JUDGMENT 1. - This D.B. criminal appeal has been preferred against the judgment and order dated 27.6.2002 passed by the learned Addl. Sessions Judge (Fast Track) No. 2, Jhalawar in Sessions Case No. 184/2001, whereby the learned trial Court has convicted the accused-appellants, out of which appellant No. 1 already died and his appeal has been ordered to be abated on 29.6.2009. 2. Appellant No. 1 (now deceased) Abdul Khalid, appellant No. 2 Mustaq Mohammad and appellant No. 4 Abid Mirza have been convicted for committing offence punishable under Section 302, I.P.C. and have been sentenced to undergo life imprisonment with fine of Rs. 10,000/- each and in default thereof to undergo three months' S.I. The appellant No. 3 Salim Mohammad has been convicted for committing offence punishable under Section 302 read with Section 149, I.P.C. and has been sentenced to undergo life imprisonment with fine of Rs. 5,000/- and in default thereof, to undergo two months' S.I. appellant No. 1 Abdul Khalid (now deceased), appellant No. 2 Mustaq Mohammad, appellant No. 3 Salim Mohammad and appellant No. 4 Abid Mirza have also been convicted for offence punishable under Section 148, I.P.C. and have been sentenced to undergo two years' R.I. with fine of Rs. 1,000/- each and in default, to undergo two months' S.I. 3. One of the accused Wazid Ali was declared absconding and subsequently he was tried separately in Sessions Case No. 50/2003 for the charges under Sections 148 and 302 read with Section 149 I.P.C. and has already been acquitted by judgment dated 1.4.2004 by the trial Court. Certified copy of the said judgment dated 1.4.2004 delivered in Sessions Case No. 50/2003 has been produced by the appellant with the application under Section 391 read with Section 374, Cr.P.C. and permission has been sought for taking on record the above judgment. 4. Brief facts of the case are that a written report was submitted in the Police Station Kotwali, Jhalawar on 5.11.2000 at 9.30 P.M. by Abdul Hafiz S/o Abdul Latif (PW-2), stating therein that his brother Shakir Hussain @ Kallu with Ajmat Ali @ Banti S/o Shaukat Ali and Raees S/o Inamula went to tyre-shop near bus-stand on motor-cycle for checking of the pressure of his motor-cycle. From there, the complainant received telephonic call at his house from Ajmat Ali that on the tyre-shop, the victim has been beaten to death with hammer and iron rods by Khalid S/o Abdul Razzak, Abid Baig S/o Umrao Baig, Mushtaq (father's name is not known), Salim S/o Hasan Khan. These persons were accompanied by three more persons. His brother has died on the spot itself. On receiving this information, he immediately rushed to the place of incident on his motor-cycle and he found that there was large crowd and his brother's body was lying stained with blood and with injured head. On spot he found persons, namely, Ajmat Ali, Raees Khan, Aziz S/o Bashir Khan, Islam S/o Shamsuddin, Sharif S/o Latif, Ajmat and Raees told him that on tyre-shop, Khalid S/o Abdul Razzak armed with hammer, Abid armed with iron rod, Salim armed with tyre lever and other three persons armed with iron rods encircled Shakir and with a view to kill him, continuously assaulted him on his head. Consequently, said victim Shakir died on the spot. In the written report, he also mentioned that Khalid etc. had enmity with his brother Shakir @ Kallu because of marriage of Khalid's daughter with his brother and for above reason only, all those persons jointly killed his brother. 5. As per the facts which came on record, the incident occurred at 8.30 P.M. and the written information was given at the Police Station at 9.30 P.M. by the Abdul Hafiz, the brother of the victim. 6. A formal F.I.R. was registered and case under Sections 147, 148, 149 and 302, I.P.C. was registered and during investigation, site was inspected and reports were prepared. The blood stained soil was taken into possession. From the place of incident itself, one hammer and one tyre lever stained with blood was recovered. One motor cycle, without number with one scooter Rs. 4515 were recovered. Deceased's blood stained clothes were sealed. Blood stained soil, hammer and tyre lever with other articles like clothes of the victim were sent to the FSL, from where report was obtained subsequently and before that, statements of the witnesses were recorded. One motor cycle, without number with one scooter Rs. 4515 were recovered. Deceased's blood stained clothes were sealed. Blood stained soil, hammer and tyre lever with other articles like clothes of the victim were sent to the FSL, from where report was obtained subsequently and before that, statements of the witnesses were recorded. It was revealed from the FSL report that in the blood stained soil recovered from the spot and the blood which was found on the clothes of the victim and the blood on hammer and lever was found to be of the human blood. The blood on the hammer and blood on the victim's clothes were found to be of 'B' group. The accused were arrested and the challan was filed in the Court under Sections 147, 148, 302 and in alternative, 302/149 I.P.C. were framed which were denied by the appellant-accused and they sought trial. 7. During trial, the prosecution produced as many as 16 witnesses and 42 documentary evidence. The defence exhibited statements of Abdul Hafiz (Ex.D- 1), Ajmat (Ex.D-2) and Ajiz (Ex.D-3). The accused were examined under Section 313, Cr.P.C. wherein the accused stated that the evidence produced against them is false and deceased was criminal person. The witnesses were also having bad antecedents and were also criminals. It is also stated that the victim died, but who killed him, could not be traced out and because of enmity, they have been wrongly implicated. 8. The trial Court, after trial, acquitted one of the accused Wazid Ali in separate trial and convicted rest of the accused, as mentioned above. Hence this appeal has been preferred. 9. According to the learned counsel for the appellants the entire story given by the prosecution is a concocted story and once the prosecution came with positive case of motive for killing the victim because of the alleged dispute of marriage of the victim with the daughter of appellant No. 1 but they failed to prove the motive then entire story of the prosecution falls to the ground. Not only this, the facts have already come on record in the evidence produced by the prosecution itself that the victim and the witnesses supporting the prosecution had/have criminal antecedents and they are involved in number of criminal cases, therefore, there may be very many enemies of the victim and any one of them may have killed the victim and when the complainant party and the prosecution failed to identify those persons, they took the opportunity to implicate the appellants in this crime to take revenge. 10. The learned counsel for the appellants vehemently submitted that as per the prosecution, the incident occurred at 8.30 P.M. and the distance of the Police Station from the place of incident is only 'h km., whereas the written report was submitted at the Police Station at 9.30 P.M. It is submitted that this delay looking to the totality of the facts of the case and particularly the distance between the Police Station coupled with the fact that the incident occurred in a placed surrounded by habitation, the delay is fatal. It is also submitted that in the inquest report, names of the accused were not mentioned and according to the prosecution, the blood stained hammer and tyre lever were recovered from the place of incident, which is open place then there is no connecting evidence to connect the appellants with these articles. The learned counsel for the appellants also submitted that site plan (Ex.P-15) was prepared on 6.11.2000 by the Investigating Officer at the instance of PW-2 Abdul Hafiz as admitted by the Investigating Officer himself. Then site plan Ex.P-15 is hit by Section 162, Cr.P.C. in view of the judgment delivered in the case Tori Singh and Anr. v. State of Uttar Pradesh, AIR 1962 SC 399 and the Division Bench judgment delivered in the case of D.B. Criminal Appeal No. 979 of 2002, Ram Ratan & Ors. v. State of Rajasthan, decided on 13.2.2008 . It is also submitted that the prosecution alleged that there were five eye-witnesses as it is mentioned in the F.I.R., out of whom three eye- witnesses PW-12 Raees Khan, PW-15 Anwar and PW-16 Firoz have not supported the case of the prosecution. v. State of Rajasthan, decided on 13.2.2008 . It is also submitted that the prosecution alleged that there were five eye-witnesses as it is mentioned in the F.I.R., out of whom three eye- witnesses PW-12 Raees Khan, PW-15 Anwar and PW-16 Firoz have not supported the case of the prosecution. More has been said about the evidence of Pw-8 Sadiq and according to the learned counsel for the appellants, his presence is not in dispute at the place of incident and he has admitted that accused persons were not members of the assaulting party. The learned counsel for the appellants challenged the trial Court's finding based on the testimony of PW-7 Ajmat Ali and PW-14 Abdul Aziz Khan with the help of FSL report Ex.P-42 and submitted that the testimony of the witnesses do not corroborate with each other and there are improvements and material contradictions in the statements of the witnesses. It is also submitted that the prosecution failed to prove any evidence to prove the fact that the injuries found on the person of deceased were sufficient to cause death in the ordinary course of nature, therefore, tl' prosecution failed to prove that it is a case falling under Section 302 I.P.C. The learned counsel for the appellants relied upon the judgment delivered in the case of Khuman Singh v. State of M.P., (2005) 9 SCC 714 . The learned counsel for the appellants also submitted that the alleged articles seized from the place of incident or recovered pursuant to the information given under Section 27 of the Evidence Act but those were not tendered in evidence as per General Rules (Criminal) framed by the Rajasthan High Court, therefore, no reliance can be placed on those facts. The learned counsel for the appellants drew our attention to Rule 31 of the General Rules (Criminal) framed by the Rajasthan High Court. 11. Apart from above, the learned counsel for the appellants submitted that the prosecution failed to prove the requisite ingredients constituting unlawful assembly, as per Section 141, I.P.C., as the accused were neither having any information about the arrival of the deceased at the tyre shop nor were lurking at the place of incident that the deceased will come over there. Apart from above, the learned counsel for the appellants submitted that the prosecution failed to prove the requisite ingredients constituting unlawful assembly, as per Section 141, I.P.C., as the accused were neither having any information about the arrival of the deceased at the tyre shop nor were lurking at the place of incident that the deceased will come over there. It is also submitted that none of the accused were armed with any deadly or non-deadly weapon which is apparent from the case of the prosecution itself as the allegation is that the alleged articles were lying in the tyre shop and those were picked up and the injuries were inflicted upon the body of the deceased, therefore, in the facts of the case, it was not unlawful assembly. 12. It is also submitted that the police has not examined the independent witnesses, though available in large number and only interested witnesses have been produced and PW-14 Abdul Aziz is a chance witness and seizure of the weapon before registration of the case vide Ex.P-13 is of no significance and seizure cannot be considered to be a seizure pursuant to the information furnished by the accused under Section 27 of the Evidence Act. 13. The learned counsel for the appellants also submitted that the judgment delivered in the case of co-accused Wazid Ali in Sessions Case No. 50/2003 is relevant and has material bearing for deciding the issue involved in this appeal, as for the said accused, though the trial was different but was only on the basis of the evidence as collected by the prosecution during same investigation wherein challan was filed against the accused-appellants. 14. The learned counsel for the appellants also submitted that the marriage certificate produced by the prosecution during trial was not admissible in evidence nor it could have been used against the appellants and in absence of proof for marriage, the prosecution failed to prove motive for killing the victim. 15. The learned Public Prosecutor submitted that the trial Court considered the evidence in detail and if one of the eye-witnesses PW-8 Sadiq, who was a child witness, has not supported the prosecution and has been declared hostile even then it cannot affect the credibility of the witnesses in whose statements there is neither improvement nor there is a contradiction and they are reliable witnesses. It is also submitted that the site inspection report was duly prepared and produced and has been exhibited and is not hit by Section 162, Cr.P.C. The marriage certificate was also produced in the Court after taking permission of the Court and became part of the evidence and cannot be discarded at this stage. It is also submitted that the incident occurred at 8.30 P.M. and in such a short period, no story could have been concocted by the complainant. The learned Public Prosecutor vehemently submitted that in fact it is a case fully proved by the prosecution and the guilt is proved beyond doubt against all the accused. The acquittal of other co-accused in different trial is absolutely irrelevant and that judgment is not admissible in evidence and if admissible in evidence, then only for the purpose of taking note of the fact that said accused has been acquitted and the evidence recorded in that case cannot be looked into nor has been sought to be relied upon in this case even by appellants. 16. We considered the submissions of the learned counsel for the appellants and perused the entire record and considered the judgments and law relied upon by the learned counsel for the appellants. 17. It is apparent from the written report submitted by Abdul Hafiz that as per this information, the victim along with two persons went to the tyre-shop at 8.30 P.M. where incident occurred and thereafter the complainant received telephonic message from Ajmat Ali and thereafter the complainant rushed to the tyre-shop, where he found his brother lying dead. Thereafter, he lodged written report at 9.30 P.M. and even if the Police Station was at only ½ km. away from the place of incident, it cannot be said that the F.I.R. is delayed one and the delay was of such extent that during this period the complainant could have presumed that the prosecution will not be in position to search out the real assailants who have killed his brother and, therefore, he should implicate the other persons with whom there may be enmity of the victim. In Ex.P-10 only it is stated that "at about 8.30 P.M." the victim went to the shop in dispute where he met with this fate. In Ex.P-10 only it is stated that "at about 8.30 P.M." the victim went to the shop in dispute where he met with this fate. It is not the exact time given, rather it suggests that incident accrued after any time after 8.30 P.M. and the incident must have taken some time and thereafter the complainant must have received the telephonic message and some time must have taken by him for reaching on the spot and thereafter the report was lodged, The facts itself ruled out the possibility of concoction of any story by the complainant and there was no delay in lodging the written report. 18. The complainant PW-2 Abdul Hafiz in his statement narrated the facts how he received the information and reached to the spot and submitted the written report to the police. He even in cross-examination stated that he received a telephonic message at 8.40 P.M. and reached on spot in about 10 minutes and this is natural. In view of the above reasons, the objection of the appellants about the delay in lodging the written report is rejected. 19. It is true that two alleged eye-witnesses PW-8 Sadiq and PW-12 Raees Khan were declared hostile in trial. We may first examine the statements of those witnesses who have not been declared hostile and have supported the prosecution case. 20. As per the statement of PW-7 Ajmat Ali, he was standing near the shop as he came with the victim and at that time a boy of 10-11 years was present at the shop. 4-5 persons came there and he named those persons as Khalid, Abid, Mushtaq and Salim and stated that two more persons were with him who were not known to him. he stated that Khalid inflicted injuries on the head of victim by hammer and Abid inflicted injuries by Sariya and Mustaq inflicted injuries by Tami. He also stated that he telephoned brother of the deceased who came on the spot on motor-cycle. In cross-examination he admitted that he and Sakir were friends and in cross-examination he again stated that he telephoned the complainant who reached on spot and after finding his brother dead, he went to the Police Station in the night itself. In cross-examination he denied the suggestion that in fact two persons were only involved in inflicting the injuries and he was not knowing those two persons. In cross-examination he denied the suggestion that in fact two persons were only involved in inflicting the injuries and he was not knowing those two persons. He also denied that he wrongly implicated the accused persons in the case. In cross-examination, he gave the details how and where the injuries were inflicted. Simply because he was involved in some other criminal case, his testimony cannot be rejected and at the most, his evidence is required to be considered with care and, therefore, we may look into the evidence of other witnesses also. 21. PW-14 Abdul Aziz Khan is a witness named in the written report Ex.P-10 and he named the accused persons who came on the spot and gave details how the injuries were inflicted by the accused persons on the body of the victim. In his statement also, there is no material contradiction to the statement as given by PW-7 Ajmat All except a few minor contradictions which have been shown from the statement recorded under Section 161 Cr.P.C. of this witness PW-14 with reference to his statement Ex.D-3. Therefore, the statement of PW-7 is corroborated by statement of PW-14 Abdul Aziz Khan. It is true that there was enmity between the appellants and the victim. That may be a cause for eliminating the victim by the appellants and if the facts do not warrant, it cannot be presumed that merely because of enmity with the appellants, the real assailants will be left out by the brother of the victim in such short period of time by concocting the story to implicate the appellants when the written report is supported by the statements of two trustworthy witnesses. PW-8 is a minor boy and his presence on the spot is admitted by the prosecution itself. He did not support the prosecution. He clearly stated in cross-examination that he did not see these persons on the spot. He denied his statement Ex.P-23 recorded under Section 161 Cr.P.C. but his statement cannot get preference over the statement of two other witnesses PW-7 Ajmat Ali and PW-14 Abdul Aziz Khan because of the reason that in no time, written report was submitted by the complainant wherein names of these witnesses were mentioned and their statements have been recorded by the police in time under Section 161 Cristen (sic Cr.P.C.). Another witness PW-12 Raees Khan was declared hostile. Another witness PW-12 Raees Khan was declared hostile. Though he was declared hostile but in his examination-in-chief he admitted that he was present at the place of incident where he found the victim with Ajmat Ali, Aziz. To that extent, the evidence of this witness also supports the presence of two other eye-witnesses referred above. In examination-in-chief, he stated that he went to ease out and when he came back, he found the victim lying dead. Therefore, it is proved from this evidence also that these witnesses were present on the spot. Then he stated that both witnesses Aziz and Banti told him the names of the persons who inflicted injuries upon the victim and those were Khalid Bhai, Abid Bhai, Salim Bhai, Mushtaq and Wazid. This also proved the presence of not only the witnesses but the accused on the spot. 22. In view of the above reasons there is direct evidence of the witnesses to prove the fact of inflicting injuries upon the body of the victim by the accused- appellants. 23. We cannot accept the argument of the learned counsel for the appellants that PW-7 Ajmat Ali is a planted witness whose name is already in written report Ex.P-10 lodged without any delay by the complainant. 24. Coupled with above evidence, if we look into the statement of PW-3 Dr. Gauri Shanker Chauha, who was Medical Jurist and examined the dead body of the victim and he opined that all the injuries were pre-mortem and he opined that death was caused due to these injuries and injuries No. 1 and 2 were dangerous to life. The victim died on the spot and the injuries were inflicted by blunt weapon as per the opinion of the doctor and that is the allegation of the prosecution witnesses. We also looked into the post-mortem report. As per the post-mortem report Ex.P-19, cause of death was head injuries No. 1 and 2 and there is direct evidence of inflicting injuries by the accused persons on the head of the victim. However, the victim died because of the injuries suffered on the head is not disputed and the dispute is only that according to the appellants, they did not inflict the injuries. The learned counsel for the appellants drew our attention to the statement of PW-3 Dr. However, the victim died because of the injuries suffered on the head is not disputed and the dispute is only that according to the appellants, they did not inflict the injuries. The learned counsel for the appellants drew our attention to the statement of PW-3 Dr. Gauri Shanker Chauhan and according to him he did not in so many words stated that the injuries found on the person of deceased were sufficient to cause death in the ordinary course of nature but we found from the statement of PW-3 Dr. Gauri Shanker that he clearly stated that the victim died because of said injuries and this is also the evidence of the witnesses that the victim died instantly on spot in no time, therefore not saying of the doctor in a language referred above itself cannot make any difference in peculiar facts of this case. 25. The learned counsel for the appellants then submitted that the site plan Ex.P-15 was not admissible peace of evidence as it was prepared at the instance of the witnesses by the Investigating Officer and so has been admitted by the Investigating Officer Ghanshyam Sharma (PW-10) in his statement before the trial Court and said Investigating Officer Ghanshyam Sharma in cross- examination stated that he inspected the site and prepared Ex.P-15 at the Nishadehi of Abdul Hafiz the complainant and the witnesses. The learned counsel for the appellants relied upon leading case of Tori Singh and another v. State of U.P., AIR 1962 SC 399 which was considered in the case of Jagdish Narain and another v. State of U.P., (1996) 8 SCC 199 and yet in another case of the State of Rajasthan v. Bhawani and another, (2003) 7 SCC 291 . We considered this aspect of the matter with the help of Section 162 Cr.P.C. as well as with the judgments referred above. We considered this aspect of the matter with the help of Section 162 Cr.P.C. as well as with the judgments referred above. In the leading case of Tori Singh (supra), Hon'ble Supreme Court held that the sketch-map prepared by the sub-inspector on the basis of the statement made by him by the witnesses during the course of investing and showing the place where the deceased was hit and also the place where the witnesses were at the time of incident, would not be admissible in evidence in view of provisions of Section 162 Cr.P.C., for it is in effect nothing more than the statement of the Sub-Inspector that the eye-witnesses told him that the deceased was at such and such place at the time when he was hit. Hon'ble the Supreme Court held that the sketch map would be admissible so far as it indicates all that Sub-Inspector saw himself at the spot; but any mark put on the sketch-map based on the statements made by the witnesses to the Sub-Inspector would be inadmissible in view of the clear provisions of Section 162, Cr.P.C. as it will be no more than a statement made to the police during investigation. However, after holding the site plan Ex.P-K(a)9 inadmissible ixi evidence on the facts of the case, the conviction of said appellant Tori Singh in that case was upheld. 26. In the case of Jagdish Narain (supra), Hon'ble the Supreme Court held that while preparing site plan an Investigating Police Officer can certainly record what he sees and observes, for that will be direct and substantive evidence being based on his personal knowledge, but as, he was not obviously present when the incident took place, he has to derive knowledge as to when, where and how it happened from persons who had seen the incident. When a witness testifies about what he head from somebody else it is ordinarily not admissible in evidence being hearsay, but if the person from whom he heard is examined to give direct evidence within the meaning of Section 60 of the Evidence Act, 1872 the former's evidence would be admissible to corroborate the later in accordance with Section 157 Cr.P.C. However, such a statement made to a Police Officer, when he is investigating into an offence in accordance with Chapter XII of the Code of Criminal Procedure cannot be used to even corroborate the maker thereof in view of the embargo in Section 162(1) Cr.P.C. appearing in that chapter and can be used only to contradict him (the maker) in accordance with the proviso thereof, except in those cases where sub- section (2) of the section applies. Hon'ble Supreme Court as held in Tori Singh's case (supra) observed that if the site plan is prepared by the draftsman and not by the Investigating Officer then the entries therein regarding the place from where shots were fired or other details derived from other witnesses would be admissible as corroborative evidence. However, even after holding so, Hon'ble the Supreme Court upheld the conviction of the appellant-accused on the basis of other evidence. 27. Same view was taken in the State of Rajasthan v. Bhawani (supra). However, in this case, where trial Court convicted the accused under Sections 148, 307, 302 and 448 I.P.C. and in appeal, the Rajasthan High Court allowed the appeal and acquitted the accused. Hon'ble the Supreme Court on the basis of evidence available on record allowed the appeal and set aside the judgment of the High Court and restored the judgment of the Court of Addl. Sessions Judge of conviction of the accused. 28. In the present case, according to the learned counsel for the appellants, the Investigating Officer Ghanshyam Sharma clearly admitted that he prepared Ex.P-15 when one of the witnesses complainant Abdul Hafiz identified the spot. The mere indicating towards the spot where the incident occurred is not a statement made to the Investigating Officer during the course of Investigating Officer. The only statement of PW-10 Ghanshyam Sharma is that Abdul Hafiz either identified the place of incident or took him to the place of incident. The mere indicating towards the spot where the incident occurred is not a statement made to the Investigating Officer during the course of Investigating Officer. The only statement of PW-10 Ghanshyam Sharma is that Abdul Hafiz either identified the place of incident or took him to the place of incident. The witnesses to Ex.P-15 are Sarafat Ali and Mohammad Islam and in report Ex.P-15 it is mentioned that the site was inspected in presence of Abdul Hafiz. Ex.P-15 itself is a document, admissibility of which has been questioned but in Ex.P-15 it is nowhere mentioned that said Abdul Hafiz gave any statement to the Investigating Officer which was the basis for putting mark on the site map Ex.P- 15 and site report and, therefore, Ex.P-15 does not fall in the category of a document, as which was before the Supreme Court in above mentioned there cases and particularly in the case of Tori Singh where the 'ketch-map was prepared by the Sub-Inspector on the basis of statement made to him by witnesses during course of investigation and particularly showing the place where the deceased was hit and also to the places where the witnesses were at the time of incident. Therefore, in our opinion, Ex.P-15 is not hit by Section 162, Cr.P.C. and was rightly admitted in evidence by the trial Court. Apart from it, even if this Ex.P-15 would not have been there or it is held to be inadmissible in evidence even then the place of occurrence has been proved by the direct ocular evidence which we have already discussed above and, therefore, it cannot affect the case of the prosecution in any manner. 29. The learned counsel for the appellants also vehemently submitted that the prosecution if would not have attributed a specific motive for committing the offence by the appellants then the position might have been different but once the prosecution came with positive stand regarding the motive for killing of the victim and when they failed to prove this fact then the prosecution story is liable to be rejected in toto. So far as on this issue, if we look into the evidence of the witnesses then there is direct evidence given by PW-2 Abdul Hafiz who stated that the victim Sakir contacted marriage with daughter of appellant No. 1 Abdul Khalid against the wishes of said Adbul Khalid. So far as on this issue, if we look into the evidence of the witnesses then there is direct evidence given by PW-2 Abdul Hafiz who stated that the victim Sakir contacted marriage with daughter of appellant No. 1 Abdul Khalid against the wishes of said Adbul Khalid. This fact is mentioned in the written report Ex.P-10. He stated in cross-examination that Nikahnama of victim with appellant No. 1's examination-in-chief clearly stated that the victim contacted marriage with appellant No. 1's daughter and he also stated that this marriage was performed on 16th October and the marriage was against the wishes of appellant No. 1 and because of this enmity, the appellant killed the victim. PW-14 Abdul Aziz Khan clearly stated that the victim contacted marriage with appellant No. 1's daughter and, therefore, there was enmity. Therefore, there is evidence on record other than Nikahnama which sufficiently proved that the victim contacted marriage with appellant No. 1's daughter and because of this reason, there was serious enmity between the appellant and the victim. 30. At this place, we would like to examine the effect of the acquittal of one of the co-accused in subsequent trial. As said co-accused Wazid Ali was declared absconding and the trial was concluded against the present appellants and against said co-accused Wazid Ali trial was taken place in Sessions Case No. 50/2003 wherein he has been acquitted for committing offence under Sections 148 and 302 read with Section 149 I.P.C. According to the learned counsel for the appellants, said judgment is relevant in view of the judgment of the Apex Court delivered in the case of Tralok Singh and others v. State of Punjab, (1973) 2 SCC 458 , wherein in Head-note (which appears to be not correct, therefore, quoted) it has been mentioned : "Evidence Act, 1872 (1 of 172) - Sections 43, 5 and 11 - Two trials against the accused - Relevance of final judgment of acquittal by Sessions Court is second trial disproving existence of facts in first trial - Held, such judgment relevant and considered in disposing of the appeal is first trial." 31. The relevancy of the judgments of Court is given under Sections 40 to 44 of the Evidence Act, 1872. The relevancy of the judgments of Court is given under Sections 40 to 44 of the Evidence Act, 1872. Section 40 deals with previous judgments relevant to bar a second suit or trial, which is not relevant for our purpose because it provides that the existence'of any judgment, order or decree which by law prevents any Courts from taking cognizance of a suit or holding a trial is a relevant fact when the question is whether such Court ought to take cognizance of such suit, or to hold such trial. The judgment of acquittal, in another case itself nowhere bars or bared the Court of appeal from proceeding with the matter before the High Court or could have prevented the Court as there was no occasion for the Court of Sessions Judge to pass any such order or decree against holding a trial. Section 41 of the Evidence Act deals with the relevancy of certain judgments in probate, matrimonial admiralty or insolvency jurisdiction wherein if judgment, order or decree is given then that judgment, order or decree is conclusive proof of matters referred in Section 41. Said provision has no application to the present appeal before this Court. Section 42 deals with the relevancy and effect of judgments, orders or decrees other than those mentioned in Section 41. Section 42 made judgments relevant if they relate to matters of the public interest, relevant to the enquiry; but such judgments, orders or decrees are not conclusive proof of that which they state. This provision also has no application to the present appeal and the application submitted by the appellants. Yet there is another provision under Section 43 which deals with judgments other than those mentioned under Sections 40 to 42 and which are yet relevant. Section 43 says that the judgments, orders or decrees, other than those mentioned under Sections 40, 41 and 42 are irrelevant unless existence of such judgment, order or decree is a fact in issue or is relevant under some other provisions of this Act. Section 43 says that the judgments, orders or decrees, other than those mentioned under Sections 40, 41 and 42 are irrelevant unless existence of such judgment, order or decree is a fact in issue or is relevant under some other provisions of this Act. The existence of judgment which is sought to be produced by the appellant is not in dispute as it cannot be disputed by the respondent-State who was prosecutor in the subsequent case also who is defending the judgment of the trial Court in this case arising out of the same incident which was initiated on the basis of the same report which was lodged by the complainant. Section 44 of the Evidence Act deals with the judgments obtained by fraud or collusion or has been rendered by Court having no jurisdiction and that fact is required to be proved.. Be it as it may be, the only fact which is relevant is that the judgment has been delivered in another case wherein co-accused has been acquitted. Neither the evidence recorded in that case subsequently tried are relevant in this case nor that evidence has been made part of the record of this case. Not only this but in Tralok Singh's case (supra), Hon'ble the Supreme Court observed that the result of the findings of the Sessions Court in Session Trial No. 11 / 1970 and our own reading of the evidence is that the prosecution story of the circumstances in which Gurdial Singh was arrested and his having made a statement thereafter leading to the recovery of the dead body and the decapitated head of the deceased cannot be accepted. Hon'ble the Supreme Court in Tralok Singly also neither declared the judgment rendered in another case to be relevant in the case before the Supreme Court nor passed the order on the basis of the judgment delivered in another case. Hon'ble Supreme Court reached to its own conclusion on the basis of the evidence which was available on record which is clear from last part of para 10 of the judgment delivered in the case of Tralok Singly (supra). Therefore, the judgment delivered in Sessions Case No. 50 of 2001, State of Rajasthan v. Wazid Ali, dated 1.4.2004 is taken on record to take on record the fact that other co-accused Wazid Ali has been acquitted by the trial Court. Therefore, the judgment delivered in Sessions Case No. 50 of 2001, State of Rajasthan v. Wazid Ali, dated 1.4.2004 is taken on record to take on record the fact that other co-accused Wazid Ali has been acquitted by the trial Court. Because of his acquittal there remained four accused who were convicted by the trial Court, out of whom Abdul Khalid, Mustaq Mohammad and Abdul Mirza have been convicted for committing offence under Section 302, I.P.C. whereas Salim Mohammad has been convicted with the aid of Section 149, I.P.C. for committing offence under Section 302, I.P.C. 32. The learned counsel for the appellant Salim Mohammad submitted that one of the co-accused has been acquitted for the charge under Section 149 I.P.C. then the Section 149, I.P.C. cannot be applied for four of the accused- persons. It is also submitted that there is no allegation against Salim Mohammad that he actively took part in commission of offence. It is submitted that when he was not member of unlawful assembly as defined under Section 141 I.P.C., then his case is required to be examined separately and he is liable to be acquitted. The learned counsel appearing for other appellants also relied upon the judgment of Tralok Singh (supra) on this issue also and submitted that the accused came without arms as per the prosecution itself then there is more probability that the incident may have occurred spontaneously and all accused may not have knowledge that the incident may occur. There could not have any common intention to commit murder without taking arms with them before proceeding to commit the offence. Hon'ble the Supreme Court in number of cases as well as in Tralok Single's case held that in such circumstances common intention of accused is not established. 33. Since one of the accused has been acquitted but at the same time, there was allegation that 2-3 more persons were there with the accused and all the accused came together from the site of Chungi-naka and it is not the case that simply because of presence of said 5th co-accused, who was tried separately only, the number of accused persons was five but in fact the number forming unlawful assembly was by the seven persons. However, two were un-identified persons. After incident, all the accused ran away together and it is clear allegation that the accused Wazid Ali ran with them. However, two were un-identified persons. After incident, all the accused ran away together and it is clear allegation that the accused Wazid Ali ran with them. But since one has been acquitted, therefore, in place of seven accused, there were six accused persons who were involved in committing this offence as per the facts which can be taken into account and, therefore, none of the appellant can get any benefit because of acquittal of one of the co-accused. 34. So far as contention of learned counsel for the appellants that the independent witnesses were not produced by the prosecution is concerned, the trial Court considered this aspect of the matter and found that in the circumstances, it was difficult for the prosecution to get the independent witnesses and this Court is also of the view that there is allegation of having so many cases registered against the persons involved in this incident, then there was every likelihood that the witnesses present on spot may not have cooperated the prosecution and the evidence produced by the prosecution since is trustworthy, therefore, merely because of not taking statement of other persons in the present case, is of no consequence. 35. Rule 31 of General Rules (Criminal) framed by the Rajasthan High Court prescribes the procedure for guidance and if the said Rule 31 has not been followed in true sense, even then it cannot vitiate the trial and particularly when the case is having the foundation of eye-witnesses in criminal trial. 36. Some other objections have been raised by the learned counsel for the appellants like, with respect to the recoveries with the plea that two of the articles were lying on the spot, therefore, they were known to everybody and were not the discovery of the fact in pursuance of the information given under Section 27 of the Evidence Act and some minor contradictions in the statements but they have no material bearing affecting the conclusion of holding the appellants guilty in the light of the direct, trustworthy and ocular evidence of the eye-witnesses. 37. In view of the above reasons, we do not find any merit in this appeal and the same is hereby dismissed.Appeal dismissed. *******