JUDGMENT U.C. Dhyani, J. A complaint was written by informant Amzad Kazmi on 06.01.2005 to Police Station Manglaur, District Haridwar stating therein that on 06.01.2005 itself, at about 12:00 noon, he along with his brother Junaid alias Guddu went to the ration shop of the locality to get ration. Since the shop was closed, therefore, the informant along with his brother (victim) were waiting for the shop to open. They were sitting in the vacant plot of Doctor Jamil. Suddenly, Shamim alias Bhura and Saleem, both sons of Sitabi, residents of Quila came. They were armed with pistols. Kaleem son of Saleem and two others also came. They were carrying swords in their hands. Shamim alias Bhura and Saleem fired upon Junaid. Junaid fell down. Kaleem and two others gave blows of swords on victim. The incident was seen by informant and by Mursaleen son of Shaheed, Gulbashar son of Hanif and Junaid son of Baru, all residents of Sikri, who came on the spot on hearing the sound of firing. Injured Junaid was brought to Government Hospital, where he died. Accused persons had previous enmity with Junaid. 2. Chik FIR was registered on 06.01.2005 at 01:30 p.m. in PS Manglaur, Roorkee, Haridwar. There was no delay in lodging FIR. After investigation of the case, charge-sheet against the appellants Shamim, Saleem and Kaleem was filed for the offences punishable under Sections 147, 148, 149 and 302 IPC. Another charge-sheet was submitted against Saleem as regards possession of (prohibited) country-made pistol and a live cartridge, for the offence punishable under Section 25 Arms Act. Third charge-sheet was filed against accused Kaleem under Section 25/4 Arms Act in relation to recovery of prohibited sword. When the trial began, charges were framed against the aforesaid accused persons for the offences punishable under Sections 147, 148, 302 read with Section 149 IPC, to which they pleaded not guilty and claimed trial. 3. As many as 10 prosecution witnesses, viz., PW 1 Amzad Kazmi, PW 2 Gulbashar, PW 3 H.C.P. Rohtas Singh, PW 4 Dr. Anjum Anwar, PW 5 Jawahar Singh Rathor, PW 6 S.S.Bisht, PW 7 Manish Dutt, PW 8 Con. Kunwar Singh, PW 9 SI Ram Pal Singh and PW 10 Om Pal Singh were examined on behalf of the prosecution. As many as 10 prosecution witnesses, viz., PW 1 Amzad Kazmi, PW 2 Gulbashar, PW 3 H.C.P. Rohtas Singh, PW 4 Dr. Anjum Anwar, PW 5 Jawahar Singh Rathor, PW 6 S.S.Bisht, PW 7 Manish Dutt, PW 8 Con. Kunwar Singh, PW 9 SI Ram Pal Singh and PW 10 Om Pal Singh were examined on behalf of the prosecution. After evidence, statements of the accused persons under Section 313 Cr.P.C. were taken, in which they said that prosecution witnesses were telling a lie. They did not commit any crime and nothing was recovered from them. No evidence was given in defence. After conclusion of the trial, accused Shamim alias Bhura, Saleem and Kaleem were convicted of the offences punishable under Sections 148 and 302 IPC read with Section 149 IPC. Accused Kaleem was convicted of the offence punishable under Section 25/4 Arms Act. All were sentenced appropriately. Accused Shamim alias Bhura, Saleem and Kaleem were exonerated of the charge punishable under Section 147 IPC. Accused Saleem was also exonerated of the offence punishable under Section 25 Arms Act. Accused persons preferred criminal appeal in respect of charges in which they were convicted. 4. PW 1 Amzad Kazmi, informant, was the real brother of victim Junaid alias Guddu and eyewitness of the present case. PW 2 Gulbashar was the eyewitness. PW 3 HC Rohtas Singh was the witness of recovery of sword. PW 4 Doctor Anzum Anwar and PW 5 SI Jawahar Singh Rathor were the witnesses of inquest report. PW 6 S.S.Bisht, SO was the IO of the case registered in respect of offences punishable under the Indian Penal Code. PW 7 Manish Dutt conducted postmortem on the dead body of deceased. PW 8 Constable Kunwar Singh along with PW 10 Head Constable Ompal Singh were the formal witnesses and PW 9 SI Rampal Singh was the Investigating Officer of the case registered under the Arms Act. 5. Prosecution led the evidence through PW 2 Gulbashar. He said in examination-in-chief that he went to the house of Amzad to meet him. Amzad was not in his house. Amzad and his brother Junaid alias Guddu had gone to buy ration. PW 2 Gulbashar also went towards the ration shop. Amzad and Guddu were sitting in a plot. Shamim alias Bhura, Salim, Kaleem and two others came to the place of incident. Amzad was not in his house. Amzad and his brother Junaid alias Guddu had gone to buy ration. PW 2 Gulbashar also went towards the ration shop. Amzad and Guddu were sitting in a plot. Shamim alias Bhura, Salim, Kaleem and two others came to the place of incident. Saleem and Shamim fired upon Guddu (victim) with their pistols. Three other accused persons including Kaleem were having swords. They gave blows of swords on the body of Guddu, who was sitting with PW 2 Gulbashar at the time of incident. There was commotion after the incident. Accused persons fled away after firing and inflicting injuries of swords. 6. In his cross-examination, PW 2 Gulbashar said that apart from him, Mursaleen was also present there. PW 2 Gulbashar and Amzad worked together in ‘Shah Times’. Amzad was correspondent of ‘Shah Times’. The house of PW 2 was at a distance of 750 meters from the spot. The house of Mursaleen was at a distance of 60-70 paces from the spot. The house of victim was at a distance of about 100 paces. There was habitation around the place of incident. Accused persons fired from a distance of 2-4 paces. Accused Shamim and Saleem fired upon the victim with their pistols. Amzad was at a distance of 10 paces from victim. He raised alarm. Accused persons did not fire on Amzad. Police went to the place of incident in the presence of PW 2. When victim was taken to hospital, PW 2 also went behind him on motorcycle. PW 2, however, did not go to Police Station Manglaur. Doctor subsequently told that victim has died. Amzad did not lodge FIR in presence of PW 2. PW 2 however, visited the place of occurrence with the Investigating Officer. PW 2 showed the place where victim and PW 1 Amzad were sitting. The cartridge was recovered in the presence of PW 2. The Investigating Officer also collected soil in presence of PW 2. He however, admitted that he along with Amzad were co-accused in the murder of one Arshad Conductor. He denied that he did not see the incident and also denied the suggestion that he was not present when the occurrence took place. 7. PW 2 Gulbashar was not related to PW 1 Amzad Kazmi or victim Junaid. PW 2 rendered eyewitness account of the incident. He denied that he did not see the incident and also denied the suggestion that he was not present when the occurrence took place. 7. PW 2 Gulbashar was not related to PW 1 Amzad Kazmi or victim Junaid. PW 2 rendered eyewitness account of the incident. He was cross-examined on behalf of the appellants on various aspects of the incident, but nothing appeared in his cross-examination, which might cast suspicion on the testimony of PW 2 Gulbashar. His testimony was rightly accepted by learned Trial Court. 8. PW 1 Amzad Kazmi, in his examination-in-chief, supported prosecution story and also proved his complaint. He proved the contents of his complaint in his examination-in-chief. The same is not being produced here, in order to avoid repetition. When the incident occurred, PW 1 was along with his brother, who was subsequently killed by the accused persons. He was the natural witness to the incident in question. Although he was a related witness, but law nowhere prescribes that the testimony of such related witness should be discarded. The testimony of related witness is acceptable. The law only enjoins upon the court to scrutinize such evidence with vengeance. 9. Since PW 1 Amzad Kazmi was the real brother of victim therefore, let us carefully scrutinize his cross-examination. He said that he saw the empty cartridge, which was lying on the spot. PW 2 Gulbashar also came with the Police on the spot. His statement as well as the statement of PW 2 was recorded by the IO simultaneously. The memo of collecting blood stained soil was prepared by the IO himself. Inspection of the spot was done at the same time. Site plan was also prepared. When the victim was taken to hospital, he was breathing and the Doctors were trying to save him, but in the meanwhile, he died. He denied many a suggestions of defence. He admitted that the ration-card of all his brothers, mother and father was joint one. He also told the boundary of the place of occurrence. He also told the distance of the house of Gulbashar and Mursaleen (from the place of occurrence). He was also asked questions about the case, in which, he along with PW 2 Gulbashar were accused. He admitted that the ration-card of all his brothers, mother and father was joint one. He also told the boundary of the place of occurrence. He also told the distance of the house of Gulbashar and Mursaleen (from the place of occurrence). He was also asked questions about the case, in which, he along with PW 2 Gulbashar were accused. Victim was challaned for the murder of the brother of accused persons but he was acquitted (That was probably the reason for killing of Junaid by accused persons-appellants in retaliation). Thus, nothing adverse appeared in the cross-examination of PW I, which might indicate that there was any scope of disbelieving or discarding prosecution story. 10. Eyewitness account rendered by PW 1 Amzad Kazmi and PW 2 Gulbashar was corroborated by the medical evidence. When PW 7 Doctor Manish Dutt conducted post-mortem on the dead body of victim, he found four stitched wounds in and around ears and above vertebrae on the head and neck; a fire arm wound of entry behind the posterior auxiliary fold with margins towards inside with blackening on the edges. The direction of the wound was towards inside and downwards. Three cut wounds on left shoulder, supra scapular region and left side of the back were also found. There was no firearm wound of exit. A metallic bullet of 3 x 0.5 cm was taken out from above the fifth rib of the anterio lateral chest wall on the right side. Head bone was fractured. Brain membranes were torn. Death was possible on 06.01.2005 at about 12:00 noon due to the injuries caused by sharp edged weapon, like sword and the injuries caused by firearm. The cause of death was shock and excessive bleeding due to ante-mortem injuries. In his cross-examination the Medical Officer said, apart from other things, that the bullet which was recovered from the body of deceased, was given to the Constable present on duty, after sealing and signing. 11. It was beyond comprehension to elicit why the eyewitnesses would have falsely implicated accused persons and concealed real culprits? Recovery aspect was also dealt with by learned court below and there appears to be nothing on record to disbelieve such part of prosecution story. If there was some omission on the part of investigation, the prosecution cannot be faulted for the same. 12. But there is another aspect of the matter. Recovery aspect was also dealt with by learned court below and there appears to be nothing on record to disbelieve such part of prosecution story. If there was some omission on the part of investigation, the prosecution cannot be faulted for the same. 12. But there is another aspect of the matter. Accused persons have been acquitted by learned trial court in relation to the offence punishable under Section 147 IPC. Government appeal has not been preferred against such acquittal. When use of force or violence by an unlawful assembly or by any member thereof, in prosecution of the common object of such assembly is not proved, how can it be said that the unlawful assembly or any member thereof was armed with deadly weapon? In such a situation, the accused persons could not be convicted of the offence punishable under Section 148 IPC. Going by the same logic, when ‘unlawful assembly’ was not found proved by learned trial court, the accused persons could not be held guilty of murder with the aid of Section 149 IPC. In that view of the matter, learned trial court committed manifest error of law in holding the accused persons guilty of the offences punishable under Section 148 IPC and Section 302/149 IPC. Instead, the accused persons ought to have been convicted for the offence punishable under Section 302 IPC read with Section 34 IPC. Sections 149 IPC and 34 IPC deal with combination of persons who become liable to be punished as sharers in the commission of offences. Non-applicability of Section 149 IPC is therefore, no bar in convicting the accused under substantive section read with Section 34 IPC if the evidence discloses commission of an offence in furtherance of the common intention of them all, as has been held by Hon’ble Supreme Court in Nethala Pothuraja vs. State of Andhra Pradesh, (1992) 1 SCC 49 . In the instant case, it was amply proved that the accused persons committed the offence of murder in furtherance of their common intention, and therefore, they should be convicted for the offences punishable under Section 302 IPC read with Section 34 IPC. 13. The prosecution has been able to prove the case against appellants for the offence punishable under Section 302 IPC read with Section 34 IPC beyond reasonable doubt. 13. The prosecution has been able to prove the case against appellants for the offence punishable under Section 302 IPC read with Section 34 IPC beyond reasonable doubt. The impugned judgment & order therefore, calls for interference only to the extent that the accused persons are liable to be convicted for the offence punishable under Section 302 IPC read with Section 34 IPC, instead of Section 302/149 IPC. They are entitled to acquittal in relation to the offence punishable Section 148 IPC. 14. Criminal appeals preferred on behalf of the accused appellants Shamim alias Bhura, Saleem and Kaleem are thus dismissed. The judgment and order dated 13/14.01.2009 is however, modified to the extent that the accused persons are convicted for the offence punishable under Section 302 IPC read with Section 34 IPC, instead of Section 302/149 IPC. Conviction and sentence of appellant Kaleem for the offence punishable under Section 25/4 Arms Act is affirmed. They are however, acquitted in relation to the offence punishable Section 148 IPC. The appellants are in jail. They are directed to serve out the remaining part of sentence as awarded by the trial court and thus affirmed by this Court. Let a copy of this judgment be sent to the court concerned as well as the Superintendent of Jail where appellants are currently serving out their sentence for compliance of this order. Let lower court record be also sent back.