JUDGMENT As these appeals arise out of the same judgment and order dated 12-12-2008 passed by Additional Sessions Judge, Raipur in Sessions Trial No. 211/2007 they are disposed of by this common judgment. 2. By the judgment impugned accused/appellants Irfan Niyazi and Mohd. Sajjad have been convicted under Sections 147, 148, 452, 302/149, IPC and 25 and 27 of the Arms Act and sentenced to undergo RI for six months with fine of Rs. 500 u/Ss. 147 & 148 on each count, RI for one year with fine of Rs. 500 u/S. 452, imprisonment for life with fine of Rs. 2000 u/S. 302/149 and RI for three years with fine of Rs. 500 under the Arms Act, with default stipulations. Accused/appellants Mohd. Irfan, Mohd. Nawaz and Mohd. Imran have been convicted under Sections 147, 148, 452 and 302/149, IPC and sentenced to undergo RI for six months with fine of Rs. 500 u/Ss. 147 & 148 on each count, RI for one year with fine of Rs. 500 u/S. 452 and imprisonment for life with fine of Rs. 2000 u/S. 302/149, IPC. 3. Facts of the case in brief are that on 19-5-2007 at about 9.00 p.m. FIR Ex. P-15 was lodged by Rukshana Bano (P. W.7) alleging that on that day at about 8.30 p.m. when she was in the kitchen of her house and her husband Jahir was on the roof top, deceased Raees Ahmed came to her house running and tried to close the outer door. It is alleged that Raees had informed her that Ishaan (juvenile), Imran, Irfan son of Kadar, Sajjad, Mohd. Nawaz and Irfan son of Sultan were chasing him in order to attack. It is alleged that immediately thereafter all the accused persons entered her house accused Ishaan and Sajjad were carrying knife, accused Imran and others were carrying lathi with them and started beating the deceased. Thereafter the deceased was pulled out by the accused persons who as a result of severe beating fell down and then the accused persons left the spot. It is further alleged that corporator of the area namely Nafeesha Begum, Ashraf, her husband Jahir Ahmed and the people of her locality had also seen the incident. Thereafter the victim was shifted to the hospital and the report was lodged. It is further alleged that corporator of the area namely Nafeesha Begum, Ashraf, her husband Jahir Ahmed and the people of her locality had also seen the incident. Thereafter the victim was shifted to the hospital and the report was lodged. Based on this FIR, offences under Sections 302, 34 and 450, IPC were registered against Ishaan (juvenile), Irfan, Imran, Sajjad, Mohd. Nawaz and Irfan son of Sultan and thereafter merg intimation Ex. P-16 was recorded by the police. Post-mortem examination on the body of the deceased was conducted by Dr. Shivnarayan Manji (P.W. 8) on 20-5-2007 vide Ex. P-17 and according to him the cause of death was haemorrhage and shock as a result of multiple injuries on his body including the stab injury on chest. After investigation, charge-sheet was filed by the police on 17-8-2007 against six accused persons. 4. In support of its case the prosecution has examined 11 witnesses. Statements of the accused/appellants were also recorded under Section 313 of the Code of Criminal Procedure in which they denied the charges levelled against them and pleaded their innocence and false implication in the case. 5. By the judgment impugned the Court below acquitted the accused namely Mohd. Kadar of the charges levelled against him but has convicted and sentenced the accused/appellants herein as mentioned in paragraph No. 1 of this judgment. Hence this appeal. 6. Heard counsel for the parties and perused the material available on record. 7. It has been argued by Shri Y. C. Sharma, Advocate appearing for accused/appellants Irfan Niyazi and Mohd. Nawaz that there is no evidence on record to show as to what was recorded first the FIR or the merg intimation. He submits that accused Nos. 1 and 3 have been falsely implicated by Rukhsana Bano (P.W. 7) as her son was accused in a case where he was beaten by the deceased herein and his cousins Munir, Mujeeb and Jameel. He submits that even the statement of Abdul Munir Ahmed (P.W. 4) is not reliable. He further submits that according to Rukhsana Bano (P.W. 7) the deceased was first beaten inside the house but no blood was found there which falsifies the entire prosecution case including the credibility of P.W. 7. According to him, similar is the position with Abdul Munir Ahmed (P.W. 4) where he has not fully supported the prosecution case. He further submits that according to Rukhsana Bano (P.W. 7) the deceased was first beaten inside the house but no blood was found there which falsifies the entire prosecution case including the credibility of P.W. 7. According to him, similar is the position with Abdul Munir Ahmed (P.W. 4) where he has not fully supported the prosecution case. According to Shri Y.C. Sharma, Rukhsana Bano (P.W. 7) has exaggerated her version while deposing in the Court and stated the things which are contrary to FIR and the statement recorded under Section 161, Cr. P.C. and therefore the same cannot be relied upon. Shri Manish Sharma, counsel for accused/appellant Mohd. Imran has argued that Rukhsana Bano (P.W. 7) was having inimical relations with this accused and therefore has implicated him in a false case. He submits that though as per FIR, Jahir and Nageesha were also the eye-witnesses to the incident but the case diary statement of Jahir has not been recorded. He submits that though 161, Cr. P.C. statement of Nafeesha was recorded. The prosecution has not examined her in the Court which creates a doubt leading to adverse inference to be drawn against the prosecution. He submits that according to the case of prosecution, accused Mohd. Imran was having lathi and used the same but no such corresponding injury was found in the medical report of the deceased. He submits that a very improbable story has been put forth by Rukhsana Bano (P.W. 7) that the accused persons assaulted the deceased by exchanging the weapons from each other. Shri B. P. Sharma, counsel for accused/appellant No. 4 Mohd. Irfan submits that mandatory provisions of Section 157, Cr. P.C. have not been complied with by the prosecution as the incident took place on 19-5-2007 whereas copy of the report was received by the Magistrate on 22-5-2007 vide Ex. P-22 which clearly shows that FIR is ante dated and the entire case of the prosecution is a cooked up one. He submits that in this case the Court below has not declared Abdul Munir Ahmed (P.W. 45) hostile nor any permission was sought for by the prosecution to this effect. Thus according to Shri B. P. Sharma, Advocate, in these circumstances the prosecution cannot take the advantage of the fact that statement of Abdul Munir Ahmed (P.W. 4) under Section 161, Cr. Thus according to Shri B. P. Sharma, Advocate, in these circumstances the prosecution cannot take the advantage of the fact that statement of Abdul Munir Ahmed (P.W. 4) under Section 161, Cr. P.C. was recorded after 16 days and on this basis his presence on the spot cannot be doubted. In respect of accused Mohd. Sajjad, it has been argued by Shri Pawan Kesarwani, Advocate that neither he was residing in the said locality nor he was seen there by anyone and therefore it is established that he has been falsely implicated in the case in hand. To substantiate this argument, he referred to the statements of Israil Ahmed (P.W. 1) and Mukti Tirkey (P.W. 11). He submits that statement of Abdul Munir Ahmed (P.W. 4) is more reliable where he has categorically stated that 15-20 stab injuries were caused to the deceased which have also been proved from the medical report where almost similar number of injuries have been noticed by the doctor. He submits that according to the case of the prosecution accused/appellants Mohd. Nawaz, Mohd. Irfan and Mohd. Imran were carrying clubs in their hands but there is no corresponding injury found on the body of the deceased and thus the medical evidence also does not support the case of the prosecution as regards presence of aforementioned three accused namely Mohd. Nawaz, Mohd. Irfan and Mohd. Imran. He further submits that Abdul Munir Ahmed (P.W. 4) has not been declared hostile and therefore the defence can always use his statement. 8. On the other hand, counsel for the respondent/State supports the judgment impugned and submits that provisions of Sections 157 of the Code of Criminal Procedure has been duly complied with by the prosecution and that the FIR is not an ante dated one because immediately after the incident crime number has been shown in the FIR and likewise while completing the other formalities like sending the body for post-mortem examination, preparing the spot map etc. in all the documents to this effect crime number has been mentioned by the prosecution. He submits that information to the Magistrate was sent on 19-5-2007 but if the same has been received on 22-5-2007, accused/appellants cannot get any benefit of the same. in all the documents to this effect crime number has been mentioned by the prosecution. He submits that information to the Magistrate was sent on 19-5-2007 but if the same has been received on 22-5-2007, accused/appellants cannot get any benefit of the same. State counsel further submits that case diary statements of number of other witnesses were also recorded on 19-5-2007 itself and the investigating officer has also stated that on 19-5-2007 FIR was sent to the Magistrate. According to the State counsel, on or around 22-5-2007 regular Court was on leave and therefore the possibility that the same was received by some other Court on 22-5-2007 could not be ruled out. He submits that defence cannot use the statement of Abdul Munir Ahmed (P.W. 4) because he has not been declared hostile and the finding recorded to this effect by the trial Court has not been challenged by the defence before this Court. He further submits that Abdul Munir Ahmed (P.W. 4) is not a trustworthy witness whereas Rukhsana Bano (P.W. 7) is a fully reliable witness and therefore her statement is to be accepted in toto despite the fact that at one place she might have exaggerated her version that accused/appellants assaulted the deceased by exchanging the weapons from each other. He submits that the blood was not found inside the house of Rukhsana Bano (P.W. 7) as inside her house no knife injury was caused by any of the accused and it was caused after dragging him out and therefore the question of presence of blood inside the house does not arise. To substantiate this argument, State counsel referred to the statement of Rukhsana Bano (P.W. 7). In respect of argument of the defence that number of witnesses either have not been cited as witnesses and if their statements under Section 161, Cr. P.C. have been recorded, they have not been brought in the Court. State counsel submits that it is the prerogative of the prosecution as to who has to be examined in the Court and whose statement should be recorded by the police under Section 161, Cr. P.C. State counsel further submits that Rukhsana Bano (P.W. 7) is not inimical to anyone and therefore also her entire statement is wholly trustworthy. State counsel submits that it is the prerogative of the prosecution as to who has to be examined in the Court and whose statement should be recorded by the police under Section 161, Cr. P.C. State counsel further submits that Rukhsana Bano (P.W. 7) is not inimical to anyone and therefore also her entire statement is wholly trustworthy. According to the State counsel as the presence of all the accused persons on the spot is not disputed, they are liable to be convicted for commission of murder of the deceased, with the aid of Section 149, Cr. P.C. He submits that incident took place on 19-5-2007 (Saturday) at about 8.45 p.m. and the following day thereto was Sunday, the report reached the Magistrate on 22-5-2007 (Tursday) and as the presiding officer was on summer vacation, Mukti Tirkey (P.W. 11) has also stated that he sent the report on 19-5-2007 itself and in such a situation it cannot be said that there was delay in sending the report to the concerned Magistrate. 9. In this case when the Court statements of most of the witnesses were to be recorded, accused/appellants were not produced before the Court and therefore the same were recorded through video conferencing. Rukhsana Bano (P.W. 7) lodger of the FIR Ex. P.15 and one of the eye-witnesses to the incident while supporting the case of the prosecution has stated that she knew all the accused persons by face who were being displayed on TV screen as they were residents of her locality. She also knew deceased Raees Ahmed as he too was residing in her locality. On 19-5-2007 at 8.30 p.m. when she was in the kitchen of her house situated at Sanjay Nagar, Raipur, deceased came to her house running and when he was about to close the outer door, she asked him as to why he was doing so. On this, deceased told her that sons of Kadar namely Imran, Irfan, Ishaan and their friends namely Md. Navaz, Sajjad and Irfan were chasing him in order to attack. According to this witness, by that time all the aforesaid accused persons also came near her house and started hurling abuses and throwing stones at her door. On this, deceased told her that sons of Kadar namely Imran, Irfan, Ishaan and their friends namely Md. Navaz, Sajjad and Irfan were chasing him in order to attack. According to this witness, by that time all the aforesaid accused persons also came near her house and started hurling abuses and throwing stones at her door. This witness has further stated that she saw accused Irfan entering her house by jumping over the boundary wall and opening the gate because of which other five accused persons also gained an entry to her house who were carrying club, knife, stick and hockey sticks. She has clarified that accused Irfan son of Kadar and accused Sajjad were carrying knives, accused Imran was carrying hockey stick, accused Md. Nawaz and Irfan son of Sultan were carrying clubs in their hands. According to her, all the five accused persons assaulted the deceased inside her house and then after dragging him out to the road they again assaulted him with knives, hockey stick and clubs by exchanging the same from each other. Since the accused persons were carrying weapons with them, at the time of incident she did not intervene the matter but when they took the deceased out by dragging, she came out and raised an alarm but nobody turned up to intervene in the matter. She has further stated that though the deceased was carying for help, all the five accused persons being displayed on TV screen kept on beating him brutally. As a result of being brutally assaulted by the six accused persons, the deceased fell down and was bledding profusely. According to this witness, at the time of assault she had not seen accused Kadar on the spot. This witness has further stated that incident was also witnessed by Corporator of her ward namely Nafeesha Hasmi and thereafter she along with her went to the police station and reported the matter vide Ex.P.15. This witness has stated that before she went to the police station to lodge the report, people of her locality had shifted the victim to Sanjivani Hospital. According to her, after making investigation the police informed her that the victim was no more. This witness has stated that before she went to the police station to lodge the report, people of her locality had shifted the victim to Sanjivani Hospital. According to her, after making investigation the police informed her that the victim was no more. She has stated that on 26-1-2007 there was some quarrel between the deceased and the sons of accused Kadar in which sons of Kadar had received injuries and in connection with the said incident deceased, his cousin Munir Ahmed, Mujib Ahmed and Jamir Ahmed were kept in jail for two-three days. According to this witness, in connection with that very incident the deceased, his associates and she herself had begged pardon from acquitted accused Kadar but turning down the request of pardon he (Kadar) had made an utterance that he would take a revenge. She has stated that Nazari Naksa Ex. P.1 was prepared by the police and the same was signed by her. In paragraph 6 this witness has clarified that when the victim was assaulted inside her house it is only she who saw the incident as at the relevant time her husband was on the roof top and that the voice raised inside her house could not be heard by a person on the roof top. In cross-examination, this witness has stated that accused persons had assaulted the deceased inside her house for 2-3 minutes. She has stated that she did not count the knife blows dealt on the deceased by the accused persons were assaulting him abruptly like animal. She has stated that inside her house the accused persons had dealt 30-40 blows to the deceased with hockey stick and club but just thereafter she stated that she did not count the blows. She has further stated that at the time of assault except her and the deceased nobody else was there is her house but immediately thereafter she has stated that her husband was also there on the roof top of her house but in spite of the cries, he did not get down. Thereafter she has stated that the cries raised inside her house could not be heard on the roof top where her husband was present. This witness has further stated that after the accused persons had entered her house, she did not come out to call the people of neighbourhood. Thereafter she has stated that the cries raised inside her house could not be heard on the roof top where her husband was present. This witness has further stated that after the accused persons had entered her house, she did not come out to call the people of neighbourhood. Accused persons had taken the deceased about 8-9 feet from her boundary wall by dragging and even after taking him out they dealt frequent knife blows to him which she did not count. She has further clarified that as the accused persons were inflicting abrupt blows, she was not a position to count the same. She has admitted that in the same manner the accused persons had attacked the deceased with hockey stick and clubs and therefore she could not count the same. In paragraph 8 of her deposition she has stated that from inside her house up to the road where the deceased was dragged out by the accused persons and subjected to beating, there was a trail of blood and the people of neighborhood, 100-150 in number had gathered there. In paragraph 9 she has clarified that FIR Ex. P-15 was recorded first followed by merg intimation Ex. P-16. There appears to be certain contradictions and omissions in paragraph No. 13 of her deposition regarding presence of blood inside her house. This witness has categorically denied that when the incident had taken place, she was not in her house and had gone to the market. Abdul Munir Ahmed (P.W. 4) another eye-witness to the incident has stated that on the date of incident when he was going to the house of his friend Jameel Ahmed, on the road the deceased came across him on a motor cycle who was being followed by acquitted accused Kadar and his sons Irfan and Ishaan who too were bike-borne. In one bike accused Irfan and Ishaan were there whereas in the other acquitted accused Kadar was there. On seeing that acquitted accused Kadar, Irfan and Ishaan were chasing him, the deceased parked his bike near the house of Jameel Ahmed and gained an entry to his house. Thereafter the aforesaid three persons also parked their bikes near the house of Jameel Ahmed and Irfan and Ishaan entered his house by jumping over the boundary wall whereas acquitted accused Kadar was standing outside. Thereafter the aforesaid three persons also parked their bikes near the house of Jameel Ahmed and Irfan and Ishaan entered his house by jumping over the boundary wall whereas acquitted accused Kadar was standing outside. Subsequently Irfan and Ishaan dragged out the deceased beating and at that time acquitted accused Kadar exhorted saying maaro maaro, jaan se maaro, chhodna mat, jo bhi beech me aayega use bhi maaro. He has further stated that accused Irfan and Ishaan had caused 15-20 knife blows to the deceased as a result of which he had fallen down and was bleeding profusely and then all those three persons fled away. He has stated that as the accused persons were having knife, on account of fear he did not intervene in the matter. He has stated that out of the persons displayed on TV screen, accused Sajjad, Nawaz, Irfan son of Sultan and Imran were not present on the spot and it is Kadar and Irfan who were involved in the incident. After accused Kadar, Irfan and Ishaan left the spot, he, his brother and friend took the deceased to Sanjeevani Hospital in an auto and sometime thereafter he was informed that the victim was dead. In paragraph 10 this witness has stated that at the time of recording of her case diary statement she had disclosed the names of Kadar, Irfan and Ishaan to the police but how the names of others have been recorded he was not aware of. He has further clarified that he had not make any disclosure to the police that apart from aforesaid three persons, others had also assaulted the deceased with knife. In paragraph 12 he has admitted that as one day prior to the date of incident accused Ishaan had caused a blade injury to him, he was having vengeance against him. On a specific question being put to him by the Court whether he informed the police about accused Sajjad, Irfan son of Sultan, Nawaz and Imran also as the assailants, he has categorically denied the same. Israel Ahmed (P.W. 1) is the witness to Nazari Naksa Ex. P-1, inquest notice Ex. P-2, inquest Ex. P-3, handing over the body after post-mortem on supurdginama Ex. P-4 and seizure memo Ex. P-5 who has duly supported the prosecution case. Santosh Tripathi (P.W. 2) is the Patwari who prepared the spot map (Ex. P-10). Dr. Israel Ahmed (P.W. 1) is the witness to Nazari Naksa Ex. P-1, inquest notice Ex. P-2, inquest Ex. P-3, handing over the body after post-mortem on supurdginama Ex. P-4 and seizure memo Ex. P-5 who has duly supported the prosecution case. Santosh Tripathi (P.W. 2) is the Patwari who prepared the spot map (Ex. P-10). Dr. Shailendra Kesarwani (P.W. 3) is the witness who had medically examined the deceased while he was brought to his clinic and gave information to the police Ex. P-11 after noticing him dead. Ramzan Khan (P.W. 5) has stated that he knew all the six accused persons by face. He is also the witness to Nazari Naksa Ex. P-1. Shri Ramnath Bhagat (P.W. 6) is the witness who recorded the memorandum of the accused persons Exs. P-11 and P-12, seizure of knife and cricket stumps made under Ex. P-14 from accused Sajjad, seizure of sword from accused Imran made under Ex. P-6 and thus assisted in the investigation. Dr. Shiv Narayan Manjhi (P.W. 8) is the witness who conducted post-mortem examination of the deceased and gave his report Ex. P-17 opining the cause of death as haemorhage and shock as a result of multiple injuries to the body (stab injury on chest). Mukti Tirkey (P.W. 11) is the Investigating Officer who has duly supported the case of the prosecution. 10. Minute examination of the evidence available on record makes it clear that on 19-5-2007 deceased Raees Ahmed was murdered after being chased by some of the accused persons outside the house of Rukshana Bano (P.W. 7). Now the question for determination by this Courts is whether there is sufficient evidence on record on the basis of which all the accused persons or only few of them are liable to be convicted? As per the report lodged by Rukhsana Bano (P.W. 7) but for the acquitted accused Kadar she has named all the accused persons. According to her, she first saw the deceased entering her house being followed by all the accused persons and then they brutally assaulted the deceased first inside her house and then he was dragged out of the house by them and assaulted there also. In her Court statement, this witness has stated that the deceased was beaten inside and outside her house. Thus according to this witness, all the accused persons committed the murder of the deceased. In her Court statement, this witness has stated that the deceased was beaten inside and outside her house. Thus according to this witness, all the accused persons committed the murder of the deceased. If FIR lodged by this witness is considered, she has stated therein that at the time of incident her husband Jahir Ahmed was also in the house and he too had seen the incident along with Corporator Nafeesha Begum, Asraf and other members of her vicinity but surprisingly no such witness has been examined by the prosecution. In normal course, as these three witnesses and number of other persons of the vicinity had seen the incident, at least some of them should have been examined by the prosecution. Further, as per the statement of this witness, the accused persons were assaulting the deceased by exchanging the weapons from each other and they also caused several injuries with club. She has stated that number of stab injuries were caused to the deceased one after the other by exchanging the weapons. Here it appears that she has exaggerated her version in the Court. Normally, in such incident which has taken place within few minutes, saying that accused persons assaulted the deceased one after the other by exchanging weapons from each other appears to be highly improbable and this suspicion gets strengthened with the fact that according to this witness number of club injuries were also caused by the accused persons whereas as per the medical/post-mortem report Ex. P-17 no such club injury was noticed on his body. Statement of this witness to the extent of implicating all the accused persons further becomes doubtful where she has stated that the victim was brutally beaten inside her house and several stab injuries were caused to him like an animal because no blood stains were found inside her house. If a person was beaten as has been stated by this witness presence of blood must be there. Another important aspect of this case is that on 26-1-2007 there was some quarrel between deceased Raees Ahmed and sons of acquitted accused Kadar in which son of this witness was also involved and that being so possibility of exaggeration by this witness cannot be ruled out. Another important aspect of this case is that on 26-1-2007 there was some quarrel between deceased Raees Ahmed and sons of acquitted accused Kadar in which son of this witness was also involved and that being so possibility of exaggeration by this witness cannot be ruled out. The other eye-witness to the incident namely Abdul Munir Ahmed (P.W. 4) though has been disbelieved by the trial Court, the fact remains that he was not declared hostile and the defence has every right to use his evidence in support of its case. According to this witness he merely saw accused/appellant No. 1 Irfan Niyazi and Ishaan (juvenile) son of acquitted accused Kadar, taking out the deceased from the house of Jameel Ahmed and then brutally assaulting him. At various places this witness has categorically stated that but for acquitted accused Kadar and his two sons Irfan and Ishaan no other accused was present on the spot and it is only these three persons who had brutally beaten the deceased and committed his murder. He has stated that deceased was beaten by two sons of Kadar who had caused 15-20 stab injuries which also tally from the post-mortem report where like number of injuries were shown to have been caused on the body of the deceased. Abdul Munir Ahmed (P.W. 4) has no where stated that other accused persons were also present on the spot and assaulted the deceased with club. True it is that case diary statement of this witness was recorded 10-15 days after the incident but he has stated that number of times he went to police station but his statement was not recorded by the police. During cross-examination a specific question was put to this witness by the Court that he had also informed the police the names of Sajjad, Irfan son of Sultan, Nawaz and Imran as the assailants, to which he has replied that he had not named these four persons as assailants. This witness is cousin of the deceased and there is no reason to disbelieve him just because he has not named accused Mohd. Sajjad, Mohd. Nawaz, Mohd. Irfan and Mohd. Imran. Even in his case diary statement Ex. D-1, he has not named the other accused persons. 11. This witness is cousin of the deceased and there is no reason to disbelieve him just because he has not named accused Mohd. Sajjad, Mohd. Nawaz, Mohd. Irfan and Mohd. Imran. Even in his case diary statement Ex. D-1, he has not named the other accused persons. 11. Having perused the statements of Rukhsana Bano (P.W. 7) and Abdul Munir Ahmed (P.W.4) as also the other evidence on record including the medical report showing that no club injury was noticed by the doctor, we are of the considered opinion that the statement made by Rukhsana Bano (P.W. 7) is replete of exaggerations and merely based thereon it will not be safe for this Court to convict all the accused persons. However, keeping in view the evidence of Abdul Munir Ahmed (P.W. 4) who appears to be more reliable than Rukhsana Bano (P.W. 7) and the same is duly supported by the medical report wherein it is stated that 15-20 stab injuries were found by the doctor conducting post-mortem examination on the body of the deceased, this Court is further of the considered opinion that the evidence of this witness is fully consistent and trustworthy. We find no force in the argument of the counsel for the appellants that mandatory provisions of Section 157, Cr. P.C. have not been complied with by the prosecution because the incident had taken place on 19-5-2007 whereas copy of the report was received by the Magistrate on 22-5-2007 vide Ex. P-22. From the record it is apparent that immediately after the incident, crime number has been shown in the FIR and likewise while completing the other legal formalities like sending the body for post-mortem examination, preparing the spot map etc. in all the documents to this effect crime number has been mentioned by the prosecution. Record further makes it clear that case diary statements of number of witnesses were also recorded on 19-5-2007 itself and in his Court statement the investigating officer has also stated that on 19-5-2007 itself the FIR was sent to the Magistrate. Record further goes to show that on 22-5-2007 regular Court was on leave and therefore possibility of the report being received by some other Court on that day cannot be ruled out. Moreover, in cross-examination, no specific question to this effect was put to the witnesses. Record further goes to show that on 22-5-2007 regular Court was on leave and therefore possibility of the report being received by some other Court on that day cannot be ruled out. Moreover, in cross-examination, no specific question to this effect was put to the witnesses. That apart, even assuming that copy of the report was not sent to the Magistrate in time, entire case of the prosecution will not fail because from the other evidence available on record it is crystal clear that a brutal murder had taken place in which number of accused persons are said to have been involved. Merely on the ground of not sending the copy of the report to the Magistrate promptly, entire case of the prosecution cannot be disbelieved especially when there is other evidence on record to substantiate the same. Further, considering the material available on record we find no force in the argument of the counsel for the appellants that FIR is ante dated. This Court also finds no force in the argument of the State counsel that the defence cannot use the statement of Abdul Munir Ahmed (P.W. 4) as he has not been declared hostile nor the finding recorded by the Court below about this witness has been challenged by the defence before this Court. Even if a witness has not been declared hostile but he speaks anything in favour of any accused, the defence has every right to use the statement of such witness in support of its case. 12. Thus in the conclusion, Criminal Appeal No. 32/2009 filed by accused/appellants Mohd. Nawaj and Mohd. Imran, Criminal Appeal No. 47/2009 filed by accused/appellant Mohd. Irfan and Criminal Appeal No. 621/2009 filed by accused/appellant Mohd. Sajjad are allowed and they are acquitted of all the charges levelled against them. As regards accused Irfan Niyazi, since Abdul Munir Ahmed (P.W. 4) has made categorical allegation against him, he is convicted under Sections 302/34, IPC and 25 & 27, Arms Act. He however is acquitted of the other charges levelled against him. Criminal Appeal No. 139/2009 filed by accused/appellant Irfan Niyazi is thus allowed in part. 13. All the accused/appellants namely Mohd. Nawaj, Mohd. Imran, Mohd. Irfan and Mohd. Sajjad are in jail. They be set free forthwith if not required in any other case. He however is acquitted of the other charges levelled against him. Criminal Appeal No. 139/2009 filed by accused/appellant Irfan Niyazi is thus allowed in part. 13. All the accused/appellants namely Mohd. Nawaj, Mohd. Imran, Mohd. Irfan and Mohd. Sajjad are in jail. They be set free forthwith if not required in any other case. Since accused/appellant Irfan Niyazi’s conviction under sections 302/34, IPC and 25 & 27, Arms Act is maintained and he is already in jail, no order regarding his surrender etc. is required to be passed. Order accordingly.