JUDGMENT 1. - These appeals are directed against the common judgement passed by the Court of Sessions, Bundi dated 23.5.2005 whereby accused-appellants were convicted and sentenced in the manner as indicated hereinbelow: Lal Chand was convicted for offence under section 302 read with Section 148 of IPC and sentenced to undergo life imprisonment with a fine of Rs. 2,000/- and in default of payment of which, to further undergo six months additional rigorous imprisonment, for offence under section 447 of IPC and sentenced to undergo three months simple imprisonment and for offence under section 201 of IPC and sentenced to undergo simple imprisonment of one year with a fine of Rs. 1,000/- and in default of payment of which, to further undergo three months additional simple imprisonment. Ranjeet Singh and Guddu @ Gajraj Singh were convicted for offence under section 302/149 of IPC and sentenced to undergo life imprisonment with a fine of Rs. 2,000/- each and in default of payment of which, to further undergo six months additional rigorous imprisonment, for offence under section 147 of IPC and sentenced to undergo simple imprisonment of six months, for offence under section 447 of IPC and sentenced to undergo three months simple imprisonment and for offence under section 201 of IPC and sentenced to undergo simple imprisonment of one year with a fine of Rs. 1,000/- and in default of payment of which, to further undergo three months additional simple imprisonment. Kishan Lal, Bhanwar Lal, Kishor, Gordhan and Manglya were convicted for offence under section 302 read with Section 149 of IPC and sentenced to undergo life imprisonment with a fine of Rs. 2,000/- and in default of payment of which, to further undergo six months additional rigorous imprisonment, for offence under section 447 of IPC and sentenced to undergo three months simple imprisonment and for offence under section 201 of IPC and sentenced to undergo simple imprisonment of one year with a fine of Rs. 1,000/- and in default of payment of which, to further undergo three months additional simple imprisonment. All the sentences were ordered to run concurrently." 2. A 'parcha bayan' (Ex.P4) of Shanti Bai, PW-3 was recorded in the Government Hospital, Bundi at 9.30 PM on 17.10.2002 by Ram Pratap, PW-25. 1,000/- and in default of payment of which, to further undergo three months additional simple imprisonment. All the sentences were ordered to run concurrently." 2. A 'parcha bayan' (Ex.P4) of Shanti Bai, PW-3 was recorded in the Government Hospital, Bundi at 9.30 PM on 17.10.2002 by Ram Pratap, PW-25. In the 'parcha bayan', the complainant Shanti Bai stated that on the date of occurrence at about 6.00 PM she, along with her daughters Santosh and Manbhari were working at the field. Lalu along with one person were sitting beneath the neem tree. At that time Champa Lal and one person belonging to Mehtar caste came there on a motor cycle. Lalu and Champa Lal were talking to them. It was mentioned that in the meantime the accused persons namely Laxman Singh, Manglya, Bhuriya, Ranjeet Singh, Guddu, Dev Lal, Kishan Lal, Kishore, Mohan, Babu Mohan Bhuriya S/o Rama, Bhuriya S/o Madho, Lal Chand, Gordhan and Mohan along with 5-6 other persons came there with 'lathis', 'gandasi', sword and gun at their field for giving beating to them. It was mentioned that after arrival, Mohan son of Omkar opened fire from the gun on Lalu, Lalu came running towards her and fell down on the ground. After that Bhuriya son of Gomda, Manglya and Kishore started giving beating by 'Gandasi' and 'Lakri'. Mohan S/o Omkar, Laxman Singh, Ranjeet Singh, Guddu, Dev Lal, Prabhu Lal Chand and Mohan S/o Rama delaboured her husband Nanda by 'Lakri' and 'Gandasi'. Laxman Singh, Dev Lal, Kishan Lal, Babu, Mohan S/o Rama, Bhuriya S/o Rama, Bhuriya S/o Madho and Lal Chand inflicted blows by 'Lakri' and 'Gandasi' on one boy who was with Lalu due to which he sustained injuries on head, hands, legs and other parts of the body and he succumbed. It was mentioned by the complainant that on her person Laxman Singh inflicted blow by 'lakri', Bhuriya inflicted blows with reverse side of the 'Gandasi' on hands and shoulder, Ranjeet inflicted 'lakri' blow on right shoulder and Manglya inflicted blow with reverse side of 'gandasi'. It was mentioned that Bhuriya S/o Gomda, Kishore, Manglya, Gordhan and Dev Lal had 'gandasi', rest had 'lakri' and Gophiya and one stranger person had sword. It was mentioned that after death of Nanda, Lalu and another person, the dead bodies were carried in the bullock cart of Babu S/o Rama Mali and thrown near gaushala. It was mentioned that Bhuriya S/o Gomda, Kishore, Manglya, Gordhan and Dev Lal had 'gandasi', rest had 'lakri' and Gophiya and one stranger person had sword. It was mentioned that after death of Nanda, Lalu and another person, the dead bodies were carried in the bullock cart of Babu S/o Rama Mali and thrown near gaushala. It was then mentioned that Lalu had Rs. 2000/- with him, which was taken out from his pocket by Bhuria and Manglya Mali. The incident was witnessed by Champa Mali and one person belonging to Mehtar caste. There was old enmity in relation to the land due to which the occurrence took place and her husband Nanda, son Lalu and one another boy were killed. On the basis of this 'Parcha Bayan', the police registered a case vide FIR No.348/2002 at Police Station Dablana for offence under section 147, 148, 302, 323, 404, 447 and 325/149 of IPC and under Section 3 of the SC/ST (Prevention of Atrocities) Act and under Section 3/25 of the Arms Act and commenced investigation. 3. While sixteen accused were named in the FIR, allegation was also made against some unknown persons. The Investigating Officer after investigation filed challan against twenty accused persons before the court of concerned Magistrate, who committed the case for trial before the Court of Sessions. The learned trial court framed charges against the accused-appellants under section 302/149, 147, 148, 447, 201, 323, 325, 404 and 3/25 of IPC and Section 3(2)(5) of the SC/ST (Prevention of Atrocities) Act. The prosecution examined as many as 39 witnesses and exhibited 132 documents, whereas the defence produced 27 witnesses in support of its case and exhibited 15 documents. The accused-appellants in the statement under section 313 of Cr.P.C. denied the charges and claimed to be tried. The learned trial court after conclusion of the trial, convicted 8 accused, who were appellants in these appeals and acquitted remaining 12. Aggrieved thereby, these three appeals have been filed challenging the conviction before this Court. A revision petition has also been filed by complainant Shanti Bai against the order of acquittal. It is at the outset informed that accused-appellant Guddu @ Gajraj Singh had died during the pendency of this appeal, therefore, the appeal no.586/2005 to the extent of this appellant stands abetted. 4. A revision petition has also been filed by complainant Shanti Bai against the order of acquittal. It is at the outset informed that accused-appellant Guddu @ Gajraj Singh had died during the pendency of this appeal, therefore, the appeal no.586/2005 to the extent of this appellant stands abetted. 4. We have heard the learned counsel for the accused-appellants and learned Public Prosecutor for the State.Shri A.K. Gupta, learned Senior Counsel assisted by Shri Vijayant Nirvan, learned counsel for accused-appellants Ranjeet Singh has argued that the learned trial court has failed to appreciate that the story that has been put forth in the first information report is completely concocted and gives a fabricated version. In this connection, learned counsel referred to statement of PW-1 Bhawani Singh, PW-2 Ashok Sharma and PW-8 Rati Ram and argued that according to their testimony, FIR came into existence afterwards. The 'Parcha Bayan' was not recorded on the date of incident. According to the prosecution case, the incident took place at 6.00 PM on 17.10.2002, which is not correct. Actually, occurrence took place near about 5.00 PM and the police reached at the place of occurrence thereafter. The 'Parcha Bayan' of PW-3 Shanti Bai was alleged to have been recorded on 9.30 PM at Government Hospital, Bundi and the FIR was said to have been registered at 11.00 PM, whereas PW-1 Bhawani Singh has stated that when police reached on the spot, three dead bodies were lying there and Smt. Shanti Bai widow of Nanda was found in injured condition, who narrated the entire incident to them. PW-2 Ashok Sharma in his cross examination has stated that PW-3 Shanti was found at gaushala and she was conscious and speaking. She stated that the incident had taken place outside gaushala. SHO recorded her statement and also took her thumb impression. PW-35 Gopal Lal, Circle Inspector has also stated that police reached at the gaushala immediately on receiving the information, wherefrom Shanti Devi was taken to hospital. He has stated that information about the incident was received on wireless at 7.35 PM on 17.10.2002. He also admitted that he received another wireless message at 7.50 PM that Laxman Singh and Mohan Mali are admitted in the Government Hospital, Bundi in injured condition and entry to this effect was made in the rojnamcha at that time. The genesis of the incident has thus been suppressed by the prosecution. He also admitted that he received another wireless message at 7.50 PM that Laxman Singh and Mohan Mali are admitted in the Government Hospital, Bundi in injured condition and entry to this effect was made in the rojnamcha at that time. The genesis of the incident has thus been suppressed by the prosecution. There is no medical evidence available on record to show that 'Parcha Bayan' Ex.P4 was recorded at Government Hospital, Bundi. PW-9 Dr. O.P. Verma, who examined her injuries has not stated a word about that or about the fact that she was in a condition to give statement. In fact, when she was brought to hospital, she was in unconscious state. The alleged statement of Shanti Devi recorded at 8.35 PM therefore becomes doubtful. Learned Senior Counsel argued that the learned trial court has erred in law in ignoring the delay that took place in sending the FIR to Ilaka Magistrate, while the FIR was registered at 11.00 PM on 17.10.2002, but the same was received by the Magistrate at 3.30 PM on the following day i.e. 18.10.2002. Although PW-35 Gopal Lal states that Constable was sent at 10.00 AM on 18.10.2002, but how the FIR reached the Magistrate delayed at 3.30 PM has not been explained by the prosecution. Conviction of the appellant Ranjeet was based on the testimony of PW-3 Shanti Bai and PW-5 Santosh, both of them are close relatives of the deceased and therefore interested witnesses. These witnesses have made substantial improvements upon their original version. Besides, their statements are full of contradictions. Even the trial court itself observed that statement of PW-5 Santosh is not reliable. 5. Learned Senior Counsel argued that story narrated by PW-3 Shanti Bai also does not inspire any confidence because it was full of contradictions and discrepancies. She has made omissions of material facts and also improvements from the earlier version. When the learned trial court has disbelieved the testimony of these witnesses while acquitting twelve accused, there was no reason why the accused-appellants were convicted on the basis of same evidence. These witnesses have stated that accused Babu had taken the dead bodies of three deceased and injured Shanti Bai in a bullock cart and threw their bodies near gaushala. When the learned trial court has disbelieved the testimony of these witnesses while acquitting twelve accused, there was no reason why the accused-appellants were convicted on the basis of same evidence. These witnesses have stated that accused Babu had taken the dead bodies of three deceased and injured Shanti Bai in a bullock cart and threw their bodies near gaushala. It cannot be believed that only one accused Babu alone would be able to pull and take all the three dead bodies in a bullock cart and throw the same in gaushala. It is not clear that how PW-3 Shanti Bai herself reached the gaushala in such an injured condition, particularly when this witness had a fracture in leg and the Gaushala was 8 kms from agriculture field of the complainant. The story about dead body being carried in a bullock cart to Gaushala is totally concocted and false. The incident actually took place at gaushala. The assertion that the incident had taken place at the field of accused persons, is not correct. The prosecution has sought to suppress the important aspects of the matter and genesis of the incident. PW-3 Shanti Bai in Court statement has made substantial improvements. While in the first information report, she stated that accused persons were having 'lathis', but in the Court statement she stated that accused persons were also having sharp edged weapons. According to PW-5 Santosh, at the time of occurrence, she was with PW-6 Manbhari, which has not been believed by the learned trial court. The learned trial court has erred in relying on the testimony of PW-5 Santosh. The conduct of this witness is highly unnatural because if she was present at the agriculture field of the complainant party and witnessed the incident, she would try to save the life of the deceased and injured Shanti and in that process would have also received injuries, whereas no injury has been received by her. Accused Laxman Singh sustained injuries and was admitted to Government Hospital, Bundi. In fact, accused were beaten by the deceased persons and then the villagers gave beating to them. 6. Learned Senior Counsel also referred to the statement of PW-8 Rati Ram and argued that from his testimony, entire prosecution case stands falsified. He has stated that he reached the gaushala at 5.00 PM and both Santosh and Manbhari were already there. In fact, accused were beaten by the deceased persons and then the villagers gave beating to them. 6. Learned Senior Counsel also referred to the statement of PW-8 Rati Ram and argued that from his testimony, entire prosecution case stands falsified. He has stated that he reached the gaushala at 5.00 PM and both Santosh and Manbhari were already there. He stated that his mother was unconscious and regained consciousness the next day. This completely demolishes the story of the prosecution that Shanti Bai has given 'Parcha Bayan' on same day. The learned trial court also failed to appreciate statements of PW-24 Rohitash, PW-25 Ram Pratap, PW-27 Himmat Singh and PW-35 Gopal Lal, who all are police personnel and are connected with the investigation of the trial. It was argued that police had lifted blood stained soil from the place near gaushala and according to FSL report, this soil was found to have contained the blood. Thus this proves that the incident had taken place at Gaushala and not at the field of complainant party. It was argued that enmity could not be assigned as a motive for the murder of deceased by accused-appellants. The appellants submitted various complaints about the attacks made upon them by the complainant and the members of the complainant party were convicted. There is no allegation against the accused-appellant Ranjeet Singh for inflicting any injury on the person of any deceased. That allegation is against Babu alone, who has been convicted by the learned trial court. The appellants could not have been convicted for offence under Section 201 of IPC by the learned trial court. It was argued that the learned trial court while recording the statement of appellants under section 313 Cr.P.C. did not disclose and put all the material evidence to them. The learned trial court erred in law in not believing the statement of defence witnesses, whereas their testimony carry same value as that of prosecution witnesses. PW-3 Shanti Bai has stated in FIR that Ranjeet inflicted 'lathi' and 'gandasi' blows, whereas no injury has been received by her from 'lathi' or 'Gandasi'. She in her statement has referred to the old case between the parties, but this was a case under section 323 of IPC for which case, Ranjeet was acquitted. PW-3 Shanti Bai has stated in FIR that Ranjeet inflicted 'lathi' and 'gandasi' blows, whereas no injury has been received by her from 'lathi' or 'Gandasi'. She in her statement has referred to the old case between the parties, but this was a case under section 323 of IPC for which case, Ranjeet was acquitted. This witness in 'Parcha Bayan' though named accused Ranjeet, Guddu @ Gajraj Singh and Raju with 'lathi' as a arm, whereas in Court statement she assigned 'gandasi' to them, even then Raju Harijan has been acquitted. 7. Shri A.K. Gupta, learned Senior Counsel argued that the statement of PW-4 Champa Lal was recorded under section 161 of Cr.P.C., after the date of incident on 24.4.2002. The gun alleged to have been recovered at the instance of the accused Mohan Lal vide Ex.P31 from the agriculture field was in fact a licenced gun of Champa Lal, but who had in the evening of 17.10.02 recorded first information report about theft of the gun. Learned counsel referred to the postmortem report of Lalu @ Lalia Ex.P8 and argued that no firearm injury was received by him. Sword has been recovered at the instance of accused Raju @ Raju Lal vide Ex.P12, while the stick was shown recovered from accused Laxman Singh. Another stick was shown recovered from accused-appellant Bhawar Lal S/o Madho, who was acquitted. 'Gandasi' was recovered from Manglya vide Ex.P34. 'gandasi' was also recovered from Bhanwar Singh @ Bhuria, who was convicted. Similarly, stick was recovered from Lal Chand vide Ex.P28 and 'gandasi' from Gordhan vide Ex.P45. No recovery whatsoever was made either from accused Ranjeet and Guddu @ Gajraj Singh. Accused Kishore and Gordhan at whose instance 'gandasi' was recovered vide Ex.P33 and Ex.P45 were convicted and accused Kishan Lal at whose instance recovery of stick was made vide Ex.P82 was also convicted. Learned Senior Counsel referred to the report of Laxman and Mohan Lal vide Ex.D12 and D13 and FIR registered in cross case vide Ex.D11. It was argued that Champa was accomplish of complainant party. PW-5 Santosh admitted that his gun was lying with them in their house. It was argued that statement of PW-3 Shanti Bai that dead bodies of deceased were carried to gaushala has not been proved by any evidence because no blood stains were found on the way to gaushala. It was argued that Champa was accomplish of complainant party. PW-5 Santosh admitted that his gun was lying with them in their house. It was argued that statement of PW-3 Shanti Bai that dead bodies of deceased were carried to gaushala has not been proved by any evidence because no blood stains were found on the way to gaushala. All these facts raised serious doubts about correctness of the prosecution version, especially about the accused-appellant Ranjeet, whose name was initially mentioned in the 'parcha bayan' by complainant PW-3 Shanti Bai on allegation that he was having 'lakri', whereas in the statement before the Court, PW-3 Shanti Bai alleged that accused Ranjeet had 'gandasi', whereas no recovery has been made at the instance of Ranjeet. The charge has thus not been proved against him beyond reasonable doubt especially when the statement of the witnesses are full of contradictions, thus accused-appellant Ranjeet deserves to be acquitted. There was no evidence that he was a member of unlawful family and shared common object, therefore, his conviction under Section 149 of IPC cannot be sustained. 8. Shri S.K. Saksena, learned counsel for the accused-appellant Lal Chand argued that one day before the incident, deceased Nanda and his sons formed an unlawful assembly to attack the accused and threatened them with dire consequences. PW-4 Champa Lal has admitted the incident of previous day. PW-3 Shanti Bai has not attributed any specific overt act to accused Lal Chand and Kishan Chand. Recovery of one stick each has been made from these two accused vide Ex.P28 and Ex.P82. The stick that has been recovered from the accused-appellant Lal Chand did not have any blood stains. It was argued that mere presence would not be enough to make him a member of unlawful assembly. PW-4 Champa Lal stated that he did not know accused and, therefore, so long as the test identification parade was not conducted, he could not have been connected with the crime. It was argued that this witness is also speaking false because in order to safeguard against his own involvement, this witness has lodged first information report about the theft of his licenced gun, whereas the gun was very much in the house of the deceased Nanda as admitted by PW-5 Santosh. It was argued that articles (weapons) was neither marked, nor were produced before the Court. It was argued that articles (weapons) was neither marked, nor were produced before the Court. As per Section 66 of the Evidence Act, non-production of the articles in the Court cannot link the weapon with the offence. Nothing has been said thereabout by the Investigating Officer in the statement. The weapons were also shown to the Medical Officer. The offence, therefore, cannot be held to have been proved against the accused beyond reasonable doubt. 9. Shri S.K. Saksena, learned counsel for the appellant has argued that the ingredients of Section 149 of IPC are totally missing, therefore, mere presence of the accused-appellant as stated by PW-3 Shanti Bai and PW-5 Santosh unless it is proved that he shared the common object, does not make him member of the unlawful family. The best way of proving this, would be proving his overt act. In support of his arguments, Shri S.K. Saksena, learned counsel for the appellant-Lal Chand has relied on the division bench judgement of Principal Seat at Jodhpur in Dungar Ram & Ors. v. State of Rajasthan, 2001 (3) R.Cr.D. 261 (Raj.) , division bench judgement of this Court in Jhamman & Ors. v. State of Rajasthan, 2006 (3) RLW 1845 , Sohan Lal v. State, RLR 2004 (1) page 453 , judgements of Supreme Court in Daya Shankar v. State of M.P., 2009 (1) SCC 439 , Niranjan v. State, 2001 (3) Crimes 52 (SC) , Baital Singh & Anr. v. State of U.P., AIR 1990 SC 1982 , Krishnan & Anr. v. State Rep. By Inspector of Police, 2003 (2) WLC (SC) Criminal 242 , Sabbi Mallesu & Ors. v. State of Andhra Pradesh, 2007 (1) RLW 86 and State of Rajasthan v. Bhawani & Anr., 2003 CRI.L.J. 3857 . 10. Shri S.K. Jain, learned counsel for the accused-appellants Kishan Lal, Bhanwar Lal, Kishor, Gordhan and Manglya has argued that as per defence version, the incident did not take place at the agriculture field of the complainant as alleged by them, which is the place shown in the site plan Ex.P115. The incident actually took place at gaushala, the site plan of which is Ex.P4. This is a serious infirmity in the entire prosecution case. PW-5 Santosh and PW-6 Manbhari were relatives of the deceased Nanda. The incident actually took place at gaushala, the site plan of which is Ex.P4. This is a serious infirmity in the entire prosecution case. PW-5 Santosh and PW-6 Manbhari were relatives of the deceased Nanda. They claimed themselves to be eye witnesses, but they stated that they had hidden themselves in the field, yet watched the entire incident, but that place where they claimed to have hidden, has not been indicated in the site plan Ex.P115. The site plan also does not mention that the crop was destroyed/damaged by the appellants, whereas the prosecution witnesses have stated so. The prosecution witnesses PW-3 Shanti Bai and PW-5 Santosh have also stated that deceased Dharma and Lalu were sleeping under the Neem tree on a cot, but the said Neem tree and cot has not been mentioned in the site plan Ex.P115. They also alleged about attack by bricks, but no broken bricks was found in the site plan Ex.P115. Neither the empty cartridges/pallets, nor even the gun powder was recovered from the alleged place of incident, despite the allegation by some of the witnesses to that effect. PW-1 Bhawani Singh has stated that incident had taken place as per site plan Ex.P4 and not as per site plan Ex.P115 and this statement he made on the basis, what was told by PW-3 Shanti Bai to the police. PW-2 Ashok has also stated that incident had taken place at gaushala. Similar statement has been made by PW-11 Madan, PW-12 Ramesh and PW-13 Pappu Lal. Once the FIR, lodged by the complainant is found to be inadmissible evidence, genesis of the incident having not been suppressed by them, entire prosecution evidence is liable to be discarded. There are number of contradictions, which make the prosecution case unbelievable. PW-1 Bhawani Singh and PW-2 Ashok Kumar have stated that police recorded the statement of PW-3 Shanti Bai at place near gaushala. PW-5 Santosh stated that PW-3 Shanti Devi was unconscious whole night and was able to speak in the next morning. PW-6 Manbhari has also stated that her mother regained consciousness on the next morning and whole of the night she was unconscious. It is thus clear that the alleged 'parcha bayan' said to have been recorded at the instance of PW-3 Shanti Bai is totally false. In the FIR, place of incident was recorded at the place near gaushala by way of an afterthought. It is thus clear that the alleged 'parcha bayan' said to have been recorded at the instance of PW-3 Shanti Bai is totally false. In the FIR, place of incident was recorded at the place near gaushala by way of an afterthought. The investigation was started much before the lodgement of FIR, which is evident from the fact that site plan Ex.P4 of the Gaushala was prepared at 8.45 PM, panchnama Ex.P2 was prepared at 8.30 PM and photographer was called to take the photographs at about 8.00 PM, while the FIR has been registered at about 11.00 PM, therefore, it is clear that the FIR is hit by Section 162 Cr.P.C. Reliance made on the testimony of PW-3 Shanti Bai and PW-5 Santosh by the learned trial court is wholly misplaced because when testimony of these witnesses have been disbelieved for all co-accused, who have been acquitted, they cannot be relied to convict the appellants. The accused-appellant Ranjeet Singh, Bhanwar Lal and Laxman Singh have already been acquitted from the charge of Section 323 of IPC of causing hurt to PW-3 Shanti Bai. These two witnesses proved their version. PW-3 Shanti Bai and PW-5 Santosh have proved their version during trial. The trial court thus in para 22 of the judgement stated that PW-5 Santosh is not wholly unreliable. Learned counsel in this connection relied on the judgement of Supreme Court in Badri v. State of Rajasthan, AIR 1976 SC 560 . It was argued that recovery was made from an open place and in view of ratio of the judgement of Supreme Court in Sarwan Singh v. State, AIR 1976 SC 2304 , mere recovery of weapons is not a material evidence against the accused particularly when every villager has a 'lathi' or 'gandasi' in his house. PW-34 Avneesh Sharma has not stated that recovered articles were sealed by the police at the place of incident. 11. Relying on the judgement of Supreme Court in Ishwar Singh v. State of Uttar Pradesh, AIR 1976 SC 2423 , learned counsel argued when weapon has not been produced in the Court and when opinion of doctor is not obtained whether injury could have been caused by such weapon, recovery of weapon itself could not justify conviction of accused. 11. Relying on the judgement of Supreme Court in Ishwar Singh v. State of Uttar Pradesh, AIR 1976 SC 2423 , learned counsel argued when weapon has not been produced in the Court and when opinion of doctor is not obtained whether injury could have been caused by such weapon, recovery of weapon itself could not justify conviction of accused. Learned counsel further relied on the judgement of Supreme Court in Narsinbhai Haribhai Prajapati v. Chhatrasinh & Ors., AIR 1977 SC 1753 to argue that recovery of blood stained weapons would not be sufficient to convict the accused. Recovery of articles is not a substantive piece of evidence and it is merely corroborative piece of evidence. It was argued that two accused namely; Laxman Singh and Mohan have received injuries vide Ex.D11 and D12 and cross FIR has been registered vide Ex.D11 for offence under section 307 of IPC. The prosecution has failed to give any explanation for their injuries. The accused persons have thus exercised their right of private defence, therefore, it must be held on that basis that Section 149 of IPC was not applicable. No specific overt act has been assigned to any of the accused persons and therefore just because no overt act has been assigned to any of them, all of them cannot be convicted. Learned counsel argued that the Investigating Officer, PW-35 Mohan Lal in his statement has stated that severals criminal cases are pending against the deceased persons namely; Nanda, Lalya and Dalya and it has also come in evidence that they were namesake of terror in village and a report was also lodged against them on 14.10.2002. Accused-appellants can at the maximum be held guilty of exceeding right of private defence. Conviction of appellants under section 302 of IPC cannot be upheld because in that event, it would fall within the explanation of private defence as provided in Exception 3 of Section 300 of IPC making it to be a case of culpable homicide not amounting to murder within the purview of Part-I or II of Section 302 of IPC. It was argued that as per prosecution case, there is allegation that deceased and injured were dragged about 100 yards by the accused persons and then were lifted in a bullock cart and thrown at the place near gaushala. It was argued that as per prosecution case, there is allegation that deceased and injured were dragged about 100 yards by the accused persons and then were lifted in a bullock cart and thrown at the place near gaushala. There was no mark of dragging shown in the land of agriculture field, which is evident from the site plan. It was argued that 12 witnesses have turned hostile and have not supported the prosecution case. It is therefore highly unsafe to convict the accused on such unreliable testimony. 12. Shri Amit Punia, learned Public Prosecutor opposed the appeals and argued that minor contradictions and discrepancies in the statement of prosecution witnesses, cannot be blown out of proportion to discard the entire prosecution evidence. PW-3 Shanti Bai was under immense shock when the police initially enquired from her about the incident. The incident had actually taken place at the agriculture field of the deceased and then the dead bodies were carried in a bullock cart to be dumped at the place near gaushala with the intention of misleading the investigation. In this connection, reference was made to the site plan Ex.P115 and it was argued that blood stains were found at different places marked as 'G', 'H' and 'K' in the site plan. The blood stains were also found from place 'C' to 'M' wherefrom the dead bodies of the deceased were dragged and taken on a bullock cart towards a place marked as 'M'. 13. Learned Public Prosecutor argued that there are symbols that the sand was lifted from the place of occurrence and it has been proved from the FSL report Ex.P131. The various weapons referred from the accused-appellants were also having blood stains, which have been proved to be the remnant of human blood in the FSL report Ex.P131, which indicate that five iron 'gandasis' and one sword recovered from the accused were having human blood. In fact, the learned trial court has analytically examined the entire prosecution evidence and has found the involvement of these accused fully proved in the findings while acquitting other 12 accused. It was argued that the statement of PW-35 Gopal Lal has been misinterpreted by the learned counsel for the appellants. In fact, Gopal Lal in his statement has clarified that since PW-3 Smt. Shanti Bai was not in a position to give statement, her statement could not be recorded at gaushala. It was argued that the statement of PW-35 Gopal Lal has been misinterpreted by the learned counsel for the appellants. In fact, Gopal Lal in his statement has clarified that since PW-3 Smt. Shanti Bai was not in a position to give statement, her statement could not be recorded at gaushala. She was taken to hospital and after she settled down, her statement was recorded. The defence did not put any question to PW-3 Shanti Bai in her cross examination on this aspect. Statement of PW-1 Bhawani Singh and PW-2 Ashok Sharma on this aspect, therefore, cannot be considered to determine the 'parcha bayan' was recorded near gaushala and not in the Government Hospital, Bundi. PW-14 Shyoji Ram though has been declared hostile, but he has not stated that incident had taken place at gaushala. PW-25 Ram Pratap Saini has also not stated that Smt. Shanti was not in a position to give statement. On the contrary, he stated that her statement was written as spoken by her. PW-5 Santosh has also not stated that she was present at the time when 'parcha bayan' of PW-3 Smt. Shanti Bai was recorded. In fact, this witness has also stated that Smt. Shanti was speaking intermittently. Smt. Shanti Bai was injured having fracture of leg. Such a minor variation in the statement of few witnesses, cannot be read out of context. 14. Shri Amit Punia, learned Public Prosecutor submitted that PW-3 Shanti Bai and PW-5 Santosh are prosecution witnesses and they cannot be expected to make false allegation against anybody. Mere fact that one of the deceased had some criminal cases pending against him, cannot justify murder of three member of the family in such a gruesome manner by the accused. The accused had murdered the persons and then shifted the dead bodies to some other place. Thus an attempt was made by them to tinker with the evidence and they are therefore rightly convicted under section 302 and also under section 201 of IPC. It was argued that when the accused persons were named in the FIR, there was no question of any test identification parade. The recovery memos are very much on record and the nature and number of injuries are also fully proved by the Medical Officer PW-9 Dr. O.P. Verma. It was argued that when the accused persons were named in the FIR, there was no question of any test identification parade. The recovery memos are very much on record and the nature and number of injuries are also fully proved by the Medical Officer PW-9 Dr. O.P. Verma. Mere fact that he was not shown the weapon of offence, cannot be a reason not to accept his testimony and prove that three deceased died on account of number of injuries by various weapons assigned to the accused, which included both vital injuries by sharp edged weapon as also severe injuries by sharp edged weapons on the head of the deceased, which proved fatal and also grievous injuries on various body parts by blunt weapon. It is therefore prayed that the appeals be dismissed. 15. We have given our anxious consideration to the rival submissions and perused the material on record.The 'parcha bayan' of PW-3 Shanti Bai was recorded at 9.30 PM on 17.10.2002 in the Government Hospital, Bundi. Mere fact that the police reached the place near gaushala on receiving the information that dead bodies of the deceased were lying there and Smt. Shanti Bai was also lying there in serious injured condition, cannot be a reason to hold that her 'Parcha Bayan' in all probabilities must have been recorded at a place near gaushala and not in Government Hospital. PW-25 Ram Pratap Saini has categorically stated that he recorded the 'Parcha Bayan' in the hospital. PW-35 Gopal Lal, the Circle Inspector, Police Station Dablana has stated that he received a wireless message at 7.35 PM on that day that Dalya and Lalu Mali (deceased) have taken one person in Zeep from village Thikarda. This report was entered in rojnamcha and he went to village Thikarda. He received another wireless message at 7.50 PM that Laxman Singh and Mohan Mali have been hospitalised in injured condition, whereupon he sent wireless message to ASI Ram Pratap to reach at Hospital, Bundi. On reaching Thikarda village, PW-35 Gopal Lal enquired from the house of Laxman Singh, whose wife told him about the incident at gaushala where he found three dead bodies and one woman in injured condition lying there, whom he immediately sent to hospital and informed the higher officials. He got the inquest report of three dead bodies vide Ex.P1, P2 and P3 and sent the dead bodies for postmortem. He got the inquest report of three dead bodies vide Ex.P1, P2 and P3 and sent the dead bodies for postmortem. PW-8 Rati Ram identified the dead bodies to be of Nanda, Lalu and Dharma and informed that the incident had actually taken place at the agriculture field of Nanda whereupon he went there and found blood spread around the place of incident. He recorded statement of PW-3 Shanti Bai under section 161 of Cr.P.C. vide Ex.D3 on the following day and also seized blood stained clothes of the deceased vide Ex.P24, 25 and 26. He prepared the site plan of the agriculture field of deceased Nanda vide Ex.P115 in witness of Pappu, Ratiram, and Santosh. He recovered the shoes of all the deceased and one more person vide Ex.P116. Pappu and Ratiram have signed the recovery memos. He also recovered the blood stained soil from the agriculture field vide Ex.P117. He recovered a bullock cart vide Ex.P38. This bullock cart was having blood stains. Incidentally the blood stained sand that was recovered from the bullock cart was also sent to the FSL for examination and was found to be having human blood. Although, the other witnesses of these recoveries i.e. PW-37 Pappu has turned hostile, but PW-8 Ratiram has supported the prosecution case. The argument, therefore, that the place of incident was sought to be changed or the genesis of the incident was suppressed, has to be rejected. 16. Coming now to the evidence against accused-appellants about the role played by them in the incident, no doubt PW-3 Shanti Bai in her 'Parcha Bayan' has given names of sixteen accused as those responsible for the murder of her husband and two sons and for her own injuries and the trial court has convicted only eight of them, even then the appellants have assailed the judgement of trial court on various grounds enumerated above. In 'Parcha Bayan', she has alleged that Mohan S/o Omkar opened fired from gun at Lalu, who was coming towards her, but fell down. Bhuria, Manglya and Kishore thereafter subjected him to beating by use of 'gandasi' and 'lakri'. Mohan S/o Omkar, Laxman Singh, Ranjeet Singh, Guddu, Devi Lal, Prabhu, Lal Chand and Mohan S/o Rama subjected her husband Nanda to beating by 'lakri' and 'Gandasi'. Bhuria, Manglya and Kishore thereafter subjected him to beating by use of 'gandasi' and 'lakri'. Mohan S/o Omkar, Laxman Singh, Ranjeet Singh, Guddu, Devi Lal, Prabhu, Lal Chand and Mohan S/o Rama subjected her husband Nanda to beating by 'lakri' and 'Gandasi'. She further stated that Laxman Singh, Dev Lal, Kishan Lal, Babu, Mohan S/o Rama, Bhuriya S/o Rama, Bhuriya S/o Madho and Lal Chand caused severe injuries on the person of Lalu by use of 'lakri' and gandasi, which led to his death. Laxman Singh inflicted 'lakri' blow on her. Bhuriya inflicted blow by 'gandasi' from reverse side of the 'gandasi' on her hands shoulder. Ranjeet inflicted 'lakri' blow on her right shoulder and Manglya inflicted a 'Gandasi' blow from reverse side. When she appeared in Court, she has generally named Laxman Singh, Mohan S/o Omkar, Ranjeet, Gudia, Dev Lal, Kishan Lal, Mohan S/o Kesar, Bhura S/o Govind, Manglya, Kishore, Goverdhan S/o Prabhu, Shankar, Babu, Mohan S/o Rama, Bhura S/o Madho, Lal Chand, Devi S/o Bhuwana and son of Narayan, whose name she did not know, as those who attacked them. Many of these persons have been acquitted by the learned trial court. But thereafter she has assigned specific weapons to the accused like she stated that Laxman had 'gandasi', Mohan S/o Omkar had a gun, Ranjeet had a 'gandasi', Gudia had a 'gandasi', Dev Lal had a 'gandasi', Kishan Lal also had a 'gandasi', Bhuria S/o Govind also had a 'gandasi', Manglya had a 'gandasi', Kishore had a 'gandasi', Shankar had a 'kulhari', Ram Prasad had a sword, Gordhan had a 'gandasi', Babu had a 'lakri', Mohan S/o Rama has a 'lakri', Bhura S/o Madho had a 'lakri', Devi S/o Bhuwana had a 'lakri', Lal Chand had a 'lakri', Raju had a 'gandasi'. This is only as far as weapons which according to Shanti Bai, these persons were having. She stated that eventually on reaching on well of Nandaji, these persons started throwing stones, whereupon Lalu rushed towards her. Dharma also came towards her. Mohan S/o Omkar opened fire at Lalu who fell down, on which, he inflicted blow on his head by the 'but' of the gun. Accused Shankar then inflicted 'kulhari' blow on the right leg of her husband, then all persons starting beating them. They also gave beating to her son Lalu. Laxman Singh inflicted a 'gandasi' blow on the right cheek of Dharma. Accused Shankar then inflicted 'kulhari' blow on the right leg of her husband, then all persons starting beating them. They also gave beating to her son Lalu. Laxman Singh inflicted a 'gandasi' blow on the right cheek of Dharma. Mohan then inflicted another blow from the 'but' of his gun on his head. Bhuria has inflicted 'gandasi' blow on her, which hit her shoulder. Ranjeet inflicted a blow from reverse side of the 'Gandasi' on her another shoulder. Laxman Singh inflicted a 'lakri' blow, below her back, as a result of which she fell down. Thereafter, Mohan inflicted a blow on her left leg with the 'but' of the gun. Manglya inflicted 'lathi' blow on her person. Then, all of them brought a bullock cart. They put all the dead bodies along with her on the bullock cart. Then they threw all the dead bodies and herself in the chowk near gaushala. PW-4 Champa Lal had admitted the presence of PW-3 Shanti Bai and two sisters of the deceased Lalu i.e. PW-5 Santosh and PW-6 Manbhari Bai and stated that they were harvesting the crop. The mother of Lalu asked Lalu to run away from there on his (Champa Lal) motorcycle. There were 22-23 persons who attacked. They have having gofia, 'lakri', sword, gun and 'gandasi'. He ran away to take shelter behind the canal. All these persons murdered his father Nanda and two sons Lalu and Dharma and then they also attacked their mother PW-3 Shanti. Then, he ran away from there by his motor cycle. PW-5 Santosh has stated that on reaching their agriculture field, accused Mohan opened fire which hit Lalu and he fell down, then Shankar inflicted a severe blow on the person of her father Nanda, who fell down. 17. They also subjected Dharma to beating. Mohan, who has alleged to have opened fire has already been acquitted by the learned trial court. Bhuria had a 'Gandasi', Manglya had a 'gandasi'. Ranjeet had a 'gandasi'. Guddu had a 'lakri' and one accused had a sword. Buria hit her mother Shanti Bai from reverse side of the 'gandasi'. PW-6 Manbhari has stated that Mohan had a gun. The other accused have 'gandasis' and 'lakris'. When Lalu started running for escape, Mohan opened fire at him. Ranjeet had a 'gandasi'. Guddu had a 'lakri' and one accused had a sword. Buria hit her mother Shanti Bai from reverse side of the 'gandasi'. PW-6 Manbhari has stated that Mohan had a gun. The other accused have 'gandasis' and 'lakris'. When Lalu started running for escape, Mohan opened fire at him. Her father was hit by one accused, whom she could not identify and all accused gave beating to Dharma and her mother. She denied the allegations that the gun of Champa Lal was lying in their house and Lalu went inside to bring the gun and Bhanwar Lal and Mohan started snatching the gun from Lalu. What these witnesses subsequently stated is that Mohan, hit the deceased Lalu from the gun. Even if we accept that the gun of Champa Lal was available in the house of the deceased Lalu and it was snatched by Mohan Lal, that is not going to make any difference because Lalu had died due to head injury. PW-8 Rati Ram, son of deceased Nanda and brother of deceased Dharma and Lalu, has stated that when he reached to agriculture field at 6.00 PM, he found Santosh and Manbhari crying there. On enquiry they told that 15-20 accused had killed Nanda, Lalu, Dharma and Shanti Bai and took their bodies in a bullock cart towards Dehnawa. He went towards Dehnawa gaushala, where he found dead bodies of his father, two brothers and his mother in a seriously injured condition, who was speaking with little bit difficulty. Police had reached there even before his arrival. Though testimony of the eye witnesses has not been fully corroborated by the medical evidence and PW-37 Pappu, witness of recovery has also turned hostile, apart from number of other witnesses who have turned hostile, but nevertheless, the fact remains that as far as accused-appellant Lal Chand, Kishan Lal, Bhanwar Lal S/o Gomda, Kishor, Gordhan, Manglya, Lal Chand and Ranjeet Singh are concerned, they have been named as the principal assailants by PW-3 Smt. Shanti Bai not only in 'parcha bayan', but also consistently in her statement under section 161 Cr.P.C. and thereafter in the Court statement. When confronted with her statement under section 161 Cr.P.C., her testimony has remained unshaken in so far as the involvement of these accused are concerned. When confronted with her statement under section 161 Cr.P.C., her testimony has remained unshaken in so far as the involvement of these accused are concerned. Although, it is true that no weapon has been recovered at the instance of accused Ranjeet Singh, but in 'parcha bayan', this witnesses has named this accused along with other accused for the allegation that they were having 'Lakris' and 'gandasis' and in her court statement also, she alleged the name of this witness as well along with other witnesses by clarifying that Ranjeet Singh had a 'Gandasi'. Besides, recovery of a 'lakri' has been made at the instance of Lal Chand vide Ex.P28, a recovery of an iron 'gandasi' has been made at the instance of accused-appellant Kishore vide Ex.P33. Recovery of one iron 'gandasi' has been made at the instance of accused Manglya vide Ex.P34. Recovery of one 'gandasi' has been made at the instance of accused Bhanwar Lal S/o Gomda vide Ex.P35. Recovery of iron 'gandasi' has been made at the instance of Gordhan vide Ex.P45. Recovery of a 'lakri' has been made at the instance of Kishan Lal vide Ex.P82. While accused-appellant Lal Chand and Kishan Lal were alleged to have been wielding 'lakri' at the time of incident, but their active participation along with active role assigned to remaining appellants has figured in the statement of prosecution witnesses, which gets corroboration from the nature of injuries received by the injured as evident from their postmortem report ExP8, P9 and P10, which has been proved by PW-9 Dr. O.P. Sharma. Merely because the witnesses of recovery PW-16 Moti Lal and PW-17 Kamlesh have been won over and turned hostile, cannot be a basis to discard all these recoveries. Recoveries have yet been proved by the Investigating Officer PW-34 Avnish Sharma. Blood contained on such weapons was found to be of human origin as per FSL report Ex.P131 and since these accused having 'lathis'/'lakris' accompanied the accused, who were having 'Gandasis' with them, therefore, their participation in the crime, role played by them and their conduct during incident fully proves them to be a member of unlawful assembly with the object of committing murder of the deceased. 18. 18. In view of above discussion, we are of the considered view that the guilt of all the accused-appellants has been proved beyond reasonable doubt, which is the required standard of proof and the learned trial court was fully justified in convicting the accused-appellants. 19. Coming now to the revision petition filed by Shanti Bai, we find that the learned trial court was fully justified in subjecting evidence of the prosecution to critical scrutiny. It was noticed from the various statements especially the statement of PW-3 Shanti Bai, PW-5 Santosh and PW-6 Manbhari that an attempt was made to exaggerate the evidence. While it was alleged that Mohan Lal S/o Omkar opened fire as a result of which injured Lalu fell down but not a single firearm injury has been found on his person. Besides that, the active role of the other accused could not be proved. The trial court has, in our view, rightly undertaken the exercise of separating the truth from the falsehood on the principle of 'falsus in uno falsus in omnibus'. We see no justification to interfere with the judgement to the extent of acquittal of co-accused Raju @ Raju Lal S/o Prabhu Lal, Mohan S/o Kesara, Shankar Lal S/o Ram Nath, Devi Lal S/o Bhawana, Ram Prasad S/o Nanda, Laxman Singh S/o Bheru Singh, Mohan S/o Rama, Babu S/o Rama, Bhanwar Lal S/o Rama, Bhanwar Lal S/o Madho, Devi Lal @ Dev Lal S/o Bhanwar Lal and Mohan Lal S/o Omkar. 20. In the result, the appeals filed by the accused-appellants and the revision petition filed by Shanti Bai are dismissed.Both appeals stand disposed of accordingly. *******