JUDGMENT 1. - The appellants were the accused on the file of the learned Additional Sessions Judge Chhabra Distt. Baran bearing Sessions Case No. 107/1993. They were found guilty, convicted and sentenced vide judgment dated January 24,1996 as under - 1. Mohammed Shehzad; U/s 147 I.P.C.; One year R.l. and fine of Rs. 100/- (in default to further undergo 15 days S.I.); 2. Mohammad Yanus; 3. Mohammad Rahim; 4. Gulam Rasool; U/s 148 I.P.C.; One year R.l. and fine of Rs. 100/- (in default to further undergo 15 days S.I.); 5. Mohammad Farukh; U/s 302 read with 149 I.P.C. Life imprisonment and fine of Rs. 500/- (in default to further undergo one month S.l.) All the sentences were directed to run concurrently. 2. The facts which need be noted for the disposal of the above appeals are that informant Mehmood Ali instituted written report (Ex.P.1) with the Police Station Chhipabarod Distt. Baran on September 3, 1993 at 11.30 a.m. stating that around 11 a.m. he and his brother in law Akhlaq Ahmed (since deceased) started from his house towards the river in order to take bath. When they reached near `Hat Chowk they found the appellants standing there armed with swords, Dhariya and lathies. All the appellants rushed towards Akhlaq. Appellant Farukh inflicted sword blow on his head and others also caused injuries on his person. Jamil Ahmed, Munna and Israr Ahmed intervened and took Akhlaq to the hospital. 3. The Police Station Chhipabarod registered F.I.R. No. 195/93 (Ex.P.2) for the offences under sections 147, 148, 149 and 307 I.P.C. and investigation commenced. During the course of investigation Akhlaq died and offence under section 302 I.P.C. was added. Sita was inspected vide memo (Ex.P.3). Inquest report was drawn. Deadbody of Akhlaq was subjected to Post Mortem. Report of Post Mortem is (Ex.P.33). The appellants were arrested and at the instance of the appellants the weapons were recovered. On conclusion of the investigation the charge sheet was filed against the appellants. In due course the case came for trial before the learned Additional Sessions Judge Chhabra. Charges under sections 147, 148, 302, 307/149 I.P.C. were framed against the appellant Farukh whereas all the other appellants were charged under sections 147, 148, 307 and 302/149 I.P.C. The appellants denied the charges and claimed trial. In due course the case came for trial before the learned Additional Sessions Judge Chhabra. Charges under sections 147, 148, 302, 307/149 I.P.C. were framed against the appellant Farukh whereas all the other appellants were charged under sections 147, 148, 307 and 302/149 I.P.C. The appellants denied the charges and claimed trial. The prosecution examined as many as 23 witnesses thereafter explanation of the appellants under section 313 Cr.P.C. was recorded. The appellants denied the allegations and claimed innocence. One defence witness was produced by the appellants in support of the defence version. On hearing the final submissions the learned trial Judge convicted and sentenced all the appellants as indicated hereinabove. 4. The learned trial judge based the conviction of the appellants principally on the evidence of Mehmood Ali (P.W.1), Israr Ahmed (P.W.2) and Munna @ Jamil (P.W.5). The presence of these witnesses at the place of incident has not been doubted and it impelled the trial judge to hold these witnesses as eye witnesses of the incident. 5. Learned counsel appearing for the appellants canvassed that the alleged eye witnesses were not present at the scene of occurrence. Nobody had seen the occurrence and the presence of the witnesses at the scene of occurrence is doubtful. The witnesses related to the deceased and they were the chance witnesses. Their conduct was most unnatural. The F.I.R. was received by the Ilaqa Magistrate after a great delay. The true genesis of the occurrence was not brought to the notice of the court. Jamil Ahmed (P.W.17) who was named as eye witnesses in the F.I.R. had only implicated Shezad, Yunnus and Rahim. He categorically stated that appellants Farukh and Rasool were not present at the time of occurrence. This witness was not declared hostile but the learned trial judge ignored his testimony. The material placed on record was not properly appreciated by the learned trial judge and conviction of the appellants deserves to be set aside. We shall deal with the case law cited by the learned counsel at the appropriate juncture. 6. Per contra learned Public Prosecutor and learned counsel for the complainant supported the judgment of the trial judge and urged that F.I.R. was lodged within thirty minute of the occurrence and it contains the names of all the appellants and the eye witnesses. We shall deal with the case law cited by the learned counsel at the appropriate juncture. 6. Per contra learned Public Prosecutor and learned counsel for the complainant supported the judgment of the trial judge and urged that F.I.R. was lodged within thirty minute of the occurrence and it contains the names of all the appellants and the eye witnesses. Site plan renders corroboration to the version narrated in the F.I.R. The credibility of the eye witnesses could not be shattered and the appellants were rightly convicted. Reliance was placed on various judicial pronouncements. 7. We have given out anxious consideration to the rival submissions and scanned the material on record. 8. Let us now examine the credibility of the eye witnesses. Coming to the testimony of Mehmood Ali (P.W.1) it is to be noticed that the deceased Akhlaq was his real brother in law. He submitted the written report of the incident. According to his deposition the occurrence had taken place in `Hat Mohalla and appellant Farukh inflicted blow with the sword on the head of the deceased whereas appellant Rahim caused injury on the head with Dhariya and the deceased fell down thereafter all other appellants caused injuries on his person indiscriminately. In respect of appellant Yunus this witness deposed that he inflicted blow with 'Chhura' on the head of the deceased. In his cross examination the witness stated that he was the inhabitant of 'Sati Mohalla whereas the deceased resided at `Naya Mohalla and on the date of incident they met at the road. Witness Israr (P.W.2) is the sisters son and Munna (P.W.5) is the cousin of the deceased. The occurrence had taken place near the `Gumti (shop) of appellant Yunus. At the police station he asked someone to write the report but he did not know his name. He informed the scribe of the report that Yunus was armed with `Chhura but this fact was not mentioned in the report. Akhlaq was referred from Chhipabarod to Hospital Baran around 1.00 p.m. but he did not accompany Akhlaq. 9. Israr Ahmed (P.W.2) in his deposition stated that after taking bath from the river when he reached at `Hat Chowk he found Akhlaq standing near the `body (shop) of Yunus. Farukh was armed with sword, Rahim was having `Dhariya and Yunus had `Chhura, the other appellants had lathies. All of them rushed towards Akhlaq. 9. Israr Ahmed (P.W.2) in his deposition stated that after taking bath from the river when he reached at `Hat Chowk he found Akhlaq standing near the `body (shop) of Yunus. Farukh was armed with sword, Rahim was having `Dhariya and Yunus had `Chhura, the other appellants had lathies. All of them rushed towards Akhlaq. Farukh inflicted sword blow on his head whereas Rahim caused injury on his head with Dhariya and Akhlaq fell down thereafter Yunus gave `Chhura blow on his head and other appellants inflicted lathi blows on his person. 10. Munna @ Jamil Ahmed (P.W.5) almost repeated the version narrated by witnesses Mehmood Ali and Israr Ahmed. 11. Jamil Ahmed (P.W.17) another eye witness of the incident however deposed that near the shop of Siddique he had seen Yunus and Akhlaq quarreling. Shehzad, Rahim and other persons were standing nearby. Yunus inflicted blow with 'Chhura' on the head of Akhlaq. Rahim, though was armed with Dhariya but he (Jamil Ahmed) did not see Rahim inflicting blow on the person of Akhlaq. When Akhlaq fell down, Shahjad caused injury by lathi on his person. In his cross examination he stated that as there was a crowd at the place of incident he did not see Farukh and Rasool at the site. 12. Dr. Y.N. Verma (P.W.23) who conducted the post mortem of dead body of Akhlaq in his deposition stated that the deceased had sustained as many as 29 injuries and cause of his death was coma brought about as the result of anti-mortem injuries to skull and brain. 13. Dr. Satish Pareek (P.W.20) who examined the injuries sustained by Akhlaq at 11.45 a.m. on September 3, 1993 proved injury report Ex.P.22. 13. Dr. Satish Pareek (P.W.20) who examined the injuries sustained by Akhlaq at 11.45 a.m. on September 3, 1993 proved injury report Ex.P.22. He found following injuries on the person of Akhlaq (1) Incised wound 11/2" x 1/2" scalp deep Left frontal region (Bleeding) (2) Incised wound 11/2" x 1/4" scalp deep Right frontal region (Bleeding) (3) Incised wound 1" x 1/4" skin deep Left parietal region (Bleeding) (4) Incised wound 1" x 1/4" skin deep Transversely centre of scalp (Bleeding) (5) Incised wound 1" x 1/4" skin deep Left parietal region (Bleeding) (6) Bruise 1" x 1" Back of right fore arm in centre (7) Bruise 3/4" x 3/4" Back of right wrist (8) Incised wound 1" x 1/4" Back of right little finger (9) Abrasion 1/2" x 1/2" Right elbow (10) 1/4" x 1/4" Knuckle of right index finger (11) Incised wound 3/4" x 1/4" Left fore arm (12) Bruise 1"x 1" Left thigh (13) Bruise 11/2" x 1" Below injury No. 12 (14) Incised wound 1" x 1/4" Front of left knee (15) Abrasion 1" x ⅛" Front of Left leg. (16) Abrasion 1" x ⅛" Front of Right knee (17) Abrasion 1" x ⅛" Front of Right Knee (18) Abrasion 1/2" x1/4" Left foot (19) Incised wound 3/4" x 1/4" Left shoulder (20) Bruise 11/2" x 1" Lower Part of right side of back 14. First and foremost contention urged on behalf of the appellants was that F.I.R. lodged by Mehmood Ali (P.W.1) was a concocted document. Time 11.30 a.m. stated in the report was by a different ink that created doubt about the genuineness of the document. In order to appreciate the contentions we perused the written report (Ex.P.l). Undoubtedly the time `11.30 a.m. has been written in a different ink. It bears the signatures of Mehmood Ali (P.W.1) and Shamiullah ASI (P.W.22). In his deposition Shamiullah explained that in Ex.P1 the police proceeding was drawn in the hand writing of his `Munshi whereas the time `11.30 a.m. was written when he put his signatures in the different ink. The ink of his signatures and time 11.30 a.m. was the same. Shamiullah further explained that the time of the endorsement was written when he put his signatures on the report. The explanation given by Shamiullah appears reasonable to us. The ink of his signatures and time 11.30 a.m. was the same. Shamiullah further explained that the time of the endorsement was written when he put his signatures on the report. The explanation given by Shamiullah appears reasonable to us. This explanation further finds support from the Medical Injury Report (Ex.P.22) of Akhlaq which demonstrates that Akhlaq was medically examined at 11.45 a.m. on September 3, 1993 by Dr. Satish Pareek. In our opinion it was not necessary to incorporate F.I.R. number in the Medical Injury Report. The endorsement that the injured was brought by the police was sufficient to show that the F.I.R. was already lodged. Thus we find no merit in this contention and hold that the report was lodged at 11.30 a.m. by Mehmood Ali. 15. The second argument advanced on behalf of the appellants was that there was deliberate delay in sending F.I.R. to the concerned Magistrate. The distance between the Police Station and the Court of Magistrate was only half kilometre but the F.I.R. was received by the Magistrate on September 4, 1993 at 12.00 noon. Reliance was placed on Datar Singh v. State of Punjab, ( AIR 1974 SC 1193 ) wherein the column in the form in which the F.I.R. was taken down did not mention the time and of the despatch of the report from the Police Station to the Magistrate. The prosecution had tried to prove by the evidence that the special report was delivered to the Chief Judicial Magistrate. Their Lordships of the Supreme Court after examining the evidence observed that the mystery surrounding the very quick writing up of and copying out the F.I.R. and the absence of any entry showing when it was sent to the Magistrate concerned may be due to the fact that the F.I.R. was lodged much later than it was actually shown to have been.In the case on hand the F.I.R. (Ex.P.2) was received by the Magistrate at 12 noon on September 4, 1993. Shamiullah (P.W.22) in his cross examination deposed that he handed over the F.I.R. (Ex.P.2) to the constable to deliver it to the court of Magistrate on September 3, 1993 but in the F.I.R. (Ex.P.2) time of despatch and name of constable was not mentioned. Shamiullah (P.W.22) in his cross examination deposed that he handed over the F.I.R. (Ex.P.2) to the constable to deliver it to the court of Magistrate on September 3, 1993 but in the F.I.R. (Ex.P.2) time of despatch and name of constable was not mentioned. As the police station was only half kilometre away from the court of Magistrate, we find that there was delay in sending the F.I.R. to the Magistrate and the delay was not satisfactorily explained but the question that falls for our consideration is that whether every delay in the F.I.R. reaching the Magistrate is fatal to the prosecution case? This question is a question of fact. In our considered opinion if the report could be held to have been given at the Police Station at the time at which it is said to have been then simply because the police officials neglect to land it immediately to the Magistrate the conclusion can not be that there is concoction. Where there is reason to believe that the report was given by the informant at the time stated by him, negligence on the part of the police in delaying the F.I.R. to reach the Magistrate can not affect the prosecution case.As already held the F.I.R. in the instant case was lodged promptly i.e. at 11.30 a.m. therefore the delay in reaching the F.I.R. to the court of Magistrate is not fatal to the prosecution case and we find no substance in the submission of the learned counsel. 16. The third argument urged on behalf of the appellants relates to the overwriting in the Written Report (Ex.P.1). It was contended that initially the Fathers name of the informant Mehmood Ali was written as `Shakir Ali but subsequently correction was made and in place of `Shakir Ali, Shakur Ali was written. This shows that at the time of lodging of the report informant Mehmood Ali was not present. We do not find any merit in the submission in view of the statements of Mehmood Ali (P.W.1) and Shamiullah (P.W.22). Mehmood Ali in his deposition stated that he himself got the report (Ex.P.1) written by some body. No question was asked from him about the alleged overwriting. Shamiullah (P.W.22) on the other hand explained in the cross examination that words `Shakir Ali; marked as C to D in (Ex.P.1) would be erased by the informant himself. 17. Mehmood Ali in his deposition stated that he himself got the report (Ex.P.1) written by some body. No question was asked from him about the alleged overwriting. Shamiullah (P.W.22) on the other hand explained in the cross examination that words `Shakir Ali; marked as C to D in (Ex.P.1) would be erased by the informant himself. 17. That takes us to the next submission of the learned counsel for the appellants that there are serious contradictions in the statements of eye witnesses. Various important facts were missing from the report. The presence of the witnesses at the place of occurrence was doubtful and true genesis of the occurrence was not brought before the court. The eye witnesses are relatives of the deceased and they could not have been near the place of occurrence. The witnesses of nearby locality were not examined by the prosecution. The conduct of eye witnesses was highly unnatural and the learned trial judge committed illegality in placing reliance on them. 18. Before dealing with the submissions of the learned counsel for the appellants we deem it appropriate to refer the relevant case law. 19. Their Lordships of the Supreme Court had occasion to consider the expression `chance witness in Rana Pratap v. State of Haryana, ( AIR 1983 SC 680 ) . It was observed in para 3 thus- "We do not understand the expression 'chance witness'. Murders are not committed with previous notice to witnesses; soliciting their presence. If murder is committed in a dwelling house, the inmates of the home are natural witnesses. If murder is committed in a brother, prostitutes and paramours are natural witnesses. If murder is committed in a street, only passerby will be witnesses. Their evidence cannot be brushed aside or viewed with suspicious on the ground that they are mere chance witnesses. The expression `chance witnesses is borrowed from countries where every mans house is considered his castle and every one must have an explanation for his presence elsewhere or in another mans castle. It is a most unsuitable expression in a country whose people are less formal and more casual. To discard the evidence of street hawkers and street vendors on the ground that they are `chance witnesses even where murder is committed in a street, is to abandon good sense and take too shallow a view of the evidence." 20. It is a most unsuitable expression in a country whose people are less formal and more casual. To discard the evidence of street hawkers and street vendors on the ground that they are `chance witnesses even where murder is committed in a street, is to abandon good sense and take too shallow a view of the evidence." 20. In the matter of delayed examination of the eye witness by the police the Honble Supreme Court in Dr. Krishna Pal v. State of U.P. (1996) 7 SC 194 indicated in para 9 as under "In the instant case, no explanation has been given by the prosecution as to why eye witnesses has not been examined shortly after the incident and from the materials on record it appears that there had been inordinate delay in examining the eye witnesses. But simply on that account, the convincing and reliable evidence adduced in the case should not be discarded." 21. Ramesh v. State of M.P., (1996 (2) Supreme (Cr.) 271) was the case where it was held that delay in examining the witnesses ipso facto can not be a ground to discard their testimony when in cross examination of witnesses nothing tangible had been brought out to impeach their testimony. 22. Propounding guidelines to consider the evidence, the Honble Supreme Court in Leela Ram v. State of Haryana, 1999(2) Supreme (Cr.) 436 observe that minor embellishment, there may be, but variations by reason therefore should not render the evidence of eye witnesses unbelievable. Trivial discrepancies ought not to obliterate an otherwise acceptable evidence. The evidence is to be considered from the point of view of trustworthiness. 23. Keeping in view the afore quoted guidelines we now proceed to examine the evidence led by the prosecution in the instant case. 24. As already stated the incident had taken place on road at 'Hat Chowk'. In the Written Report (Ex.P.1) all the appellants were named by the informant Mehmood Ali (P.W.1). It was also stated in the report that appellants Farukh and Rahim were armed with sword and Dhariya and other appellants were having lathies. All the appellants rushed towards Akhlaq to beat him and Farukh inflicted sword blow in his head and others caused injuries on his head, hands and legs. All were instigating each other to kill Akhlaq. Jamil Ahmed, Israr and Munna were named as witnesses of the incident. All the appellants rushed towards Akhlaq to beat him and Farukh inflicted sword blow in his head and others caused injuries on his head, hands and legs. All were instigating each other to kill Akhlaq. Jamil Ahmed, Israr and Munna were named as witnesses of the incident. But in his deposition before the trial court on March 30, 1994 Mehmood Ali made certain improvements. He was consistent in regard the presence of all the appellant and the injury inflicted by Farukh with sword on the head of the deceased but he deposed that Rahim caused injury on the head of the deceased with Dhariya and Yunus inflicted blow with Chhura on his head. According to the written report Yunus was armed with lathi but as per the statement before the court Yunus was having Chhura. In his cross examination when the witness was contradicted he explained that he informed the scribe of the report that Yunus was having Chhura. He further deposed that the report was not read over to him by the scribe. He further stated that his statement was recorded by the police on the date of the occurrence. This witness was not confronted with his statement recorded by the police under section 161 Cr.P.C. He had gone with Akhlaq to the Hospital Chhipabarod and on September 4, 1993 when the site plan (Ex.P.3) was drawn, he put his signatures on the memo of site plan. An attempt was made by the learned counsel to establish that this witness was not present at the site on the ground that he made improvements in his statements and could not definitely say as to at which place Akhlaq received blows. On a careful appraisal of material on record we have noticed that the incident had taken place at place `A of the road shown in the memo of site plan (Ex.P.3). It was specifically mentioned in the memo that on account of flow of drain water at place `A, the marks of blood could not be traced. On both sides of place `A of the road there were small shops of appellants Yunus (Place `F) Siddique (Place G). We have carefully scanned the cross examination of Mehmood Ali but we could not find anything tangible to discard his testimony. His evidence is fully corroborated by the injury report and Post Mortem report of the deceased. On both sides of place `A of the road there were small shops of appellants Yunus (Place `F) Siddique (Place G). We have carefully scanned the cross examination of Mehmood Ali but we could not find anything tangible to discard his testimony. His evidence is fully corroborated by the injury report and Post Mortem report of the deceased. Even if we ignore his version in regard to causing injury by Yunus with Chhura, we cannot discard his entire testimony. Participation of Yunus in the crime is fully established and the prosecution has proved beyond the reasonable doubt that Yunush was a member of unlawful assembly and had common object with other appellants to kill Akhlaq. We have considered the evidence of Mehmood Ali from the point of trustworthiness and we have found his presence at the place of incident quite natural. The manner in which the appellants inflicted blows on the person of Akhlaq, no sane person could dare to save him. If Mehmood Ali has not received any injury, it does not mean that he was not present near the place of occurrence. He lodged the report promptly and according to Shamiullah (P.W.22) statement of Mehmood Ali under section 161 Cr.P.C. was recorded at 12.15 p.m. on the date of occurrence. Mehmood Ali no doubt is related to the deceased but in the facts and circumstances of this case his presence at the place of occurrence cannot be doubted. 25. Israr Ahmed (P.W.2) corroborated the version narrated by (P.W.1). He was named in the F.I.R. His statement under section 161 Cr.P.C. was recorded on September 4, 1993. We have carefully perused his cross examination and we are of the view that his testimony could not be shattered in the cross examination. Siddique Ali (P.W.3) whose shop was shown in the site plan near the place of occurrence did not support the prosecution case and was declared hostile. Munna @ Jamil Ahmed (P.W.5) implicated all the appellants in the crime. He deposed that there was a crowd and he had seen the appellants inflicting blows on the person of Akhlaq with sword, Dhariya, Chhura and lathies. He had gone to the Hospital with Mehmood and Israr. He was examined by the police after about eleven days of the incident and there are minor contradictions in his statement. 26. Now comes the testimony of Jamil Ahmed (P.W.17). He had gone to the Hospital with Mehmood and Israr. He was examined by the police after about eleven days of the incident and there are minor contradictions in his statement. 26. Now comes the testimony of Jamil Ahmed (P.W.17). His testimony is somewhat different from the other witnesses. In his deposition Jamil Ahmed stated that he had seen Yunus and Akhlaq quarrelling near the shop of Siddique Tyre Wala in the presence of Shehjad, Rahim and other persons whose names he did not know. Yunus inflicted blow with Chhura on the head of Akhlaq. Though Rahim was armed with Dhariya but he did not see Rahim inflicting injury. When Akhlaq fell down, Shehjad gave lathi blow. In his cross examination he stated that because of the crowd he did not see Farukh and Rasool there. On the basis of his testimony learned counsel made submission that Jamil Ahmed was not declared hostile, and being an independent witness, his version should be accepted and Farukh and Rasool should be given benefit of doubt. We however have not been impressed with the submission. This witness could not see Farukh and Rasool because of the crowd and in view of testimony of Mehmood Ali, Israr Ahmed and Munna we are unable to pursuade ourselves to agree that Farukh and Rasool did not participate in crime. 27. We also do not find any force in the contention that Shamiullah (P.W.22) and Rajendra Singh (P.W.1) did not investigate the matter fairly. These police officers made attempt to associate the independent witnesses of nearby locality. Weapons of offences were recovered at the instant of the appellants. After having considered the material on record we have found the testimony of PWs. 1, 2 and 5 trustworthy. The medical evidence is consistent with the version of these witnesses. There is absolutely nothing to indicate that either the informant or the eye witnesses entertained such deep seated grudge as to pursuade them to implicate the appellants in a false case. The prosecution version is natural and probable. We have no hesitation under these circumstances to agree with the findings arrived at by the learned trial judge that the prosecution has proved the guilt against the appellants beyond reasonable doubt. The prosecution version is natural and probable. We have no hesitation under these circumstances to agree with the findings arrived at by the learned trial judge that the prosecution has proved the guilt against the appellants beyond reasonable doubt. The ratio of case law cited before us by the learned counsel for the appellants is not applicable to the facts and circumstances of this case and we deem it unnecessary to refer and multiply all the authorities placed before us. 28. In the result we affirm the conviction and sentence entered against the appellants under sections 147, 148, 302 read with 149 I.P.C.All the four appeals fail and stand dismissed.Appeal dismissed. Convictions affirmed. *******