JUDGMENT Hon'ble Dr. GOMBER, J.—These are two criminal appeals and one Criminal revision petition and they arise out of three different judgments of the Trial Court dated 7.10.2003 in Sessions Case No. 04/2003; dated 13.9.2005 in Sessions Case No. 60/2005 (153/2003); and dated 30.8.2007 in sessions case No. 86/2005. 2. The challenge in all these three matters pertains to the incident of the same date that took place on 31.5.2002 at about 2.00 pm in the jurisdiction of Police Station Nadbai, District Bharatpur with regard to which an FIR No. 274/2002 was registered on the statement (Parcha Bayan) of Smt. Badni PW.3 at P.S. Nadbai on the same day i.e. 31.5.2002. Total 10-11 persons were involved in the crime, out of whom 7 were named accused persons in the crime and remaining were mentioned as "etc." 3. Initially only one accused person who was not mentioned by name in that FIR namely accused Attar Singh could be apprehended and was sent for trial. He was convicted for offences under Sections 148, 364, 302/149 and 325/149 IPC by the Trial Court vide its judgment dated 7.10.2003 in sessions case No. 04/2003. The First criminal appeal No. 1528/2003 is by accused Attar Singh aggrieved by his conviction. Later on accused Akhey Singh, Mishri, Kunji, Rampal and Pappu @ Narendra were also apprehended and after completion of investigation against them, they were also sent for trial by way of supplementary charge-sheet filed against them. Since one of these accused persons namely accused Pappu @ Narendra was a juvenile on the date of crime, his trial was separated from the other above mentioned accused persons and accordingly juvenile Pappu @ Narendra was sent for a separate trial by the Juvenile Court. However accused Pappu @ Narendra i.e. Juvenile is reportedly absconding as on date and has not faced the trial. The accused persons Ramlal, Mishri Kunji and Akhey Singh were tried and were convicted by the Trial Court with the aid of Section 149 IPC vide its judgment dated 13.9.2005 in sessions case No. 60/2005 (153/2003) for offences under Sections 148, 364, 302/149 and 325/149 IPC, aggrieved wherefrom they have preferred criminal appeal before this Court being Cr. Appeal No. 903/2005. Appeal No. 903/2005. The remaining accused persons namely Roshan and Babu who were apprehended later on, were sent for trial by filing a second supplementary charge-sheet against them and they both were acquitted by the Trial Court vide its judgment dated 30.8.2007 in sessions case No. 86/2005, aggrieved wherefrom the complainant PW.1 Badni has preferred a criminal revision petition No. 1226/2007. It may be mentioned here that three of the accused persons namely Digambar, Padam and Makhan (the named accused Digambar & Makhan are in the FIR) are still absconding and we have been informed that the investigation against three accused persons is still pending. All the above three matters i.e. Two criminal appeals and criminal revisions are proposed to be finally disposed of by this common judgment as they all arise out of the incident of the same date and time. The questions of facts and law involved in all of them are identical. We may note that counsel for the parties have addressed their arguments before us only in criminal appeal No. 903/2005 arising out of judgment dated 13.9.2005 in sessions case No. 60/2005 (156/2003) and after concluding their arguments in the said appeal, they submitted that their arguments in the said criminal appeal be adopted as their arguments in the other two matters. Hence we propose to dispose of all the three matters by this common judgment, primarily relying on the contentions of the counsels urged before us in criminal appeal No. 903/2004, but, however, we have also perused the record of the trial Court in all the three cases in order to appreciate the contentions of the counsels for the parties. 4. Briefly stated the case of the prosecution is what it is contained in the statements of the complainant Mst. Badni (PW.3) on whose statement FIR was registered. 4. Briefly stated the case of the prosecution is what it is contained in the statements of the complainant Mst. Badni (PW.3) on whose statement FIR was registered. Her statement given by her to the polise is extracted below: ^^ijpk c;ka Jherh cnuh iRuh Hkwiflag tkrh tkV vk;q 55 lky fuoklh n;koyh Fkkuk uncbZ gky Hkkjrh 'kqnk ts tsj bykt efgyk okMZ lftZdy csM uks- 13 lkekU; ph- Hkjriqj fnukad 31-5-02 us nfj;kr ij c;ka fd;k fd vkt fnukad 31-5-02 rks le; djhc 2 cts fnu dh ckr gSa esa o es esjk yM+dk pkSgku o esjh cfgu fdj.k nsbZ fd'kuh] jke I;kjh rFkk deys'k] Hktu yky gekjs ?kj ij dejs ij Fks rks bdne lykg djds esjs yM+ds dks vds dsyk ns[k dj gkFkksa esa cUnwd] fjokYoj] ykBh] Qjlk ls ySl gksdj fnxacj] feJh] dqath] jkeiky] iq=ku i¥~pk; v[ks iq= dqath] ine iq= izrki] iIiw iq= jkeiky oxsjg essjs yM+dk dks tku ls ejus ds fy, ?kj esa ?kwl vk;s vkSj deyk ls esjs yM+dk pkSgku ij jkeiky us fjoksYoj ls Qk;j fd;kA nwljk Qk;j iIiw iq= jkeiky us fjoksYoj ls fd;k esjk yM+dk xksyh yxrs gh fxj x;k vkSj ?kk;y gks x;k ;s lc ds lc mls idM+ ij ?klhVrs lHkh ykBh cUnwj ds ukyksa ls ejrs gq, xkao esa gksdj taxy dh rjQ ys tk jgs FksA eSaus fiVrk ns[k ij cpus Hkkxh rks v[ks us cUnwd dh cV ls nkfgus iSj ?kqVus ds fups ekjh rFkk vU; yksxksa us esjs nkfgus rjQ tka?k dej ij ykfB;ksa ls ekjihV dj NksM+ x, xkao ds yksxksa o ?kj dh vkSrkSZu us lkjh ?kVuk nsf[k gSaA bu yksxksa iqjkuh jaft'k ds dkj.k vdsyk ns[k dj ikihZr ds gSaA ;s yksx xksfy;ksa ls ?kk;y dj esjs yM+dk dks y[kuiqj ds rjQ taxy esa iVd dj Hkkx x, ekSds ij iqfyl igqaph vkSj gesa mBk dj vLirky Hkjriqj ?kk;y voLFkk esa HkrhZ djk fn;kA 5. On the basis of this parcha bayan of PW-1 Badni, the case was initially registered inter alia for offence under Section 307 IPC but after the death of Chauhan Singh, offence under Sections 302 IPC was added and the accused persons were charge-sheeted by way of separate charge-sheets in the manner mentioned herein above and they faced trials. 6. On the basis of this parcha bayan of PW-1 Badni, the case was initially registered inter alia for offence under Section 307 IPC but after the death of Chauhan Singh, offence under Sections 302 IPC was added and the accused persons were charge-sheeted by way of separate charge-sheets in the manner mentioned herein above and they faced trials. 6. After hearing the parties and on the basis of documentary and oral evidence led by the parties, learned Trial Court passed the judgments and convicted Attar Singh, Rampal, Mishri Kunji and Akhey Singh and sentenced as under: Accused Attar Singh: (i) Rigorous Imprisonment for two years along with fine of Rs. 500/- in default whereof to further undergo 15 days imprisonment for offence u/S. 148 IPC; (ii) Rigorous Imprisonment for 07 years' along with fine of Rs. 1000/- in default whereof to further undergo one month's SI for offence u/S. 364 IPC; (iii) Rigorous Imprisonment for 03 years' along with fine of Rs.1000/- in default whereof to further undergo a month's SI for offence u/S. 325/249 IPC; and (iv) Life imprisonment along with a fine of Rs.1000/- in default whereof to further undergo one month's SI for offence u/S. 302/149 IPC. Accused Rampal, Mishri, Kunji & Akhey Singh: (i) Life Imprisonment along with fine of Rs. 1000/- in default whereof to further undergo one month's simple imprisonment for offence u/s. 302/149 IPC; (ii) Rigorous Imprisonment for two years along with fine of Rs. 500/- in default whereof to further undergo simple imprisonment for 15 days u/S. 148 IPC; (iii) Rigorous Imprisonment for Seven years along with fine of Rs. 1000/- in default whereof to further undergo simple imprisonment for one month u/S. 364 IPC; (iv) Rigorous Imprisonment for three years' along with fine of Rs. 1000/- in default whereof to further undergo simple imprisonment for one month u/S. 325/149 IPC; 7. Accused Roshan and Babu were however acquitted of all the charges. 8. We have heard the learned counsel for the parties and perused the record as also principles of the law cited by both the parties. Learned counsel for the appellants have assailed the impugned judgments on various grounds. 9. Sh. Accused Roshan and Babu were however acquitted of all the charges. 8. We have heard the learned counsel for the parties and perused the record as also principles of the law cited by both the parties. Learned counsel for the appellants have assailed the impugned judgments on various grounds. 9. Sh. A.K. Gupta, as also Shri G.S. Chauhan, learned counsel for the accused appellants Akhey Singh, Kunji, Mishri, Rampal and Attar Singh have assailed the impugned judgments dated 7.10.2003 and 13.9.2005 mainly on the ground that the learned Trial Court has convicted them with the aid of Section 149 IPC whereas there is not even an iota of evidence to prove that the appellants had formed an unlawful assembly or that they committed any crime in the prosecution of common object of such an unlawful assembly. 10. Further that there being long drawn enmity between the parties for few decades, the complainant Badni has falsely implicated them whereas neither any specific overtact has been attributed to all of them nor is there any evidence with regard to the meeting of minds of the accused persons and that it was a case of over implication. 11. Learned counsel appearing on behalf of appellant Attar Singh specifically argued that the parties are well known to each other and non-mentioning of names of Attar Singh as also Roshan & Babu in the FIR lodged by Badni clearly shows that they were not involved in the crime and that later she had made improvements to implicate all the members of entire family on account of enmity between them. 12. Learned counsel for the accused appellants further contended that the learned Trial Court has committed an illegality by convicting them for offence under Section 364 with the aid of Section 149 IPC as there is no such evidence that the appellants abducted the deceased Chauhan Singh. 13. On the other hand, Sh. Suresh Sahni, Sr. 12. Learned counsel for the accused appellants further contended that the learned Trial Court has committed an illegality by convicting them for offence under Section 364 with the aid of Section 149 IPC as there is no such evidence that the appellants abducted the deceased Chauhan Singh. 13. On the other hand, Sh. Suresh Sahni, Sr. counsel appearing on behalf of revisionist Badni submitted that FIR is not an encyclopedia and just because the names of Roshan & Babu did not find mention in the FIR, cannot be a ground for their acquittal and that the learned Trial Court has not appreciated the fact that Badni PW-1 is a rustic lady and her son at the given time was lying seriously injured, therefore, mentioning of each and every minute detail in the FIR could not be expected from her. 14. Learned counsel appearing for the State also supported the impugned judgments of the learned Trial Courts stating that learned Trial Judges have rightly relied on the evidence of Badni PW.3 because she is an injured witness and her being injured in the incident establishes her presence at the spot. He further contended that once formation of unlawful assembly by the accused persons is proved, then it is not necessary to unlawful assembly. Even if a member of an unlawful assembly has not committed any act still he would be fastened with vicarious liability for the act of other fellow members of such unlawful assembly. 15. Considered the rival contentions advanced by both the parties. 16. Homicidal nature of the death of the deceased Chauhan Singh is not in dispute. The autopsy report prepared by Dr. Banney Singh PW.7 who was a member of Medical Board. corroborates the homicidal nature of death. In his deposition he stated that on 1.6.2002 at 10.00 am the Medical Board, consisting of three doctors including him performed autopsy of Chauhan Singh and found following injuries on his person: (i) One punctured lacerated wound 0.5 x 0.5 cm with dark red clotted blood, with collar or abrasion. No blackening, no tattooing around the wound one metalic bullet embedded in the wound seen. The bullet is recovered from wound bone deep placed on right side neck on mastoid region. No blackening, no tattooing around the wound one metalic bullet embedded in the wound seen. The bullet is recovered from wound bone deep placed on right side neck on mastoid region. (ii) One punctured lacerated wound with dark red clotted blood or mine 0.5 x 0.5 cm with dark red collar or abrasion around the wound margin inverted, blackening and tatooing seen in an area of around the wound suggestive of wound of fire arm placed on right side forehead 2 cm from the outer to the eyebrow and 2 cm above outer angle of Rt eye. On further dissection, track of wound seen inside the brain matter as already mentioned in the previous page. (iii) One lacerated wound 2cm x 1 cm with margin placed on right frontal area suggestive of exit wound of fire arm and extension of injury No. 2. (iv) One puncture lacerated wound with dark red clotted below 1 cm x 1/2 cm x through and through placed just above proximal malama of little finger of Lt hand or/dorsal aspect with collar or abrasion and tatooing over around the wound, suggestive of entry wound or fire arm. (v) One lacerated wound with everted margin 1.5 cm x 1/2 cm with dark red clotted blow suggestive of exit wound of inj. no. 4 placed on web area of little finger of left hand on vertical aspect. (vi) One punctured lacerated wound with dark red blood of size 2cm x 1.5 cm x bone deep with inverted margin on left partial area of skull. A hard foreign body felt and one bullet recovered and sealed. Suggestive of entry wound of fire arm. (vii) One circular abraided bruise red in colour which faint as medial side and treatment on lateral side 2.5 cm x 2.5 cm placed over left side abdomen 6 cm away from umbilicus. (viii) Red swelling 4 cm x3 cm over left upper 1/3 laterally simple blunt (ix) Red bruise 6cm x 2cm left thigh mid 1/3 anteriorls placed transversely simple blunt (x) Red bruise 5 cm x 4 cm placed on middle 1/3 Lt side autering. Simple blunt. (xi) abrasion with fresh clot of 2cm x 1.5 cm red placed on right side face prominace, simple blunt. 17. All injuries were antemortem in nature and were of fresh duration at the time of death. Simple blunt. (xi) abrasion with fresh clot of 2cm x 1.5 cm red placed on right side face prominace, simple blunt. 17. All injuries were antemortem in nature and were of fresh duration at the time of death. The nature of weapon of injury No. 1 to 6 was fire arm and rest of injuries were simple and caused by blunt weapon. 18. In the opinion of the Medical Board, the cause of death was coma brought about as a result of ante mortem injuries to the skull and brain caused by Injury No. 2 & 3 which were sufficient to cause death in the ordinary course of nature. 19. Two bullets were recovered from the neck and skull and sealed and were handed over to the accompanying police officer for expert opinion in a sealed bottle. 20. On internal examination of Scalp Haematoma was seen over right frontal, left frontal, & left parietal area. There was punctured wound. Fracture of size 1cm x 0.5 cm over right frontal bone with dark red antemortem haematoma. This truck of wound was seen going transversely to the left. The dura membraine then was seen going to the right frontal lobe of size 2 cm x 1 cm with antemortem haematoma around the track of the wound. 21. He has proved post mortem report Ex. P.6. It is not out of place to mention that deceased Chauhan Singh was admitted in the hospital at 5.40 pm and at 6.30 pm itself he was also medically examined and his injury report Ex. P-5 was prepared by the same doctor PW.7 Banney Singh who found 11 injuries as mentioned hereinabove. 22. In his cross-examination he has reiterated that in Ex. P-6, injury No. 2 was entry wound whereas injury No. 3 was exit. Likewise injury Nos. 4 & 5 were also entry and exit wounds. Further that injury Nos. 1 to 6 were fire arms injuries which could be caused by four firearms. He could not tell the exact distance from where the shot was fired because it could only be told by Ballistic Expert but according to him it was from a close distance. No ballistic expert has, however, been examined nor has the ballistic report, though available on file, been exhibited. He could not tell the exact distance from where the shot was fired because it could only be told by Ballistic Expert but according to him it was from a close distance. No ballistic expert has, however, been examined nor has the ballistic report, though available on file, been exhibited. The investigation was conducted in a slipshod manner but the presence of blood at the spot of occurrence and the place injured was found lying as also the seizure thereof has categorically been stated by PW.10 Bharat Singh and PW.8 Ram Swaroop. PW.8 Ram Swaroop is an independent witness. He categorically stated that blood stained and control soil was seized by the police in his presence and seizure memos Ex. P.8 & Ex.P/8 were prepared by the investigating Officer PW.15 O.P. Kataria. He has also proved the site plan Ex.P-2 as also the seizure of clothes of deceased Chauhan Singh as Ex. P/7. It is, thus, not correct to say that no blood was found at the spot and that no such incident took place and the argument that Chauhan Singh died as a result of retaliatory assault by the party of Shobharam Jatav who had been murdered on the same date at about 12.00 in the afternoon for which husband and sons of Badni had been booked, is not sustainable in the light of ocular as also other cogent evidence on record. 23. So far as the argument that Investigating Officer did not find any bullets at the spot, is insignificant and does not adversely affect the prosecution case because, for the sake of arguments, even if Investigating Officer has left some lacuna, in collecting the evidence, other cogent evidence cannot be discarded. In the present case, however, two bullets have been found embedded in the skull and neck of the deceased, one of which was visible even at the time of preparing Panchnama laash Ex.P.11. Non-exhibiting the revolver recovered at the instance of Attar Singh as Article in the court or non-exhibiting the ballistic report of the two bullets recovered from the body of deceased is insignificant in the light of other ocular and link evidence because all accused persons except Attar Singh could be arrested after about a year and a half therefore, recovery of weapon of offence even if made was insignificant after such a long time. 24. 24. When it comes to ocular evidence the prosecution has mainly relied on the statements of PW.3 Badni, PW.2 Yogendra, PW.1 Bhajanlal andPW.6 Ram Pyari. 25. We may also notice that in the FIR, it was categorically stated by Badni that the accused appellant Rampal opened first fire by revolver and second shot by revolver was fired by Pappu (before Juvenile Justice Board) but part of body where injuries were inflicted by them was not mentioned. 26. We, however, are not oblivious of one patent fact. In the FIR, the first informant Badni PW.3 attributed the act of firing to Rampal and Pappu, although named Padam (besides others) also (not before us-absconding), however, in her deposition made before the court she attributed the act of firing to Rampal, Pappu (before Juvenile Court) and also to Padam (absconding). In her statements before the Court in sessions case No. 04/2003 State vs. Attar Singh, she as PW.1 stated on 5.3.2003 ^^jkeyky us pkSgku ds xksyh ekjh tks pkSgku ds flj esa nkbZ rjQ yxhA iIiw us pkSgku esa nwljh xksyh ekjh tks flj ds cxy esa yxhA rhljh xksyh ine us pkSgku esa ekjhA tks flj esa cxy esa yxh ftlls pkSgku uhps fxj x;kA** 27. Since this was a trial against Attar Singh only, no question was put to the witness in cross-examination in this regard. Likewise in sessions case No. 25/2004 Badni, informant examined as PW.3 recorded on 11.10.2004 has also stated ^^jkeiky us Hkhrj gh pkSgku esa xksyh ekj nh FkhA njokts ij fudkydj xksyh ekjh FkhA nwljh xksyh iIiw us ekjhA rhljh xksyh ine us ekjhA esjk yM+dk pkSgku fxj x;kA** This time she did not specify the part of body where the three persons mentioned in preceding para inflicted injuries. 28. 28. Before this, she stated ^^jkeiky us dgk fd Åij gksdj p<+ tkvks rks ine~ iIiw] ek[ku Åij gksdj p<+ x;s ----- pkSgku dks ckgj fudky yk;sA** In her cross-examination, she has stated ^^bu rhuksa Q;jksa ds vykok esjs lkeus dksbZ Qk;j ugha gqvkA** She has also stated at Page 3 of her statement as PW.3 in cross-examination ^^esjs lkeus jkeiky iIiw vkSj ine~ us rhu xksfy;ka ekjh FkhA** Further that ^^eSa bruk tkurh gwa fd fjoksYoj NksVh gksrh gS vkSj cUnwd cM+h gksrh gS rFkk dV~Vk Hkh NksM+k gksrk gS---- v[ksflag us esjs cUnwd dk cV fn;k FkkA** According to her, other accused persons were laced with pharsa, guns, pistols, lathis and revolvers and all were beating but this is an omnibus allegation and in the other breath in her examination in chief in sessions case No. 25/2004 recorded on 11.10.2004, she, after naming accused persons, deposes ^^---- ftuds gkFkksa esa cUnwd fjokYoj Fkh] [kM+s gq, FksA** No specific overtact was attributed to any of them in the FIR except to opening of fire by Rampal (appellant herein) and Pappu (before Juvenile Justice Board) for inflicting fire arm injuries on the person of Chauhan Singh. She has categorically stated in her court statement that first gun shot was opened by Rampal on Chauhan Singh and second by Pappu (before Juvenile Justice Board) and the third by Padam and after receiving the three gunshots Chauhan Singh fell down. She has further stated ^^pkSgku rhljh xksyh yxus ds ckn fxjk**- Further that other accused persons also started beating and dragged him from their old house and hitting with butts of guns took him to the Lakhanpur Rasta (way). 29. Thus in her cross-examination also she attributed the act of firing to Rampal, Pappu (not before us) and Padam (absconding). Other witnesses namely Yogendra PW.2, Bhajanlal PW.1 and Rampyari PW.6, although stated that all the accused started beating/firing but even according to them Rampal fired first gun shot which hit the deceased on his head and Pappu second, and Padam third. Evidence of PW.3 Badni is also to the same effect that the shot which had hit the deceased Chauhan Singh on his head was fired by Rampal. She also alleged firing by Pappu and Padam. Evidence of PW.3 Badni is also to the same effect that the shot which had hit the deceased Chauhan Singh on his head was fired by Rampal. She also alleged firing by Pappu and Padam. What weightage can be given to the statements of other eye witnesses i.e. PW.1 Bhajanlal, PW.2 Yogendra and PW.6 Rampyari, will be seen in the light of other circumstances, their conduct and the statements of PW.14 Bheem Singh, ASI who took injured to the hospital, at a later stage. 30. The prosecution case as stated by Badni PW.3 in her statement Ex.P-1 was that the accused persons who were about 10-11 laced with revolvers guns, lathis and farsas, seeing the deceased alone, assaulted him and first gun shot was fired by Rampal and second by Pappu and rest all also caused beatings to him and dragged him from the old house. Rampal fired a shot which had hit the deceased; second fire was shot by Pappu (not before us) by revolver but in her court statements recorded in the first trial on 5.3.2003 and second trial on 11.10.2004, she attributed first gun shot to Rampal, second to Pappu and third to Padam (Absconding). In the statements recorded on 5.3.2003 she assigned the injury on right frontal to Rampal, two side injuries on the head to Pappu and Padam respectively. But in her later statement recorded on 11.10.2004 she only stated about gun shot fires by Rampal Pappu (not before us) and Padam (absconding) without assigning specific injuries inflicted by them. There is no evidence brought on record to show that any of the other appellants also fired. No gun shot injury was suffered by any other person. The deceased had suffered six gun shot injuries as per PW.7 Dr. Banney Singh, out of which injuries 1,2, 4 & 6 were entry wounds which were on neck, right frontal, left finger and skull. Injuries 3 & 5 were exit wounds of injuries 2 & 4 i.e. of right frontal and left hand finger. Thus there are three gun shot injuries on head and skull being (i) injury No. 2 entry wound (on right frontal); (ii) injury No. 3 exit wound on right frontal area and (iii) injury No. 6 being entry wound on left parietal area of skull and a bullet was recovered at the time of post mortem. Thus there are three gun shot injuries on head and skull being (i) injury No. 2 entry wound (on right frontal); (ii) injury No. 3 exit wound on right frontal area and (iii) injury No. 6 being entry wound on left parietal area of skull and a bullet was recovered at the time of post mortem. Cause of death was comma on account of injuries to brain and skull and injuries No. 2 & 3 were sufficient to cause death in the ordinary course of nature. Recovery of one fire arm could only be made at the instance of accused Attar Singh but name of Attar Singh (although very well known to the informant Badni) did not find mention in the FIR nor in her police statements Ex.D-1, which shows that there has been material improvement in her statements before the court with regard to the participation of Attar Singh, Roshan and Babu. But she has admitted that she named only those in FIR who had caused injuries. So far as other five accused persons named in the FIR are concerned, PW.3 Badni has not attributed any specific overtact to them with regard to the injuries on the person of deceased Chauhan Singh except to appellant Rampal and Pappu (not before us) but no situs of injuries inflicted by them was mentioned. Though in her first court statements, appellant Rampal is alleged to have caused injury on right frontal and Pappu (not before us) on site of had and in second, no specific body part was mentioned. The accused Akhey Singh is alleged to have caused injury only on her right leg by the butt of gun. 31. It is significant to note that PW.3 Badni is an injured witness. When the evidence of an injured witness is to be appreciated, the under noted legal principles enunciated by the Courts are required to be kept in mind:- (a) The presence of an injured eye witness at the time and place of the occurrence cannot be doubted unless there are material contradictions in his/her deposition. (b) Unless, it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused. (c) The evidence of injured witnesses has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly. (b) Unless, it is otherwise established by the evidence, it must be believed that an injured witness would not allow the real culprits to escape and falsely implicate the accused. (c) The evidence of injured witnesses has greater evidentiary value and unless compelling reasons exist, their statements are not to be discarded lightly. (d) The evidence of injured witness cannot be doubted on account of some embellishment in natural conduct or minor contradictions. (e) If there be any exaggeration or immaterial embellishments in the evidence of an injured witness, then such contradictions exaggeration or embellishment should be discarded from the evidence. (f) The broad substratum of the prosecution version must be taken into consideration and discrepancies which normally creep due to loss of memory with passage of time should be discarded. 32. From the afore-noted judicial principles, it is clear that the first step in appreciating the evidence of a witness is to examine his evidence de-hors the discrepancies appearing therein and to see whether the evidence appears to be a truthful account. 33. In the instant case the incident occurred at 2.00 pm on 31.5.2002. The statement Ex.P.1 of Badni, which formed the basis of the FIR, was recorded at 8.00 pm on 31.5.2002 itself. Her statement Ex.P-1 was recorded in General Hospital as evident from the deposition of ASI Bhim Singh PW.11, the scribe of statement Ex. P.1, that he recorded the said statement at the hospital, which deposition was not controverted by the defence. It is not out of place to mention that PW.11 ASI Bhim Singh, on receipt of QST from S.P. Office, left P.S. Nadbai for village Dayawali, where incident occurred around 3.30 pm and brought the two injured to Bharatpur Hospital and got them admitted and medically examined. Badni was medically examined at 7.00 pm and Chouhan Singh at 6.30 pm. It can reasonably be taken that it must have taken at least an hour plus for Bhim Singh PW.11 in reaching Bharatpur hospital from the place of occurrence. In these circumstances, the possibility of Badni contriving facts and spinning a false story in such less time is remote. 34. There is yet another fact which needs to be noted. In the decision reported as Maliat Singh vs. State of Punjab (1991) 4 SCC 391 , Supreme Court has held that it is settled law that the first Information report is not substantive evidence. 34. There is yet another fact which needs to be noted. In the decision reported as Maliat Singh vs. State of Punjab (1991) 4 SCC 391 , Supreme Court has held that it is settled law that the first Information report is not substantive evidence. It can only be used to contradict the maker thereof or for corroborating the evidence and also to show that the implication of the accused was not an after thought. In the instant case, the FIR Ex. P-1 records that Badni has stated that the appellant Rampal opened Ist gun shot fire by revolver on Chauhan Singh and second by Pappu although she did not mention situs of injury caused by them by gun shot. In her statement before the Court she categorically stated about firing by three persons by revolver including Rampal appellant. The findings of Dr. Banney Singh who had conducted the post mortem of the deceased after the registration of the FIR as recorded in the post mortem report are that six gum shot wounds were found out of which wounds 1, 2, 4 & 6 were entry wounds whereas wounds 3 & 5 were exit wounds and gun shot wounds No. 2 & 3 were opined to be sufficient to cause death in the ordinary course of nature and these were on the right side of head. Gun shot wounds i.e. Injury Nos. 4 & 5 were entry & exit wounds and they were on the little finger of hand. Two bullets were also found embedded in the head and neck of the deceased and injury No. 1 & 6 are found in neck and head respectively with no exit wound. Thus there are three gun shot injuries in head/skull being injury No. 2, 3 & 6, and one gun shot injury in the neck and two bullets (one each) have been found embedded in the head and neck of the deceased and according to the doctor, four fire arms should have been used. It is not clear as to which of the three injuries on the head were caused by appellant Rampal or (Pappu not before us) or Padam (absconding). But it is established by the statements of Badni that the three fired gun shot injuries on the person of deceased and Chauhan did not fall after the first and second gun shot injury but after the third one. But it is established by the statements of Badni that the three fired gun shot injuries on the person of deceased and Chauhan did not fall after the first and second gun shot injury but after the third one. Although Badni tried to assign the gun shot injuries on the right side of head of deceased in her statements before the court to Rampal but that is after the post mortem report. But her statements get medical corroboration to the extent that besides Rampal, gun shot injuries on the person of Chauhan Singh including the head injuries which were cause of death, were caused by co-accused also. But the fact is as to who can be held liable for the fatal injury caused on the head of deceased because in FIR Badni did not mention the situs of the gun shot injuries inflicted by the appellant or co-accused. But it is an established principle of law in India that on account of partial incorrect statement entire statement of a witness cannot be discarded, "falsus in uno falsus in omnibus." In her statement before the court in sessions case No. 04/2003 recorded on 5.3.2003, Badni as PW.1 has tried to assign the injury on the right side to Rampal but that has been stated after the post mortem report. However in her statement in the trial of sessions case No. 25/2004 recorded on 11.10.2004 as PW.3, Badni did not specifically mention the situs of gunshot injuries inflicted by the three i.e. Rampal, Pappu (before Juvenile Justice Board) and Padam (absconding). In these circumstances, we hold that PW.3 Badni has made improvement to that extent. But this fact cannot be ignored that six gunshot injuries have been found on the person of deceased and gunshot injuries from the very beginning were assigned to the appellant Rampal alongwith other co-accused (not before us). The discussion with regard to the co-accused not before us is to the extent of their concerted action. 35. It is further relevant to note that the recording contained in the FIR Ex. P.1 that Badni has stated that she had sustained injury on her right leg by the gun butt of appellant Akhey Singh and waist at the time of incident stands corroborated by the injury report of Badni which records presence of injuries on the right leg and waist of Badni. 36. P.1 that Badni has stated that she had sustained injury on her right leg by the gun butt of appellant Akhey Singh and waist at the time of incident stands corroborated by the injury report of Badni which records presence of injuries on the right leg and waist of Badni. 36. The uncontroverted testimony of ASI Bhim Singh PW.11 that he recorded the statement Ex. P.1 of Badni PW.3, at General Hospital, Bharatpur corroborates the testimony of Badni that he had taken the deceased and Badni to the hospital, which in turn, establishes her presence at the place of occurrence at the time of the incident. Thus so far as the appellants Rampal & Akhey Singh are concerned, we hold that her evidence remains uncontroverted, hence reliable. 37. In order to assess the credibility of other so called eye witnesses it is important to look at the statement of PW.11 Bhim Singh, ASI who claims to have reached the place of occurrence on receipt of Qst from S.P. Office. He is said to have reached Dayawali village at about 3.30 pm and after enquiring about the incident he claimed to have reached Badni's house where she was lying in an injured condition who told her about the incident. The witness along with Badni went towards jungle where Chauhan Singh was said to have been dragged. He found the injured Chauhan Singh lying unconscious in a field with a bullet in his head coming out of his earlobe and a lacerated wou-nd with a bullet embedded near the neck. He took Badni and Chauhan Singh to the hospital and got their medical examination done. The injured Chauhan Singh, being serious was referred to SMS Hospital, Jaipur but he died on the way. This witness recorded Badni's Parcha Bayan in the hospital and brought to the Police Station Nadbai and handed it over to SHO Rajendra Singh PW.12 for registering the FIR, whereupon FIR No.274/2002 was registered. 38. In his cross-examination, he claims that he met Badni in her house. The ladies were also there. He has further stated that no other family member accompanied Badni and Chauhan Singh to the hospital and at the time of recording Parcha Bayan also, none of the family members was there. He found lot of blood at the place Chauhan Singh was found lying. The ladies were also there. He has further stated that no other family member accompanied Badni and Chauhan Singh to the hospital and at the time of recording Parcha Bayan also, none of the family members was there. He found lot of blood at the place Chauhan Singh was found lying. Few drops of blood were also seen in the room but no blood or drops were seen on the way where deceased is said to have been dragged. He has reiterated that no relative of Badni was available in the hospital also. 39. Now with this back ground we proceed to look into the evidence of other eye witnesses. Other three witnesses relied by the prosecution are Yogendra (PW.2) who is the real brother, Bhajanlal (PW.1) who is the real uncle and Rampyari (PW.6) who is the aunt of deceased Chauhan Singh. 40. As regards Yogendra PW.2 and Bhajanlal PW.1, they are the real brother and uncle of deceased but strangely they were neither available with Badni in her house nor did they accompany the injured with ASI Bhim Singh nor did they go to hospital nor to the police station to lodge report. Even the next day when the dead body of Chouhan Singh was handed over after post mortem at 10.00 am none of the two was there and it is Mahavir Singh who has received the dead body on supardgi. Even their statements were recorded by the I.O. on 3.6.2002 i.e. on the 4th day of incident whereas Badni's statements under Sec. 161 Cr.P.C. were recorded on the 1st of June 2002. It is quite unnatural that both these male members, despite being available, did not even try to find out as to where was Chauhan dragged to nor did they lodge report or take the two injured family members to the hospital. In these circumstances their testimony does not inspire confidence in the back ground of long drawn enmity between the parties and the enmity being a double edged weapon. 41. In these circumstances their testimony does not inspire confidence in the back ground of long drawn enmity between the parties and the enmity being a double edged weapon. 41. Same is the case with Rampyari PW.6 who, as per Parcha Bayan, was sitting with Badni but her statements were also recorded on 18.7.2002 by the Investigating Officer i.e. 48 days after the incident, she, on one hand, claims to have witnessed the incident but her statements recorded after such a long time create doubt on her being present at the time of occurrence, as she being a woman of the family and a close relative of Badni and Chauhan Singh, in the normal course, was expected to accompany her to the hospital. Her conduct is quite unnatural. 42. Therefore, we are of the considered view that on account of unnatural conduct of Bhajanlal, Yogendra and Rampyari, their testimony cannot be believed specially when there is a long drawn enmity between the parties and series of litigation including criminal civil as also revenue have been going on between them for more than three decades and few lives on each side have been lost. 43. Learned Trial Judge, although, has also relied on the testimony of these 3 eye witnesses namely Bhajanlal, Yogendra and Rampyari but on account of their unnatural conduct, we are not inclined to rely on their testimony. But when it comes to Badni, the argument of learned counsel for the appellants that Badni has falsely implicated the accused persons because of enmity and that no such incident occurred and that the deceased was assaulted by Shobha Ram's party, is not acceptable for the reasons discussed hereinbefore. With regard to the gunshot fatal injuries attributed to appellant Rampal and other co-accused, there is medical corroboration also. Badni herself is an injured and she has withstood detailed cross-examination but nothing substantial could be elicited to totally destroy the credibility of her version with regard to the injuries attributed to appellant Rampal and his co-accused (not before us). But as regards other appellants, her testimony cannot be said to have passed the test of proof beyond reasonable doubt. Therefore, Badni cannot be said to be totally truthful witness. Yet in view of the principle "Falsus in uno falsus in omnibus" her testimony cannot be totally discarded. 44. But as regards other appellants, her testimony cannot be said to have passed the test of proof beyond reasonable doubt. Therefore, Badni cannot be said to be totally truthful witness. Yet in view of the principle "Falsus in uno falsus in omnibus" her testimony cannot be totally discarded. 44. The rule of prudence to which we have referred to is the rule adopted by courts that if qua anyone accused on account of variation in the evidence qua his involvement, a doubt arises in the judicial mind, prudence requires to extend the benefit of doubt to the said accused. 45. On the basis of discussion made hereinabove, it is established that the death of Chauhan Singh was homicidal and that appellant Rampal along with other co-accused persons (not before us) was also responsible for the fire arm fatal injuries caused in the head/skull of deceased Chauhan Singh. So far as his plea of alibi is concerned, learned Trial Court has rightly disbelieved because the place of his in laws i.e. Village Ishrota where he claimed to have shifted for good around 3 to 4 months before the incident is, a close by village and the plea of alibi has not been established by cogent evidence. It is also established that Akhey Singh caused injury on the right leg of Badni but learned Trial Court relying on the X-Ray report held him guilty of causing grievous injury on her person but we are constrained to observe that Badni was medically examined on 31.5.202 itself at 7.0 pm by PW.7 Dr.Banney Singh and X-Ray was advised but the X-Ray report produced on record is dated 22.6.2002 which mentions the injury X-rayed as fresh; but a 23 days' old injury can by no calculation, be termed as fresh. Learned Trial Court has not appreciated this evidence in a correct perspective. We hold that the offence proved against appellant Akhey Singh cannot travel beyond Sec. 323 IPC. 46. The learned Trial Court has convicted all the appellants with the aid of Section 149 IPC besides for offence of committing rioting under Sec. 148 IPC. 47. Learned Trial Court has not appreciated this evidence in a correct perspective. We hold that the offence proved against appellant Akhey Singh cannot travel beyond Sec. 323 IPC. 46. The learned Trial Court has convicted all the appellants with the aid of Section 149 IPC besides for offence of committing rioting under Sec. 148 IPC. 47. The learned counsel for the appellants has strongly assailed this finding of trial court and argued that there is no cogent evidence to establish the formation of an unlawful assembly and that there being no unlawful assembly, the appellants could not have been held vicariously guilty for the act of other accused persons. Accordingly to him, enmity between the parties for more than three decades is well established. There have been series of Criminal, Civil and Revenue litigations filed by the parties against each other and few lives from both the sides have been lost due to the enmity. Therefore the possibility of over implication cannot be ruled out. 48. We proceed to test the case in hand in the back ground of legal position with regard to the vicarious liability of other co-accused for the act which has not been committed by them. 49. Section 149 IPC creates a specific offence. A member of the assembly would be guilty of an offence committed by another member, although he had no intention to commit that offence and had done no other act except his presence in the assembly and sharing its common object. If the offence committed by a member is in prosecution of the common object of that assembly or such as that member of that assembly knew to be likely to be committed in prosecution of the common object, every member would be guilty of the offence. 50. The common object required by this section is to be established with reference to the evidence in each particular case. ( AIR 1955 SC 274 Nanak Chand vs. State). The commission of overtacts is certainly an evidence of fact that the accused was the member of an unlawful assembly but the converse is not true. In other words, it cannot be contended that if there is no proof of commission of certain overt act by the accused, the accused is not a member of the unlawful assembly but what is required is the sharing of common objection. In other words, it cannot be contended that if there is no proof of commission of certain overt act by the accused, the accused is not a member of the unlawful assembly but what is required is the sharing of common objection. 51.Section 141 of Penal Code defines an unlawful assembly by declaring as assemblage of more than five persons for any of the purposes indicated in that section, as illegal. 52. As per Section 141(c) assemblage of 5 or more persons to commit any mischief or criminal trespass or other offence is an unlawful assembly. Hence the common object of committing an offence against the human body would make an assembly of five one more, an "unlawful assembly." 53. The word "assemble" implies the meeting of persons animated by the same purpose with the intention of furthering it. But the mere combination of assemblage of five men does not render their meeting unlawful, unless the meeting was in pursuance of a common unlawful object. Section 141 IPC requires that there should be a common object which can be brought within the purview of one or the other heads mentioned therein. 54. Mere presence in an assembly does not make such a person a member of an unlawful assembly, unless it is shown that he had done something or omitted to do something which would make him a member of an unlawful assembly or unless the case falls under Section 142 IPC. 55. It has been held by Hon'ble Apex Court in ( AIR 1956 SC 181 in the matter of Baladin vs. State of U.P.) that where the evidence as recorded, is in general terms, to the effect that all these persons and many more were the miscreants and were armed with deadly weapons, like guns, spears, pharsas, axes, lathis, etc., this kind of omnibus evidence has to be very closely scrutinized in order to eliminate all chances of false or mistaken implication. Even presence of a person at the place where members of an unlawful assembly have gathered for carrying out their illegal common object, does not incriminate him. But the question is one of fact in each case as to whether a person happens to be innocently present at the place of the occurrence or was actually a member of the unlawful assembly ( AIR 1971 SC 2381 - Bishambhar Bhagat vs.State of Bihar). 56. But the question is one of fact in each case as to whether a person happens to be innocently present at the place of the occurrence or was actually a member of the unlawful assembly ( AIR 1971 SC 2381 - Bishambhar Bhagat vs.State of Bihar). 56. For the purpose of application of Section 149 IPC, the prosecution has to prove the presence and participation in an unlawful assembly ( AIR 1993 SC 1175 , Nallamsetty Yanadaiah vs. State of Andhra Pradesh). 57. In the back drop of this legal position, if the evidence is looked into, it will show that the star witness Badni PW.3, who is herself injured and whose presence is established, has, specifically assigned role to Rampal and Pappu but not to any other accused in her FIR as also in her police statement Ex. D.1 and in her court statements, she assigned specific role to Padam also (absconding) whose name did appear in the FIR and police statements but with no specific role. As discussed hereinbefore we have discarded her testimony before the court with regard to involvement of appellant Attar Singh and respondent Roshan & Babu on the ground that it was after thought because Badni knew all the accused persons but did not mention their names or act in Parcha Bayan Ex.P.1 as also in Police Statement Ex. D.1. 58. There is also no evidence to show that any incident preceded the occurrence. Out of the four appellants of appeal No. 903/2005 Rampal & Akhey Singh have been assigned specific act but so far as other two namely Kunji & Mishri are concerned, PW-3 Badni has neither attributed any overtact to them nor has she alleged about them being laced with any weapon. We are conscious of the fact that inflication of injuries by all the members of an unlawful assembly is not necessary to attract Section 149 IPC. But in the case in hand, PW.3 Badni has alleged that the named persons and others were armed with deadly weapons like guns revolvers, pharsas, lathis etc. and all started beating Chauhan Singh and dragged him and this is an omnibus evidence which, as held by Supreme Court in Baladin's case (supra) was required to be closely scrutinized and the evidence discussed hereinabove does not prove their forming an assemblance of five or more persons and committing crime in prosecution of common object. 59. and all started beating Chauhan Singh and dragged him and this is an omnibus evidence which, as held by Supreme Court in Baladin's case (supra) was required to be closely scrutinized and the evidence discussed hereinabove does not prove their forming an assemblance of five or more persons and committing crime in prosecution of common object. 59. Precisely it can be said that the prosecution has not brought forward any concrete evidence to prove the formation of unlawful assembly and commission of crime by the members thereof in prosecution of common object of such assembly. Omnibus evidence and mere presence, even if proved, cannot hold them vicariously liable. 60. But this fact is established that the appellant Rampal and his two co-accused (not before us) were present and were laced with revolvers and they did inflict gunshot injuries on Chauhan Singh. Now the question that arises is that the appellants, who had been read over and tried for the charge under Sec. 149 IPC, can they be held guilty with the aid of Section 34 IPC. Apex Court in Bharwad Mepa Dana vs. State of Bombay (1960) 2 SCR 172 held that there is no bar. In 1997 Cr.L.R. (SC) 98 Dhanna vs. State of Madhya Pradesh, Supreme Court has held that in cases where the charge is read over under Sec. 149 IPC but from the evidence the offence under Sec. 34 IPC stands proved, in such a case the accused can be held guilty with the aid of Sec. 34 IPC. It is established that Rampal and other two co-accused (not before us) were laced with revolvers and fired gun shot injuries. The question is as to at what stage did the appellant Rampal share common intention with said co-accused and acted in furtherance of common intention. Reference in this regard may be made to the judgment of Supreme Court in Abdul Sayeed vs. State of MP (2010) 10 SCC 259 . It was held therein that the phrase "common intention" implies a prearranged plan and acting in concert pursuant to the plan. Any common intention must be there prior to the commission of the offence in point of time but the common intention to bring about a particular result may also well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances attending thereto. Any common intention must be there prior to the commission of the offence in point of time but the common intention to bring about a particular result may also well develop on the spot as between a number of persons, with reference to the facts of the case and circumstances attending thereto. Common intention under Section 34 IPC is to be understood in a different sense from the "same intention". In para 51 of the report, the Supreme Court, in categorical terms, held that undoubtedly, the ingredients of Section 34 i.e. the accused acted in furtherance of their common intention is required to be proved specifically or by inference, in the facts and circumstances of the case. Law on this aspect is thus clear that Section 34 IPC can be attracted even where some of the accused have been acquitted provided that against rest of the accused it can be proved either by direct evidence or by inference that they all acted in furtherance of the common intention. 61. In Hariom vs. State of UP (1993) Supp. (2) SCC 1 (1993(1) Crimes 294 (SC)) it was held by the Supreme Court that in order to bring a case under Section 34, it is not necessary that there must be a prior conspiracy or pre-meditation and common intention can also be formed suddenly. 62. In Virendra Singh vs. State of MP : (2010) 8 SCC 407 , also Supreme Court held that a common intention should be anterior in point of time to the commission of the crime, but may also develop on the spot when such crime is committed. In most of the cases, it is difficult to procure direct evidence of such intention and can be inferred from acts or conduct of accused and other relevant circumstances for which documents on record acquire a great significance and they have to be very carefully scrutinized by the Court. In Virendra Singh's case (supra), Apex Court referred to its earlier decision in Girriraj Shankar vs. State of U.P. (2004) 3 SCC 79), and observations made therein para 39 are extracted below: "39. ....Direct proof of common intention is seldom available, and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and proved circumstances." 63. ....Direct proof of common intention is seldom available, and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and proved circumstances." 63. The essence of Section 34 IPC, as held by Apex Court in Virendra Singh's case (supra), in para 46, is a simultaneous consensus of the minds of the persons participating in criminal action to bring about a particular result.." Apex Court, has, in para 47, held as under:- "47. ....In fact, the section is intended to cover a case where a number of persons act together and on the facts of the case it is not possible for the prosecution to prove as to which of the persons who acted together actually committed the crime. Little or no distinction exists between a charge for an offence under a particular section and a charge under that section read with Section 34." If the case in hand is looked in the above legal background it is clear that the appellant Rampal and other co-accused (not before us) were physically present, they were laced with firearms and they did open firearms one after the other till Chauhan Singh fell down. From the said evidence it can be infer-red that the appellant and his co-accused (not before us) had the intention to commit murder conjointly and they did actually participate in the commission of crime of murder by opening gunshot fires on the vital parts like head/skull, neck etc, one after the other which clearly shows that the appellant Rampal alongwith other co-accused (not before us) was acting in concert and they did commit murder of Chauhan Singh in furtherance of their common intention and hence is guilty of offence under Sec. 302 read with 34 IPC. 64. When we come to the case of appellant Attar Singh, we find that despite the fact that the informant Badni knew Attar Singh very well and she also admitted that she did not mention in her statement Ex. P.1 the names of those who did not commit offence and did mention the names of those who did commit the offence. Name of Attar Singh did not find place in Ex. P.1 nor in her police statement Ex. D-1 but she mad improvement later and in her court statement she alleged involvement of Attar Singh also. P.1 the names of those who did not commit offence and did mention the names of those who did commit the offence. Name of Attar Singh did not find place in Ex. P.1 nor in her police statement Ex. D-1 but she mad improvement later and in her court statement she alleged involvement of Attar Singh also. Learned Trial Court did not accept the argument of defence counsel advanced before it on the ground that FIR is not an encyclopedia that she was a rustic lady whose son was seriously injured. 65. We do not agree with the reasoning assigned by the learned Trial Court and hold that this was a material improvement, benefit whereof should go to the accused appellant Attar Singh. 66. Accordingly, appeal No. 1528/2003 filed by appellant Attar Singh deserves to be allowed and is hereby allowed. His conviction and sentence awarded by learned Trial Court vide judgment dated 7.10.2003 is set aside. He is acquitted of all the charges levelled against him. If not wanted in any other case, Attar Singh be released forthwith. 67. Appeal No. 903/2005: Appellants; appeal is party allowed and conviction and sentence awarded to appellants Mishri & Kunji is set aside and they are acquitted of all the charges levelled against them. If not wanted in any other case, Mishri, Kunji and Akhey Singh be released forthwith. The conviction and sentence awarded to the appellants Rampal and Akhey Singh for offence under Sections 148, 302/149, 364 and 325/149 IPC is set aside. Instead appellant Rampal is found guilty for offence under Section 302 read with 34 IPC for committing murder of Chauhan Singh in furtherance of common intention of other co-accused (not before us) and is sentenced to life imprisonment alongwith a fine of Rs. 1000.- in default of payment of fine to further undergo one month's Simple imprisonment. 68. The appellant Akhey Singh is found guilty of causing simple blunt injury to Badni for offence under Sec. 323 IPC. He has already suffered incarceration for a long time. If not wanted in any other case, he be released forthwith. 69. On release of Mishri, Kunji, Akhey Singh and Attar Singh, they will furnish personal bonds of Rs. 50,000/- alongwith two surety bonds of Rs. 25,000/- each in terms of Section 437A Cr.P.C. before the Trial Court. Cr. Rev. Pet. No. 1226/2007 70. If not wanted in any other case, he be released forthwith. 69. On release of Mishri, Kunji, Akhey Singh and Attar Singh, they will furnish personal bonds of Rs. 50,000/- alongwith two surety bonds of Rs. 25,000/- each in terms of Section 437A Cr.P.C. before the Trial Court. Cr. Rev. Pet. No. 1226/2007 70. We have already discussed the factual matrix and the evidence led by the prosecution as also the impugned judgment. Learned Trial Judge has given good reasons to give the benefit of doubt to Roshan & Babu. 71. We are conscious of the fact that as per settled position in law, an Appellate Court, while hearing an appeal against acquittal, has to bear in mind that there is double presumption in favour of the accused; firstly a presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed innocent unless proved guilty; secondly the accused having secured his acquittal, the presumption of his innocence is further reinforced. It is also a settled position in law that if two reasonable conclusions are possible on the basis of evidence on record the Appellate Court should not disturb the finding of acquittal recorded by the Trial Court. 72. In our view, the judgment of Trial Judge suffers from no infirmity and calls for no interference. Revision petition filed by complainant Badni against the judgment dated 30.8.2007 passed in sessions case No. 86/2005, acquitting the respondents Roshan & Babu, having no merit is dismissed.