JUDGMENT 1. - These three appeals are directed against one judgment dated 24.9.1996, passed by learned Additional Sessions Judge, Rajgarh, Camp Laxmangarh, District Alwar in Sessions case No. 141/1994, whereby accused-appellants Shiv Ram and Arvind Kumar @ Tillu have been convicted and sentenced under Section 302 IPC with life imprisonment and a fine of Rs. 500/- each and in default of payment of fine to further undergo six months rigorous imprisonment and accused-appellants Sohan Lal has been convicted and sentenced under Section 302 read with Section 34 IPC with imprisonment of life and a fine of Rs. 500/- and in default to further undergo six months rigorous imprisonment. 2. The prosecution case, in brief, is that PW1 Shri Ram Babu along with PW 3 Shri Bholu Ram submitted a written report Ex. R 1 at Police Station, Laxmangarh on 10.7.1994 at 3.5 p.m. with the averments that at 10.30 a.m., he alongwith Bhagwan Singh S/o Bholu Ram Jat (deceased) and Bacchu Singh S/o Babu Singh Jat (PW 2) were returning from Village Kanvada after having attended a function organised by one Giriraj Meena. On the way at about 2 p.m. Sohan Lal Meena, Arvind @ Tillu Jat and Shiv Ram Meena (all the three accused-appellants), who were coming by a motor cycle, met them near the well of Shri Ghisi and Kalu and stopped them. Shiv Ram abused Bhagwan Singh, Arvind and Sohan Lal caught hold of Bhagwan Singh. They tried to intervene but Shiv Ram with intent to kill Bhagwan Singh gave a knife blow upon the left side chest of Bhagwan Singh, second knife blow was inflicted by Sohan Lal and third knife blow as inflicted by Arvind upon the neck of Bhagwan Singh. They raised hue and cry. It is also mentioned that 7 persons Bhim Singh, Nathi, Laxman, Amritpal, Rams Avtar, Vijay Singh S/o Laxman and Dharam Singh, who helped the accused in escape from the scene of occurrence, were sitting nearby. In the meantime Mewaram (PW 7) and Sugan (PW 19) reached there by a tractor and saw the accused running. Bhagwan Singh died on the spot. It is also alleged that Shri Bhagwan Singh and Shiv Ram quarreled with each other about 5 or 6 days prior to this incident. 3. A formal FIR No. 154/94 under Section 302/34 IPC (Ex. R 2) was registered and investigation commenced on that very day i.e. 10.7.1994. Bhagwan Singh died on the spot. It is also alleged that Shri Bhagwan Singh and Shiv Ram quarreled with each other about 5 or 6 days prior to this incident. 3. A formal FIR No. 154/94 under Section 302/34 IPC (Ex. R 2) was registered and investigation commenced on that very day i.e. 10.7.1994. Site plan Ex. R3 was prepared. All the three accused were arrested and at their instance, knives were recovered and after usual investigation, charge-sheet 'was filed against ali the three accused. 4. The learned Additional Sessions Judge framed the charge under Section 302 IPC and it was read- over and explained to the accused, who pleaded not guilty and claimed trial. As many as 20 witnesses namely Ram Babu, Bacchu Singh, Bholu Ram, Sher Singh, Ramjilal Sharma, Om Prakash, Mewaram, Prem Prakash, Manohar, Digambar Singh, Ramesh Chandra Meena, Bijendra Singh, Ram Kumar, Pooranmal Sharma, Dr. R.A. Bali, Dr. Gajraj Singh, Mishrilal Sharma, Devi Singh, Sugan Chand and Jagdish Prasad were examined on behalf of the prosecution. The accused were examined under Section 313 Cr.PC. They pleaded innocence. Accused Shri Arvind Kumar @ Tiliu stated that there is enmity between his family and that of the deceased for last 20 years and a false case of dacoity was got registered against his brothers Amrit Pal and Bhim on behalf of the family of the deceased and on account of this enmity he has also been falsely implicated. However, no witness has been examined in defence. 5. We have heard the learned counsel Shri A.K. Gupta for the appellant Shri Shiv Ram learned counsel Shri Biri Singh for the accused-appellants Shri Arvind Kumar and learned counsel Shri Sharma for third appellant and learned RR Shri Rajendra Yadav on behalf of the state and have considered the entire evidence available on the record. The post-mortem on the dead body of Shri Bhagwan Singh was conducted by a Medical Board consisting of PW 15 Dr. R.A. Bali and PW 16 Dr. Gajraj Singh on 10.7.1994 at about 5:10 p.m. on the way to the Village Lily and post-mortem report Ex. R 21 was prepared. The following injuries were noted in the post-mortem report Ex. R 21. 1. A stab wound (punctured) 3x2cm x 6cm obliquely on left side of chest at 6th intercostal space in mid axillary line. Gajraj Singh on 10.7.1994 at about 5:10 p.m. on the way to the Village Lily and post-mortem report Ex. R 21 was prepared. The following injuries were noted in the post-mortem report Ex. R 21. 1. A stab wound (punctured) 3x2cm x 6cm obliquely on left side of chest at 6th intercostal space in mid axillary line. Left Bronchal Blood Vessels and Bronchus on left middle lobe cut down, Evidence of pro fused Bleeding present. The nature of wound is grievous caused by sharp weapon, fatal to life. 2. A stab wound 3 x 2 x 3cm obliquely in mid or left sub scapular fossa. Left Juglar vein and Arty and left carotid artery cut down. Evidence of pro fused bleeding present. Injury No. 2 is grevious in nature and fatal to life. 3. An abrasion 2x2cm vertically on back or left fore arm on Ex. Surface, 6 cm below from left elbow joint. 4. An abrasions 1x1 cm vertically just above medial mellulus of right ankle. Marks of ligature on neck - not seen. Condition of pupil - eyes open pupil dilated and fixed cranium and spinal cord - Healthy conjested. Membranes - Healthy Conjested Thorax Walls and Ribs:- Cartilages - full of blood present in thorax cavity. Pleurae - lacerated at 6th inter - costal space. Larynx and Trace - Healthy Right Lung - Healthy con jested. Left Lung - Cut down of at 6th inter- costal pace in mid- axillary line. Bronchial artery and veins cut down evidence of perfused bleeding present. 6. In the opinion of PW 15 Dr. Bali and PW 16 Dr. Gajraj Singh, the injuries No. 1 and 2 were grievous in nature and fatal to life. Both the injuries were sufficient to cause death in ordinary course of nature. It has also been stated that injuries No. 1 and 2 were ante-mortem in nature and were caused by some sharp weapon. Learned counsel Shri Gupta argued that according to oral evidence the dead body of Shri Bhagwan Singh was taken from the place of occurrence to the hospital but the post mortem was not done in the hospital, rather it was conducted in the open place i.e. on the way to the Village Lily and no explanation has been given as to why the dead body was taken from the hospital to an open place for the post mortem. Learned Counsel Shri Gupta has also pointed out certain contradictions in this regard. Learned counsel Shri Biri Singh and Shri Sharma have also supported these arguments. We have considered the arguments. No doubt it is stated in the FIR Ex. R1 that dead body was brought to the hospital at Laxmangarh. PW2 Shri Bacchu Singh and PW 7 Shri Mewa Ram have stated that the dead body was brought to the hospital. It is also not disputed that the post mortem was conducted not in the hospital. PW 15 Dr. Bali stated that the post mortem was conducted on the way leading to the Village Lily. PW 16 Dr. Gajraj Singh has also stated that the post mortem was conducted on the way to Village Lily. No question was put to them in cross- examination as to why they conducted the post mortem in the open place and why they did not conduct the post mortem in the hospital. PW 18 Shri Devi Singh, the then incharge Police Station Laxmangarh investigated this case. He was cross- examined on this point. He stated that since there was no room for conducting the post mortem in the hospital, therefore, the post mortem was conducted in the open place. He further stated that he does not know as to why the doctors conducted the post mortem in the open place. Thus the prosecution has not given any cogent explanation as to why the post mortem was conducted in the open place instead of in the hospital. But this fact is not so material as to create any doubt regarding the fact of post-mortem and the cause of death. It is also factually correct that there are some contradictions in this regard, as PW 15 Dr. Bali stated in his cross- examination that S.H.O. Shri Devi Singh came to him in the hospital at Baroda Mev. and took him by a jeep to Laxmangarh. PW 18 S.H.O. Shri Devi Singh stated that this Dr. was informed through wireless to come for conducting post-mortem. He denied that he himself went to Dr. Bali at Baroda Mev. But, in our considered view, such contradictions are not material at all. Thus, the objections regarding medical evidence are not material at all. PW 18 S.H.O. Shri Devi Singh stated that this Dr. was informed through wireless to come for conducting post-mortem. He denied that he himself went to Dr. Bali at Baroda Mev. But, in our considered view, such contradictions are not material at all. Thus, the objections regarding medical evidence are not material at all. In view of the medical evidence, the learned trial judge has rightly come to this conclusion that Shri Bhagwan Singh died because of injuries No. 1 and 2 which were fatal and sufficient in ordinary course of nature to cause death. 7. The next important question is as to whether these injuries were caused by the accused-appellants? According to the FIR Ex. R 1, PW 1 Ram Babu, PW 2 Bacchu Singh and the deceased Bhagwan Singh were returning together from Village Kanvada after having attended a function organised by one Giriraj Meena. On the way at about 2 pm, all the 3 accused, who were on a motor- cycle, came there and started causing injuries to Shri Bhagwan Singh. PW 1 Ram Babu and PW 2 Bacchu Singh tried to intervene. According to the FIR, 7 persons named in it were sitting nearby and they helped the accused persons in escaping from the place of occurrence. At that time Mewa Ram PW 7 and Sugan Chand PW 19 came from their field and they also witnessed the accused persons running from the place of occurrence. Thus, according to the FIR Ex. P 1, PW 1 Ram Babu Sharma and PW 2 Bacchu Singh jat witnessed this occurrence and PW 7 Mewa Ram Jat and PW 19 Sugan Chand Jat did not witness the actual occurrence but they reached the spot when the accused were making an escape from that place. 8. Now, we proceed to consider the evidence of PW 1 Ram Babu, PW 2 Bacchu Singh, PW 3 Bholu Ram, PW 7 Mewa Ram and PW 19 Sugan Chand. PW 1 Shri Ram Babu informant deposed that he alongwith Bacchu Singh (PW 2) and Bhagwan (deceased) were coming back from Village Kanwara. When they reached near the well or Ghisi and Kalu at about 2 pm, all the 3 accused Tillu @ Arvind, Sohan Lal and Shiv Ram came there on a motor- cycle and Shiv Ram abused Bhagwan. PW 1 Shri Ram Babu informant deposed that he alongwith Bacchu Singh (PW 2) and Bhagwan (deceased) were coming back from Village Kanwara. When they reached near the well or Ghisi and Kalu at about 2 pm, all the 3 accused Tillu @ Arvind, Sohan Lal and Shiv Ram came there on a motor- cycle and Shiv Ram abused Bhagwan. He asked Shiv Ram not to abuse and at that time Shri Shiv Ram caused a knife blow on he left side of the chest of Bhagwan. Remaining 2 accused Tillu @ Arvind and Sohan Lal were standing there and he did not see them causing any injury to Shri Bhagwan. He got the report Ex. R 1 written by someone else, whose name is not remembered by him. He denied this that all the 3 accused caused injuries to Bhagwan. At this stage, this witness was declared hostile and he was cross- examined on behalf of the prosecution. In cross- examination, he admitted that Mewa Ram and Sugan came there by a tractor and both of them saw the accused running from that place. PW 2 Shri Bacchu Singh, cousin brother of deceased Bhagwan Singh deposed that he alongwith Ram Babu (PW 1) and Bhagwan Sing (deceased) was coming from the Village Kanwara. When they reached near the well of Ghisi and Kalu at about 2 pm, all the 3 accused came on a motor- cycle and Shiv Ram started abusing Bhagwan Singh, Sohan Lal and Arvind @ Tillu caught hold of Bhagwan, Shiv Ram inflicted a knife blow on the left side of the chest of Bhagwan, thereafter, Sohan Lal inflicted a knife blow and Bhagwan tried to save himself, therefore, an abrasions was caused upon Bhagwans hand and thereafter accused Arvind @ Tillu caused a knife blow upon the neck of Bhagwan and he fell down and died. They cried. Mewa Ram and Sugan were ploughing the tractor in their field. They came alongwith tractor and saw the accused running from that place. This witness has been cross- examined in detail. PW 3 Shri Bholu Ram, father of the deceased is not the eye- witness. He deposed that all the 3 namely Bhagwan Singh, Rambabu and Bacchu Singh had gone to attend a function organised by Shri Giriraj at Village Kanwara. They came alongwith tractor and saw the accused running from that place. This witness has been cross- examined in detail. PW 3 Shri Bholu Ram, father of the deceased is not the eye- witness. He deposed that all the 3 namely Bhagwan Singh, Rambabu and Bacchu Singh had gone to attend a function organised by Shri Giriraj at Village Kanwara. He further stated that at about 2 pm, he came to know regarding this incident and then he proceeded to the spot. He also stated that one Bacchu S/o Roop Singh came to him and informed about this incident. Thereafter, he alongwith Ram Babu and other villagers went to the Police Station, Laxmangarh and lodged the report Ex. R 1 which bears his signatures also. In cross- examination, he stated that at the time of lodging the report, about 100- 200 people were present there. It is also stated that Mewaram, and Sugan were also present at the Police Station. PW 7 Shri Mewaram deposed that he was ploughing the tractor in his field, which was 3 fields away from the well of Ghisi. Sugan and Brijlal were also working in his field. Upon hearing hue and cry, he and Sugan came to the spot by tractor and at that time they saw all the 3 accused Shiv Ram, Sohan Lal and Arvind @ Tillu running from there. Accused Shiv Ram was running towards Village Toda while remaining 2 accused were going by motor- cycle towards Village Lili. They also saw the dead body of Bhagwan Singh drenched in blood and they found injuries on his chest and neck and abrasion on the hand. Then, they took the dead body in the tractor and proceeded to Laxmangarh and on the way, Ram Avtar, Bhim Singh, Laxman, Vijay Singh, Amrit Pal, Nathi and Dharam Singh were standing and they were pointing towards accused for escaping from that place. PW 19 Sugan Chand has supported this statement of Shri Mewaram that Shri Mewa Ram was ploughing his tractor. He further stated that Bacchu Singh came to them and told that Bacchu has died (Name of deceased is not Bacchu) but he did not make any enquiry. He further stated that he did not saw any accused running from that place but he saw the deceased Bhagwan lying in the field and they brought the dead body of Shri Bhagwan from that place. He further stated that he did not saw any accused running from that place but he saw the deceased Bhagwan lying in the field and they brought the dead body of Shri Bhagwan from that place. This witness thus, was declared hostile. In cross- examination, he stated that accused Shri Shiv Ram is his nephew. But as a matter of fact accused Shri Shiv Ram is not his nephew and this fact was admitted by this witness in further cross- examination. This witness has further stated that he is the uncle (Mausa) of accused Arvind @ Tillu. 9. Learned counsel Shri Gupta argued that out of 2 eye- witnesses, PW 1 Shri Ram Babu has been declared hostile and PW 2 Shri Bacchu Singh, being cousin brother of the deceased is highly interested witness. Therefore, no reliance can be placed upon the statements of PW 1 Shri Ram Babu and PW 2 Shri Bacchu Singh. Reliance has been placed upon Ani @ Hanif & Others v. The State of Rajasthan 1992 Cr.L.R. (Raj.) 604. According to this, during the trial the prosecution examined 14 witnesses as eye- witnesses and out of these 14 eye- witnesses, only two witnesses supported the prosecution case. It was held that these two witnesses were not only close relatives of the deceased having interest in the prosecution, they have contradicted on each and every material points with each other. Therefore these witnesses cannot be relied upon. In the case before us, PW 1 Shri Ram Babu does not appear to be an interested witness in the prosecution because neither he has any relation with the complainant nor he had any enmity with the accused persons. No. doubt, PW 1 Shri Ram Babu has been declared hostile but only on this ground his whole testimony cannot and should not be discarded as unreliable. It is important to say here that the written report Ex. R 1 was lodged at the Police Station just after one hour of the occurrence specifying the overt acts to all the 3 accused-appellants and presence of eye- witnesses, i.e. PW 1 Shri ram Babu and PW 2 Shri Bacchu Singh as well as the presence of PW 7 Shri Mewa Ram and PW 19 Shri Sugan Chand. Ex. R 6 statement of this witness under Section 161 Cr.RC. was also recorded on the same day i.e. 10.7.1994. Ex. R 6 statement of this witness under Section 161 Cr.RC. was also recorded on the same day i.e. 10.7.1994. He also admitted the presence of all the 3 accused on the spot as well as the presence of himself, PW 2 Bacchu Singh, PW 7 Mewa Ram and PW 19 Sugan Chand. He has simply denied this fact that 2 accused-appellants Arvind @Tillu and Sohan Lal caused any injury to deceased Bhagwan Singh. A close scrutiny of the whole statement of PW 1 Shri Ram Babu goes to show that he has deliberately not come out with true facts as far as accused Arvind @ Tiilu and Sohanlal are concerned for the reasons known to Ram Babu himself. He is the person who submitted the First Information Report just after one hour of the occurrence as stated above but he has contradicted himself from the facts of this report during the trial. In examination in- chief, he deposed that he got this report written from one unknown person but in cross- examination he admitted that this report was written by one Vijay Singh. He first admitted the portion A to B of Ex. P. 6 and then he resiled from this statement. He first stated that none came from the nearby fields but later on he admitted that Mewa Ram and Sugan Chand came there by a tractor. He further stated that the Police did not conduct any investigation on that day while his own statement was recorded by the Police on that very day and site plan Ex. R 3 was also prepared on that very day. He has admitted his signatures upon written report Ex. R 1, formal FIR Ex. R 2, site plan Ex. R 3, seizure memo of blood smeared soil Ex. R 4 and seizure memo of some articles Ex. R 5. All these documents are dated 10.7.1994. In view of above salient features noted in the statement of PW 1 Shri Ram Babu, no adverse inference can be drawn against the prosecution case as suggested by learned counsel appearing on behalf of the accused-appellants. PW 2 Shri Bacchu Singh, no doubt is the cousin brother of deceased Bhagwan Singh but in view of his categorical statement, his testimony has been rightly relied upon by the learned trial Judge. He has been named in FIR Ex. PW 2 Shri Bacchu Singh, no doubt is the cousin brother of deceased Bhagwan Singh but in view of his categorical statement, his testimony has been rightly relied upon by the learned trial Judge. He has been named in FIR Ex. R 1, which was submitted at the Police Station just after one hour of the occurrence as stated earlier. His presence at the spot has been admitted even by PW 1 Ram Babu and PW 7 Mewa Ram. The presence of PW 2 Shri Bacchu Singh on the spot just after this occurrence has been proved by PW 3 Bholu Ram also. The prosecution story as narrated by PW 2 Shri Bacchu Singh finds corroboration from PW 7 Shri Mewa Ram also and the presence of Shri Mewa Ram near the place of occurrence is also proved beyond doubt because he was working in his own field which was near to the place of occurrence. Although PW 19 Shri Sugan Chand is declared hostile but no adverse inference can be drawn from his statement because he has also admitted that he was working in the field of Shri Mewa Ram and Shri Mewa Ram was also working in his field. It is to be kept in mind that PW 19 Shri Sugan Chand is uncle of one of the accused Shri Arvind @ Tillu and therefore it is natural for Sugan Chand not to support the prosecution case. PW 7 Mewa Ram has categorically stated that he saw all the 3 accused running from the place of occurrence. Therefore, there appears no reason to disbelieve the statements of PW 2 Shri Bacchu Singh and PW 7 Shri Mewa Ram. PW 6 Om Prakash Meena, a resident of Village Kanwara stated that a son was born to his own brother Shree Chand and a function was organised and Shri Bholu Choudhary PW 3 was also invited. He further stated that on that day he had gone to Alwar, therefore, he does not know about the invitees who came there. But, he has supported to this part of the prosecution story that there was a function in Village Kanwara on the day of occurrence. 10. Learned counsel Shri Gupta further argued that Ex. He further stated that on that day he had gone to Alwar, therefore, he does not know about the invitees who came there. But, he has supported to this part of the prosecution story that there was a function in Village Kanwara on the day of occurrence. 10. Learned counsel Shri Gupta further argued that Ex. P 1 is not the First Information Report, rather the First Information Report has been suppressed by the prosecution and therefore, the whole case of the prosecution has become seriously doubtful. Learned counsel has referred the evidence of the prosecution and has placed reliance upon AIR 1980 SC 638 . The relevant portion of the judgment of Hon'ble Apex Court is reproduced as under:- The High Court, however, relied on another aspect of the matter, viz., that as there was no animus between PWs. 1 t6 6 and the accused, there was no reason to disbelieve them. The High Court seems to have overlooked the fact that the entire fabric of the prosecution case would collapse if the F.I.R. is held to be fabricated or brought into existence long after the occurrence and any number of witnesses could be added without there being anything to check the authenticity of their evidence. 11. Now we have to see as to whether the written report Ex. R 1 is a fabricated document or it was brought into existence long after the occurrence by suppressing the first version in this case. PW 1 Shri Ram Babu deposed that he got the report Ex. R 1 written by some unknown person and it bears his signatures. In cross- examination at Page 2, he deposed that this report was written perhaps by Vijay Singh. It was also stated by him that he first wrote some part of the report which could not be understood, therefore, the report was got written from Vijay Singh. He next stated that he first naratted the story to the S.H.O. and thereafter Ex. R 1 report was submitted. He further deposed at Page 3 of his statement that when they reached at the Police Station, Vijay Singh S/o Sua Lal who wrote the report Ex. R 1 was already there. But on perusal of the entire statement of this Witness, the contention of learned counsel Shri Gupta cannot be accepted that any other report apart from Ex. R 1 was first written. R 1 was already there. But on perusal of the entire statement of this Witness, the contention of learned counsel Shri Gupta cannot be accepted that any other report apart from Ex. R 1 was first written. It is very important to mention here that even no such suggestion was put to PW 1 Ram Babu that any other report was written apart from the report Ex. Pi. Learned counsel Shri Gupta has drawn our attention to the signatures of Ram Babu marked A to B on the back of first page of Ex. R 1 and that on second page of Ex. R 1 and contended that the signatures A to B on the back of first page of Ex. P. 1 are not the signatures of Ram Babu. No doubt, there are some dissimilarities in the signatures of Ram Babu marked A to B upon the back of Ex. P. 1 and signatures A to B on the second Page of Ex. R 1, but this witness was not cross- examined at all regarding his signatures A to B marked on the back of Ex. R 1. PW 2 Shri Bacchu Singh has specifically stated that Ex. P. 1 report was submitted by PW 1 Ram Babu and this report was written by Vijay Singh S/o Shri Sua Lal. At the cost of the repetition, it is observed here that it is also the statement of PW 1 that Ex. P. 1 report was written by Shri Vijay Singh S/o Sua Lal. PW 3 Shri Bholu Ram deposed in examination in chief that this report was given by Ram Babu and others in his presence and it was signed by Ram Babu and by him. In cross- examination he stated that this report was written at the Police Station. He further deposed that Ram Babu wrote only two lines and thereafter on the same paper the report was written by Vijay Singh. PW 18 Shri Devi Singh, investigating Officer stated that Ram Babu alongwith Bholu Ram came to the Police Station and they submitted the written report Ex. P. 1. According to Shri Devi Singh this report was not written at the Police Station. On the basis of the statements of PW 3 Bholu Ram and Devi Singh, it was argued by learned counsel for the accused-appellants that Ex. P. 1 is not the first version. P. 1. According to Shri Devi Singh this report was not written at the Police Station. On the basis of the statements of PW 3 Bholu Ram and Devi Singh, it was argued by learned counsel for the accused-appellants that Ex. P. 1 is not the first version. It is true that PW 3 Shri Bholu Ram stated in cross- examination that this report was written at the Police Station and two lines of this report were written by Ram Babu and the remaining report on the same paper was written by Vijay Singh, while the report Ex. P. 1 is clearly in the hand of one person. Contrary to the statement of Shri Bholu Ram, Shri Devi Singh stated that this report was not written at the Police Station, rather PW 1 Ram Babu came to the Police Station with this written report. Now the question arises as to whether it can be held that Ex. P. 1 is not that report which was first submitted at the Police Station? After making a close scrutiny of the entire evidence, the answer comes in negative. PW 3 Bholu Ram is a villager and keeping in view his whole statement, no such conclusion can be drawn that some other report was written rather Ex. P1. Therefore, this contention is not acceptable at all that first information report was suppressed by the prosecution and there was no FIR in this case. It was also contended that the prosecution has not produced Shri Vijay Singh S/o Shri Sua Lal, therefore, adverse inference should be drawn. But this contention is also not acceptable because a suggestion was put to PW 3 Bholu Ram in cross- examination that he in collusion with Jagdish and Vijay Singh submitted a false report against the accused-appellants. It goes to show that according to the accused side, Shri Vijay Singh S/o Shri Sua Lal was a man of PW 3 Shri Bholu Ram and when the prosecution failed to examine him, he could have been examined in defence. Therefore, no adverse inference can be drawn against the prosecution on account of non- examination of Shri Vijay Singh S/o Sua Lal. 12. It was next argued that no independent witnesses, though available were examined and therefore adverse inference should be drawn against the prosecution. Reliance has been placed upon Bir Singh & Others v. The State of UP. Therefore, no adverse inference can be drawn against the prosecution on account of non- examination of Shri Vijay Singh S/o Sua Lal. 12. It was next argued that no independent witnesses, though available were examined and therefore adverse inference should be drawn against the prosecution. Reliance has been placed upon Bir Singh & Others v. The State of UP. AIR 1978 SC 59 . The relevant portion of para 9 of this judgment is as follows:- It is true that it was not incumbent on the prosecution to examine each and every witness so as to multiply witnesses and burden the record. This rule however does not apply where the evidence of the eye- witnesses suffers from various infirmities and could be relied upon only if properly corroborated. In the instant case all the eye- witnesses had serious animus against the accused and they were interested in implicating the accused. The substitution of Ram Dularey Singh in the general diary was a suspicious circumstances. The fact that the police was not able to recover any weapon or to explain how the appellants got hold of the guns was yet another circumstance that required a reasonable explanation from the prosecution. According to the finding of the learned Sessions Judge even the F.I.R. was ante- timed and although the High Court has not accepted this finding we feel that the High Court on this aspect has entered into the domain of speculation. In view of these special circumstances it was incumbent on the prosecution to examine the two witnesses at least to corroborate the evidence and if they were not examined the Sessions Judge was justified in drawing an adverse inference against the prosecution. At any any rate it cannot be said that if under these circumstances the Sessions Judge was not prepared to accept the evidence of these witnesses his judgment was wrong or unreasonable. It may be that the High Court could have taken a different view but that by itself as held by this Court is not a sufficient ground for reversing an order of acquittal. 13. In view of the decision of the Hon'ble Apex Court, adverse inference can be drawn in the facts and circumstances as observed by Hon'ble the Apex Court when independent witnesses are not examined. But, here in this case, PW 1 Shri Ram Babu has been examined as an independent eye- witness. 13. In view of the decision of the Hon'ble Apex Court, adverse inference can be drawn in the facts and circumstances as observed by Hon'ble the Apex Court when independent witnesses are not examined. But, here in this case, PW 1 Shri Ram Babu has been examined as an independent eye- witness. Similarly PW 7 Shri Mewa Ram has also got no enmity with the accused appellants and it does not appear from the perusal of his statement that he was interested in the complainant side. It is also important to mention here that 7 persons, apart from the witnesses examined in the Court, have been named in the written report Ex. P. 1. but according to the prosecution,they were in the help of the accused-appellants and therefore it was not necessary at all for the prosecution to produce them during the trial. According to the statement of PW 7 Shri Mewa Ram one Brij Lal was also present in his field but he did not come to the spot. Therefore, it is not a case wherein the prosecution did not examine the available independent eye- witnesses Therefore, no adverse inference can be drawn against the prosecution in view of the facts and circumstances and the evidence produced in this case. 14. It was also argued on behalf of the accused-appellants that the FIR in this case was sent to the concerned Magistrate after delay while the FIR was to be sent forthwith, therefore this FIR has become suspicious. Reliance has been placed upon Teja Singh & Others (2001) 3 SCC 147 . Learned Public Prosecutor argued that the FIR Ex. P. 2 was sent on 11.7.1994 at about 10 a.m. and thus there was no delay. We have considered the rival contentions. Hon'ble Supreme Court in Para 4 of its judgment has held that the explanation in regard to the delay in the FIR reaching the Court is not tenable because assuming that there were some court holidays that cannot be made a ground for the delay in the FIR reaching the Magistrate, because requirement of law is that the FIR should reach to the concerned Magistrate without any undue delay. Here in this case, the First Information Report was lodged at Police Station at 3:05 p.m. on 10.7.1994 and it was sent to the concerned Magistrate next day at 10 a.m. PW 18 Shri Devi Singh, Investigating Officer has admitted in his cross- examination that the concerned Court is about 1 & 1/2 furlong away from the Police Station and the residence of the concerned Magistrate was about 2 furlong from the Police Station and he despatched the FIR without any delay. No doubt, this FIR was sent to the concerned Court not forthwith but after some delay but only on this ground this argument cannot be accepted that the First Information Report becomes suspicious, as the investigation commenced on the same day without any delay as stated earlier. Therefore, this argument has got no force. Learned counsel Shri Gupta has also referred certain discrepancies in the statements of the prosecution witnesses. According to the learned counsel for the accused-appellants, PW 1 Shri Ram Babu has not supported the whole contents of FIR Ex. R 1 and his statement is contradictory from the statement of PW 2 Shri Bacchu Singh. According to learned counsel, PW 2 Shri Bacchu Singh has stated that Shri Ram Babu (PW 1) went to inform the father of the deceased but PW 1 Shri Ram Babu has not stated like that. PW 3 Shri Bholu Ram says that Bacchu S/o Roop Singh came to inform him and PW 7 Shri Mewa Ram also stated that Ram Babu was sent to inform in the village. We are of the considered view that these are not material contradictions so as to adversely affect the evidence of the prosecution. PW 1 Ram Babu also admitted in his cross- examination that on account of fear, he went to the Village and thus the statements of PW 2 Shri Bacchu Singh and PW 7 Mewa Ram find corroboration on the point that Ram Babu went to the Village to inform the father of the deceased. Thus, it is well proved that these injuries were caused to deceased Shri Bhagwan Singh by the accused-appellants. 15. Now it has to be seen as to what offence is made out against all the 3 accused-appellants. Thus, it is well proved that these injuries were caused to deceased Shri Bhagwan Singh by the accused-appellants. 15. Now it has to be seen as to what offence is made out against all the 3 accused-appellants. As discussed above, it has been proved beyond doubt that all the 3 accused-appellants came together upon a motor- cycle to the place of occurrence and accused Shiv Ram first abused Bhagwan Singh and accused-appellants Arvind Kumar @ Tillu and Sohan Lal caught hold of Bhagwan Singh and accused-appellants Shri Shiv Ram inflicted a knife blow on the left side of the chest of Bhagwan Singh and accused-appellant Shri Arvind Kumar @ Tillu inflicted a knife blow upon the neck of Shri Bhagwan Singh and as per medical evidence, both these injuries were fatal and sufficient to cause death in ordinary course of nature. I has also been proved that accused-appellants Shri Sohan Lal also tried to inflict knife blow but the deceased Shri Bhagwan Singh escaped that blow. 16. Learned counsel Shri Y.C. Sharma contended that since accused-appellants Shri Sohan Lal did not cause any injury to deceased Bhagwan Singh, therefore, he was wrongly convicted under Section 302 read with Section 34 IPC because this accused-appellants did not share any common intention of killing Shri Bhagwan Singh. Per contra, learned Public Prosecutor contended that ail the 3 accused-appellants came together and all the 3 accused-appellants were having knives and the accused-appellants Shri Sohan Lal also tried to inflict a knife blow but the deceased escaped and thus it is proved that he shared the common intention with other accused-appellants. It was also argued that it is not necessary that each accused should perform overt act. Reliance has been placed upon Suresh And Another v. State of U.P. 2001 (3) SCC 673 , where it has been held by Hon'ble Supreme Court that common intention envisages pre- concert or pre- planning which may develop at the spur of the moment. It was further held that the accused who was only present at the scene of the .offence may also be liable for the ultimate criminal act done by several co- accused persons in furtherance of common intention of all of them. It was further held that the accused who was only present at the scene of the .offence may also be liable for the ultimate criminal act done by several co- accused persons in furtherance of common intention of all of them. According to Section 34 IPC, it does not require separate individual acts by all the accused persons for making them liable for the ultimate criminal act and no overt act is needed on the part of an accused to attract S. 34 if he shares the common intention with others in respect of the ultimate criminal act which may be done by anyone of the accused sharing such intention. 17. In view of the above judgment of Hon'ble Supreme Court we are of the considered view that in the facts and circumstances and the evidence against the accused Shri Sohan Lal it is proved beyond doubt that the accused-appellants Shri Sohan Lal shared common intention which was to kill Shri Bhagwan Singh. Thus, the accused-appellants Shiv Ram and Arvind Kumar @ Tillu have been rightly convicted and sentenced under Section 302 IPC and accused-appellants Shri Sohan Lal has also been rightly convicted and sentenced under Section 302 read with Section 34 Indian Penal Code thus, we find no merit in this appeal and it is hereby dismissed. The accused-appellants Shri Sohan Lal is on bail. Learned trial Court shall see that the accused-appellants Shri Sohan Lal is arrested to serve out the remaining sentence.Appeals dismissed. *******