S. B. SINHA, J.

( 1 ) THIS appeal is directed against a judgment and order dated 24. 5. 2007 passed by a Division Bench of the High Court of Punjab and Haryana at chandigarh in Criminal No. 809 DBA of 1997 allowing an appeal preferred by the respondent herein from a judgment of acquittal passed by the learned sessions Judge.

( 2 ) THE prosecution's case is as under: at about 8. 00 pm on 16. 2. 1991, one Gurdev Chand (PW4), his brother sheru (PW5), aged 11 years and another brother Sakander (the deceased)aged about 13 years had gone outside the village to answer the call of nature. Appellant who is said to have been armed with `datar' along with one manga came on their way. Whereas Manga is said to have raised a `lalkara' that the complainant be taught a lesson for selling adulterated liquor with water, Sucha Singh gave a `datar' blow on the deceased. Allegedly, Manga gave a `datar' blow on Sheru (PW5 ). On their raising cries, Bhindi, younger brother of the first claimant, came on the spot, whereafter the accused ran away with their weapons. The deceased was removed to civil hospital, pathankot where he died.

( 3 ) A first information report was lodged at about 12. 05 noon on 17. 2. 1991.

( 4 ) BEFORE the learned Trial Judge, inter alia, Gurdev Chand (PW4) and sheru (PW5) were examined to prove the prosecution's case. The learned trial Judge noticed that although a charge under Section 307 of the Indian penal Code (IPC) had been framed against Manga, but the first informant, in his supplementary statement had accepted that Manga was empty handed. It was on the aforementioned premise that the appellant by reason of amendment of the charge had been charged under Section 302 and 307 of the IPC whereas Manga was charged under Section 302/34 and 307/34 of the IPC. The learned Trial Judge recorded a judgment of acquittal, inter alia, on the following findings:

1) The difference between the statement in the first information report and the supplementary statement was very vital. The allegations against Manga had been withdrawn only upon noticing that his right hand being amputated, he was not in a position to inflict any injury.

2) Statement of Gurdev Chand was held not to be trustworthy keeping in view the change in his stand also in regard to the sequence of events. Whereas in his first statement, he stated that Sakandar had first been attacked by Sucha Singh, in his supplementary statement, he alleged that Sheru had been the first victim whereafter Sakandar ran away. He was chased for a sufficient distance and an injury was inflicted on his body with a `datar'.

3) The omission in the first information report that Sheru was taken to a civil hospital before the first information was lodged was only to explain the delay in lodging the first information report although such an allegation had not been made in the first information report.

4) Whereas in his first statement, Gurdev Chand alleged that Sheru had been inflicted only with one a single injury by Manga, but later he stated that three-four injuries had been inflicted on his person whereas in the medical report only a single injury was found on the person of both the deceased and Sheru.

5) There were contradictions in the matter of lodging of the first information report as it was said to have been lodged by Gurdev chand after riding on a cycle for 12 kms. and the police met him at jugial. He had stated that on his way back, the cycle had been kept in police vehicle while according to Inspector Amrik Singh (PW7), the cycle had been kept in a shop at Jugial. 6) The first information report was found to be ante-timed even the blood was not found on the spot. 7) The evidence of the child witnesses was not corroborated. 8) The prosecution had not been able to prove any motive on the part of the accused.

( 5 ) THE High Court, on an appeal preferred by the State against the said judgment opined :

( 5 ) THE High Court, on an appeal preferred by the State against the said judgment opined