V. P. GOEL, J. ( 1 ) THESE two appeals are directed against the order and judgment of Sri R. C. Awashthy, 1st Additional District and Sessions judge Saharanpur, dated 6/8/1979 rendered in Sessions Trial No. 1 of 1979 convicting and sentencing the appellants under section 302 I. P. C. read with section 149 I. P. C. to undergo Imprisonment for life. The appellants Masoom, Manphool and Phailloo arc further convicted and sentenced under section 147 I. P. C. to undergo R. I. for a term of two years. The appellant Titan and Rashid are also convicted and sentenced under section 148 I. P. C. to undergo R. I. for a term of three years. Both the sentences were directed to run concurrently. ( 2 ) THE incident in question is alleged to have taken place on 19/8/1979 at about 6 P. M. at village Paniala in front of the house of the accused-appellant Manphool within the jurisdiction of police station Roorkee, District Saharanpur, According to the prosecution case as disclosed in the written First Information Report Ext. Ka 1 lodged by Ramesh Chanda P. W. 1 son of Natthu Pal at Police Station Roorkee Janeshwar Prasad had gone to attend the cases in the Court on his scooter and while returning from the court, he reached near the Chaupal of Manphool, Manphool gave him signal by showing hand to stop, Due to signal Janeshwar stopped his scooter, parked the same on the Kharanjaand went to the Chabutra of Manphool. All other four accused appellants namely Masoom, Phailloo, Rashid and Titan had come on the Chabutra, Masoom and Phaillo arc alleged to have caught hold of Janeshwar and Irfan and Rashid inflicted blows on him by knives carried by them with intention to commit murder, they also said that he was doing Pairvi of Baniyas of the village and was to be killed. On the cries raised by Janeshwar, Nand. Kishore P. W. 2, Shripal Singh P. W. 3, Asha Ram, Rishipal and many others reached the place of occurrence and witnessed the occurrence. On seeing the witnesses, the accused persons ran away taking Janeshwar Lo be dead. The motive alleged in the First Information Report is that in June 1978 a dacoity had taken place at the house of Lala Visheshwar Dayal of the village of Janeshwar in which accused Rashid was named in the report. On seeing the witnesses, the accused persons ran away taking Janeshwar Lo be dead. The motive alleged in the First Information Report is that in June 1978 a dacoity had taken place at the house of Lala Visheshwar Dayal of the village of Janeshwar in which accused Rashid was named in the report. Suresh Chand, a cousin brother of the deceased was deprived of his golden chain by the accused irfan. A report of that incident was -lodged against Irfan by Suresh Chand on 11/8/1978. On account of these two incidents Irfan and Rashid harboured enmity towards Janeshwar Prasad as he used to do pairvi of these cases. Janeshwar prasad was seriously injured and was taken to Roorkee Hospital by Shyam Singh and Anil Kumar P. W. 7 in a car. At Roorkee Hospital first aid had been given to Janeshwar and, thereafter, he was taken to the District Hospital Saharanpur. At the hospital at Roorkee the Investigating officer alleged to have recorded his statement under section 161 Cr. P. C. in the presence of the doctor which is Ext. Ka. 2 On the basis of the First Information Report Ext. Ka 1, chik report Ext. Ka 7 was prepared at the police station by Sri Satyavir Singh P. W. 6 and he also registered a case of attempt to murder in the G. D. at serial No. 37 copy of which is Ext. Ka 8. Janeshwar, however, had succumbed to his injures near Chhutmalpur on his way to the District Hospital Saharanpur. On receipt of the information of the death of Janeshwar at Police Station Roorkee, the case was converted into 302 I. P. C. at 7. 45 P. M. the same day vide G. D. report No. 33 copy of which is Ext Ka. 9. Sri Mohan Krishna Ashthana, A. S. I. P. W. 5 was present at the police station when the written report Ext. Ka 1 was lodged and he immediately started investigation. He reached the Hospital and recorded dying declaration of Janeshwar which is Ext. Ka 2 in presence of the doctor. He has stated in his statement that before recording the Dying Declaration Ext. Ka. 2 he read out First Information Report to the injured. He also recorded the statements of P. W. 1 Ram Chanda, P. W. 3 Shri Pal, P. W. 2 Nand Kishore and P. W. 7 Anil Kumar. Ka 2 in presence of the doctor. He has stated in his statement that before recording the Dying Declaration Ext. Ka. 2 he read out First Information Report to the injured. He also recorded the statements of P. W. 1 Ram Chanda, P. W. 3 Shri Pal, P. W. 2 Nand Kishore and P. W. 7 Anil Kumar. Janeshwar, as stated earlier died on his way to Hospital and his dead-body; was taken to B. C. Hospital, Saharanpur where he was declared dead by the doctor, After completing the inquest report Ext. Ka 12 the dead body was despatched for postmortem examination. The defence has admitted the genuiness of the papers Ext. Ka 12 and Ext. Ka 13 to Ext. Ka 15. ( 3 ) THE post-mortem examination on the dead body of Janeshwar was conducted on 20. 8. 1978 at 1 p. m. in the District Hospital, Saharanpur by Dr. A. K. Pant P. W. 8 and he found the following ante mortem injuries: 1. Incised wound 4 cm. x 1/2 cm x muscle deep on left side of face 1-1/2 cm below outer angle of left eye. 2. Incised wounds cm x 1-112 cm. x bone deep on right upper 113rd of front of upper arm. 3. Incised wound 9 cm. x 4 cm. x cavity deep on front of abdomen 6 cm. above and medial to umbilicus omentum and loop of intestine are coming out. 4. Incised wound 6 cm. x 3 cm x cavity deep on right side of abdomen 10 cm. above the umblicus at 10 clock position comentum and loop of intestine are coming out 5. Incised wounds cm. x 2 cm x cavity deep on right side of abdomen 26 cm. below right nipple- at 7 clock position mention arid loop of intestine are coming out. 6. Incised wound 4 cm x 1/2 cm. x muscle deep on base of left index finger. The heart was found to be empty. There was about 11/2 litres of blood in abdominal cavity and about 150 Millitires coffee coloured liquid in the stomach, His large intestine was full of faecal matter while small intestine and bladder were found empty in the opinion of the doctor, Janeshwar died due to shock and haemorrhage due to abdominal injuries and the injuries were in the ordinary course of nature sufficient to cause his death. ( 4 ) THE Investigating officer visited the place of incident, prepared the site-plan, took the blood stained earth and simple earth from the comer of the Chabutra and tried to apprehend the accused persons but they were not available at their houses, The Investigating Officer, however, found the place of occurrence washed with water. The Investigating Officer after completing the investigation submitted the charge-sheet against all the accused appellants on 12. 10. 1978 which is Ext Ka 6. On the basis of the charge-sheet Ext. ka 6 learned Magistrate committed the accused persons to the court of Sessions vide his order dated 23. 12. 1978. Learned Sessions Judge after perusing the material on record framed charges under Section 147 I. P. C. against Masoom Ali, Phailloo and Manphool and under section 148 I. P. C. against Irfan and Rashid. All the appellants were also charged under section 302/149 I. P. C. ( 5 ) TO prove its case, the prosecution has examined eight witnesses namely Ramesh Chanda P. W. 1, Nand Kishore P. W. 2, Shri Pal Singh P. W. 3 Harpal Singh P. W. 4 Mohan Krishan Asthana P. W. 5, Satya Vir Singh P. W. 6, Anil Kumar P. W. 1 and A. K. Panta P. W. 8 Besides examining aforesaid witnesses, the prosecution tendered in evidence the post-mortem report, diagram of the dead body, challan of the dead-body and the copy of the G. D. report dated 19. 8. 1978. The genuiness of Ext. Ka 12 to 15 was admitted. The prosecution also placed reliance on Ext Ka 2, the statement of Janeshwar recorded under section 161 Cr. P. C. by the 1. 0. in the Hospital at Roorkee in presence of the doctor. Amongst the eight witnesses mentioned above, Ramesh Chanda P. W. 1 deposed about the motive and also supported the prosecution case, claiming himself to be an eye witnesses. P. W. 2 Nand Kishore claims to have been near the place of occurrence on way to home while returning from Roorkee Shri Pal Singh P. W. 3 claims to have been returning from his field at the relevant time, and was near the Chabutra of Manphool, the constable Har Pal Singh P. W. 4 deposed that he took the dead-body of Janeshwar for post-mortem examination from B. C. Hospital, Saharanpur. P. W. 5 Mohan Krishna Asthana is the Investigating officer who investigated the case and submitted charge-sheet. Satya Vir Singh constable P. W. 6 is the scribe of the chik report Ext Ka 7 and the G. D. report about the registration of the case Ext Ka 8 and about conversion into a murder case Ext. Ka 8 He has also proved the copy of G. D. no. 36 dated 20. 8. 1978 and also Ext. Ka 10. Anil Kumar P. W. 7 is the persons who carried Janeshwar in his Car from, the place of occurrence to the Hospital at Roorkee and from there to the District Hospital, Saharanpur. He however stated that Janeshwar died on his way to the hospital near Chhutmalpur. ( 6 ) THE accused persons in their statements under section 313 Cr. P. C. pleaded not guilty and claimed to be tried. They attributed their implication in the crime due to party bandi and claimed that the witnesses deposed against them as they belong to the party of Janeshwar. Accused Masooin also stated that the deceased owed the price of sugarcane and due to that enmity he has been implicated in this case, The cane slips Ext, Kha 1 to kha 66 have been filed by Masoom Ali The appellants also proved the police report Ext. kha 67 on the bail application and also filed the copy, of the charge-sheers of two cases; one being of a dacoity at the house of Lala Visheshwar Dayal and the other being of chain snatching of Suresh Chand Ext kha. 68 and kha 69. The next paper filed on behalf of the defence is the copy of the plaint filed by the father of Janeshwar against his brother Ramesh and others for counting of some joint firm Ext kha 70 and also the copy of an application Ext. kha 71. They however did not examine any witness in defence. ( 7 ) LEARNED Sessions Judge after considering the entire evidence on the record and the eye witnesses account believed the prosecution case and convicted and sentenced the appellants as stated above. ( 8 ) AGGRIEVED by the judgment of the learned Sessions Judge, appellants Irfan and Rashid filed criminal Appeal No. 2388 of 1979 and Masoom Manphool and Phialloo have filed criminal Appeal no. 2336 of 1979 against their aforesaid conviction and sentences. ( 8 ) AGGRIEVED by the judgment of the learned Sessions Judge, appellants Irfan and Rashid filed criminal Appeal No. 2388 of 1979 and Masoom Manphool and Phialloo have filed criminal Appeal no. 2336 of 1979 against their aforesaid conviction and sentences. ( 9 ) WE have heard the learned counsel for the appellants as well as the learned A. G. A. and we have also scrutinized the evidence of the eye witnesses on the record and also the impugned judgment. ( 10 ) IN the First Information Report Ext, Ka 1, the prosecution imputed definite motive that a report of dacoity, at the house of Lala Visheshwar Dayal, cousin of Janeshwar was lodged in the year 1978 against Rashid alias Sultan and that a case of chain snatching of Suresh Chand another cousin of Janeshwar was lodged against Irfan and deceased Janeshwar was doing Pairyi at Court in both the cases. The defence did not challenge the genuiness of the report. , On, the other and the defence side itself filed the copy of the charge-sheets in this case which are Ext. kha 68 and kha 69. They, however, denied that janeshwar used to do Pairyi for these cases or had gone to get these reports lodged. Learned Session. Judge, however, after considering we evidence of the prosecution with regard to the motive held that the prosecution has failed to prove the alleged motive in this crime. We have carefully examined the charge-sheets Ext. kha 68 and kha 69 and all the other material on regard. We are of the opinion that the learned Sessions Judge was not right in holding that the prosecution had failed to prove the alleged motive for the crime. Admittedly, two First Information Reports were lodged; one against Irfan and other against Rashid on which they were charge sheeted and prosecuted. The charge-sheets Ext kha 68 and kha 69 are on the record which clearly established that Irfan and Rashid have strong motive to commit the present crime as Janeshwar was doing Pairyi in said cases at the time of attack. Both the accused persons said that Janeshwar was doing Pairyi on behalf of Baniyas and he should be killed. This fact was mentioned in the First Information Report. Both the accused persons said that Janeshwar was doing Pairyi on behalf of Baniyas and he should be killed. This fact was mentioned in the First Information Report. In view of the cogent evidence with regard to the motive, we are of the opinion that the prosecution has succeeded in proving the motive alleged in the First Information Report and deposed by the witnesses. It is a settle Law that the motive looses importance if there are eye witnesses of the incident. In the present case, learned Sessions Judge after careful consideration of the ocular testimony of the P. Ws. 3 and 4 and other material on record has held that the prosecution succeeded in proving its case beyond reasonable doubt. ( 11 ) WE have heard the learned counsel for the parties and have gone through the judgment of the learned Sessions Judge and scrutinized the statements of eye witnesses on the record. Learned counsel for the appellants Sri G. S. Chaturvedi in Criminal Appeal No. 2336 of 1979 vehemently urged that the participation of Masoom, Phialloo and Manphool has not been proved by the prosecution and they are liable to be acquitted. He further submitted that no part has been assigned to the appellants in the commission of the crime. It is alleged that Masoom and Phialloo caught hold of Janeshwar at the time of the fatal attack by Irfan and Rashid while Manphool is alleged to have stopped Janeshwar near his Chabutra when Janeshwai was coming on Scooter. In the light of-the submission made by the appellants, we scrutinized the evidence on the record so far as it relates to the appellants Masoom, Phialloo and Manphool P. W. 1 Ramesh Chand claimed himself to be an eye witness of the incident and alleged to have lodged the First Information Report at the Police Station, Roorkee, In the First Information Report P. W. I Ramesh Chanda has only stated that Manphool stopped the deceased Janeshwar by giving signal by hand and thereafter on the Chabutra of Manphool, Masoom and Phialloo caught hold of Janeshwar and Irfan and Rashid attached Janeshwar with knives. So far Manphool is concerned no over act has been assigned to him in the First Information Report nor in the statements of the eye witnesses; the only part being assigned to him is of stopping Janeshwer by showing signal by hand near his Chabutra. So far Manphool is concerned no over act has been assigned to him in the First Information Report nor in the statements of the eye witnesses; the only part being assigned to him is of stopping Janeshwer by showing signal by hand near his Chabutra. So far as other two appellants are concerned; the part assigned was of catching hold and no other overt act in the crime was assigned to them. The medical evidence is not in the line with the part assigned to the appellants Masoom and Phialloo. ( 12 ) THE perusal of injury report shows that injury no. 2 is an incised wound on the right upper arm and in front of upper arm and injury no. 6 is on the left index finger and other injuries are on the face and abdomen from which it is apparent that these injuries could not have been caused if the appellants caught hold of Janeshwar, deceased. Therefore, their participation in the crime becomes doubtful and they are entitled to the benefit of doubt, P. W. 1,2 and 3 did not allege any motive on the part of these appellants to participate in the crime. They deposed before the court that these appellants belong to the party of Irfan and Rashid. There is no community; of interest between the appellants Irfan and Rashid to join with them to commit the heinous crime. Mr. Chaturvedi also urged that there is quite often a tendency to implicate some person in addition to actual assailant. The evidence led by the prosecution in the present case to prove the guilt of appellants is nothing but to implicate them in addition to actual assailants Rashid and Irfan by attributing to Manphool a part of stopping the deceased near his Chabutra and further assigning the part of catching hold of the deceased by Masoom and Manphool, we have carefully scrutinized the evidence on record and we are of the opinion that in the facts and the circumstances of the case, the participation of the accused-appellants Manphool, Masoom and Phialloo appears to be doubtful and they are entitled to the benefit of doubt and are acquitted of the charges leveled against them. ( 13 ) SO far as the appellants of Criminal Appeal No. 2388 of 1979 their case stands on a different footing. ( 13 ) SO far as the appellants of Criminal Appeal No. 2388 of 1979 their case stands on a different footing. Learned Sessions Judge after scrutinizing the entire evidence on record placed implicit reliance on the evidence of two eye witnesses namely Nand Kishore P. W. 2 and Shri Pal Singh P. W. 3. It is established from the evidence on record that the incident had taken place on the Chabutra of Manphool at the relevant time and Janeshwar died due to the injuries suffered by him in that incident. We do not find any infirmity in the findings recorded by the learned Sessions Judge that this crime was committed on the Chabutra of Manphool and nowhere else. P. W. 2 Nand Kishore has deposed before the Court that the accused-appellants belong to his village and he knew them form before and all the appellants are of same party P. W. 2 Nand Kishore has supported the entire prosecution story in his statement before Court and his presence at the scene of incident could not be doubted because he is the resident of the same village and had no enmity with the accused- appellants not he was interested in the complainant side. He is a wholly independent witness and the learned Sessions Judge has rightly believed his evidence. We have also scrutinized his testimony with care and caution and we also do not find any Infirmity in his statement to discredit his testimony. He has been subjected to lengthy cross-examination but nothing bas come out in his cross-examination to discredit his testimony. His evidence is corroborated by the medical evidence. Learned counsel for the appellants failed to point out any infirmity in his statement. We, therefore, place implicit reliance on his testimony. P. W. 3 Shri Pal Singh has supported the prosecution story. He is a most natural and independent witness. His presence at the scene of incident could not be doubted and his testimony finds corroboration by the medical evidence and other material on the record. He has also been subjected to the lengthy cross-examination but nothing material has been brought out to discredit his testimony. On a careful scrutiny of evidence, we find that P. W. 3 is a reliable witness. He has also been subjected to the lengthy cross-examination but nothing material has been brought out to discredit his testimony. On a careful scrutiny of evidence, we find that P. W. 3 is a reliable witness. Both P. W. 2 and P. W. 3 have deposed in their evidence that appellants Irfan and Rashid attacked Janeshwar with their knives on the Chabutra of Manphool and Janeshwar died due to the injuries suffered by him. Both the witnesses are consistent with regard to the manner of assault and they had no enmity with the accused persons. A suggestion was made to them in their cross-examination that they had deposed against the accused persons as they belong to the party of the deceased. This suggestion was denied by them. ( 14 ) LEARNED Sessions Judge did not place any reliance on the so called dying declaration recorded by the Investigation Officer Ext. Ka. 2 This dying declaration was recorded by P. W. 5 S. I. Mohan Krishan Asthana, P. W. 5 the Investigating Officer has stated in his examination-in-chief that before recording the statement, he read out the First Information Report to Janeshwar and, thereafter, his statement was recorded, thus the dying declaration has not been recorded according to the regulation 115 of U. P. Police Regulation. Sessions Judge did not place any reliance on the dying declaration and in our opinion also no reliance could be placed on this dying declaration. Learned counsel for the appellants Irfan and Rashid vehemently argued that the Trial Judge has disbelieved the evidence of P. W. 1 and he should not have placed reliance on the other eye witnesses. This argument has no force, while discussing the evidence or P. W. 1, learned Session Judge has held that his presence at the time of the incident was doubtful and only after - his brother was taken away from the place; that he reached there and he was informed about the incident and then he lodged the report. We see no reason to disturb this finding of the Sessions Judge. The fact remains that the prosecution has succeeded in proving the guilt of the accused Irfan and Rashid in the present crime. On a careful scrutiny of the evidence of reliable and independent witnesses P. W. 2 and P. W. 3, we do not find any infirmity in their statements. The fact remains that the prosecution has succeeded in proving the guilt of the accused Irfan and Rashid in the present crime. On a careful scrutiny of the evidence of reliable and independent witnesses P. W. 2 and P. W. 3, we do not find any infirmity in their statements. They have supported the prosecution case and their statement is consistent with the medical evidence. We have extended the benefit of doubt to three appellants namely Manphool, Masoom and Phialloo. There now remains two appellants of Criminal Appeal No. 2388 of 1979 as we have acquitted third appellant. The conviction and sentences of Irfan and Rashid under section 148 I. P. C. cannot be sustained and they are liable to be acquitted of the offence under section 148 I. P. C. Both the appellants also cannot be convicted under section 302 I. P. C. with the aid of section 149 I. P. C. We have already given benefit of doubt to three accused persons and the number of the accused person stand reduced to less than five and they cease to be member of an unlawful assembly, they can be convicted under section 302 I. P. C. read with section 34 I. P. C. ( 15 ) FOR the reasons given above, Criminal Appeal No. 2388 of 1979 of Irfan and Rashid appellants is partly allowed. Their convictions and sentences under section 148 and 302 I. P. C. read with section 149 I. P. C. is set aside. Instead they are convicted under section 302 I. P. C. read with section 34 I. P. C. and sentenced to life imprisonment. Their sentences under section 148 I. P. C. are hereby quashed. They shall be taken into custody forthwith to serve out the sentence awarded to them. ( 16 ) IN the result the Criminal Appeal No. 2336 of 1979 is allowed and the appellants Masoom; manphool and Phialloo are acquitted of the Charges leveled against them. They shall be released forthwith unless required in some other case in Criminal Appeal No. 2388 of 1979 the appellants irfan and Rashid are acquitted under section 148 I. P. C. and under section 302 read with section 149 I. P. C. instead they are convicted and sentenced under section 302 I. P. C. read with section 34 I. P. C. for imprisonment for life. ( 17 ) THEY are on bail. ( 17 ) THEY are on bail. Their bail bonds are cancelled. They shall be taken into custody forthwith to serve out the sentence awarded to them. Appeal allowed. .