JUDGMENT 1. - Out of 18 accused persons who were placed on trial for having committed murder of Jhadmal and Juhru in Sessions Case No. 6/92 the learned Additional Sessions Judge Deeg, District Bharatpur vide judgment dated 30.11.1998 convicted and sentenced the ten appellants as under : (1) Narangi, (2) Jamalu, (3) Umar Mobd., (4) Rustam, (5) Alladeen and (6) Jameel U/s. 147 IPC To suffer six months rigorous imprisonment and fine of Rs. 500/-, in default to further suffer One Month Rigorous Imprisonment. U/s. 302/149 IPC To suffer imprisonment for life and fine of Rs.1,000/-, in default to further suffer One Month Rigorous Imprisonment. U/s. 323/149 IPC To suffer one month rigorous imprisonment and fine of Rs. 200/-, in default to further suffer Fifteen Days Rigorous Imprisonment. U/s. 148 IPC To suffer one year rigorous imprisonment and fine of Rs. 500/-, in default to further suffer One Month Rigorous Imprisonment. (7) Shaheed, (8) Daud Khan, (9) Mohd. Ishaq and (10) Abdul Salam U/s. 302/149 IPC To suffer imprisonment for life and fine of Rs. 1,000/-, in default to further suffer One Month Rigorous Imprisonment. U/s. 323/149 IPC To suffer one month rigorous imprisonment and fine of Rs. 200/-, in default to further suffer Fifteen Days rigorous imprisonment. U/s. 148 IPC To suffer one year rigorous imprisonment and fine of Rs. 500/-, in default to further suffer One Month Rigorous Imprisonment. All the sentenced were directed to run concurrently. 2. In nutshell the facts giving rise to these appeals are that the informant Kannu (PW-4) intimated Police Station Kaman District Bharatpur by submitting a written report at 7.00 a.m. on 26.10.1991 that around 1.00 a.m. in the proceeding night while the informant, his two brothers Jhadmal and Juhru (now deceased) alongwith Mubin S/o Juhru and Deena had been to their agricultural land appellants-Mohd. Ishaq, Shaheed, Abdul Salam, Umar Mohd., Narangi, Jamalu, Alladin, Rustam, Jameel with Jarnal and Liyakat Ali came over there. Shaheed and Jarnal were armed with 12 bore-guns, Mohd. Ishaq and Abdul Salam were having Tanchias and others had lathis. Mohd. Ishaq then exhorted to kill Jhadmal, his two brothers and son and Shaheed and Jarnal opened fire. All the accused indiscriminately inflicted injuries with Tanchias and lathis on the person of Jhadmal and Juhru and killed them. Mubin also sustained injuries while making attempt to save them. Police Station Kaman registered a case u/ss. Mohd. Ishaq then exhorted to kill Jhadmal, his two brothers and son and Shaheed and Jarnal opened fire. All the accused indiscriminately inflicted injuries with Tanchias and lathis on the person of Jhadmal and Juhru and killed them. Mubin also sustained injuries while making attempt to save them. Police Station Kaman registered a case u/ss. 302, 307, 147, 148, 379 & 120-B IPC and investigation commenced. On completion of the investigation charge-sheet was filed and in due course the case came up for trial before the learned Additional Sessions Judge Deeg. Charges u/ss. 147, 148, 323, 302, 307, 302/149 & 307/149 were framed against the appellants who denied the charges and claimed trial. The prosecution examined as many as ten witnesses in support of its case. The appellants claimed innocence in their statements u/s. 313 Cr.P.C. Six witnesses were examined in defence by the appellants. On hearing the final submission the learned trial Judge convicted and sentenced the appellants as indicated herein above. 3. The case of the prosecution rests on the testimony of Mubin (PW-1), Kannu (PW-4) and Deena (PW-8), Dr. Ramswaroop Gupta (PW-5) conducted autopsy on the bodies of Jhadmal and Juhru and as per post-mortem reports (Ex.P/14 & 15) found following ante-mortem injuries : JUHRU (Ex.PI 14) : 1. Lacerated wound with # of skull, over Rt. pareito occipital area of scalp with its tributaries measuring 3" x ⅓" x bone deep and 1/2" x 1/4" x ⅙" brain tissue over the surface; 2. Incised wound 3" x ⅓" x bone deep longitudinally over post part of sagital suture; 3. Incised wound 2" x ⅓" x bone deep just in front of and to left of injury No. 2 over left parietal are, longitudinally; 4. Lacerated wound 3" x 1/2" x bone deep, just to the left and parietal to injury No. 3 over left parietal area of scalp; 5. Incised wound 1/2" x 1/4" x bone deep over middle of the sagital suture, longitudinally. 6. Incised wound 1" x 1/4" bone deep, obliquely over Rt. parietal area of scalp near naterior brain line. JHADMAL (Ex.P / 15) :- 1. Incised wound 4" x 1" x brain deep with cutting of bone part of brain with meanings underneath it, over scalp of Rt. Parietal Eminence. A piece of bone 1" x 1/2" is cut brain is lacerated and exposed on surface through the defect in the brain. JHADMAL (Ex.P / 15) :- 1. Incised wound 4" x 1" x brain deep with cutting of bone part of brain with meanings underneath it, over scalp of Rt. Parietal Eminence. A piece of bone 1" x 1/2" is cut brain is lacerated and exposed on surface through the defect in the brain. 2. Incised wound 3" x 2-112" x bone deep over Rt. Parietal eminence. A flap of soft tissues is separated, 2 1/2" long, attached at its base. 3. Incised wound 5" x 1/4" bone deep over scalp behind Rt. parietal eminence. 4. Incised wound 4.5" x 1/4" x bone deep over occiptal region behind and parallel to injury No. 3. 5. Incised wound 3" x ⅓" x ⅛" over upper part of back of neck. 6. Incised wound 1 1/2" x ⅓" x bone deep over Lt. Parietal Eminence. 7. Incised wound 2" x 1,14" x bone deep over left parietal are infront of injury No. 7. 8. Lacerated wound 4 1/4" x 1/4" x bone deep over Lt. side of upper part of forehead, transversely. 9. Irregular lacerated wound 2" x 1/4" x bone deep just left eye brow, transversely. 10. Incised wound, slanting downwards, 3 1/2" x 1/2" x bone deep over face transversely from left ear to angle of It. eye. Left maxilla is fractured. 11. Incised wound 1" x 1/4" x whole thickness of It., angle of mouth. 12. Lacerated wound 1" x 1/4" x 1/4" behind left ear. 13. Gunshot wounds, two in number, over back of trunk, 9" apart, one just outside of angle of Lt. scapula, another in the midline at L2-3 spine level; Each about 4mm x 4mm in size with charred margins and base involving only partial thickness of skin. No pallet is seen or felt in either of the wounds, nor any pallet recovered on dissecting the wounds. Under lying tissues are healthy. 14. Incised wound 1" x 1/4" x 1/4" over back of upper third of It. thigh. 15. Incised wound it x 1/4" x 1/4" over back of upper third of left 1" below injury No. 14. 16. Incised wound 1" x 1/4" over back of middle third of left thigh. 17. Bruise 4" x 1" over front of upper third of left arm. Mubin (PW-1) also sustained injuries which as per Injury Report (Ex.P/13) are as under : 1. 16. Incised wound 1" x 1/4" over back of middle third of left thigh. 17. Bruise 4" x 1" over front of upper third of left arm. Mubin (PW-1) also sustained injuries which as per Injury Report (Ex.P/13) are as under : 1. Bruise with abrasion 3" x 1" over Lt. side of front of chest over 6th, 7th ribs near costal margin. 2. Abrasion 1 1/2" x ⅓" over back of middle third of Lt. forearm. 3. Bruise 1/4" x 1/4" over ulnar aspect of wrist. 4. Bruise 1 1/2" x 1" over Lt. leg daist above lateral melleolus. 5. Bruise 4" x 3/4" longitudinally over Rt. shoulder. 6. Bruise 3" x 3/4" antero posteriorly over Rt. shoulder across injury No. 5. 7. Bruise 7" x 3/4" over upper part of Rt. scapula region and back of Rt. shoulder. 8. Bruise 3" x 3/4" over it Rt. scapula area below and parallel to injury No. 7. 9. Bruise 9" x 3/4" longitudinally over Lt. side of back of chest just to Rt. of Mid. line. 10. Bruise 4 1/2" 3/4" over lower ribs on Lt. side of back of chest. 11. Bruise 1 1/2" x 1 1/4" just below and medial to injury No. 11. 12. Bruise 4" x 3/4" transversely across lower most ribs over Rt. blank. 13. Lacerated wound 2.5 cm x 1/2 cm over middle of scalp. A linear, scar 5 cm x 1/4 cm transversely over anteroleteral aspect of middle third of Rt. forearm. 4. Mr. S.R. Bajwa, learned Senior Counsel while criticising the finding of the learned trial Court canvassed that it did not take into consideration as to what was the proximate cause of the incident. From the testimony of prosecution witnesses no reasonable story could be culled out and common object could not be spelled. It was not possible in the night for the witnesses to identify the accused persons. The six hours delay in lodging the FIR was not explained and doctor's version has been incorporated in it. The prosecution witnesses are interested witnesses and they are freely indulged in making material improvements . Except six lathis no sharp-edged weapon has been recovered at the instance of accused persons. The presence of Kannu (PW-4) and Deena (PW-8) is doubtful. It is evident that the prosecution witnesses have conspired to implicate accused persons in the offence. The prosecution witnesses are interested witnesses and they are freely indulged in making material improvements . Except six lathis no sharp-edged weapon has been recovered at the instance of accused persons. The presence of Kannu (PW-4) and Deena (PW-8) is doubtful. It is evident that the prosecution witnesses have conspired to implicate accused persons in the offence. If the evidence is scanned on the anvil of human probabilities it cannot be relied upon. Lacerated trial Court did not find the prosecution witnesses reliable qua seven accused persons and acquitted them. The prosecution witnesses are not wholly reliable witnesses and without corroboration their testimony could not have been trusted. Reliance is placed on Nathuni Yadau & Ors. v. State of Bihar & Anr., AIR 1997 SC 1808 , Badri v. State of Rajasthan, AIR 1976 SC 560 , Muluwa & Ors. v. State of Madhya Pradesh, AIR 1976 SC 989 , Lakshmi Singh & Ors. v. State of Bihar, AIR 1976 SC 2263 and Sevi & Ann v. State of Tamil Nadu & Anr., AIR 1981 SC 1230 . 5. We have considered carefully the entire evidence in the case and various facts attended upon the two murders. Mubin (PW-1) is the injured eye-witness of the occurrence. In his deposition Mabin stated that around 1.00 a.m. on the fateful night he himself along with his father Juhru and uncle Jhadmal had been to their agricultural land and threshing Bazra on thresher (threshing machine) while lights were on. He suddenly saw all the appellants including Jarnal and Liyakat All coming to their field. Shaheed and Jarnal were armed with 12 Bore guns. Mohd. Ishaq and Abdul Salam were having Tanchias and others had lathis in their hands. Mohd. Ishaq then exhorted to kill Jhadmal, Juhru and their family members. Thereafter Shaheed and Jarnal opened fire and all the accused persons started inflicting injuries with tanchias and lathis and killed Jhadmal and Juhru. He also sustained many injuries while he made attempt to save them. 6. Kannu (PW-4) and Deena (PW-8) supported the version narrated in the FIR and corroborated the testimony of Mubin. Rameshwar Tiwari (PW-10) stated that he conducted the investigation of the case and recovered from the place of incident wooden piece of 12 Bore gun vide seizure memo Ex.P/5. He also sustained many injuries while he made attempt to save them. 6. Kannu (PW-4) and Deena (PW-8) supported the version narrated in the FIR and corroborated the testimony of Mubin. Rameshwar Tiwari (PW-10) stated that he conducted the investigation of the case and recovered from the place of incident wooden piece of 12 Bore gun vide seizure memo Ex.P/5. He also recovered lathis at the instance of Alladeen, Jamalu, Umar Mohd., Jameel, Narangi and Rustam vide memos Ex.P/29, P/31, P/33, P/35, P/36 & P/37. 7. As many as six defence witnesses were examined by the appellants at the trial. Hussaina (DW-1), Ihsav (DW-2), Kallu (DW-3), Hafiz Mohd. (DW-4) and Alladin (DW-5) in their deposition stated that some unknown dacoits committed murder of Jhadmal and Juhru and caused injuries on the person of Mubin. As there was complete darkness the assailants could not be identified and the appellants were implicated falsely in the case. Kripa Shanker Gaur (DW-6) had been the part of investigating team and according to him Mohd. Ishaq, Daud and Salam were not involved in the crime. 8. Let us first advert to the contention advanced in regard to charge of unlawful assembly. On examination of the entire prosecution evidence, we find that bad blood existed between Jhadmal and Jarnal and his family and the accused persons came together at the place of incident with unlawful object to kill Jhadmal and Juhru. In the facts and circumstances of the case common object of the assembly can be culled out from the nature of the assembly, arms it carried and behaviour at the scene of the incident. The offence committed by the assembly falls within the first part of Section 149 IPC as the offence was committed immediately with the common object of unlawful assembly of which the accused were members. The proximate cause of the incident has been spelled out by the prosecution. According to learned counsel there was no possibility at all for the witnesses to identify the assailants as it would have been pitch dark when the incident occurred. We find no substance in the submission. The prosecution witnesses categorically stated that Jhadmal and Juhru at the time of incident were threshing Bajra and light was on. The evidence inspires confidence as it was not possible to thresh Bajra in the darkness. The witnesses were cross-examined at length, but their testimony could not be shattered. We find no substance in the submission. The prosecution witnesses categorically stated that Jhadmal and Juhru at the time of incident were threshing Bajra and light was on. The evidence inspires confidence as it was not possible to thresh Bajra in the darkness. The witnesses were cross-examined at length, but their testimony could not be shattered. The embellishments that could be extricated are of minor nature and do not go to the root of the case. The Apex Court in Dharmendra Singh v. State of Gujarat, 2002(1) WLC (SC) Cri. 562: (2002) 4 SCC 679 held that if prosecution evidence as a whole rings true and inspire confidence then despite the contradiction conviction can be recorded. We also do not find any substance in the submission of the learned counsel that the prosecution could not establish the motive behind the commission of crime. Their Lordships of Supreme Court in Nathuni Yadav & Ors. v. State of Bihar & Anr., AIR 1997 SC 1808 indicated that no proof can be expected in all case as to how mind of accused worked in a particular situation. Sometime it may appear that motive established is a weak one that by itself is not sufficient to lead any inference adverse to the prosecution. 9. So far as the argument in regard to delay in lodging the FIR is concerned, we have already noticed that ghastly incident occurred around mid night where two persons lost their lives, in such a situation delay of six hours in lodging the FIR does not assume much significance and it is not fatal to the prosecution case. 10. We have also tested the prosecution evidence on the anvil of human probabilities and we find nothing on record that could render the evidence unreliable. Defence version of the appellants that some unknown dacoits committed the offence, does not appear to be acceptable. So far as the statement of Kripa Shanker Gaur (DW-6) is concerned, we find that he only gave his opinion about the non-involvement of MOhd. Ishaq, Daud and Salam but despite his opinion the Investigating Officer of the case found that Mohd. Ishaq, Daud & Salam were also involved. 11. Learned Senior Counsel further contended that nothing incriminating could be recovered from the appellants which goes to show that they had no complicity with the crime. We do not find any merit in the submission. Ishaq, Daud and Salam but despite his opinion the Investigating Officer of the case found that Mohd. Ishaq, Daud & Salam were also involved. 11. Learned Senior Counsel further contended that nothing incriminating could be recovered from the appellants which goes to show that they had no complicity with the crime. We do not find any merit in the submission. The Apex Court in Krishna Mochi v. State of Bihar, 2002(1) WLC (SC) Cri. 659: (2002) 6 SCC 81 indicated in para 37, that non-recovery of incriminating material from the accused cannot alone be taken as a ground to exonerate them from the charges, more so when thin participation in the crime is unfolded in ocular account of the occurrence given by the witnesses, whose evidence has been found. to be unimpeachable. In yet another case of Lakshmi v. State of U.P., 2002(2) WLC (SC) Cri. 508 : (2002) 7 SCC 198 their Lordships of the Supreme Court indicated that when prosecution case is established on the basis of trustworthy testimony of the eye-witnesses, non-identification of the deceased, non-ascertainment of cause of death and non-recovery of the crime weapons would not fatal to the prosecution. 12. That takes us to the argument of learned counsel in regard to the application of witness Mubin (PW-1) moved before the learned Trial Judge on 1.5.1995 u/s. 311 Cr.P.C. Learned counsel on the strength of Badri v. State of Rajasthan, AIR 1976 SC 560 urged that the testimony of Mubin can not be accepted as opportunity of cross-examination was not afforded to the appellants. A look at the material on record demonstrates that Mubin (PW-1) after his statement was recorded, submitted an application on 1.5.1995 u/s. 311 Cr.P.C. in the trial Court for re-recording of his statement. Learned trial Court vide order dated 30.5.1995 dismissed the application. A petition assailing the said order was filed in the High Court but it also stood dismissed and the order dated 30.5.1995 attained finality. In Badri v. State of Rajasthan (supra) the Apex Court propounded that where a prosecution witness was not allowed to be cross-examined by the defence on a material point with reference to his earlier statement made before the police his evidence stands untested by cross-examination and can not be accepted as corroborating the evidence of other witness. In Badri v. State of Rajasthan (supra) the Apex Court propounded that where a prosecution witness was not allowed to be cross-examined by the defence on a material point with reference to his earlier statement made before the police his evidence stands untested by cross-examination and can not be accepted as corroborating the evidence of other witness. The ratio indicated in Badri v. State of Rajasthan is not applicable to the facts of this case where opportunity of cross-examination was afforded to the appellants and Mubin was cross-examined by them at length on 5.7.1994. Thereafter on 1.5.1995 i.e. after about more than nine months an application was filed on behalf of Mubin seeking his re-examination learned trial Court did not find any merit in the application and dismissed the same and the order of the learned trial Court was confirmed by the High Court. We thus see that no prejudice was caused to the appellants by the order of the trial Court in declining re-examination of Mobin. The evidence of Mubin was never remained untested by cross- examination and this submission of learned counsel is also devoid of merit. 13. We thus find that from the evidence the prosecution has been able to establish the charges u/ss. 147, 148, 302/149 & 323/149 IPC against appellants- Narangi, Jamalu, Umar Mohd., Rustam, Alladeen and Jamil and u/ss. 148, 302/149 & 323/149 IPC against appellant-Shaheed, Mohd. Ishaq and Abdul Salam. But so far as charges against appellant-Daud Khan are concerned, we find that as he was not named in the FIR, the prosecution could not establish his participation in the crime beyond reasonable doubt. 14. For the reasons aforementioned we see no merit in the appeals of appellants-Narangi, Jamalu, Umar Mohd., Rustam, Alladeen, Jamil, Shaheed, Mohd. Ishaq and Abdul Salam and they accordingly stand dismissed. The conviction and sentence awarded to them by the learned trial Judge shall stand confirmed. Appeal of appellant-Daud Khan stands allowed and conviction and sentence awarded to him u/ss. 148, 302/149 & 323/149 IPC by the learned trial Judge stands set aside and he is acquitted of the said charges. Impugned judgment of learned trial Court stands modified as indicated above. 15. The appellant-Mohd. Ishaq is on bail. He shall be taken into custody forthwith and his bail bonds stand cancelled. The appellant-Daud Khan is in custody. 148, 302/149 & 323/149 IPC by the learned trial Judge stands set aside and he is acquitted of the said charges. Impugned judgment of learned trial Court stands modified as indicated above. 15. The appellant-Mohd. Ishaq is on bail. He shall be taken into custody forthwith and his bail bonds stand cancelled. The appellant-Daud Khan is in custody. He shall be released forthwith if not required in any other case. All the appeals stand disposed of as indicated above.Appeals disposed of. *******