Chhangani, J.—This is an appeal by four appellants, two of whom Madanlal and Prabhati have been convicted under sec. 308 Indian Penal Code and sentenced to three years rigorous imprisonment and the remaining two Mangoo and Bissa have been convicted under sec. 323 Indian Penal Code and sentenced to six months rigorous imprisonment.

2. The prosecution case, as disclosed in the First Information Report lodged by one Bhagwatsingh, cousin brother of the injured Gulley with the Police Station, Dig at about 3.30 p.m. on 4th October, 1957 within six hours of the incident, is as follows—

On 4th October, 1957 "when the first informant Bhagwatsingh was in the jungle six persons Mohanlal, Mangoo, Parbhati, Bissa, Handoo and one unnamed son of Ram Chand, Gujars of Pasopa within the Police Station, Dig having concerted, assaulted his cousin Gulley when he was returning after taking his bath in the Pokhar near the Poli of Ramhet. He was beaten by Lathis very mercilessly and ultimately was given up for dead. When the informant returned to the village at 11 a.m. he saw his cousin Gulley, who was in a very serious condition. There were hundreds of injuries on his person and his skull had been broken and that he was in a dying condition."

3. It will be convenient to mention at this stage how the injured was medically examined. It appears that before the police reached the spot for investigation, the relations of the injured Gulley called for two doctors, one Nathmal from Kaman and another Dr. Nigam from Dig. Dr. Nathmal reached earlier, but before he could examine the injured, Dr. Nigam reached there at about 4 p.m. and thereafter, Dr. Nathmal left the job and the examination of the injured was completed by Dr. Nigam. Dr. Nigam noticed a number of injuries on the person of Gulley. There were 17 eccymosis measuring 3" to 6" x l" on his right thigh and knee, 2 contused wound on the skull bone, one contused wound on the head and 13 other contused wounds on various other parts of his body; as detailed in the Injury Report, Ex. P. 2, which of course was issued after a requisition by the police. The police after usual investigation, submitted charge sheets against five persons and did not find any case against the person who could not be named in the First Information Report, but who was suggested to be Parsa. The learned Sub-Divisional Magistrate, Dig after enquiry under Chapter XVIII of the Code of Criminal Procedure committed all the accused to the court of the Sessions Judge, Bharatpur for trial under secs. 147 and 308 I.P.C.

4. The prosecution examined in all six witnesses including the three eye-witnesses, P.W. 2 Girraj, P.W. 3 Gulley, the injured, and P. W. 4 Roopsingh; and, Dr. Nigam P.W. 5, Bhagwatsingh P.W. 1, the first informant, and Shri Jagdev Singh, P.W. 6, the Station House Officer, who conducted the investigation. The accused made a complete denial and pleaded alibi. The learned Sessions Judge found the prosecution story substantially correct, but he found case against Handoo doubtful and acquitted him. According to him, the accused could be held responsible only for their individual acts and approaching the case on that basis, he convicted Mohan Lal and Parbhati under sec. 308 Indian Penal Code and the two remaining appellants Mangoo and Bissa under sec. 323 Indian Penal Code.

5. In this appeal by the accused, Mr. Rastogi, in the first instance, invited my attention to some infirmities in the prosecution case. It may be said in all fairness to him that these infirmities were pointed out with no request for an outright rejection of the prosecution case. They were pointed out mainly with a request that the case should be approached cautiously and due allowance should be made for the probable exaggerations by the prosecution in this case.

6. The first infirmity relied upon by Mr. Rastogi is that in the First Information Report, Paltu has been mentioned as a person who took the injured to his house. No other person has been named. During the tr

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