Judgment Shiv Kumar Sharma, J.-On 10.06.1999 around 12.15 PM while Mammo Singh (now deceased) was sitting in the office of his Advocate, he was shot dead by dare devils in broad day light. Ramesh Chand and Vijay Singh, the appellants herein, alongwith Shri Narayan and Kadu were charged for committing murder of Mammo Singh before the learned Additional Sessions Judge (Fast Track) Gangapur City who vide Judgment dated 06.09.2001 though acquitted co-accused Shri Narayan and Kadu, but convicted and sentenced appellants Ramesh Chand and Vijay Singh as under:-Under Section 302, IPC: Each to suffer life imprisonment and fine of Rs. 2,000/-, in default to further suffer six months simple imprisonment. Under Section 452, IPC: Each to suffer rigorous imprisonment for two years and fine of Rs. 500/-, in default to further suffer one month simple imprisonment. Under Section 3/25, Arms Act: Each to suffer rigorous imprisonment for two years and fine of Rs. 500/-in default to further suffer one month simple imprisonment. Substantive sentences were directed to run concurrently. Appellants Ramchandra and Vijay Singh have impugned the Judgment of learned trial Judge by filing two independent appeals, whereas the State of Rajasthan has assailed the finding of acquittal of Shri Narayan and Kadu in the third appeal. 2. As per the prosecution case a written report was lodged on 10.06.1999 at 1.15 PM by the informant Prem Prakash Sharma, Advocate, (PW 3) at Police Station, Gangapur City. It was inter alia stated in the report that Mammo Singh, who was facing trial in case No. 23/98 under Section 307, IPC in the Court of Additional Sessions Judge, was his client. On the said day in that case three witnesses viz. Narayan, Vijay Singh and Kadu were present. The Court recorded the statements of Vijay Singh, Kadu and Constable Himmat Singh but the statement of Narayan was deferred. Around 12.15 PM while informant was sitting in his office with Mammo Singh and informants colleague Govind Parashar Advocate was also present, Mammo Singh told informant this his life was in danger. He had seen six seven persons in the Court keeping constant watch on him. Around 12.15 PM while informant was sitting in his office with Mammo Singh and informants colleague Govind Parashar Advocate was also present, Mammo Singh told informant this his life was in danger. He had seen six seven persons in the Court keeping constant watch on him. One Ramesh who was the accused in the abduction case of his brother, just crossed the office keeping an eye on him, Finding Mammo tensed, the informant was thinking for arranging security, but in the meanwhile six persons hurriedly entered into informants office and caught hold of Mammo, Ramesh then opened fire that hit on the abdomen of Mammo. Thereafter, Vijay Singh, Ramesh, Kadu, Shri Narayan and their two companions dragged Mammo outside the verandah and Vijay Singh opened two fires at Mammo and caused injuries on his temple and neck, as a result of which he died on the spot. The assailants then fled away in a jeep. On the said report a case under Sections 147, 148, 149, 302 and 452, IPC and 3/25 of the Arms Act was registered and investigation commenced. Dead body was subjected to autopsy, statements of witnesses were recorded, the accused were arrested, necessary memos were drawn and on completion of investigation charge-sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge (Fast Track), Gangapur City. Charges under Sections 148, 302, 302/149 and 452, IPC and 3/25 Arms Act were framed against the appellants, who denied the charge and claimed trial. The prosecution in support of its case examined as many as 23 witnesses. In the explanation under Section 313, CrPC, the appellants claimed innocence. One witness in defence was examined. Learned trial Judge on hearing the final submissions convicted and sentenced the appellants as indicated herein above. 3. We have given our thoughtful consideration to the submissions advanced before us and scanned the material on record. .4. Death of deceased Mammo Singh was indisputably homicidal in nature. As per postmortem report (Exhibit P-22) he received following 10 injuries:- .1. Firearm wound 1.5 cm x 1cm x through & through to right + leg on the posterior and lower part of the left ear. The wound margin are inverted bleeding present and the tattooning mark is present around the wound 4 cm the hair burn present around the wound direction of the wound .is transversely. 2. Firearm wound 1.5 cm x 1cm x through & through to right + leg on the posterior and lower part of the left ear. The wound margin are inverted bleeding present and the tattooning mark is present around the wound 4 cm the hair burn present around the wound direction of the wound .is transversely. 2. Exit wound of the injury No. one size 2 cm x 1cm brain deep (through and through forward left side) on the right part and enter region of the Rt. ear margin of the wound is everted bleeding is present brain matter come out. 3. Lacerated wound 1cm x .5 cm on upper part of the pinna Rt. ear. This associated with the injury No. two exit wound. 4.Firearm wound 1cm x 1cm muscle deep on the neck left side based of neck laterally. The tattooing mark present around the wound 6 cm diameter. Bleeding present. The margin of the wound is inverted. The direction of wound obliquely towards Rt. side upto lower part of the Rt. scapular bone. (The wound is through and through (torn). 5. Exit firearm wound of injury No. 4 size is 2 cm x 1cm x muscle deep on the Rt. scapular bone region lower part and laterally. Bleeding is present, margin of the wound is everted. 6. Firearm wound muscle deep on the Rt; hypocondrium sterm upto wound (--) tattooing mark present 4 cm encl. around the wound margin of the wound is inverted direction of wound is forward and downward (torn) between limber verted L4 & L5. 7. Exit wound of injury No. 6 size 2 cm x 1cm x 1 x bone deep both the margin of wound is everted bleeding present. 8. Firearm wound 1cm x 1cm x through and through upper 2/3 part of the Rt. hand index finger dorsum aspect tattooing mark is present around the wound 1.2 cm upper and lower side bleeding present. 9. Exit wound of injury No. 8 1.5 cm x 1 cm on the plamer surface of the right hand index finger upper 2/3rd part. The margin of the wound is irregular. Bleeding is present. All injuries are through and through so pallets are not recovered from the body. In the opinion of Dr. T.R. Meena (PW. 13) the cause of death was hemorrhagic shock and brain injury from firearm injuries. 5. The margin of the wound is irregular. Bleeding is present. All injuries are through and through so pallets are not recovered from the body. In the opinion of Dr. T.R. Meena (PW. 13) the cause of death was hemorrhagic shock and brain injury from firearm injuries. 5. Having analysed the evidence we noticed that Prem Prakash Sharma (PW. 3) and Govind Parashar (PW 4) Advocates are the star witnesses of the prosecution. Supporting the facts incorporated in the written report Prem Prakash Sharma, in his deposition stated that Mammo Singh was his client in a criminal case pending under Section 307, IPC and on the said day statements of three witnesses Vijay Singh, Kadu and Constable Himmat Singh were recorded. Recording of statement of Narayan was however deferred. After the case was adjourned the informant asked Mammo Singh to take Basta (bag of files and books) to his office. The informant himself reached the office around 12.15 PM and found Mammo sitting there. While the informant was about to leave the office, Mammo said that his life was in danger. Informant then called his junior Govind Parashar and while they were thinking to arrange security for Mammo, he said that one Ramesh, who was the accused in the abduction case of his brother, just crossed the office keeping an eye on him. Within few minutes thereafter Ramesh and five-six persons entered into the office and caught hold of Mammo. When Mammo made attempt to rescue, Ramesh opened fire at him and caused injury on the abdomen. Bullet after piercing abdomen, hit the wall and glass of the table. All the assailants then dragged Mammo outside. The informant identified Ramesh and Vijay Singh, while they were present in the Court. Testimony of Prem Prakash Sharma gets corroboration from the statement of Govind Parashar Advocate. Learned trial Court in convicting and sentencing the appellants found the testimony of these witnesses reliable and creditworthy. 6. Learned Counsel for the appellants however, canvassed that having regard to the facts of the case and the manner of occurrence, it was doubtful that the injuries could have been caused in the manner alleged. Admittedly Ramesh opened fire at Mammo while he was sitting in the office of Prem Prakash Sharma but neither blood was found in the office nor the bullet or empties got seized. Admittedly Ramesh opened fire at Mammo while he was sitting in the office of Prem Prakash Sharma but neither blood was found in the office nor the bullet or empties got seized. Learned Counsel also questioned the truthfulness of the prosecution case as regards to the institution of FIR and place of occurrence. Leanred Counsel took us to the memo of inspection of dead body Exhibit P-5, which was drawn at 11.30 AM. Seizure memo of blood stained soil (Exhibit P-6) was drawn at 12.15 PM. It was contended by learned Counsel that if as per FIR lodged by Prem Prakash Sharma the incident had occurred at 12.15 PM, then how and under what circumstances the memo of inspection of dead body was drawn at 11.30 AM. This fact goes to show that the prosecution has concealed the origin and genesis of the occurrence. The report was lodged by Prem Prakash Sharma at 1.15 PM, but much prior to it the investigation appears to have been commenced. Learned Counsel vigorously persuaded us to discard the testimony of Prem Prakash Sharma and Govind Parashar. 7. It is no doubt true that as per the deposition of eye-witnesses the incident did occur at 12.15 PM and FIR was lodged at 1.15 PM but simply because the time mentioned in memos of inspection of dead body and recovery of blood smeared soil did not tally with the time shown in the FIR, the testimony of eye-witnesses would not become unreliable. Prem Prakash Sharma deposed that no blood had fallen in his office. Prem Prakash Sharma and Govind Parashar are Advocates and they have deposed in a straight forward manner, and there is a ring of truth in their testimony. We find them to be implicity reliable. In support of their deposition we have before us the evidence of BB Bhardhwaj PW 2 who had drawn memos Exhibit P-5, Exhibit P-6, Exhibit P-7. In his cross- examination he categorically deposed that although the said memos were in his hand writing, the time mentioned in the memos was in different hand writing Bhavishya Kumar (PW 5) who is the motbir of memos (Exhibit P-4), Exhibit P-5, Exhibit P-6, Exhibit P-7, deposed that he reached at the spot around 1.30 PM and found a dead body lying on the road in front of the office of Prem Prakash Sharma, Advocate. Around 2 PM the police in his presence drew inquest report (Exhibit P-4), inspection memo of dead body (Exhibit P-5) memo of recovery of blood stained soil (Exhibit P-6) and memo of recovery of pieces of broken pepsi bottle (Exhibit P-7). He then put his signatures on the memos. 8. In a similar situation the Supreme Court in Nirmal Singh vs. State of Bihar, 2005 (9) SCC 725 , observed as under:-[Para 17] "Counsel then submitted that the prosecution has failed to prove that the dalan of the deceased was the real place of occurrence. This submission is based on the fact that no bloodstained earth was seized from the place of occurrence. It is true that no bloodstained earth was seized from the place of occurrence but there is also evidence of several witnesses including the investigating officer that no blood had fallen on the earth. Eye-witnesses explained that on receiving the injury the deceased pressed his wound with his hands whereafter a piece of cloth was tied around the wound which soaked the blood which may have come out. There was, therefore, no likelihood of the earth getting bloodstained. Counsel for the appellants submitted that the intestines were protruding as described in the inquest report, and in such a situation there must have been some bleeding. That may be so, but in view of the explanation offered by the prosecution witnesses it appears probable that no blood had fallen on the ground at the place of occurrence. In any event, if some blood had fallen at the place of occurrence which the investigating officer failed to notice, that by itself will not be fatal to the case of the prosecution. We must observe that the investigation in this case has been most unsatisfactory and the investigating officer was not conscious of his responsibilities. The bloodstained piece of cloth which was wrapped around the wound of the deceased appears to have been seized by the investigating officer, but when questioned as to why it was not sent for chemical examination, he answered that he had hung that piece of cloth on a guava tree in the police station. The statement is comical but discloses the utter non-seriousness with which the investigation was conducted. We had expected better from the investigating officer who was investigating a serious case of murder. The statement is comical but discloses the utter non-seriousness with which the investigation was conducted. We had expected better from the investigating officer who was investigating a serious case of murder. However, for this reason we will not reject the case of the prosecution entirely. 9. Ocular evidence was found reliable in absence of non-recovery of pellets from the place of occurrence in Birendra Rai vs. State of Bihar, 2005 (9) SCC 719 , wherein the Apex Court indicated as under:-[Para 12] "Learned Counsel also doubted the truthfulness of the prosecution case as regards the place of occurrence. It was submitted that if several shots were fired, some pellets would have been found at the place of occurrence. It is case of prosecution that no pellets were found. For the reason alone we cannot discard the case of prosecution. If pellets were found at the place of occurrence it would have further strengthened the case of the prosecution, but in the absence of such evidence one has to rely upon the ocular evidence which is found reliable, may be acted upon….." 10. In State of Punjab vs. Hakam Singh, 2005 (7) SCC 408 , the Apex Court observed that failure to effect seizure of the firearms and the empties and to send them to ballistic expert would not affect the categoric and truthful testimony of eye-witness. 11. It was next submitted by learned Counsel for appellant Ramesh that since Prem Prakash Sharma and Govind Parashar did not know Ramesh prior to the incident, it was incumbent on the investigating officer to conduct test identification parade. Not holding of test identification parade was a serious lapse and it is fatal to the prosecution case. Reliance is placed on Mohan Lal Gangaram Gehani vs. State of Maharashtra, AIR 1982 SC 839 , Dana Yadav vs. State of Bihar, 2002 (VII) AD (SC) 501, Kanan vs. State of Kerala, AIR 1979 SC 1127 and Lakhwinder Singh vs. State of Punjab, AIR 2003 SC 2577 . 12. In Mohan Lal Gangaram Gehani vs. State of Maharashtra (Supra), on which reliance is placed by learned Counsel for Ramesh, witness did not know the accused before the date of occurrence and no identification parade was held to test his power of identification and the accused was shown by the police to the witness before he identified the accused in the Court. In these circumstances, Supreme Court held that the evidence of witness became valueless on the question of identification. 13. In Dana Yadav vs. State of Bihar (Supra) Honble Supreme Court indicated that it would not be safe to place reliance on the identification of appellant for the first time in Court by the witnesses after and inordinate delay of more than two years from the date of incident, especially when the identification in Court is not corroborated either by the previous identification in the test identification parade or any other evidence. 14. In Kanan vs. State of Kerala (Supra) and Lakhwinder Singh vs. State of Punjab (Supra), Honble Supreme Court held that where eye-witness did not know assailants, not holding of test identification parade to identify assailants was a serious lapse. 15. Having closely scanned the testimony of Prem Prakash Sharma and Govind Parashar, who had identified appellant Ramesh for the first time in the trial Court, we find that at the time of incident they had just not a fleeting glimpse of appellant Ramesh, but they had occasion to watch the activities of Ramesh closely while he threw Pepsy bottle in the office, caught hold of Mammo Singh and opened fire at him. Ramesh was not a total stranger for them. In such a situation failure to hold a test identification parade would not make inadmissible the evidence of identification in Court as is observed by the Apex Court in Munshi Singh Gautam vs. State of M .P., 2005 (9) SC 631, as under:-[Para 17] "It is trite to say that the substantive evidence is the evidence of identification in Court. Apart from the clear provisions of Section 9, of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in Court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. As a general rule, the substantive evidence of a witness is the statement made in Court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is, accordingly, considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in Court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the Court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code which obliges the investigating agency to hold or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code. Failure to hold a test identification parade would not make inadmissible the evidence of identification in Court." (Emphasis Supplied) 16. That takes us to the appeal preferred by the State of Rajasthan against finding of acquittal of Shri Narayan and Kadu. We have carefully gone through the prosecution evidence and the impugned Judgment of learned Court below. They stood acquitted on the ground that there was no satisfactory evidence to indict them with the crime. From our independent analysis of the prosecution evidence, we are of the view that Shri Narayan and Kadu were not the members of unlawful assembly and they did not share the common object with Ramesh and Vijay Singh. We see no infirmity in the finding of the learned trial Judge. 17. For these reasons, all these three appeals being devoid of merit, stand dismissed.