JUDGMENT 1. - These two appeals, though filed against different judgments, arise out of the same First Information Report No. 128/2002, lodged with Police Station Sadar Alwar, for offence under Sections 147, 148, 149, 341 and 302 IPC. 2. Originally, a charge-sheet was filed against nine accused-persons. The court of Additional Sessions Judge (Fast Track) Alwar, conducted trial only against five accused-appellants in Sessions Case No. 67/2002 (82/2002), namely, Rajkapoor, Hariram, Rajesh, Ramsingh and Dayaram. Charge-sheet against remaining four accused-persons, namely, Rohtash, Meharchand, Kamal and Rati, who were absconding, was filed with the aid of Section 299 of the Cr.P.C. On conclusion of the trial, learned trial court vide its judgment dated 02.08.2003, convicted those five accused for offences under Sections 148, 341 and 302/149 IPC. For offence under Section 302/149 IPC, they were sentenced to undergo life imprisonment with fine of Rs. 2000/- each; in default of payment of fine, to further undergo one year's rigorous imprisonment. For offence under Section 148 IPC, they were sentenced to undergo three years RI with fine of Rs. 500/- each, in default to further undergo three months RI. For offence under Section 341 IPC, they were sentenced to undergo one month's simple imprisonment. 3. Subsequently, accused Rohtash, one of four absconding accused, was arrested and supplementary charge-sheet was filed against him in the year 2009. On conclusion of trial, learned Additional Sessions Judge (Fast Track) No. 1, Alwar, vide its judgment dated 17.04.2010 in Sessions Case no. 8/2009, convicted him for offence under Sections 148, 341 and 302 IPC. For offence under Section 302 IPC, he was sentenced to undergo life imprisonment with fine of Rs. 2000/- each; in default of payment of fine, to further undergo one year's rigorous imprisonment. For offence under Section 148 IPC, he was sentenced to undergo three years RI with fine of Rs. 500/-; in default, to further undergo three months RI. For offence under Section 341 IPC, he was sentenced to undergo one month's simple imprisonment. 4. Facts leading to these appeals are that a written report (Exhibit P-1) was submitted by one Ram Karan to the Station House Officer, Police Station Sadar, Alwar, on 07.05.2002 at 8.30 AM, inter-alia, alleging that he, his brothers Laxman and Bhagwan Sahai @ Guti, had left their village Dhani Thadikar, on a tractor to attend the court proceedings at Alwar. They started at about 7.30 in the morning. They started at about 7.30 in the morning. When they reached close to the place known as 'Machka-ki-Ghati', they had to stop because a white coloured vehicle was parked in the middle of the road. Suddenly, Rohtash S/o Sohan, Rajkapoor, Manak Lal, Meharchand S/o Amilal, Hariram S/o Ramratan, Singh Singh S/o Ramratan, kamal R/o Mundawar, Rati R/o Bahari, Rajesh S/o Manaklal and Daya R/o Mundawar, came out of the vehicle. His brother Laxman, who was sitting on mudguard of the tractor, was pulled down by them. Rohtash, who had a 'katta' (country made gun) opened fire at his head. Meharchand, who also had a 'katta' opened fire at Laxman, which hit his chest. Rajesh also opened fire, which hit his left foot below knee. Rati opened fire with 'katta', which hit fingers of his right hand. Kamal also similarly opened fire, which hit at his back. Thereafter, they fled away towards Vijay Mandir. This incident took place about 8 O'clock in the morning. When the informant tried to save Laxman, accused-persons threatened to kill him pointing 'katta' at him. His brother Laxman died on the spot. It was alleged that litigation was pending between complainant-party and accused persons. They were going to Alwar because statement of deceased Laxman was scheduled to be recorded in the court on that day. Accused had owing to this enmity killed Laxman, whose dead body was lying on the spot. Action be taken against culprits. 5. A regular First Information Report for aforementioned offences was chalked out on the basis of the said report. After usaual investigation, the police filed challan against above-named accused for the offence mentioned above. Prosecution in Sessions Case No. 67/2002 examined eight witnesses and exhibited 33 documents, whereas the defence did not produce any witness in support of its case, though exhibited one document. In trial of the accused-appellant Rohtash in Sessions Case No. 8/2009, statements of nine prosecution witnesses were recorded and 25 documents were exhibited. Accused, in their examination under Section 313 Cr.P.C., denied the charges and alleged their false implication due to enmity. Learned trial court convicted and sentenced the accused-appellants as indicated above. Hence these appeals. 6. Shri Suresh Sahni, learned counsel for appellants, argued that learned trial court has failed to correctly appreciate the evidence and rather grossly misread the evidence. Accused, in their examination under Section 313 Cr.P.C., denied the charges and alleged their false implication due to enmity. Learned trial court convicted and sentenced the accused-appellants as indicated above. Hence these appeals. 6. Shri Suresh Sahni, learned counsel for appellants, argued that learned trial court has failed to correctly appreciate the evidence and rather grossly misread the evidence. Conviction of the appellants has been recorded solely relying on the testimony of informant Ramkaran (PW-1) and Bhagwan Sahai (PW-2), both brothers of deceased Laxman. Not a single independent witness has been produced. Neither of two brothers was present at the place of incident. They are making false statement in the court inasmuch as they made lot of improvements upon their original version given in the first information report and in the statements recorded by the police under Section 161 Cr.P.C. It was argued that the fact that the statement of Bhagwan Sahai (PW-3) was recorded with delay of five days clearly proves that he was a planted witness, particularly when he does claim to have given any resistance to the accused to save the life of his brother Laxman and did not receive a single injury. Ram Pratap (PW-4), father of deceased, is not an eye witness because he claims to have reached the place of incident much after the incident. He has stated that he was informed about the murder of his son by certain women, who were collecting garbage nearby but no such woman has been produced as witness. S.H.O. Janesh Singh Tanwar (PW-8) has stated that when he reached the place of incident, he did not find any. 7. Shri Suresh Sahni, learned counsel argued that SHO Janesh Singh Tanwar (PW-8) has stated that the site plan (Exhibit P-3) was prepared by him as per the information furnished by Ramkaran (PW-1). S.H.O. Janesh Singh Tanwar (PW-8) has stated that when he reached the place of incident, he did not find any. 7. Shri Suresh Sahni, learned counsel argued that SHO Janesh Singh Tanwar (PW-8) has stated that the site plan (Exhibit P-3) was prepared by him as per the information furnished by Ramkaran (PW-1). Such a site-plan would not be admissible in evidence, being hit by Section 162 of the Cr.P.C. In support of this argument, learned counsel for the appellants, placed reliance on the judgments of the Supreme Court in Jagdish Narain and Another v. State of U.P. - (1996) 8 SCC 199 , and Tori Singh and Another v. State of Uttar Pradesh - AIR 1962 SC 399 , and argued that the siteplan, as regards the time, place and manner in which the incident took place, mentioned therein on the basis of statements of witnesses, is not admissible in evidence, being hearsay. Statements of the witness, on the basis of whose information the site plan was prepared, cannot be used to corroborate such site plan, being hit by Section 162 of the Cr.P.C. 8. Dr. Ravi Mathur (PW-7) has proved that deceased had six injuries on his body but one of them was exit injury, therefore, he actually had only five injuries. Learned counsel submitted that in the postmortem-report, the duration of death was indicated to be 24 hours whereas examination of the body was made at 10.30 AM on 07.05.2002 i.e. the date of alleged incident itself. The time of death of Laxman as per the version in the first information report is at 7.30 AM, which does not synchronise with the medical evidence. Dr. Ravi Mathur (PW-7) in response to a query in the cross-examination, has stated that the rigor mortis was present on the body to some extent. Rigor mortis starts from leg and goes upto the face. Rigor mortis is established in about 6-7 hours throughout the body. He opined that time of death must be within 5-7 hours. Learned counsel argued that the approximate duration of death opined by this witness with the fact that stomach of the deceased contained semi-digested food, show that the incident must have been taken place somewhere in the mid night of the previous day, which explains why semi-digested food was present in the stomach. Learned counsel argued that the approximate duration of death opined by this witness with the fact that stomach of the deceased contained semi-digested food, show that the incident must have been taken place somewhere in the mid night of the previous day, which explains why semi-digested food was present in the stomach. The reason for presence of semi-digested food must be that the deceased had dinner the previous night. Even if examined from another angle, Ramkaran (PW-1) and Bhagwan Sahai (PW-3) stated that while they had their breakfast but the deceased did not consume any food because he had observed fast on that day, also belies the prosecution case because if he did not take breakfast, there would no question of semi-digested food lying in his stomach. All that goes to show that genesis of the prosecution story has been withheld from the court. 9. Shri Suresh Sahni, learned counsel for the appellants argued that large number of accused have been falsely entrapped on allegation that all of them were armed with country-made-guns (katta) but no firearm has been recovered at the instance of the accused-appellants except accused-appellant Rohtash, and that too much belatedly six years after the incident. Even that weapon was not sent to Forensic Science Laboratory for examination. No independent witness was associated with the process of such recovery. Both the motbir witnesses for recovery of katta, Om Prakash and Kashiram were police constables. Only Kashiram has been produced as PW-4. Learned counsel argued that even with regard to the only firearm recovered, it has not been conclusively established that used and unused cartridges that were recovered from the place of incident, were fired from such firearm. 10. Learned counsel for the appellants has argued that there was every possibility of false implication of the accused by the complainant party as there was enmity of high degree between them, which fact has been admitted not only by Ramkaran (PW-1) and Bhagwan Sahai (PW-3) but also by their father Ram Pratap (PW-4). It is argued that the first information report was sent to the Magistrate with delay of one day, which fact is admitted by Investigating Officer Janesh Singh Tanwar (PW-8). There was thus violation of Section 157 of the Cr.P.C. Moulds of the tyre mark of any of two vehicles were not lifted by the police. Neither Marshal Jeep nor the tractor was recovered. 11. There was thus violation of Section 157 of the Cr.P.C. Moulds of the tyre mark of any of two vehicles were not lifted by the police. Neither Marshal Jeep nor the tractor was recovered. 11. Shri Suresh Sahni, learned counsel while arguing the appeal of accused-appellant Rohtash, submitted that in his case also substantially similar evidence has been recorded and relied on by the learned trial court to convict accused-appellant Rohtash, therefore, same infirmities which crept in the earlier judgment in the trial of co-accused-appellants, are to be founded in the latter judgment. He further argued that though statements of two eye witnesses, namely, Ramkaran (PW-1) and Bhagwan Sahai (PW-3) have been recorded in earlier trial of other accused, but Bhagwan Sahai (PW-3) was not produced as witness in the trial of Rohtash. Reason for this was that Bhagwan Sahai in the meantime had died. The prosecution did not get his statement exhibited in the trial of accused Rohtash, therefore statement of Bhagwan Sahai recorded in earlier trial cannot be read in the trial of accused Rohtash in order to sustain his conviction. 12. Learned counsel for the appellants has, in support of his arguments, relied on the judgments of the Supreme Court in State of Punjab v. Sucha Singh and Others - (2003) 3 SCC 153 , Ramreddy Rajesh Khanna Reddy and Another v. State of A.P. - (2006) 10 SCC 172 , Hem Raj and Others v. State of Haryana - (2005) 10 SCC 614 and Vikramjit Singh alias Vicky v. state of Punjab - (2006) 12 SCC 306 . 13. Shri Javed Choudhary, learned Public Prosecutor for the State, argued that conviction of the accused recorded by learned trial court in the judgment impugned in both the appeals, is perfectly just and reasonable. The trial court has thoroughly marshaled the evidence so as to connect the accused appellants with the crime. What Ramkaran (PW-1) and Bhagwan Sahai (PW-3) stated finds corroboration from the medical evidence, except for accused-appellant Meharchand, for allegation of opening fire at the chest of deceased and accused Kamal for opening fire at the back. The remaining firearm injuries attributed to other accused are fully corroborated. It cannot be therefore said that they are planted witnesses. What Ramkaran (PW-1) and Bhagwan Sahai (PW-3) stated finds corroboration from the medical evidence, except for accused-appellant Meharchand, for allegation of opening fire at the chest of deceased and accused Kamal for opening fire at the back. The remaining firearm injuries attributed to other accused are fully corroborated. It cannot be therefore said that they are planted witnesses. Learned Public Prosecutor argued that though these two witnesses Ramkaran (PW-1) and Bhagwan Sahai (PW-3) happen to be brother of deceased, but this cannot be a reason for discarding their testimony in toto. The so called deficiencies pointed out by the defence in the investigation are figment of its own imagination. No such deficiency in fact exists. The contention that moulds of the tyre marks were not lifted, is liable to be rejected because neither the Marshal Jeep nor tractor was taken off the road. The witnesses have categorically stated that the width of the road was such, which could have accommodated only one vehicle at a time. There could be no question of lifting moulds therefrom. Learned Public Prosecutor referred to statement of Investigating Officer Janesh Singh Tanwar (PW- 8) where he stated that neither any wood-cutter nor the garbage collector was found around the place of incident when he reached the site of incident but this statement of Investigating Officer Janesh Singh Tanwar (PW-8) has to be read with immediately preceding statement after describing the place of incident where he stated that on that day he did not find any other witness, who saw the incident. 14. As regards the approximate time of death as given in the statement of Dr. Ravi Mathur (PW-7), learned Public Prosecutor argued that the statement of medical officer is not binding on the court and in this case, it did not form the basis for conviction of the appellant. Citing from Modi's Medical Jurisprudence, learned Public prosecutor argued that this witness has wrongly stated that the rigor mortis starts from leg and goes upto the face, which is contrary to established medical jurisprudence that rigor mortis starts from the head and goes upto the feet. When this doctor stated that rigor mortis were present on part of the body, this means that the rigor mortis was not fully established on the whole of the body and it was only partial. When this doctor stated that rigor mortis were present on part of the body, this means that the rigor mortis was not fully established on the whole of the body and it was only partial. Statement that death might have taken place within 5-7 hours of the time of examination of the dead body, cannot be taken to have conclusively established that the death did not take place at 7.30 in the morning, particularly when examination of the dead body took place about 11.00 AM. Moreover, no such opinion has been expressed by this witness in the postmortem report. 15. Shri Javed Choudhary, learned Public Prosecutor, argued that mere availability of semi-digested food in the stomach cannot be a reason to hold that Ramkaran (PW-1) and Bhagwan Sahai (PW-3), did not speak the truth when they stated that deceased Laxman had observed fast that day and, therefore, did not have any meal. In this connection, learned Public Prosecutor also referred to that part of the statement of Dr. Ravi Mathur (PW-7), where he stated that deceased had not fully passed stool. Only one inference can be drawn from this that the deceased had started early in the morning and not much further can be read in this statement. It is argued that non-recovery of Marshal Jeep or tractor would not be fatal to the prosecution case because in this case the eye witnesses, who have stood the scrutiny of cross-examination, proves the prosecution case. Learned Public prosecutor also submitted that delay in the recovery of gun alone cannot be a reason to discard such recovery at the instance of accused Rohtash, who has been assigned first firearm injury caused in the head of the deceased. The gun was in fact sent to the Forensic Science Laboratory but its report could not be received by the time the trial was concluded. In this connection, Shri Javed Choudhary, learned Public Prosecutor, has referred to statement of Deep Chand (PW-7) in the trial of accused Rohtash), who has proved Exhibit P-18, the sealed packet in which he has deposited the gun with the Forensic Science Laboratory, and the statement of Harshvardhan (PW-8), who was given a sealed 'katta' by the Incharge of Malkhana to be deposited there. He also referred to statement of Heeralal (PW-6), who has proved recovery of 'katta' vide Exhibit P-14. He also referred to statement of Heeralal (PW-6), who has proved recovery of 'katta' vide Exhibit P-14. Kashiram (PW- 4) has proved the site plan of place of recovery of katta at the instance of accused Rohtash. Harshvardhan (PW-8) has deposited the 'katta' with the Forensic Science Laboratory and took a receipt (Exhibit P-19) of deposit. Janesh Singh Tanwar (PW-9) in the trial of accused Rohtash, has proved recovery of two empty cartridges of 12-bore gun and one missed cartridge of 315-bore and bullet vide Exhibit P-9, in the presence of Ramkaran (PW-3) and Imratlal, who has not been examined. He has also proved the Forensic Science Laboratory Report (Exhibit P-23) with regard to cartridges. Learned Public Prosecutor submitted that the evidence in the present case proves the guilt of the accused-appellants beyond reasonable doubt. For extending benefit of doubt, the doubt should be reasonable one and not fanciful and imaginary. It is therefore prayed that the appeal be dismissed. 16. We have given our anxious consideration to rival submissions and perused the material on record. 17. In his statement recorded during trial in Sessions Case No. 67/2002, Ramkaran (PW-1) contended that the accused while leaving the place of incident threatened that if they (these witnesses) did not compromise the dispute with them, they would also be killed like their brother Laxman. But in the first information report this witness has not made any such allegation. This witness has deposed that statement of deceased Laxman and Bhagwan Sahai @ Guti (PW-3) were to be recorded in the court on that date and that he only accompanied them. This raises a serious doubt about his presence and lend strength to the argument that he is a planted witness and was not present with the deceased. In the F.I.R., a mention was made only of a vehicle, whereas in the court statement this witness has stated that it was a Marshal Jeep, whereas no Marshal Jeep has been recovered. This makes the prosecution story doubtful that incident has taken place in the manner alleged. While in the F.I.R., it was alleged that all accused pulled deceased Laxman from the tractor, but in court statement, this witness has stated that Laxman was sitting on the mudguard of the tractor and it were only accused Ramsingh, Rajkapoor, Hariram and Dayaram, who pulled down Laxman onto the ground. While in the F.I.R., it was alleged that all accused pulled deceased Laxman from the tractor, but in court statement, this witness has stated that Laxman was sitting on the mudguard of the tractor and it were only accused Ramsingh, Rajkapoor, Hariram and Dayaram, who pulled down Laxman onto the ground. This witness has not given any explanation as to why he did not make any effort to save his brother and why did he not receive a single injury when so many accused, all armed with firearms, were present . All that he has stated is that he was frightened and therefore he did not intervene to save his brother. It makes his conduct quite unnatural and unbelievable. In cross-examination, he has admitted that Rajesh and Rajkapoor were not accused in the criminal case in which his brother was going to make a statement. He has further stated that when he went to police station for lodging the report, he left Bhagwan Sahai behind by the side of dead-body of his brother Laxman. According to him, no one else was present at the place of incident except his two brothers and accused. This witness further stated that when he reached the place of incident with the police, they stayed there for 15-20 minutes. At that time, Narain, Pratap, Bhartaram and Inder etc. were present there, but he has not stated about presence of Bhagwan Sahai at that time. This witness further stated that when he reached the police station, the Station House Officer asked him to get the report scribed therefore he went out and got the report written from someone and produced before the Station House Officer, whereas Station House Officer Janesh Singh Tanwar (PW-8), in his statement, has stated that Ramkaran (PW-1) appeared before him with a written report. The person who allegedly scribed the report has not been produced as a witness. 18. There indeed arise serious doubt on the character of Bhagwan Sahai (PW-3) as an eye witness. His statement does not inspire much confidence for very many reasons. He has stated that when they reached the place known as 'Machka-ki-Ghati', they found a white coloured vehicle parked in the middle of the road, therefore, they stopped the tractor. Accused Rohtash, Meharchand, Rajkapoor, Rajesh, Dayaram, Ramsingh, Zhariram, Kamal and Ratiram, alighted from that vehicle. They all had 'katta' in their hands. He has stated that when they reached the place known as 'Machka-ki-Ghati', they found a white coloured vehicle parked in the middle of the road, therefore, they stopped the tractor. Accused Rohtash, Meharchand, Rajkapoor, Rajesh, Dayaram, Ramsingh, Zhariram, Kamal and Ratiram, alighted from that vehicle. They all had 'katta' in their hands. All of them pulled down their brother Laxman from the tractor. Rohtash fired at his head with 'katta'. Kamal fired at his back. Rajesh fired at his leg. Ratiram fired at the fingers. Meharchand fired at his stomach, as a result of which Laxman died. The accused fled away in the jeep towards Vijay Mandir. His brother Ram Karan (PW-1) then went to police station and he stayed at the place of incident. This witness has admitted the factum about enmity between the parties by stating that Rohtash, Amilal and others had murdered their brother Siyaram. They were going to the court for getting statement of Laxman recorded in that case. In cross-examination also, he has stated that Laxman was eye witness in that case and that he (this witness) had accompanied Laxman only for the purpose of safety because the accused-party was threatening to kill him. This witness in cross-examination has stated that the dead-body of Laxman was taken to hospital in the tractor trolley. Tractor trolley was brought by his brother Narain from the village. The trolley attached with the tractor belonged to accused Rajesh because no other trolley was available. Rajesh and Rajkapoor are his cousins. But, this witness also admitted that the police had recorded his statement five days after the incident. There is no explanation why his statement was not immediately recorded by the police. 19. As regards the site-plan (Exhibit P-3), place 'G' marked therein is indicated to be the place where complainant-party stopped their tractor due to the reason that accused-party parked their vehicle in the middle of the road, and thereafter the members of the accused-party allegedly pulled down Laxman from the tractor. Place 'X' is indicated to be the place where the bullet was fired at the deceased. The complainant-party saw the incident from place 'G'. All this is shown to have been recorded in the site plan as per the information given by Ram Karan (PW-1). Place 'X' is indicated to be the place where the bullet was fired at the deceased. The complainant-party saw the incident from place 'G'. All this is shown to have been recorded in the site plan as per the information given by Ram Karan (PW-1). The Supreme Court in Jagdish Narain and Another, supra, relying on its earlier judgment in Tori Singh v. State of U.P. , AIR 1962 SC 399 , held that time, place and manner of incident indicated by the Investigating Officer on the basis of statement of witnesses in the site plan would not be admissible, being hearsay. It was held that the observations of the Investigating Officer based on his personal knowledge, can be used as substantive evidence. The statement of witness, on the basis of whose statement, the site plan was prepared, cannot be used to corroborate the maker thereof being hit by Section 162(1) of the Cr.P.C. His statement can be used only to contradict him in accordance with proviso to Section 162(1). In the present case, the site plans (Exhibit P-3 in trial of accused Raj Kapoor and Others and Exhibit P-8 in the trial of accused Rohtash), in so far as they contain stipulations at mark 'G' to the effect that 'Mustagis Paksh Ka Apne Tractor Se Ana Aur Muljiman Dwara Gadi Age Khada Kar Rok Lena Evam Mritak Laxman Ko Tractor Se Khinch Kar Utarlena', would therefore be inadmissible in evidence being hit by Section 162(1). 20. Investigating Officer Janesh Singh Tanwar (PW-8) has stated that not only the site-plan was prepared by him at the place of incident, but the 'panch-nama' of the deadbody (Exhibit P-7) was also prepared there itself. The Investigating Officer Janesh Singh Tanwar (PW-8) has also admitted that since there were no tyre marks on either side of the road, therefore he did not lift the moulds of the tyre marks. But, there is no explanation why Bhagwan Sahai (PW-3), who was made witness to the site-plan (Exhibit P-3) and was present at the place of incident, was not made attesting witness (motbir) to the 'panch-nama' (inquest-report) of dead-body. Moreover, in the panch-nama apart from Ram Karan (PW-1), Pratap, Narain, Imrat Lal and Bharatram, were shown as motbir witnesses but none of them have been produced by the prosecution as witness. Moreover, in the panch-nama apart from Ram Karan (PW-1), Pratap, Narain, Imrat Lal and Bharatram, were shown as motbir witnesses but none of them have been produced by the prosecution as witness. When doubt is being raised about the presence of Ram Karan (PW-1) and Bhagwan Sahai (PW-3), the prosecution ought to have produced all these independent motbir witnesses. Their non-production is a factor in favour of the defence. 21. The report of State Forensic Science Laboratory (Exhibit P-20) though has proved the presence of blood group 'A' on baniyan, payjama, shirt of the deceased, but that does not in any manner connect the accused-appellants with the crime. Despite the fact that Ramkaran (PW-1) and Bhagwan Sahai (PW-3) have stated that they were travelling in the tractor from which accused forcibly pulled down deceased Laxman, no such tractor has been recovered by the prosecution. The Marshal jeep, which was allegedly used by the accused as per version of the F.I.R. and Ram Karan (PW- 1) and Bhagwan Sahai (PW-3), has also not been recovered. Besides, as per their version, all accused were armed with 'kattas', whereas neither of these two witnesses received a single fire arm injury nor was 'katta' recovered at the instance of any of the accused except Rohtash and that too much belatedly. These facts assume significance in view of failure of the prosecution to produce any independent witness and because conviction of the appellants has been founded solely on uncorroborated testimony of Ramkaran (PW- 1) and Bhagwan Sahai (PW-3). 22. Ram Pratap (PW-4), father of deceased, has stated that some women, who used to college garbage, informed him about the murder of his son. That means that it were those women, who first saw the dead-body but no such woman has been produced as a witness. Investigating Officer Janesh Singh Tanwar (PW-8) in cross-examination, has stated that when he reached the place of incident, he did not find anyone present there. Neither was any wood-cutter nor was garbage collector present there. The Investigating Officer did not even mention about the presence of Bhagwan Sahai (PW-3). The Investigating Officer has admitted that before they reached the place of incident, there was movement of villagers who used to carry milk, vegetables and sands, this being a 'pucca' main road connecting the village. Neither was any wood-cutter nor was garbage collector present there. The Investigating Officer did not even mention about the presence of Bhagwan Sahai (PW-3). The Investigating Officer has admitted that before they reached the place of incident, there was movement of villagers who used to carry milk, vegetables and sands, this being a 'pucca' main road connecting the village. If the incident has actually taken place in the manner it is alleged to have taken place, there was no reason why there would no single independent witness. Besides, the Investigating Officer has shown recovery of not only used cartridges but also unused cartridges. It cannot be believed in natural human conduct that accused would leave live cartridges also at the place of occurrence. In this regard, the argument of the defence is that some used and unused cartridges were planted around the body of deceased. The Investigating Officer has admitted the fact of enmity between the parties. The Investigating Officer has also admitted that deceased Laxman was accused in the case for offence under Section 302 IPC. When he was released on parole, he absconded. He also admitted that criminal cases were registered by both the parties against each other. It would be therefore highly unsafe to sustain conviction of the appellants only on the testimony of Ram Karan (PW-1) and Bhagwan Sahai (PW-3), which is found wanting in corroboration. 23. As regards Ramkaran (PW-3 in Appeal of accused Rohtash), it may be noticed that he has stated that a Marshal Jeep was parked in the middle of the road due to which the tractor on which this witness and his brothers Bhagwan Sahai and Laxman were travelling, had to be stopped. Suddenly all accused Rohtash, Meharchand, Ratti, Rajesh, Kamal, Hariram, Rajkapoor, Daya, Ram Singh, came out of Marshal Jeep and Laxman, who was sitting on the mudguard of the tractor, was pulled down by the accused Rajkapoor, Hariram, Daya and Ramsingh. Rohtash fired at his head. Meharchand also fired at his chest. Thereafter Ratti fired at his hand. Rajesh fired at his knee. Then Kamal fired at the back of Laxman. Accused persons then ran away towards Vijay Mandir and while going they threatened this witness that the complainant-party must compromise with the accused or else he would also face the same fate. Meharchand also fired at his chest. Thereafter Ratti fired at his hand. Rajesh fired at his knee. Then Kamal fired at the back of Laxman. Accused persons then ran away towards Vijay Mandir and while going they threatened this witness that the complainant-party must compromise with the accused or else he would also face the same fate. While in the earlier trial, it was stated by Ram Karan (PW-3) that deceased Laxman was on bail in the appeal against his conviction for murder of Dev Narain, but in subsequent trial of Rohtash, he has stated that deceased Laxman was acquitted subsequently by the High Court in the appeal so filed. The whole incident took place within fifteen minutes during which time no one passed by. It is alleged that Rohtash, Meharchand, Rajesh, Ratti and Kamal opened fire, while other witnesses were standing at a distance. In cross-examination, this witness Ram Karan (PW-3) stated that when he and Laxman were coming on tractor, accused Rohtash did not see them. Here he has excluded presence of Bhagwan Sahai, who has expired. As rightly argued by the defence, statement of Bhagwan Sahai cannot be read in evidence in the trial of accused Rohtash because neither has he been produced nor his statement was got exhibited by the prosecution. 24. Recovery of 'katta' vide Exhibit P-4 at the instance of Rohtash was made after six years of the date of incident. The incident took place on 07.05.2002, and the accused Rohtash was arrested on 21.07.2008. Thus recovery vide Exhibit P-14 was made much belatedly on 04.11.2008. Out of the witnesses of recovery, only Kashiram (PW-4) has been produced and Omprakash has not been produced. They were police constables and no independent witness was produced. Recovery thus become doubtful particularly when recovery of 'katta' has been shown six years after the date of incident from the house of the accused Rohtash. It cannot be believed in the normal human conduct that the accused would be keeping 'katta' in his house for so long, when all this time he is on run and police was chasing him. Besides, the seized 'katta' was though sent to Forensic Science Laboratory but there is no report to connect the same with the crime. The recovered katta could not be connected with the used and unused cartridges recovered from the place of incident. 25. Besides, the seized 'katta' was though sent to Forensic Science Laboratory but there is no report to connect the same with the crime. The recovered katta could not be connected with the used and unused cartridges recovered from the place of incident. 25. Adverting now to the statement of Dr. Ravi Mathur (PW-7), we are inclined to accept the argument of learned Public Prosecutor that the statement of this witness that rigor mortis starts from leg and goes upto the face and it takes 6-7 hours to completely establish the rigor mortis on the whole of the body, does not appear to be well founded according to widely accepted authority on the subject, namely, Modi's Textbook of Medical Jurisprudence and Toxicology (Twenty-first Edition), at p.171, wherein it is stated: "Rigor mortis generally occurs, whilst the body is cooling ..... Owing to the setting in of rigor mortis all the muscles of the body become stiff, hard, opaque and contracted, but they do not alter the position of body or limb ........ Regor mortis first appears in the involuntary muscles, and then in the voluntary ........ In the voluntary muscles rigor mortis follows a definite course. It first occurs in the muscles of the eyelids, next in the muscles of the back of the neck and lower jaw, then in those of the front of the neck, face, chest and upper extremities, and lastly extends downwards to the muscles of the abdomen and lower extremities. last to be affected are the small muscles of the fingers and toes. It passes off in the same sequence ..... Time of onset :- This varies greatly in different cases, but the average period of its onset may be regarded as three to six hours after death in temperate climates, and it may take two to three hours to develop. In India, it usually commences in one to two hours after death. Duration :- In temperate regions, rigor mortis usually lasts for two to three days. In Northern India, the usual duration of rigor mortis is twenty-four to forty-eight hours in winter and eighteen to thirty-six hours in summer. According to the investigations of Mackenzie, in Calcutta the average duration is nineteen hours and twelve minutes, the shortest period being three hours, and the longest forty hours ...... In Northern India, the usual duration of rigor mortis is twenty-four to forty-eight hours in winter and eighteen to thirty-six hours in summer. According to the investigations of Mackenzie, in Calcutta the average duration is nineteen hours and twelve minutes, the shortest period being three hours, and the longest forty hours ...... In general, rigor moris sets in 1 to 2 hours after death is well developed from head to foot in about 12 hours, is maintained for about 12 hours and passes off in about 12 hours. If on examination the body is stiff, the head cannot be fixed towards the chest then in all probability the death might have occurred 6-12 hours or more before the time of examination." 26. The Supreme Court in Baso Prasad v. State of Bihar, (2006) 13 SCC 65 , after taking note of Modi's Textbook of Medical Jurisprudence and Toxicology (Twenty-first Edition) and Parikh's Textbook of Medical Jurisprudence, Forensic Medicine and Toxicology, held that the exact time of death cannot be established scientifically and precisely, only because of presence of rigor mortis or in the absence of it. 27. We may in this connection usefully refer to judgment of the Supreme Court in Mangu Khan and Others v. State of Rajasthan, (2005) 10 SCC 374 . The Supreme Court held therein that the contention urged by reference to textbooks on forensic medicine to show the time within which rigor mortis develops all over the body, has no factual basis. It depends on various factors such as constitution of the deceased, season of the year, the temperature in the region and the conditions under which the body has been preserved. It was held that the age, muscular condition and activity before death, manner of death and atmospheric conditions are relevant factors. In that case also, it was held that opinion of an expert, therefore, is a relevant fact. The court may, thus, take the expert opinion into consideration. But appreciation of evidence is the court's job. It is for the court to arrive at an opinion as to which part of contradictory expert opinion should be accepted or whether in a given situation ocular evidence should be believed in preference to medical evidence or vice versa. 28. In view of this, we are not inclined to accept the opinion of the medical officer Dr. It is for the court to arrive at an opinion as to which part of contradictory expert opinion should be accepted or whether in a given situation ocular evidence should be believed in preference to medical evidence or vice versa. 28. In view of this, we are not inclined to accept the opinion of the medical officer Dr. Ravi Mathur (PW-7) expressed by him in the statement before the court regarding presence of rigor mortis, more particularly when in the postmortem report he did not indicate the duration of death within last 5-7 hours, although, he examined the dead-body between 10.30 AM and 11.30 AM and rather indicated duration of death within preceding twenty four hours. Besides, in the postmortem report, it was also mentioned that rigor mortis was present all over the dead-body and postmortem staining was present at the back. 29. According to the medical jurisprudence afore-noted, in Northern India, the usual duration of rigor mortis is twenty-four to forty-eight hours in winter and eighteen to thirty-six hours in summer. In the present case, the incident took place in the month of May, 2002 and therefore we are inclined to believe that it would take, if not the lower or the upper time limit indicated therein, at-least time in between the two. In general, rigor moris sets in 1 to 2 hours after death and is well developed from head to foot in about 12 hours, and is maintained for about 12 hours and passes off in about 12 hours. If on examination the body is stiff, the head cannot be fixed towards the chest, then in all probability, the death might have occurred 6-12 hours or more before the examination. In view, therefore, of the fact that the rigor mortis was found on all over the body and staining was present on the back and depended parts, mouth was open and that the stomach of the deceased had semi-digested food and he had not fully passed the stool, evidence makes the case of the defence more probable that the death must have taken place sometime in the mid night of the previous day, which is also the logical conclusion from the statement of Ram Karan (PW-1) and Bhagwan Sahai (PW-3), who have stated that the deceased did not have the food in the morning because he was observing fast. 30. 30. Reference in this connection may also be made to the judgment of the Supreme Court in Ram Narain v. State of Punjab, AIR 1975 SC 1727 , wherein it was claimed by the witness (who accompanied the deceased) before the court that they had taken food at village Phaphre Bhaike about an hour before the occurrence. But this statement was completely belied by the medical evidence which showed that undigested food was found in the stomach of the deceased and according to the statement of the doctor the deceased must have had his food at 8.00 PM. Prosecution claimed that the informant left for Police Station to lodge the F.I.R. at 8.00 PM. According to the prosecution evidence, however, the court accepted that the deceased must have had his food at 8.00 PM, which is the usual time when the villagers take the food. Similarly, in this case there is indeed a strong contra-indication in the postmortem report because in Column 4 of Section IV relating to abdomen, it was mentioned that the stomach of the deceased was containing semi-digested food and in Columns 5 & 6 thereof it was mentioned that the deceased had not yet fully passed the stool. Dr. Ravi Mathur (PW-7) has also proved this fact in his court statement. 31. It is trite that accused is presumed to be innocent until he is found guilty. The burden of proof that he is guilty is on the prosecution. The prosecution has to establish its case beyond all reasonable doubt. Innocence of the accused can be dispelled by the prosecution on establishing his guilt beyond all reasonable doubt by producing legal evidence. In the present case, Ram Karan (PW-1) and Bhagwan Sahai (PW-3) both cannot be accepted as eye witnesses because their version that as many as nine number of accused stopped the tractor on which they were going to the court on way and all of them alighted from a Marshal Jeep. All of them were armed with country-made-guns. They pulled down Laxman and one after another, five of them fired at him precisely indicating the parts of the body which finds corroboration from the postmortem report from the description of the injuries in the postmortem report. All of them were armed with country-made-guns. They pulled down Laxman and one after another, five of them fired at him precisely indicating the parts of the body which finds corroboration from the postmortem report from the description of the injuries in the postmortem report. It is quite surprising that if there were as many as nine accused and all were armed with guns, they would attack the deceased only and his two brothers travelling with him would be left untouched. What is more suspicious is that two brothers did not make any attempt to save their brother. Conduct of these witnesses is highly unnatural. If actually the accused and complainant had animosity of high degree and nine accused, all having guns, would attack them, they would single out only one brother and would not cause any harm to other two brothers, is difficult to swallow. In the facts of the case, therefore, we are inclined to hold that it was a blind murder and that evidence of Ram Karan (PW-1) and Bhagwan Sahai (PW-3) cannot be relied to sustain conviction of the appellants for want of corroboration. 32. In the light of the view that we have taken of the matter, these appeals deserve to succeed and are accordingly allowed. The appellants in both the appeals are acquitted of all the charges. Their conviction is set aside. They be set at liberty forthwith, if their detention is not required in any other case. 33. Keeping, however, in view the provisions of Section 437-A of the Code of Criminal Procedure, the appellants are directed to forthwith furnish a personal bond in the sum of Rs. 20,000/- each, and a surety bond in the like amount, before the Deputy Registrar (Judicial) of this Court, which shall be effective for a period of six months. In the event of filing of Special Leave Petition against this judgment or on grant of leave, the appellants, on receipt of notice thereof, shall appear before the Supreme Court.Appeals allowed. *******