S.J. Hyder, J. - (1.) THERE are six appellants in this case. They have been found guilty by the Third Additional Sessions Judge, Meerut, for offences punishable under Sections 147, 323, 325 and 391, I.P.C. On the first count he recorded one year's sentence each against the appellants. Similar sentence has been awarded to them on the second count. Five years sentence has been recorded against the appellants on the third count, two years sentence on the fourth count. Different sentences awarded to the appellants have been concurrent. The prosecution version was disclosed in the first information report lodged by Abrar PW-3 at police outpost Simbhaoli on August 9, 1974 at 9P.M. According to the first informant on August 9, 1974 at about 6.30 P.M., the informant, his father Ashfaq deceased and the informant's brother Hazrat saw the six appellants tying bundles of Chari in plots Nos. 558 and 559. Ashfaq is said to have asked the appellants not to remove the Chari crop whereupon the appellants abused Ashfaq and his sons started beating Ashfaq and Hazrat with ballams and lathis. Abrar was scared on seeing this occurrence and he ran yelling for help. His cries brought Ahmad son of Fayaz, Hazrat Ali son of Balloo and other persons to the scene of occurrence and they saved Ashfaq deceased and the brother of the informant Hazret from the assailants. The first information report was given by Abrar informant at the outpost Simbhaoli in writing. He has in his deposition stated that the scribe of the report was one Matiullah and he scribed the report at the tube well which is at a distance of one furlong from the Abadi of village Rajapur where the incident occurred. In connection with this first information report certain points may be noted at the very outset. The names of Hazrat Ali son of Balloo and Ahmad son of Fayaz have been mentioned as-witnesses of the occurrence. Thesei two witnesses have not been produced by the prosecution instead Ausaf All PW-6 and Ahsan Ali PW-7 have been examined to support the prosecution case. Their names do not find place in the first information report. The investigation of the case was taken up by S.I., B.M. Sharma. He recorded the statement of Ashfaq which has been relied upon by the trial court as a dying declaration. He made the necessary investigations and sent the injured for treatment to Pyarelal Sharma Hospital at Meerut. Ashfaq died before reaching the hospital. The inquest on the dead body was performed by Khyali Ram Bhati, S.I., P.W.-8. Thei dead body of Ashfaq was sent for post mortem which was performed by Dr. J. D. Sharma PW-4. The Doctor notes as many as 22 injuries on the person of the deceased. None of the said injuries were, however, a punctured wound or a wound, which could be ascribed to ballam. The injuries of Hazrat Ali were examined by Dr. V.P. Agarwal at Meerut on August 10, 1974. The, doctor noted one traumatic swelling, one lacerated wound and three contusions on the persons of the injured. After completing the investigation the S.I., B.M. Sharma submitted the charge sheet against the appellants. The appellants pleaded _not guilty to the charge. They stated that they have been falsely implicated on account of enmity. It was alleged that they were carrying green fodder and when they had reached the sugar cane field of one Tahsin, Ashfaq, deceased, Hasrat, Abrar, Nazar and Aman suddenly came out from the nearby field and started beating them. In the said incident appellant Wahid and Rashid received injuries. They also wielded lathi in their self-defence as a result of which Ashfaq and Hasrat received injuries. A first information report of the incident was lodged at police station on behalf of the appellants. Wahid appellant received one lacerated wound, one contusion and one incised wound. Rashid received one contusion, one lacerated wound and one abrasion. The lacerated injury on the person of Wahid has been described in the injury report as follows: Lacerated wound 6 cm x 3/4 cm x bone deep, right side head 104 cm above right ear. The doctor opined that all the injuries were fresh and simple. Injury Nos. 1 and 2 were caused by some blunt weapon and injury No. 3 was caused by some sharp edged weapon. The injuries suffered by these two appellants were examined by Dr. H.N. Garg who was examined as D.W. 1 to prove the injury reports. THERE is not a whisper in the first information report about the injuries sustained by Abdul Wahid and Rashid. Hasrat PW-5 has stated that he and his father also wielded lat his in their self defence. This is clearly an after thought. THERE is no such allegation in the statement of Abrar PW-3. Abrar has not even stated that Hasrat and Ashfaq were carrying lat his at the time of the incident. The omission of the injuries sustained by Wahid and from the first information report creates a doubt about the veracity of the prosecution version, about the manner in which the incident occurred and the person who had participated therein. In order to assess the effect of the omission on the part of the prosecution to explain the injuries sustained by the accused two points have to be borne in mind. In the first place there should be evidence to prove that the injuries sustained by all the accused or some of them were caused during the occurrence which is the subject matter of the case. In the second place the injuries sustained on the side of the accused should not be of superficial or light nature. If both these circumstances coexist and the prosecution does not satisfactorily explain the injuries sustained on the side of the accused, the omission makes a serious inroad in the prosecution case and the court would be justified in raising a presumption about the correctness of the prosecution version. As already stated above the lacerated wound the description of which has already been stated found on the person of Wahid appellant is sufficiently extensive and is on a vital part of the body. It is evidently proved even from the evidence of the" prosecution witnesses that the staid injury was caused during the occurrence, and lends justification to the doubt stated about the prosecution case in the earlier part of the judgment. In the first information report it is stated that the appellants belaboured the deceased and Hazrat PW-5 with lat his and ballams. The matter has been elaborated further during the course of the evidence. The prosecution witnesses have stated that Subhan and Rashid appellants were wielding ballams. It has already been pointed out that the deceased Ashfaq and Hasrat PW-5 did not have any stab or ballam injury on their persons according to the medical evidence. Feeling conscious of the fact that the omission of the injuries on the persons of the deceased and the injured witnesses Hazrat from the aforesaid weapon may create a dent in the veracity of the prosecution version. Witnesses were made to state that the ballams were used by these two persons as lat his. When a person is armed with a particular weapon he would naturally use it in the normal manner and the unusual use of the weapons alleged by the prosecution witnesses is too puerile to carry conviction. THERE is another reason .on account of which the use of ballam as lathi by the two appellants should be rejected out of hand. Abrar PW-3 stated that the ballarn blows were given by the appellants Subhan and Rashid from the end which involved the pointed part. In other words he intended to convey that the pointed part of the ballam was not thrust into the body of the deceased and the injured but was struck on their persons like a lathi. Hazrat PW-5 on the other hand has given quite a contrary version. He has stated that the pointed part of the ballam was in the hands of these two appellants and they were giving blows with the other end of the weapon. Coming to the evidence of Ausaf PW-6 and Ahsan Ali PW-7 it may be stated that they were not named as witnesses of the incident in the first information report. They have come forward to depose in support of the prosecution case as they belonged to the group of party of the complainant. It is not disputed that Ashfaq, Hazrat, Ausaf Ali and Ahsan Ali along with some other persons were prosecuted under Sections 395/397, I.P.C. on a report lodged by Rashid accused. It is also not in doubt that the case under Section 107/117, I P.C. is pending in which the appellants and these two witnesses are ranged OH the opposite sides. It would be wholly unsafe to accept the testimony of Ausaf Ali and Ahsan Ali. The trial court was in error in basing the order of conviction against the appellants on the testimony of these two witnesses. The last piece of evidence which has been relied upon by the prosecution is the alleged dying declaration of the deceased Ashfaq recorded by the Investigation Officer. The said dying declaration was not recorded in. the presence of witnesses nor it is signed by the deceased. Hazrat PW-5 'has stated in his evidence that immediately after -receiving the injuries Ashfaq had become semi-conscious and thereafter his condition continued to deteriorate. It is, therefore, wholly unlikely that Ashfaq deceased was in a position to give the dying declaration at the police station. For the reasons stated above this appeal succeeds and is hereby allowed. The order of conviction and sentence passed by the III rd Additional Sessions Judge against Wahid, Sayeed, Intezar, oubhan, Intezam and Rash id in Sessions Trial No. 218 of 1975 is hereby set aside. The appellants are acquitted of the charges of which they had been convicted. The appellant's are on bail. Their bail bonds are discharged and they need not surrender.;