT
An FIR is not a substantive piece of evidence; it cannot contradict the testimony of the eye witnesses even though it may contradict its maker.

JUDGMENT

KAPADIA, J.—

Leave granted.

2.This criminal appeal is filed by the accused against judgment and order dated 1.5.2006 passed by the Madhya Pradesh High Court, Jabalpur in Criminal Appeal No. 690/92 whereby the order of acquittal dated 30.8.1991 passed by Second Additional Sessions Judge, Betul in Session Case No. 22/89 stood reversed. By the impugned judgment, the appellants stand convicted under Section 307/149 IPC and sentenced to undergo 5 years R.I. and a fine of Rs. 5000/- to each accused.

3.As per the case of the prosecution, on 31.10.1988 Nandan (PW-1), Tikaram (PW-2), and Koshabai (PW-3) had gone to sow the seeds in their field. After sowing the seeds, when they were returning to their village, they saw the appellants along with three others hiding in the field of Chunni come out of the hiding and assaulted Nandan (PW-1). When Tikaram (PW-2) and Koshabai (PW-3) came to the rescue of Nandan, they were also beaten up. All the three were taken to the village Bijadehi and the FIR was lodged by PW1 at Police Station, Bijadehi at 4:00 p.m. where the offence was registered under Sections 147, 148, 149, 324 and 307 IPC. The injured were sent to the Bijadehi hospital and from there they were referred to the District Hospital, Betul where they were x-rayed. In the x-ray, grievous injuries including fractures were found on the body of Koshabai and Tikaram. They remained in the hospital for 10/15 days.

4.The main question before the trial court was: whether an accused committed an offence under Section 307/149 as a member of unlawful assembly and in furtherance of their intention, attempted to murder Nandan, Tikaram and Kaushabai by causing deadly injuries.

5.According to the trial court, Nandan made two different statements in respect of Exhibit P/1 (report), in one statement, he stated that he did not go to the police station for lodging the report, in the other, he stated that he had lodged the report on the insistence of the police at his house and made his signature thereon. According to the trial court, if PW-1 had become unconscious at the scene of occurrence and had gained consciousness only at 8:00 p.m. at the Hospital then PW-1 could not have lodged the report at 4:00 p.m. That, Rampal was not examined by the prosecution. In the circumstances, the trial court held that lodgment of the report (Exhibit P/1) by PW-1 was doubtful. This, according to the trial court, was one of the circumstances in favour of the accused.

6.According to the trial court, there was serious contradictions in the evidence of Nandan (PW-1), Tikaram (PW-2) and Koshabai (PW-3). In this connection, the trial court noted the evidence of Koshabai in which she stated that at the time of assault, Bhura and Sukhdev were present but in the cross-examination, Nandan stated that Sukhdev and Bhura were not present at the time of assault. This, according to the trial court, was one of the contradictions in the evidence of PW-1 which made his testimony doubtful.

7.According to the trial court, Koshabai in her evidence stated that all the 5 accused were hiding behind the tuar tree and they came out together but in her cross-examination she stated that Dayaram came out first followed by others. According to Nandan, all the accused came together. On account of these contradictions, the trial court held that all the accused did not come together as alleged by the prosecution. This, according to the trial court, was one more contradiction between the evidence of PW-1 and the evidence of PW-3.

8.Further, according to the trial court, one of the accused, Mansharam, was ill, he was undergoing treatment under a Government doctor during the period 20.10.1988 to 10.12.1988, that he was suffering from typhoid, hence according to the trial court, Mansharam was not at the scene of offence and eliminating him the number of accused fall below five and, therefore, there was no question of formation of unlawful assembly.

9.According to the trial court, Nandan