Honble SHARMA, J.–The appellants, eight in number, were the accused on the file of learned Additional Sessions Judge No. 1 Alwar bearing Sessions Case No. 27/1997. Learned Judge vide judgment dated October 22, 1999 convicted and sentenced the appellants as under:- Amru Khan: U/s. 147 IPC: To suffer Rigorous Imprisonment for six months. U/s. 148 IPC: To suffer Rigorous Imprisonment for one year. U/s. 302 IPC: To suffer Imprisonment for life and fine of Rs. 100/-. in default to further suffer rigorous Imprisonment for fifteen days. U/s. 302/149 IPC: To suffer Imprisonment for life and fine of Rs. 100/-, in default to further suffer rigorous Imprisonment for fifteen days. U/s. 307/149 IPC: To suffer Rigorous Imprisonment for three years and fine of Rs. 100/-, in default to further suffer rigorous Imprisonment for fifteen days. U/s. 3/25 Arms Act: To suffer Rigorous Imprisonment for one year and fine of Rs. 100/-, in default to further suffer rigorous Imprisonment for fifteen days. U/s. 3/27 Arms Act: To suffer Rigorous Imprisonment for two years and fine of Rs. 100/-, in default to further suffer rigorous Imprisonment for fifteen days. Sahabuddin @ Sabu: + U/s. 147 IPC: To suffer Rigorous Imprisonment for six months. U/s. 148 IPC: To suffer Rigorous Imprisonment for one year. U/s. 302/149 IPC: To suffer Imprisonment for life and fine of Rs. 100/-. in default to further suffer rigorous Imprisonment for fifteen days. U/s. 307/149 IPC: To suffer Rigorous Imprisonment for three years and fine of Rs. 100/-, in default to further suffer rigorous Imprisonment for fifteen days. U/s. 3/25 Arms Act: To suffer Rigorous Imprisonment for one year and fine of Rs. 100/-, in default to further suffer rigorous Imprisonment for fifteen days. Mohd. Rafi: U/s. 147 IPC: To suffer Rigorous Imprisonment for six months. U/s 148 IPC: To suffer Rigorous Imprisonment for one year. U/s. 302/149 IPC: To suffer Imprisonment for life and fine of Rs. 100/-, in default to further suffer rigorous Imprisonment for fifteen days. U/s. 307/IPC: To suffer Rigorous Imprisonment for two years and fine of Rs. 100/-, in default to further suffer rigorous Imprisonment for fifteen days. U/s. 3/25 Arms Act: To suffer Rigorous Imprisonment for one year and fine of Rs. 100/-, in default to further suffer rigorous Imprisonment for fifteen days. U/s. 3/27 Arms Act: To suffer Rigorous Imprisonment for two years and fine of Rs. 100/-, in default to further suffer rigorous Imprisonment for fifteen days. U/s. 3/25 Arms Act: To suffer Rigorous Imprisonment for one year and fine of Rs. 100/-, in default to further suffer rigorous Imprisonment for fifteen days. U/s. 3/27 Arms Act: To suffer Rigorous Imprisonment for two years and fine of Rs. 100/-, in default to further suffer rigorous Imprisonment for fifteen days. Suleman, Jagmal, Khursheed, Nasru and Hanif: + U/s. 147 IPC: To suffer Rigorous Imprisonment for six months. U/s. 148 IPC: To suffer Rigorous Imprisonment for one year. U/s. 302/149 IPC: To suffer Imprisonment for life and fine of Rs. 100/-, in default to further suffer rigorous Imprisonment for fifteen days. U/s. 307/149 IPC: To suffer Rigorous Imprisonment for three years and fine of Rs. 100/-, in default to further suffer rigorous Imprisonment for fifteen days. All the substantive sentences were directed to run concurrently. (2). It is the prosecution case that informant Aseen (PW.1) submitted a written report (Ex.P-1) with the police station Sadar Alwar on December 29, 1995 with the averments that in the morning while Sameer (now deceased) proceeded from his farm house, found on the way Amru, Mohd. Rafi, Hanif, Shabu, Jagmal. Suleman and Khurshid (appellants) sitting near their well. Amru, Mohd. Rafi, Hanif and Shabu were armed with guns whereas others had sticks. No sooner did Sameer pass near the well, the appellants ran after him and opened fire at Sameer. On hearing hue and cry, when the informant, Rudi and Iliyas reached there. Mohd. Rafi opened fire at Rudi, whereas Hanif and Shabu fired gunshots at Iliyas Sameer and Iliyas died at the spot and Rudi sustained injuries. On the basis of the said report case under sections 147, 148, 149, 307 and 302 IPC was registered and investigation commenced. After usual investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge No. 1 Alwar. Charges under Sections 147, 148, 302, 302/149, 307/149 IPC and Sections 3/25 and 3/27 Arms Act were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as may as 18 witnesses. In the explanation under Sec. 313 Cr.P.C., the appellants claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing the final submissions convicted and sentenced the appellants as indicated herein above. (3). The prosecution in support of its case examined as may as 18 witnesses. In the explanation under Sec. 313 Cr.P.C., the appellants claimed innocence. No witness in defence was however examined. Learned trial Judge on hearing the final submissions convicted and sentenced the appellants as indicated herein above. (3). We have heard the submissions advanced before us and weighed the material on record. (4). Dr. Amar Singh Rathore (PW.10) performed autopsy on the dead bodies of Sameer and Iliyas and examined the injuries of Ruddi. As per post mortem report (Ex.P-14) Sameer received following injuries:- `1. Fire Arm Wound: six in number placed on anterior lateral part of left arm, size of x each, red clotted blood, collar abrasion. 2. Fire arm wound: Lt. Shoulder plaster on anterior part & back part of upper chest. Nine in number, x cm each, red clotted blood, collar of abrasion present. 3. Fire arm wound: 21 in number left side neck x cm size each, red clotted blood, collar of abrasion present. Dissect: all muscles of neck, blood vessels ruptured, large hamatory. 4. Fire arm wound: Five in number, red clotted blood, collar of abrasion present. Placed on It. side upper anterior chest wall. The cause of death was shock caused by injuries to lung and blood vessels of heart. Deceased Iliyas vide post mortem report (Ex.P-13) sustained following injuries:- ``1. Fire Arm Wound: two in number upper lip x size, red clotted blood, collar abrasion. 2. Fire arm wound: Rt. arm x cm size red clotted blood, collar of abrasion. 3. Fire arm wound: five in number x cm size each. red clotted blood, collar of abrasion present. Posterior lateral aspect of 12% fire arm on upper 2/3rd level. 4. Fire arm wound: Rt. thigh x cm size red clotted blood, collar of abrasion. 5. Fire arm wound: six in number, placed on anterior chest and lateral chest wall 12% chest wall. Red clotted blood, full of blood. The cause of death was shock caused by injuries to lung and blood vessels of Rt. side heart. Injured Rudi vide injury report (Ex.P-15) received following injuries:- ``1. Multiple lacerated Wound: x size each, red clotted blood, collar abrasion, 15 in number. 2. Multiple lacerated wound: x cm size each, red clotted blood, collar of abrasion present. Anterior chest 8 in number of Rt. arm. 3. three lacerated wound; collar of abrasion. 4. side heart. Injured Rudi vide injury report (Ex.P-15) received following injuries:- ``1. Multiple lacerated Wound: x size each, red clotted blood, collar abrasion, 15 in number. 2. Multiple lacerated wound: x cm size each, red clotted blood, collar of abrasion present. Anterior chest 8 in number of Rt. arm. 3. three lacerated wound; collar of abrasion. 4. Multiple lacerated wound x cm size each. Rt. arm and Rt. fore arm. 5. Lacerated wound x cm red clotted blood, collar abrasion left thigh. (5). Having carefully gone through the testimony of Dr. Amar Singh Rathore, we noticed that the death of Sameer and Iliyas was homicidal. (6). Coming to the prosecution evidence we find that Rudi (PW.3) is the injured eye witness. In his deposition Rudi stated that Amru, Mohd. Rafi, Hanif, Jagmal, Shabu, Suleman and Khursheed who were sitting on the well started beating Sameer while he was passing near the well. Sameer then rushed to the field of Ali Mohammad. The assailants chased him and Amru opened fire at Sameer, as a consequence of which Sameer fell down. In the meanwhile, he (Rudi), Iliyas and Asina reached there and Mohd. Rafi fired gunshot at Rudi and Hanif opened fire that hit Iliyas, as a result of which Iliyas fell down. In the cross examination. Rudi stated that Shabu was not having gun and he did not open fire at Iliyas. He disowned several part of his police statement Ex.D-3. He denied to have seen the injuries on the person of appellant Jagmal. He also denied to have entered into compromise with Jagmal. Testimony of Rudi has been corroborated by Asina (PW.1), Roshan (PW.2), Sumer (PW.4), Simru (PW.6) and Rehmat (PW.7). (7). At this juncture, it may also be noticed that Dr. Amar Singh Rathore (PW.10) examined the injuries of appellant Jagmal while he was admitted in Orthopedic ward of the Hospital. Jagmal sustained as many as six injuries, out of which injuries No. 1&5 were grievous in nature. A look at the injury report (Ex.D-9A) reveals that Jagmal had sustained following injuries:- ``1. Incised wound 2 x 1cm x ? deep Lt. leg (red clotted blood) 2. Diffuse swelling Lt. foot 3. Lacerated wound 3 x x cm Rt. side skull 4. Abrasion 3 x 12cm with diffuse swelling fore arm 5. Diffuse swelling Lt. side chest 6. Abrasion 4 x 3cm Lt. side skull (8). Incised wound 2 x 1cm x ? deep Lt. leg (red clotted blood) 2. Diffuse swelling Lt. foot 3. Lacerated wound 3 x x cm Rt. side skull 4. Abrasion 3 x 12cm with diffuse swelling fore arm 5. Diffuse swelling Lt. side chest 6. Abrasion 4 x 3cm Lt. side skull (8). It is contended on behalf of the appellants that even though FIR was lodged on December 29, 1996 but the same was sent to Ilaqua Magistrate on January 2, 1996 after considerable delay of four days and prosecution has failed to explain the delay therefore it may be inferred that the prosecution case is shrouded with doubtful circumstances. Reliance is placed on Bijoy Singh vs. State of Bihar (1), and Suresh Chaudhary vs. State of Bihar (2). In Bijoy Singh vs. State of Bihar (supra), their Lordships of Supreme Court indicated thus:- (para 7) ``Sending the copy of the special report to the Magistrate as required under section 157 of the Criminal Procedure Code is the only external check on the working of the policy agency, imposed by law which is required to be strictly followed. They delay in sending the copy of the FIR may by itself not render the whole of the case of the prosecution as doubtful but shall put the court on guard to find out as to whether the version as stated in the court was the same version as earlier reported in the FIR or was the result of deliberations involving some other persons who were actually not involved in the commission of the crime. Immediate sending of the report mentioned in Section 157 CrPC is the mandate of law. Delay wherever found is required to be explained by the prosecution. If the delay is reasonably explained, no adverse inference can be drawn but failure to explain the delay would require the court to minutely examine the prosecution version for ensuring itself as to whether any innocent person has been implicated in the crime or not. Insisting upon the accused to seek an explanation of the delay is not the requirement of law. It is always for the prosecution to explain such a delay and if tendered, no adverse inference can be drawn against it. In Suresh Chaudhary vs. State of Bihar (supra), Honble Supreme Court observed as under:- ``... Insisting upon the accused to seek an explanation of the delay is not the requirement of law. It is always for the prosecution to explain such a delay and if tendered, no adverse inference can be drawn against it. In Suresh Chaudhary vs. State of Bihar (supra), Honble Supreme Court observed as under:- ``... That apart, the express message which PW.13 sent to the Jurisdictional Magistrate reached the said Magistrate at his place only on 12.10.1992 nearly 1, days after the said complaint was registered and we find no explanation from PW.13 as to this inordinate delay which only adds to the doubtful circumstances surrounding the prosecution case. (9). Refusing the contentions learned Public Prosecutor and the learned counsel for the complainant urged that since the case is otherwise trustworthy, no adverse inference can be drawn. Reliance is placed on Alla China vs. State of A.P. (3), and Anil Rai vs. State of Bihar (4). In Alla Chinas case it was held that if any delay is caused in sending the FIR to the Magistrate, which the prosecution fails to explain by furnishing reasonable explanation, ipso facto the same cannot be taken to be a ground for throwing out the prosecution case if the same is otherwise trustworthy upon appreciation of evidence which is found to be credible. However, if it is otherwise, an adverse inference may be drawn against the prosecution. In Anil Rai vs. State of Bihar (supra), it was indicated that where the FIR is shown to have actually been recorded without delay and investigation started on the basis of the FIR. delay in sending the copy of the report to the Magistrate cannot be itself justify the conclusion that the investigation was tainted and the prosecution insupportable. (10). Adverting to the facts of the present case we notice that Bhanwar Singh SHO (PW.18) after registering telephonic message in the Rojnamcha (Ex.P-34) at 9.50 AM proceeded to the spot where Asina handed him over a written report. After registering the case he commenced investigation. It also appears from record that accused appellants Hanif, Nasru and Khurshid were arrested on December 31, 1995 at 6.30 PM. Therefore even if FIR was dispatched to the Ilaqua Magistrate on January 2, 1996, no inference can be drawn that there were chances of manipulation in the FIR by falsely roping in the the accused persons after due deliberations. (11). Therefore even if FIR was dispatched to the Ilaqua Magistrate on January 2, 1996, no inference can be drawn that there were chances of manipulation in the FIR by falsely roping in the the accused persons after due deliberations. (11). It is next contended by the learned counsel for the appellants that there is no concrete evidence to show that the appellants were the members of unlawful assembly which had any common object. Reference is made to the statement of informant Asina (PW. 1) who in his cross examination deposed that only Mohd. Rafi, Hanif and Amru who were armed with guns were ahead and Jagmal, Sabu, Nasru, Khurshid and Suleman were not with them. They came afterwards. He could not say as to whether they came after gun was filed or were present at the time of fire. He had no quarrel with Jagmal, Sabu, Nasru, Khurshid and Suleman. Reference is also made to the statement of Rudi (PW.3) who stated that the appellant were sitting on the well of Amru at a distance of 60-70 ft. from them when shot was fired Jagmal, Suleman, Nasru, Khurshid and Sabu were 4-5 steps behind. We were taken through the deposition of Sumer (PW. 4) who stated that Jagmal, Nasru, Suleman. Khurshid and Sabu were behind and reach at the spot only after the bullet hit Samir, Iliyas and Rudi. Learned counsel also took us to the various contradictions made by the eye witnesses and urged that even the guilt of Mohd. Rafi, Hanif and Amru is not established beyond reasonable doubt. It is submitted that at the investigation stage the allegation to fire gunshot at Iliyas was against Sabu, but at the trial Sabu was given clean chit and the witnesses disowned their police statements and deposed that Sabu was not having gun and he did not open fire. It is also contended that since injuries sustained by Jagmal were not explained an inference may be drawn that the prosecution has withheld origin and genesis of the occurrence. Per contra it is submitted on behalf of the State that infirmities shown by the counsel for the appellants were not material and guilt against all the appellants is established beyond reasonable doubt. Plethora of rulings have been referred by both the sides incorporation of which would render this judgment bulky. Per contra it is submitted on behalf of the State that infirmities shown by the counsel for the appellants were not material and guilt against all the appellants is established beyond reasonable doubt. Plethora of rulings have been referred by both the sides incorporation of which would render this judgment bulky. We would therefore refer only the principles laid down in the authorities at appropriate juncture. (12). Time and again Honble Supreme Court ruled that it is not necessary for the prosecution to prove which of the members of the unlawful assembly did which or what act. Common object of the unlawful assembly can be gathered from the nature of the assembly arms used by them and the behaviour of the assembly at or before the scence of occurrence. It is an inference to be deduced from the facts and circumstances of each case. While over act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicarious criminal liability under Section 149 IPC. The time of forming an unlawful intent is not material. An assembly which at its commencement or even for some time thereafter, is lawful, may subsequently become unlawful. In other words it can develop during the course of incident at the spot co instanti. (13). We have therefore to adjudge as to whether the appellants formed unlawful assembly and shared common object in killing Samir and Iliyas. On a close scrutiny of material on record, we noticed following facts:- (i) As per FIR appellants Amru, Mohd. Rafi, Hanif and Sabu fired guns whereas others had lathis and pharsis. Mohd. Rafi shot fire at Rudi and Hanif and Sabu opened fire at Iliyas. (ii) Rudi (PW.3), who is an injured eye witness, deposed that Amru opened fire at Samir Whereas Hanif shot fire at Iliyas and Mohd. Rafi fired sho at him (Rudi). Samir and Iliyas dies at the spot and he sustained fire arm injuries. According to Rudi, appellant Sabu was not having gun and he did not inflict injury to Iliyas. (iii) Asina (PW.1), Rudi (PW.3) and Sumer (PW.4) deposed that they had no enmity with appellants Jagmal, Sabu, Nasru, Khurshid and Suleman and at the time when shot were fired by Amru, Hanif and Mohd. Rafi, jagmal, Sabu, Nasru, Khurshid and Suleman were not with them. (iii) Asina (PW.1), Rudi (PW.3) and Sumer (PW.4) deposed that they had no enmity with appellants Jagmal, Sabu, Nasru, Khurshid and Suleman and at the time when shot were fired by Amru, Hanif and Mohd. Rafi, jagmal, Sabu, Nasru, Khurshid and Suleman were not with them. (iv) Appellant Jagmal had received as many as six injuries out of which incised wound on left leg and diffuse swelling on the left side of chest were found grievous. These injuries were not explained by the prosecution. (v) Cross case was registered against the complainant party but after investigation final report (Ex.D-13) was filed on the ground that complainant party had right of private defence. (vi) Gun was not recovered from Hanif. (14). It is well settled that non explanation of the injuries on the person of the accused sustained by him at about the time of occurrence is an important circumstance to suggest that the prosecution has not presented the true version and suppressed the genesis and the origin of the occurrence. But where the injuries received by the accused are minor and superficial or where the prosecution evidence is consistent and creditworthy, non explanation of injuries by the prosecution may not affect the prosecution case. (15). Having analysed the evidence adduced at the trial we find that there is no concrete evidence to show that the appellants Jagmal, Sabu, Nasru, Khurshid and Suleman were the members of the unlawful assembly which had any common object. They resided near the place of occurrence and from their behaviour and conduct at or before the scene of occurrence no inference can be drawn that they shared common object with Amru, Hanif and Mohd. Rafi. (16). The prosecution has however established beyond reasonable doubt that appellants Amru. Hanif and Mohd. Rafi and shared common intention in inflicting injuries to Samir. Iliyas and Rudi and guilt against Amru under sections 302 and 307/34 IPC, 3/25 and 3/27 Arms Act, against Hanif under sections 302/34 and 307/34 IPC and against Mohd. Rafi under sections 302/34 and 307 IPC, 3/25 and 3/27 Arms Act is proved. (17). In view of the above discussion, we dispose of the instant appeals in the following terms:- (i) We allow the appeal of Sahbuddin @ Sabu, Suleman, Jagmal, Khurshid and Nasru and set aside their conviction and sentence. Rafi under sections 302/34 and 307 IPC, 3/25 and 3/27 Arms Act is proved. (17). In view of the above discussion, we dispose of the instant appeals in the following terms:- (i) We allow the appeal of Sahbuddin @ Sabu, Suleman, Jagmal, Khurshid and Nasru and set aside their conviction and sentence. We acquit them of the charges under sections 147, 148, 302/149, 307/149 IPC and 3/25 Arms Act Appellants Suleman, jagmal, Khurshid and Nasru are on bail, they need not surrender and their bail bonds stands discharged. Appellant Sahbuddin @ Sabu, who is in jail shall be set at liberty forthwith, if not required to be detained in any other case. (ii) Finding of conviction and sentence of appellant Amru under section 302 IPC and sections 3/25 and 3/27 Arms Act is confirmed. He however stands acquitted of the charges under section 147, 148 and 302/149 IPC. We alter his conviction from 307/149 IPC to section 307/34 and sentence him to there years Rigorous Imprisonment and fine of Rs. 100/- in default to further suffer Rigorous Imprisonment for fifteen days. (iii) We instead of section 302/149 IPC, convict appellant Mohd. Rafi under section 302/34 IPC and sentence him to suffer imprisonment of life and fine of Rs. 100/- in default to further suffer Rigorous Imprisonment for fifteen days. His conviction and sentence under sections 307 IPC, 3/25 and 3/27 Arms Act are confirmed. He however stands acquitted of the charges under section 147 and 148 IPC. (iv) We instead of section 302/149 IPC convict appellant Hanif under section 302/34 IPC and sentence him to suffer imprisonment for life and fine of Rs. 100/-. in default to further suffer Rigorous Imprisonment for fifteen days. he also stands convicted under Section 307/34 instead of section 307/149 and sentence to suffer three years Rigorous Imprisonment and fine of Rs. 100/- in default to further suffer Rigorous Imprisonment for fifteen days. He however stands acquitted of the charges under sections 147 and 148 IPC. (v) The substantive sentences awarded to Amru, Mohd. Rafi and Hanif shall run concurrently. (vi) The impugned judgment of learned trial judge is modified as indicated above.