R.D. Shukla, J. -- 1. The appeal is directed against the judgment and order dated 28th October 86 of IIIrd Additional Sessions Judge, Dhar, passed in S.T.No. 177/84, whereby the accused-appellants 1 to 4 have been convicted under Section 302/34 IPC for having committed murder of Babulal S/o Narottam, on 6.9.84, in village Chor Baodi and sentenced them to undergo imprisonment for life each. Accused Naniya and Gulab have been further convicted under Section 323/34 for having caused simple injuries to Ramgopal and Madan and sentenced them to undergo R.I. for 3 months each. Appellant Rajababu has been acquitted of the offence under Ss. 302/34 and 323/34 IPC but has been convicted under S. 341 IPC and sentenced to a fine of Rs. 500/- each. In default of payment of fine he shall undergo RI for 7 days.

2. Brief history of the case is that deceased Babulal, (PW 7) Ramgopal and (PW 8) Madan, who are residents of Bachhanpur had gone to jungle (forest) for collecting teak leaves to be used for construction huts. They were returning at about 3 p.m. They were crossing the rivulate, near village Chor Baodi, the 4 accused persons Naniya, Gulab, Jamiya and Ruggu stopped them and asked them that they are being called by accused Rajababu. Madan and Babulal were carrying the head load of thin sticks of teak wood (Kimdis as it is called in the local dialect). Ramgopal was carrying the bundle of leaves. All the three persons put off their head load. Meanwhile 4 accused persons reached near them. They took out kimdis (thin sticks of teak wood) and began beating them. Babulal fell down because of the beating and became serious. It is alleged that beating was done at the instance of accused-appellant Rajababu. Thereafter Babulal was dragged near Rajababu. Ramgopal and Madan have also sustained injuries. Because of the beating, Babulal had become unconscious. Thereafter Rajababu asked all the three injured persons to be released and asked them not to come to that area.

Babulal was brought to village Bachhanpur on a cot and thereafter he was taken to police station, but he died on way.

3. The matter was reported by Ramgopal in police station Nalchha. Madan and Ramgopal both were medically examined and doctor found 4 & 5 injuries respectively on their bodies. The autopay on the body of Babulal was conducted by PW 6, Dr. B.C. Puri. He found nearly 11 injuries of his body. There was dislocation of wind pipe and congestion over it; fracture of cervical vertubrae and fracture of 10th rib of the right side of sterno costal region. He further found fracture on the middle of left 10th rib. Lung was also injured because of fracture of right rib. Doctor further opined that the injuries could be caused by kimdis (thin sticks) which were seized during investigation and sent to Medical Officer.

The Police Officer Abrar Ahmad (PW 10) prepared the spot map and recorded statements of the witnesses and after completion of the investigation filed challan against the accused persons, which was committed to the Court of Sessions in due Course.

The accused adjured the guilt and pleaded false implication. Learned trial Judge has convicted and sentenced them, as above. Hence, this appeal.

4. The contention of the learned counsel for the appellants is that PW 1 Gulab, PW 2 Badrilal and PW 3 Kamdar like accomplish, their involvement in the offence was itself suspected and they are, therefore, got up witnesses.

PW 7 Ramgopal and PW 8 Madan are though injured persons, but they did not know the accused persons from before and, therefore, identification by them of the accused persons is doubtful. Since no identification parade was held and, therefore, the identification in dock carried no value.

It has also been submitted that FIR is antidated and there was no compliance of Section 157 of the Cr.P.C. and, therefore, the same cannot be read in evidence and cannot be taken in aid for basing the conviction.

It has also been submitted that there was no charge of wrongful confinement or