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2013 DIGILAW 442 (JK)

Mohd. Maqbool & Ors. v. State of J&K

2013-08-01

BANSI LAL BHAT, VIRENDER SINGH

body2013
Per Bansi Lal Bhat, J:- Appeal at hand has been given priority for its final consideration over other Criminal Appeals against conviction for the reason that all the four appellants-convicts are languishing in jail for the last more than thirteen (13) years. In all, five accused were booked in this case, namely Mohd. Maqbool, Sharief-ul-din, Gayas-u-din, Mohd. Maqsood all sons of Rustam Khan and one Parvez Ahmed alias Shah Nawaz son of Mohd. Maqbool. Case of Parvez Ahmed was segregated as he was found to be a Juvenile offender. 2. We have been informed that accused Parvez Ahmed already stands acquitted by the Court concerned. The present appeal is, thus, filed by four appellants (hereinafter to be referred to as accused ) after they stand convicted and sentenced for the charge of sections 302/307/449/148 RPC read with section 149 RPC vide impugned Judgment dated 17-02-2009 of learned Sessions Judge, Reasi. Accused Mohd. Maqbool, Sharief-ul-din and Gayas-u-din have also been held guilty for the commission of offence under section 7/27 Arms Act. The sentences slapped upon them are as under:- (i) Each of the accused is sentenced to imprisonment for life for commission of offence under Section 302 RPC and also to pay a fine of Rs.10, 000/- each. In default of payment of fine each of the accused would undergo a further imprisonment for two months; (ii) Each of the accused is also sentenced to imprisonment for a period of seven years for commission of offence under section 307 RPC and also a fine of Rs. 5000/- each. In case of default, each of the accused would undergo further imprisonment for one month. (iii) Each of the accused is also sentenced to an imprisonment of five years for commission of offence under section 449 RPC and also to affine of Rs.2000/- each. In default of payment of fine each of the accused would undergo a further imprisonment of two months. (iv) The accused are also sentenced to imprisonment of one year and a fine of Rs.1000/- each for commission under section 148 RPC and in default of payment of fine, each of them would undergo a further imprisonment for one month. (v) Accused Mohd. (iv) The accused are also sentenced to imprisonment of one year and a fine of Rs.1000/- each for commission under section 148 RPC and in default of payment of fine, each of them would undergo a further imprisonment for one month. (v) Accused Mohd. Maqbool, Sharief-u-din and Gayas-udin are also sentenced to imprisonment for a period of seven years each and also to affine of Rs.5000/- to be paid by each of the accused for commission of offence under section 7/27 of Arms Act. In default of payment of fine, each of the three would also suffer a further imprisonment for two months. 3. All the sentences, however, have been ordered to run concurrently. 4. Aggrieved of the conviction and sentence awarded to the four accused, they have filed the present appeal (Cr. Appeal o. 11/2009). The entire record of learned trial Court has been submitted to this Court for confirmation of life sentence in terms of section 374 CrPC. As such, Confirmation o.6/2009. 5. Prosecution case is briefly summarized as follows:- One Mohd. Rafiq is the deceased in this case (hereinafter to be referred to as deceased ). First Informant is PW Mohd. Iqbal- the real brother of the deceased, who besides being the injured, is the main witness to the alleged occurrence. The date of occurrence is 03-12-2000. The occurrence took place in village Dhanore falling within the jurisdiction of Police Post, Arnas and Police Station, Mahore (District Reasi). Time of occurrence is 1.30 pm. Mohd. Iqbal, the first informant lodged a written report exhibit EXPWM/1 with Police Post, Arnas with regard to the alleged occurrence on 04-12-2000 at 8.30 am which was forwarded to Police Station Mahore for registration of formal FIR, where it was registered on 05-12- 2000 at 4.30 pm and it reached the hands of Illaqa Magistrate on 06-12-2000 at 10 am. 6. The factual matrix of the prosecution case as unfolded by Mohd. Iqbal- the first informant in the written report, is that on 03-12-2000 at about 1.30 pm deceased had a tiff with accused Mohd. Maqbool when the former was keeping a watch on the pipe-line of water passing through his field. The deceased returned to his house and soon thereafter accused Mohd. Maqbool started crying that he was assaulted by deceased and he called his brothers (remaining accused) to bring rifles so that the deceased could be done away with. Maqbool when the former was keeping a watch on the pipe-line of water passing through his field. The deceased returned to his house and soon thereafter accused Mohd. Maqbool started crying that he was assaulted by deceased and he called his brothers (remaining accused) to bring rifles so that the deceased could be done away with. It is then alleged that, in the mean time, accused Mohd. Maqbool, Sharief-uldin, Gayas ud din, Mohd. Maqsood and Parvez Ahmad rushed to the spot and in furtherance of their common intention, caught hold of Mohd. Iqbal who had locked the deceased in a room of his house to prevent any harm to his life. Accused Parvez Ahmed then hit him (Mohd Iqbal) with an Axe on his head. Resultantly he fell down and the other accused started beating him with sticks. Thereafter they (accused) broke open the door of the room where the deceased was hiding himself. It is then alleged that accused Mohd. Maqbool fired a shot from his 12 bore gun causing death of the deceased. Accused Sharief-ul-din also fired a bullet from the door. All the accused further attacked the deceased with sharp edged weapons and in the meantime Mohd. Iqbal fell unconscious. The dead body of the deceased was shifted to Arnas Hospital and the matter was reported in Police Post Arnas initially which was subsequently sent to Police Station Mahore for registration of the formal FIR. As such, FIR No.168/2000 was registered in Police Station Mahore for the offences punishable under Sections 302/307/147/148/149 of RPC read with Section of 3/25 Arms Act. 7. Police embarked upon an investigation. During the course of investigation photographs of the dead body of deceased were taken, injury memos were prepared, and autopsy on the dead body of deceased was conducted at Arnas Hospital. The blood-stained clothes of deceased were seized. The blood- stained shirt of Mohd. Iqbal was also seized. Blood sample of deceased was collected. Stained and unstained soil, 11 pellets and an empty cartridge were recovered and seized. These were sent to F.S.L for chemical examination. Statements of witnesses were recorded. Two 303 rifles were also recovered from the houses of the accused Sharief-ul-din and Mohd. Maqsood. An empty cartridge was found in the chamber of 303 Rifle No.57605/Y. Besides this, 9 live cartridges were also found in the magazine of the aforesaid rifle which belonged to accused Sharief-ul-din. Statements of witnesses were recorded. Two 303 rifles were also recovered from the houses of the accused Sharief-ul-din and Mohd. Maqsood. An empty cartridge was found in the chamber of 303 Rifle No.57605/Y. Besides this, 9 live cartridges were also found in the magazine of the aforesaid rifle which belonged to accused Sharief-ul-din. All the four accused were arrested alongwith Parvez Ahmed (Juvenile). On interrogation of accused Mohd. Maqbool, a 12 Bore gun having registration No.2885-95 was recovered. On the disclosure of accused Gayas-u-din, the handle of a sharp edged weapon was recovered. Similarly, on the disclosure of Parvez Ahmed (Juvenile) an Axe was recovered. The aforesaid Rifle No. 57605/Y was sent for examination to Ballistic Expert. After completion of the investigation, challan was filed against these four accused for the aforesaid offences, whereas the case of Parvez Ahmed (Juvenile) was segregated. These four accused were charged for the aforesaid offences and, having pleaded not guilty, they were put on trial. They stand convicted vide impugned Judgment dated 17-02-2009 followed by the order of sentence formulated by learned Sessions Judge Reasi. 8. Evidence led by prosecution to prove the charge PW Abdul Majid is a teacher in Education Department and when stepped into the witness box stated that on 1st of December, 2000 he had gone to Udhampur and returned to Arnas on 03-12-2000. He further stated that on the next day i.e. 04-12-2000 at about 8.30 am, he heard that the deceased was killed and Mohd. Iqbal assaulted. He, thus, went to the hospital where the documents regarding the dead body were prepared in his presence and he signed the same. He is a witness to the recovery of empty cartridge from the place of occurrence through seizure memo exhibit EXPWAM/2. The handle of a sharp edged weapon was also seized in his presence. He is also a witness to the recovery of certain pellets from the walls of house of deceased through exhibit EXPWAM/3. He is also a witness to the seizure memos of soil and blood stained soil seized through exhibit EXPWAM/4 and EXPWAM/5. The blood stained clothes of the deceased have also been taken in his presence through seizure memo exhibit EXPWAM/6. Blood sample of deceased was also taken in his presence through exhibit EXPWAM/7. He is a witness to the arrest memos prepared with regard to the accused through exhibit EXPWAM/10 to EXPWAM/13. Accused Mohd. The blood stained clothes of the deceased have also been taken in his presence through seizure memo exhibit EXPWAM/6. Blood sample of deceased was also taken in his presence through exhibit EXPWAM/7. He is a witness to the arrest memos prepared with regard to the accused through exhibit EXPWAM/10 to EXPWAM/13. Accused Mohd. Maqbool had also made a disclosure statement exhibit EXPWAM/14 in his presence. Gayas-u-din had also made disclosure statement exhibit EXPWAM/15 and the recoveries affected pursuant thereto through exhibit EXPWAM/16 and EXPWAM/17 in his presence. This witness further states that there was a misunderstanding between accused Mohd. Maqbool and deceased on the construction of a Mosque of which deceased was the treasurer and this, in fact, has become the motive for the accused to kill the deceased. This witness has also identified the seized gun in the Court. PW Abdul Rehman is a witness to the wearing apparels which were seized in his presence through recovery memos. He is also a witness to the recovery of pellets. Mohd. Mukhtar SGC 333 is also a witness to the blood stained shirt which was taken into possession through seizure memo prepared by the Investigating Officer. PW Mohd. Iqbal is a witness to the occurrence and when stepped into the witness box stated that on 03-12-2000, his wife Zarina Begum was ailing and he went to call the village-Maid Mst Kamla Dei when in the meantime the deceased had gone to irrigate his field where there was a tiff between him and Mohd. Maqbool and thereafter deceased came back to home but he (Mohd. Iqbal) had gone to a spring adjacent to his house. The deceased met him and told him that he had a tiff with the accused and in the meantime, accused came on the spot hurling abuses and crying where is he ? as they intended to kill him. It is further stated by this witness that on hearing this, he locked the deceased in a room, but the accused reached there. He begged accused that they will settle the dispute through negotiation, but they were adamant that they would hit the deceased. Meanwhile the witness went to the balcony of the house and proceeded towards the room where the deceased was locked. He begged accused that they will settle the dispute through negotiation, but they were adamant that they would hit the deceased. Meanwhile the witness went to the balcony of the house and proceeded towards the room where the deceased was locked. This witness further states that he prevented the accused from proceeding ahead, but accused Parvez Ahmad hit him on his head with an Axe and it started bleeding. At the same time, accused Sharief-ul-din fired a shot from his 303 rifle, but the bullet missed the target and hit the roof and then the accused started beating him. It is further stated by this witness that accused Mohd. Maqbool opened the latches of the door of the room where deceased was locked and fired on the deceased from his 12 bore gun. The bullet hit the deceased on his forehead. He went on to state that the strike was so severe that flesh of forehead got removed and was stuck to the wall and thereafter all the accused started assaulting the deceased with rifle butts and the wooden handle of the sharp-edged weapon. The deceased died on the spot. This witness further stated that Kamal Dei (Maid), Gulzar Begum, Zarina Begum and Zainab Begum also were watching the occurrence and that Kamal Dei begged accused Mohd. Mqbool to stop the assault but he would not listen. Thereafter the accused came out and while going away they assaulted him and went away saying that widows should also have been killed. In the meantime, certain persons reached on the spot and then the accused fled away from the scene of occurrence. 9. This witness further states that the deceased was shifted to hospital and he also proceeded towards hospital on horseback and then went to the Police Post Arnas and lodged written report exhibit EXPWM/1. He admitted the contents of said report and the entry in the Roznamcha (Daily Diary report) to be correct. He, however, states that he was hospitalized in Arnas Hospital for 27 days. He then talks of the recovery of an Axe inside the house of accused Mohd. Maqbool at the instance of accused Parvez Ahmed pursuant to his disclosure statement. 10. PW Gulzar Begum is the real sister of the deceased. She also unfolds the prosecution story almost in the same manner as depicted by PW Mohd. Iqbal. 11. He then talks of the recovery of an Axe inside the house of accused Mohd. Maqbool at the instance of accused Parvez Ahmed pursuant to his disclosure statement. 10. PW Gulzar Begum is the real sister of the deceased. She also unfolds the prosecution story almost in the same manner as depicted by PW Mohd. Iqbal. 11. PW Zarina Begum also talks of the occurrence as happened in her presence. 12. PW Kamal Dei (Maid) did not unfold the prosecution story as depicted by aforesaid three witnesses, rather given some different description of the occurrence for which she was declared hostile and cross-examined by the Public Prosecutor. PW Mohd. Fazal is another real brother of the deceased. He states that he reached the spot after he came to know that his brother was killed. He, in fact, did not toe the line of the prosecution with regard to the recovery part also, as such, declared hostile by the prosecution. 13. PW Sarwar unfolds the first part of the occurrence where the deceased disclosed to him that accused Mohd. Maqbool had a tiff with him. He then states that he reached the spot after the main occurrence was over where he came to know that deceased was killed by the accused. PW Tikka Khan is the witness to the recovery of wooden handle and lathi at the instance of accused Gayas-udin and Mohd. Maqbool and the recovery memos in this regard. PW Jagat Singh is one who went on the spot after the occurrence was over and saw that the deceased was lying killed. 14. PW Manjeet Singh was the Officer Incharge of Police Post Arnas. He has investigated the present case after written report was lodged at the instance of PW Mohd. Iqbal. He referred the injured to PHC Arnas for treatment, seized the body of deceased, got the Autopsy conducted on it and effected the seizures. He proved the documents marked EXPW-AM16 and EXPW26/8 to EXPW26/25. On conclusion of investigation he compiled the Charge Sheet. In cross examination he stated that the injured had appeared at Police Post Arnas on 04.12.2000 at 8.35 am. His report was recorded in Daily Diary at serial No.3 and the case was referred for registration to P/s Mahore where it was registered on 05.12.2000 at 4.15 pm. Eleven pellets were recovered from the floor near the wall. The seized items were sealed. His report was recorded in Daily Diary at serial No.3 and the case was referred for registration to P/s Mahore where it was registered on 05.12.2000 at 4.15 pm. Eleven pellets were recovered from the floor near the wall. The seized items were sealed. Accused Sharief-u-din made no disclosure statement but a Gun was recovered at his instance from his house. The Gun and 303 empty cartridges were sealed. Gun recovered from accused Maqsood was not sealed. Deceased was brought to Hospital by Abdul Rehman and Mohd. Fazal. Injured was examined on 18.12.2000 after seeking permission of Doctor. He was further examined on 09.01.2001. The accused were VDC Members and so they had Guns. Accused Maqbool was not carrying Gun with him when there was a tiff between him and the deceased PW Mohd. Rustam has been declared hostile when he stated that neither any disclosure statement of any of the accused, nor any recovery was made in his presence. PW Khan Mir has prepared the site map exhibit EXPWK/1 of the place of occurrence. He also issued khasra girdawari exhibit EXPWKM. 15. PW Dr. Abdul Hamid Bohra has conducted the post mortem on the dead body of the deceased.He noticed that the head injury was a bullet injury on the person of the deceased and there were some sharp and blunt weapon injuries on the scapular region of the deceased. However, in his opinion, cause of death was due to the head injury. The post mortem exhibit EXPWM was proved by him. This witness states that on 04-12-2000 he examined Mohd. Iqbal who had an injury of the dimension of 2cm x 1= cm on the occipital region which was bleeding profusely. He also got the medical certificate prepared by him in this regard proved as exhibit EXPWM/1. Besides oral evidence as referred to hereinabove, the following documentary evidence, in our considered view, would also be of relevance in deciding the present appeal: i. Seizure memo EXPW AM/2 which pertains to seizure of an empty cartridge bearing No.12/KF/12/95. ii. EXPWAM/3 is the seizure of 12 pellets which have been recovered from the room where deceased is said to have been murdered. iii. EXPWMS-26/1, a seizure memo of empty cartridge of point 3030 rifle bearing No. 57605/Y which was recovered from the chamber of the rifle. iv. ii. EXPWAM/3 is the seizure of 12 pellets which have been recovered from the room where deceased is said to have been murdered. iii. EXPWMS-26/1, a seizure memo of empty cartridge of point 3030 rifle bearing No. 57605/Y which was recovered from the chamber of the rifle. iv. ExPW-26/2 is the seizure memo of a rifle 303 No. 57605/Y which had nine live cartridges in its magazine and one empty cartridge in its chamber. v. EXPWMF is another seizure memo of rifle 3030 bearing No. 34067/Z which had five cartridges in its magazine. vi. EXPWAM/14, disclosure statement of accused Mohd. Maqbool. vii. EXPWAM/15, the disclosure statement of accused Gayas-U-Din. viii. EXPWM/1/ii, disclosure statement of accused Shah Nawaz. ix. Recovery memos EXPWAM/16, EXPW/17 and EXPWMZ/iii. x. EXPW26 which the Fard Surthal which was filled in immediately after the crime was reported. xi. EXPWM, the postmortem report of deceased. xii. Medical report of injured Mohd. Iqbal EXPWM1. 16. It would be pertinent to mention here that accused Mohd. Maqbool, during the course of trial, raised a plea that he was not mentally fit, as such, unable to defend himself. An enquiry as envisaged under section 465 CrPC was conducted and the trial Court found that he was suffering from mental ailment and was unable to defend himself. The trial Court accordingly stayed the proceedings against him on 21-02-2005 and directed the Jail authorities to manage his treatment in Psychiatric Hospital. It is after about seven months, that a report was submitted before the trial Court that accused Mohd. Maqbool was capable of understanding the court proceedings, as such, trial against him resumed on 26-09-2005. It so happened during this intervening period that the statements of PW Mohd. Fazal and Mohd. Iqbal-the first Informant, were recorded in part. Thereafter the trial proceeded in routine. After accused Mohd. Maqbool was found to be capable of understanding the proceedings, he was given an option to cross-examine the witnesses who were already examined by the prosecution. His Ld. Counsel Sh. B.L.Chatta Advocate made a statement that he did not want to exercise the said option. Consequently his statement was recorded which forms part of the trial court record. Statement of aforesaid two witnesses has, thus, been read against accused Mohd. Maqbool by the trial Court. Even Mr. Goni, learned Sr. His Ld. Counsel Sh. B.L.Chatta Advocate made a statement that he did not want to exercise the said option. Consequently his statement was recorded which forms part of the trial court record. Statement of aforesaid two witnesses has, thus, been read against accused Mohd. Maqbool by the trial Court. Even Mr. Goni, learned Sr. Advocate appearing for all the four accused fairly submits that he is not joining issue on the procedural formalities. Learned counsel for accused assailed judgment of trial court and challenged the finding of guilt. It is submitted that the investigation has not been conducted fairly and genesis of occurrence has been suppressed. It is further submitted that there has been unexplained delay in registration of the case and in the wake of testimony of the first informant Mohd. Iqbal lodging of report on 04.12.2000 at 8.35 am is highly improbable. It is further submitted that the so called eye-witnesses have come up with versions which were mutually inconsistent and suffer from major contradictions on vital aspects of the case. With reference to testimony of Pw- Kamal Dei it is submitted that she has spelt doom for prosecution and excluded presence of accused Mohd. Maqbool from the scene of offence. It is further submitted that death of deceased could not have occurred in the manner and circumstances narrated by the so called eye-witnesses when viewed in the light of testimony of Pw-Dr. A. H. Bohra. Learned counsel for accused has also referred to testimony of this witness to prove the admission of accused Mohd. Maqbool in Hospital at Arnas from 1.12.2000 to 04.12.2000 as a case of Schizophrenia. Lastly it is submitted that plea of alibi raised by accused Mohd. Maqbool was duly established by evidence of Dr. A. H. Bohra and supported by contemporaneous medical record and in absence of the doctor being declared hostile by the prosecution, his testimony had to be accepted. Per contra, learned AAG submits that the testimonies of three eye-witnesses including injured Mohd. Iqbal coupled with proved Disclosure Statements attributed to accused Mohd. Maqbool and Gayas-u-din and further corroborated in part by testimony of hostile witness Pw- Kamal Dei and proof of circumstances brought on record by prosecution was sufficient to nail the accused. Per contra, learned AAG submits that the testimonies of three eye-witnesses including injured Mohd. Iqbal coupled with proved Disclosure Statements attributed to accused Mohd. Maqbool and Gayas-u-din and further corroborated in part by testimony of hostile witness Pw- Kamal Dei and proof of circumstances brought on record by prosecution was sufficient to nail the accused. It is submitted that all modes of proof including direct evidence and extra-judicial confessions supported by recovery with corroboration from medical evidence have been discharged by reliable and creditworthy evidence tendered by prosecution witnesses. The testimony of injured victim Mohd. Iqbal being corroborated by testimonies of other eye-witnesses and medical record cannot be brushed aside, there being no reason to discard the same. It is accordingly submitted that the prosecution has proved its case to the hilt and the conviction recorded by the Trial Court is perfectly justified. 17. It is not in controversy that the deceased Mohd. Rafiq died an unnatural death which was homicidal in character. Pw- A. H. Bohra has proved the Post Mortem report of deceased marked ExPw-M. He found the following injuries on the body of deceased:- (1) Injury on head on occipital region. Wound is vertical (Bullet Injury) of size = cm in depth at entrance, 3 cm at exit point above the skull along the fracture of skull leading to profuse bleeding inside the brain verticals. Presence of blood in both nostrils indicating that the fracture was extended up to frontal bone; (2) Sharp and blunt injuries detected on posterior region of scapular. 18. Cause of death was the single injury of the head leading to sudden cardio respiratory arrest caused by firearm injury. In his opinion the cause of death was sudden cardio respiratory arrest due to grievous head injury caused by firearm leading to sudden shock and death. He further opined that such type of death can never be suicidal or accidental but surely homicidal. Time of death was less than eight hours from time of examination. The result of Post Mortem examination leaves no room for doubt that the deceased died a homicidal death due to bullet injury in his head. The cause of death having been established, the authorship of crime has to be determined. Time of death was less than eight hours from time of examination. The result of Post Mortem examination leaves no room for doubt that the deceased died a homicidal death due to bullet injury in his head. The cause of death having been established, the authorship of crime has to be determined. Prosecution has primarily relied upon direct evidence of eyewitnesses and disclosure statement of accused leading to recovery of weapons of offences as the modes of proof of guilt of accused. Besides there are witnesses to prove pre and post crime circumstances probabilising commission of crime by the accused. It would be appropriate to deal with the different modes of proof under distinct heads. DIRECT EVIDECE 19. Pw-Mohd. Iqbal, apart from being the main eye-witness, is also a victim. He is the brother of deceased Mohd. Rafiq He claims to have sustained injuries during occurrence. It is in his testimony that he had called Pw- Kamal Dei, the village midwife, to take care of his pregnant wife. Then he went to a spring situated in vicinage of his house. At that time the deceased Mohd. Rafiq had gone to irrigate his fields. According to this witness, deceased arrived at the spring and told the witness that he had a tiff with accused Mohd. Maqbool. Meanwhile accused Mohd. Maqbool arrived there hurling abuses and asking for the deceased. Sensing danger, the witness removed the deceased to his house and locked him inside a room. This was done to avert any untoward incident/harm to the deceased. Meanwhile accused landed there. The witness implored them to abjure violence and exercise restraint. However, accused Mohd. Maqbool adopted a stubborn attitude and he was desperate to hit the deceased. He rushed to the Veranda of his house and tried to sneak in the room in which the deceased had taken shelter. The witness tried to block his way but accused Shahnaz alias Parvez hit him with an axe causing injuries which started bleeding. Accused Sharif din, who was armed with a 303 Riffle, fired at him. However, the bullet missed the target and hit the roof. All accused beat him up. Meanwhile, accused Mohd. Maqbool succeeded in forcing open the door of the room and fired a shot from his 12 Bore Gun hitting the deceased in his forehead. The deceased tied a cloth on his head to cover the wound. However, the bullet missed the target and hit the roof. All accused beat him up. Meanwhile, accused Mohd. Maqbool succeeded in forcing open the door of the room and fired a shot from his 12 Bore Gun hitting the deceased in his forehead. The deceased tied a cloth on his head to cover the wound. The accused also assaulted him with Riffle buts, wooden handle and sharp-edged weapons besides landing kicks and blows on him. The deceased succumbed to his injuries on spot. The witness nominated PW(s) Gulzar Begum, Zarina Begum and Mid-wife Kamal Dei as eye-witnesses to the occurrences who, according to him, were watching the gory incident live. It is in the testimony of this witness that Pw- Kamal Dei had implored the accused to let-off the deceased but the accused did not listen and threatened the lady witnesses while effecting retreat. The deceased was lifted and removed to Hospital at Arnas. According to this witness, he visited the Hospital the next day covering whole distance on the horse- back. He claims to have lodged FIR ExPw-M1 on 04.12.2011. It is in his testimony that he remained admitted in Hospital for twenty-seven days. 20. Testimony of this witness, who attributes murderous assault to accused, is of great significance and the same can be relied upon to pass conviction of accused for charge of murder, if corroborated in material particulars. The witness is not only the principal eye-witness to the occurrence of murder of deceased but also witness of all the events relating to occurrence from beginning to end. While it is true that this witness has not watched or overheard exchange of words between the deceased and accused Mohd. Maqbool when there was tiff between the duo in the fields, the witness has described the factum of deriving knowledge about the tiff from the deceased who came rushing from the fields and narrated the incident to the witness at the spring. The witness learnt about the tiff between the accused Mohd. Maqbool and the deceased from the latter while he was at the spring and upon sensing danger, he became panicky about the safety of the deceased which impelled him to act fast manifesting in removing of deceased to his house and locking him in a room to prevent any harm. The narration of the event regarding the tiff between accused Mohd. The narration of the event regarding the tiff between accused Mohd. Maqbool and the deceased in the fields, which emanated from the mouth of deceased at the spring, forms part of the same transaction. Thus, evidence tendered by the witness in respect of altercation taking place between Mohd. Maqbool and the deceased in the fields cannot be termed as hearsay as contended by learned counsel for appellants. The same is admissible as res gestae and evidence of conduct. The witness has been examined at length with intervals. However testimony of the witness has not been dislodged insofar as material particulars of alleged occurrence are concerned. The examination of witness was spread over a span of about three years and it was quite natural to find some inconsistencies of trivial nature which can be attributed to fading of memory due to lapse of time. However no such inconsistency or contradiction has been brought to our notice as would justify discarding his testimony. It is to be borne in mind that this witness is not only the brother of deceased Mohd. Rafiq but himself is the victim of an assault. It is not expected of him to spare the real perpetrators of crime and rope in an innocent person. What renders credit to his version is truthfulness. There is nothing in his cross-examination which can be termed as impeaching his credit and rendering his account unreliable. The witness is not shown to be a planted one to falsely implicate the accused on account of personal animosity or for ulterior motives. He has lost his brother in the occurrence. Himself he was subjected to physical violence and to murderous assault for trying to rescue the deceased from the clutches of accused. He was battered, bruised and traumatized. In these circumstances, it would be repugnant to reason to even imagine that the witness would spare the real killers of his brother and those who made a murderous assault on him, moreso as it is not even suggested in his cross-examination that the witness had a motive for false implication of accused. Thus viewed, his testimony is found trustworthy and capable of faith being reposed therein. The other three eye-witnesses of occurrence are PW(s) Gulzar Begum, Zarina Begum and Kamal Dei. These three eye- witnesses, who according to Pw- Mohd. Thus viewed, his testimony is found trustworthy and capable of faith being reposed therein. The other three eye-witnesses of occurrence are PW(s) Gulzar Begum, Zarina Begum and Kamal Dei. These three eye- witnesses, who according to Pw- Mohd. Iqbal were present at the scene of offence and watched the occurrence live, supported the prosecution version in entirety, PW Kamal Dei being the only exception. 21. Pw- Gulzar Begum is the sister of deceased. She has deposed that while she was tending her sheep near a spring, she found Zarina begum and Kamal Dai sitting on the rooftop of house of Mohd. Iqbal. On being enquired about her presence in the house of Mohd. Iqbal, Pw- Kamal Dai told her that she had been called to assist Zarina Begum who was expecting a child. The witness joined those two ladies while Pw- Mohd. Iqbal was washing his hands and feet in the backyard of his house. The witness claims to have seen the deceased narrating the incident of having a tiff with accused Mohd. Maqbool to Pw- Mohd. Iqbal. She claimed that she saw the accused arriving there. Pw- Mohd. Iqbal removed the deceased from there and locked him in a room in his house. However, accused landed at the Veranda of his house. According to witness accused Mohd. Maqbool was armed with a Rifle while accused Sharif din and Mohd. Maqbool were carrying 303 Rifles. Gayasodin was armed with a Lathi and Parvez was wielding an axe. As per her account accused Sharief-ul-din fired a shot which hit the roof. It happened as he was prevented from opening the door of room where deceased was locked. Accused Parvez caused a strike on the head of Mohd. Iqbal with axe. Iqbal fell down. Meanwhile, accused Mohd. Maqbool opened door of room where deceased had taken shelter and shot him in his head. The deceased was also subjected to assault with rifle butts and kicks and blows by all the accused after he fell down. The deceased succumbed to his injures on spot. The witness also claimed that accused, while escaping, threatened the women-folk. Dead body of deceased was removed to Arnas. 22. The witness has been cross-examined at length and some variations in her account have been brought to the fore. 23. However, such variations are insignificant and no weight can be attached to the same. The witness also claimed that accused, while escaping, threatened the women-folk. Dead body of deceased was removed to Arnas. 22. The witness has been cross-examined at length and some variations in her account have been brought to the fore. 23. However, such variations are insignificant and no weight can be attached to the same. She has not budged an inch on material aspects of the case. No material contradictions have been brought out in her cross examination which could justify excluding her testimony in whole or in part. There is nothing in her cross examination to render her testimony unworthy of credit. It is not shown that her version is tainted or the same emanates out of personal animosity or prejudice or any motive for false implication. The witness has given a vivid account of the murderous assault on injured and the deceased at the hands of accused. She has clearly described the weapons wielded by the accused, the use of fire-arms and other weapons by them and the manner and circumstances in which, despite efforts of Mohd. Iqbal to rescue the deceased, the deceased was shot at and done to death. This witness has corroborated version of Pw- Mohd. Iqbal in all material particulars. Her presence at the scene of occurrence has not been seriously challenged and there is no reason for disbelieving her version. She is the real sister of deceased and has nothing to gain by sparing the real killers of her brother and falsely implicate an innocent person. Pw- Zarina Begum is the wife of injured Pw- Mohd. Iqbal. She deposed that her husband had arranged the services of mid-wife Pw- Kamal Dei to look after her as she was pregnant. While she was sitting in the Sun, accused arrived there hurling abuses. Her husband and the deceased were at the spring. Her husband removed the deceased to a room in his house and locked him inside. The accused landed at the Veranda of her house. Her husband begged them to spare the life of deceased. Accused Sharif din shot at her husband while accused Parvez hit him on his head with an axe. She also alleged that accused Gayasodin had assault him with wooden handle. Her husband sustained injuries on his head and back. According to her account accused Mohd. Maqbool broke open the door of room where deceased had been locked in. Accused Mohd. Accused Sharif din shot at her husband while accused Parvez hit him on his head with an axe. She also alleged that accused Gayasodin had assault him with wooden handle. Her husband sustained injuries on his head and back. According to her account accused Mohd. Maqbool broke open the door of room where deceased had been locked in. Accused Mohd. Maqbool fired a shot at him using his 12 bore gun. The bullet hit the deceased in his head. Thereafter all the accused beat him with riffle butts and left him dead on spot. The witness has given a vivid picture of happening on spot and the role played by each of the accused in the incident. She has been subjected to detailed cross examination. However, her credit has not been shaken in the least despite being grilled to the core. Accused could not elicit anything from her that could be termed favourable to them. No material contradiction has been brought out in her testimony. No motive has been attributed to her to suggest that she has falsely implicated the accused or attributed an exaggerated role to either of them. The witness was expecting a child and Pw- Kamal Dei- the village midwife had been called in to help her deliver the child safely. On meticulous examination of her testimony nothing has been brought out to hold that the witness was wholly or partly unreliable. The injured Mohd. Iqbal being related to her as husband and the deceased being related to her as brother- inlaw, there is no reason to attach credit to her version in regard to the perpetrators of crime. Nothing has been brought on record during her cross examination to show that she had a motive to falsely implicate the accused and spare the real perpetrators of crime. 24. The fore-going discussion on direct evidence clearly demonstrates that the testimony of Pw- Mohd. Iqbal has been corroborated in all material particulars by Pw(s) Gulzar Begum and Zarina Begum which inspires confidence in his version of the alleged occurrence. 24. The fore-going discussion on direct evidence clearly demonstrates that the testimony of Pw- Mohd. Iqbal has been corroborated in all material particulars by Pw(s) Gulzar Begum and Zarina Begum which inspires confidence in his version of the alleged occurrence. Before proceeding to determine whether the contemporaneous record and documentary evidence also corroborates his version to instill confidence in his account regarding manner and circumstances in which he sustained injuries and deceased was murdered, it would be necessary to deal with the testimony of Pw- Kamal Dei who is not only stated to have watched the occurrence but also implored the accused to spare the life of deceased. Pw- Kamal Dei has deposed that she had been called to the house of Pw-Mohd Iqbal as his wife was expecting a child. The witness is a mid-wife. It is in her testimony that accused Mohd. Maqbool was sitting on the roof-top of her house and it was the deceased who assaulted him there. Her husband intervened and forced the deceased to leave the place. Accused Maqbool had sustained serious injuries. Meanwhile, accused Sharif din and Maqsood armed with guns, arrived there. Mohd. Rafiq went to his house. He was in the backyard of his house and Pw- Mohd. Iqbal and his mother had caught hold of him. They locked him in a room of their house. Accused Sharif din fired a shot at the deceased. At this stage, the witness was declared hostile to prosecution and cross-examined with the leave of the Court. On being confronted with her statement recorded under Section 164 of CrPC on 17.12.2002, the witness asserted that she had made such statement on coercion. She claimed to have filed an application before JMIC Gool to that effect. It is in her cross examination that accused Maqsood, Sharif din and Gayasodin had killed the deceased. While Sharif din opened fire, other accused beat him with Lathies and also landed kicks and blows on him. She reiterated that accused Mohd. Maqbool did not enter the house where the deceased had taken shelter. She also claimed that while she was on way to Gool, she was threatened by militants and asked to depose in favour of prosecution. She was forced to implicate the accused while recording her statement before JMIC Gool. She reiterated that accused Mohd. Maqbool did not enter the house where the deceased had taken shelter. She also claimed that while she was on way to Gool, she was threatened by militants and asked to depose in favour of prosecution. She was forced to implicate the accused while recording her statement before JMIC Gool. She tried to exclude presence of Pw-Gulzar Begum and Zarina Begum from the venue of occurrence and came up with version that the deceased had fired on the accused Sharif din. She denied the suggestion that accused Mohd. Maqbool had entered the house of deceased. 25. It is well settled that the testimony of a prosecution witness, who has been declared hostile, is not totally effaced from the record and the same can be used to the extent of corroboration from other reliable evidence available on record. Insofar as the testimony of Pw-Kamal Dei is concerned, it is important as all the three eye-witnesses to occurrence including injured Mohd. Iqbal have spoken of her presence on spot. On appreciation of testimonies of Pw- Mohd. Iqbal, Gulzar Begum and Zarina Begum there is no doubt that Pw-Kamal Dei was present on spot as she had been called in by Pw- Mohd. Iqbal to help his wife Zarina Begum to deliver the child safely. Pw- Kamal Dei was present in the house of Mohd. Iqbal not as an inmate of house but as mid-wife whose services had been procured to assist Zarina Begum who was expecting a child. Prosecution relies upon testimony of this witness to the extent that she supports the prosecution version despite being hostile. It is true that she has not supported the prosecution story insofar as pivotal role attributed to accused Mohd. Maqbool is concerned. She attempted to portray accused Mohd. Maqbool as a victim of assault who sustained critical injuries at the hands of deceased Mohd. Rafiq. The witness, during her cross examination, attributed killing of deceased to accused Maqsood, Sharif din and Gayasodin. According to her account it was accused Sharif din who shot at the deceased and the bullet hit the deceased in his head and got embedded in the wall. Thus, she tried to give clean chit to accused Mohd. Maqbool. What emerges from her account is that witness has corroborated the prosecution version attributing murderous assault to the accused other than Mohd. Maqbool. Thus, she tried to give clean chit to accused Mohd. Maqbool. What emerges from her account is that witness has corroborated the prosecution version attributing murderous assault to the accused other than Mohd. Maqbool. The testimony of this witness is relevant and admissible qua the occurrence. However, its value has to be determined. Her testimony can safely be relied upon to the extent that the occurrence alleged by prosecution, in which the deceased was murdered, did happen. She has spoken of culpability of accused other than accused Mohd. Maqbool. To that extent her testimony is corroborated by other three witnesses. Thus her statement can be relied to that extent inspite of her being declared hostile by prosecution. In the face of evidence tendered by Pw(s) Mohd. Iqbal, Gulzar Begum and Zarina Begum, testimony of this witness has to be rejected insofar as the role attributed to accused Mohd. Maqbool is concerned. The genesis of occurrence being traceable to the tiff between accused Mohd. Maqbool and the deceased immediately preceding occurrence coupled with the fact that it was accused Mohd. Maqbool who called other accused to the spot further superadded with the fact that direct evidence of three eye- witnesses including the injured implicates Mohd. Maqbool as the character who shot at the deceased with his 12 bore gun and hit him in his head, clean chit sought to be given to the accused Mohd. Maqbool by Pw- Kamal Dei has to be out- rightly rejected. On a close assessment of testimony of Pw- Kamal Dei it can be stated without any fear of contradiction that she was an independent witness whose presence on spot is proved beyond any shadow of doubt and inspite of resiling from her earlier version in regard to culpability of accused Mohd. Maqbool, she has supported the prosecution version in regard to occurrence in which the deceased sustained fatal injuries causing his death at the hands of accused though she made a vain bid to protect the key figure in perpetration of crime viz. Mohd. Maqbool. Unfortunately her statement recorded under Section 164 of CrPC has not been brought on record and she has not been confronted with the same. In absence thereof least that can be said is that she has succumbed to influences that are at work during the trial of a criminal case. Mohd. Maqbool. Unfortunately her statement recorded under Section 164 of CrPC has not been brought on record and she has not been confronted with the same. In absence thereof least that can be said is that she has succumbed to influences that are at work during the trial of a criminal case. This conclusion is deducible from the fact that it is nobody s case that accused Mohd. Maqbool was seriously injured on account of being assaulted by the deceased on the rooftop of house of Pw- Kamal Dei or that any occurrence had taken place on the rooftop of house of Kamal Dai as tried to be projected by her. Her testimony is accordingly held to be of assistance to prosecution insofar as homicidal death of deceased and the role of accused 2 to 4 in the occurrence is concerned. Pw-Dr. A. H. Bohra testified about the injuries sustained by Pw-Mohd. Iqbal and proved the medical report marked ExPw-Mi. As per his testimony, Pw-Mohd Iqbal had sustained an injury about 2 cm x = cm on occipital region which was bleeding profusely. It was an incised wound. He remained admitted in PHC Arnas from 04.12.2000 to 20.12.2000. It was a single injury caused by a sharp object and was grievous in nature. Proof of the injury sustained by Pw- Mohd. Iqbal and the nature of injury corroborates the ocular testimony of Pw- Mohd. Iqbal and fits in with the prosecution version. The medical report lends further assurance to the eye-witness account of Pw-Mohd Iqbal and other eye-witnesses. Prosecution has, apart from eye witnesses, also produced one Moulvi Sarvar to prove the circumstances abutting the occurrence. It is in the testimony of Pw- Moulvi Sarvar that he noticed the deceased rushing towards home. He followed suit. The deceased, on reaching the spring where his brother Mohd. Iqbal was present, narrated the incident of having a tiff with accused Mohd. Maqbool to him. The witness claimed that he had seen accused Mohd. Maqbool also moving towards the deceased and asking for him. Pw- Moulvi Sarvar claimed that he had advised Mohd. Iqbal to remove the deceased from there. The witness claims to have left the spot and gone to his home. However, it was after about 15 minutes that he heard the sound of two gun shots. He had previously advised accused Mohd. Maqbool to refrain from committing a crime. Pw- Moulvi Sarvar claimed that he had advised Mohd. Iqbal to remove the deceased from there. The witness claims to have left the spot and gone to his home. However, it was after about 15 minutes that he heard the sound of two gun shots. He had previously advised accused Mohd. Maqbool to refrain from committing a crime. On hearing the sound of gun shots, he rushed to the house of Pw- Mohd. Iqbal where he found a huge gathering. He learnt about the murder of deceased. Witness claims to have seen accused Mohd. Maqbool armed with a Rifle whereas accused Gayasodin was carrying a Lathi and accused Maqbool was carrying 303 Rifle. He also spoke about a boy who was armed with a lathi. Testimony of this witness is in regard to material circumstances, both pre and post occurrence, though he has not seen the actual occurrence. The important events, on which he dwelt in his testimony, include rushing of deceased to the spring where he came across his brother Mohd. Iqbal, narrating of all the events of his tiff with accused Mohd. Maqbool, the advice tendered by the witness to Mohd. Iqbal to remove the deceased therefrom and arriving of accused Mohd. Maqbool on the site of occurrence with a gun in his hands and asking for the deceased. These are circumstances immediately preceding the occurrence in which the deceased was murdered. Testimony of this witness is also of vital importance for he claims to have tendered advice to accused Mohd. Maqbool to refrain from indulging in crime. His testimony regarding circumstances immediately following the occurrence is equally significant after he heard sound of two gun-shots, rushed to spot, learnt about murder of deceased and found the accused armed with guns and other weapons. The witness has proved important circumstances which lend assurance to the prosecution story corroborating the events immediately preceding and following the main event of murder of deceased. The testimony of this witness has not been assailed in cross examination in regard to these circumstances and no motive has been attributed to him for implicating the accused falsely. The testimony of this witness is acceptable and justifies the conclusions that in all probability the accused were the authors of crime. Extra-Judicial Confession 26. The testimony of this witness has not been assailed in cross examination in regard to these circumstances and no motive has been attributed to him for implicating the accused falsely. The testimony of this witness is acceptable and justifies the conclusions that in all probability the accused were the authors of crime. Extra-Judicial Confession 26. Prosecution is also banking on proof of guilt of accused on the basis of information given by three accused to the Investigating Officer during the course of investigation that distinctly led to discovery of weapons of offence which were recovered at their instance. ExPW- AM/14 is the Disclosure Statement attributed to accused Mohd. Maqbool. Pw(s) Abdul Majid, Gurjeet Singh and Tika Khan have testified at the trial to establish that the accused Mohd. Maqbool had provided information to the Investigating Officer that a 12 Bore Gun had been concealed by him in the roof in a corner of the store of his residential house. Disclosure Statement marked ExPWAm/15 is attributed to accused Gayas-u-din who is proved to have made the Disclosure Statement about the wooden handle. This Disclosure Statement has been proved by the same set of witnesses who deposed about the Disclosure Statement attributed to accused Mohd. Maqbool.Expw-M/1/ii is the Disclosure Statement attributed to accused Shah Nawaz. Pw(s) Mohd. Iqbal and Mohd. Rustum have proved this Disclosure Statement. However same does not require consideration as the said accused was not facing trial along with the appellants. Prosecution has examined attesting witnesses Abdul Majid and Tika Khan at the trial. Recoveries were affected at the instance of these accused as a sequel to Disclosure Statements attributed to them. ExPW-AM/16 is the Recovery Memo of a 12 Bore Gun which was recovered at the instance of accused Mohd. Maqbool. Recovery Memo marked ExPW- AM/17 is Recovery Memo of wooden handle that was recovered at the instance of accused Gayas-u-din. Pw(s)- Abdul Majid and Tika Khan have proved the contents of Disclosure Statement and Recovery Memos. Their testimonies are not shown to be suffering from any infirmity. To prove all these Disclosure Statements and recovery of Weapons of offences made at the instance of these accused as a sequel to the Disclosure Statements emanating from them it is established that these accused were possessed of these weapons of offence identified by the witnesses at the trial and that the same were used by these accused during occurrence. To prove all these Disclosure Statements and recovery of Weapons of offences made at the instance of these accused as a sequel to the Disclosure Statements emanating from them it is established that these accused were possessed of these weapons of offence identified by the witnesses at the trial and that the same were used by these accused during occurrence. Documentary evidence 27. Prosecution relies upon the Post Mortem report of deceased to establish that deceased had sustained fatal injuries and his death was homicidal. Prosecution also banks upon medical evidence in respect of Pw-Mohd Iqbal as corroborative proof. The most important document prepared by the Investigating Agency at the earliest in this regard is Fard Surthhal marked ExPw-26. Fard Surthhal (Inquest Report) is drawn up immediately after the crime is reported and dead body is seized by Police. Since this document is prepared at the earliest stage of investigation, great sanctity is attached to it. It is considered to be free from taint and concoction. It is recorded in ExPW-26 that the deceased sustained a bullet injury on his head, an injury in the middle finger of his right hand and marks of violence on whole body. It records that the neck of deceased was hanging loose. The description of injuries, when correlated with the account emanating from Pw(s) Mohd. Iqbal, Gulzar Begum and Zarina Begum, fits in with their versions. Thus, the facts are corroborated to the extent of nature of injuries. The eye witnesses account on record is emphatic on the point that neck of deceased was fractured on account of joint assault of accused on him after he was hit by a bullet. The factum of neck of deceased found hanging loose corroborates the ocular version of the eye witnesses. Leaping forward we have the testimony of Dr. A.H. Bohra who proved the Post Mortem Report marked ExPW-M. According to Post Mortem Report the deceased had an injury on his head in the occipital region 1 cm deep at the point of entry and 3 cm dimension at the exit point with profuse bleeding inside the brain. An entry was also detected on posterior aspect of scapular region which was minor in nature and caused due to sharp and blunt weapons. The Doctor opined that the cause of death was the bullet injury causing a sudden cardio-respiratory arrest, shock and death. An entry was also detected on posterior aspect of scapular region which was minor in nature and caused due to sharp and blunt weapons. The Doctor opined that the cause of death was the bullet injury causing a sudden cardio-respiratory arrest, shock and death. The skin of the wound was lifted up. There was an imprint of bullet indicating that the deceased died due to firearm injury. Nature of injuries described in the Post Mortem Report goes along the ocular version of Pw- Mohd. Iqbal who has stated in emphatic terms that the flesh at the site of wound of deceased had got removed due to strike of the bullet. This corroborates the ocular version of the injured. Post Mortem Report also corroborates testimony of injured in respect of nature of gunshot injuries sustained by the deceased in his head. However, Doctor has not supported dislocation or fracture of neck of deceased. Contradiction arising from the testimony of Dr. A. H. Bohra is limited to dislocation and fracture of the neck but the version of eye-witnesses that the accused had beaten the deceased with rifle buts and kicks and his neck was also broken receives corroboration from Fard Surthhal which records the factum of deceased having a fracture on his neck, this conclusion having been drawn from the fact that his neck was hanging loose which can only be attributed to fracture of neck bone. Thus viewed, the testimony of Dr. Bohra in regard to his claim of there being no fracture of neck of deceased, cannot be taken as gospel truth moreso as the ocular testimony corroborated by entry in Fard Surthhal establishes that the head of deceased was hanging loose pointing out to the only conclusion that neck bone had fractured. The testimony of Dr. A. H. Bohra corroborates and lends assurance to eye witnesses to the extent of nature of injury sustained by the deceased. The direct evidence gets corroboration from medical evidence and Fard Surthhal. Testimony of Dr. A. H. Bohra establishes beyond doubt that death in the instant case was homicidal and due to head injury. The Post Mortem Report and Fard Surthhal have, thus, fully corroborated the eye witness s account. 28. The direct evidence gets corroboration from medical evidence and Fard Surthhal. Testimony of Dr. A. H. Bohra establishes beyond doubt that death in the instant case was homicidal and due to head injury. The Post Mortem Report and Fard Surthhal have, thus, fully corroborated the eye witness s account. 28. Now coming to the seizure of Fire-Arms and other weapons, be it seen that Pw-Mohd Fazal has deposed about seizure of three 303 Rifles which included one Rifle each recovered from the houses of accused Sharief-ul-din and Mohd. Maqsood. His testimony is in perfect harmony with statement made by Investigating Officer. Rifle recovered from house of accused Sharief-ul-din had nine live cartridges in its magazine besides one empty cartridge in its chamber. Presence of empty cartridge in the chamber of the Rifle indicated that the Firearm had been used by the said accused. The bullet fired from this Rifle was targeted on injured Mohd. Iqbal who had a providential escape. The bullet got embedded in the roof. The empty cartridge was recovered from the chamber of the Rifle after the Rifle was recovered and seized. It is in prosecution evidence that the accused Sharif din and Mohd. Maqbool were VDC Members who were equipped with these Rifles supplied by the State. The report of Ballistic Expert tendered in evidence by Learned Public Prosecutor establishes that the seized Gun was in normal working order and the spent cartridge had been fired through its barrel. This further lends assurance to the prosecution story. 29. Now coming to lodging of FIR, be it seen that the FIR was registered on 05.12.2000 while the occurrence had taken place on 03.12.2000. Lodging of FIR cannot be said to have been delayed inasmuch as the written report was lodged by Pw-Mohd Iqbal on 04.12.2000 at Police Post Arnas. The report is proved by the said witness. It has been marked as Expw-M1. The report gives detailed account of the occurrence which is said to have taken place in the afternoon of 03.12.2000. The report clearly specifies that the body of deceased had also been shifted to Hospital at Arnas. The report was recorded in the Daily Diary dated 04.12.2000 at 8.35 am and the report is recorded to have been filed by Pw- Mohd. Iqbal who appeared there in an injured state. The report clearly specifies that the body of deceased had also been shifted to Hospital at Arnas. The report was recorded in the Daily Diary dated 04.12.2000 at 8.35 am and the report is recorded to have been filed by Pw- Mohd. Iqbal who appeared there in an injured state. The injured was referred to Arnas Hospital for treatment and the report along with extract of Roznamcha were dispatched to Police Station Mahore for registration of the case. The FIR was recorded at Police Station Mahore on 05.12.2000 at 4.15 pm. Copy of the FIR was received by Illaqa Magistrate on 06.12.2000. Going by the sequence of events and bearing the distance of about 40 kms in mind, it is difficult to agree with learned counsel for appellants when he contends that there has been considerable delay in lodging of FIR which has provided ample room for manipulation. We cannot lose sight of the fact that the place of occurrence is located in Tehsil Mahore which is a hilly terrain not having a good network of roads and mostly one has to cover the distance on foot or use slow modes of transport like Ponies, if the state of health permits. Going through the distance and the difficult hilly terrain and the means of transport available as indicated in the testimony of Pw-Mohd Iqbal and other witnesses of prosecution, it can be said with certainty that there is no delay in lodging FIR. The written report was lodged at Police Post Arnas in the morning of the day following the date of occurrence after the injured covered the distance on horse back. It is true that Pw- Mohd. Iqbal has faltered in his cross examination while claiming that he had reached Police Post Arnas at about 8 pm and lodged a verbal report there which was reduced into writing. The details of incident in ExPw-M1 together with the entry in extract of Roznamcha dated 04.12.2000 recorded at Police Post Arnas and the contents of FIR dated 05.12.2000 leave no room for doubt that the injured had lodged the report at Police Post Arnas at 8 Am. By that time Post Mortem of deceased was being conducted. This fact is established by testimony of Pw- A. H. Bohra who, apart from Post Mortem Report also proved MLC- Report in respect of injured Mohd. Iqbal which has been marked ExPw-M1. By that time Post Mortem of deceased was being conducted. This fact is established by testimony of Pw- A. H. Bohra who, apart from Post Mortem Report also proved MLC- Report in respect of injured Mohd. Iqbal which has been marked ExPw-M1. This MLC report establishes that the injured had been admitted in Arnas Hospital on 04.12.2000 and discharged on 20.12.2000. His testimony also establishes that Post Mortem of deceased was conducted on 04.12.2000 at 8 am. The Post Mortem Report marked ExPw-M records the factum of body of deceased having been identified by Pw- Mohd. Iqbal. Obviously this was done before conducting of Post Mortem examination of deceased. Testimony of Dr. A. H. Bohra has not been assailed in regard to time of Post Mortem examination on the body of deceased. It is, therefore, a foregone conclusion that Pw- Mohd. Iqbal had reached Arnas and lodged report which was recorded in Daily Diary well before the Post Mortem Examination of deceased began at 8 am. Thus, we find a variation in testimony of Mohd. Iqbal on the aspect of time of lodging of FIR but the same is not fatal insofar as his testimony regarding material particulars of occurrence, lodging of FIR on 04.12.2000 and his admission in Arnas Hospital are concerned. This variation cannot, thus viewed, be treated as a major contradiction going to the root of testimony of Pw- Mohd. Iqbal which has, on its intrinsic value, been found capable of implicit faith. As a general rule, it is very difficult to discard testimony of injured duly corroborated by independent witnesses and medical evidence. In the instant case Mohd. Iqbal is not only the injured whose testimony has been corroborated fully. He is also the brother of deceased and has witnessed the occurrence from beginning to the end, himself having sustained injuries on account of intervention made by him in a vain bid to secure the life of deceased. Thus, no significance is attached to the discrepancy in the testimony of injured Mohd. Iqbal in regard to the time of lodging of written report by him at Police Post Arnas. The testimonies of eye-witnesses is duly corroborated by medical evidence and supported by disclosure statements of accused Mohd. Thus, no significance is attached to the discrepancy in the testimony of injured Mohd. Iqbal in regard to the time of lodging of written report by him at Police Post Arnas. The testimonies of eye-witnesses is duly corroborated by medical evidence and supported by disclosure statements of accused Mohd. Maqbool and Gayas-u-din leading to recovery of 12 bore gun and a wooden handle respectively at their instance further coupled with recovery of Rifles during search of houses of accused Sharif din and Mohd. Maqsood conjointly read with finding recorded in Post-Mortem Examination of deceased, MLC of injured Mohd. Iqbal, the report of Ballistic Expert/Serologist tendered in evidence by prosecution eloquently and unerringly establish the complicity of accused in alleged occurrence. The evidence brought on record by prosecution being found reliable and worthy of credit clearly establishes that acting in pursuance of a common design and being armed with deadly weapons including fire-arms, the accused made a murderous assault on Mohd. Iqbal when he intervened to rescue the deceased and thereafter committed murder of deceased acting in furtherance of their common design. Prosecution story being based on ocular testimonies of eye-witnesses including that of the injured and corroborated by other evidence and extra-judicial confession of accused leading to recovery of weapons of offence at their instance and further supported by circumstantial and forensic evidence, there is no reason to doubt the authenticity of the version in regard to the manner and circumstances in which the killing took place and the authorship of crime. 30. After having subjected the entire evidence to reappraisal and coming to conclusion that cogent, convincing and reliable proof has been brought on record by prosecution to establish the guilt of the accused, we now proceed to deal with the defence projected at the trial. Accused Mohd. Maqbool raised the plea of alibi. The plea is founded on the basis of testimony of Dr. A. H. Bohra and exhibits ExPw-AH, ExPw-AH 1 to 3. The exhibited documents are discharge slip of said Mohd. Maqbool from PHC Arnas, treatment certificate of the said accused and two medical certificates respectively. On examination of these documents it comes to fore that the said accused was supposedly admitted in PHC Arnas from 1.12.2000 to 04.12.2000 vie MRD No. 376. Dr. A. H. Bhora has proved the contents of these documents. These documents were got proved by defence in cross-examination of Dr. On examination of these documents it comes to fore that the said accused was supposedly admitted in PHC Arnas from 1.12.2000 to 04.12.2000 vie MRD No. 376. Dr. A. H. Bhora has proved the contents of these documents. These documents were got proved by defence in cross-examination of Dr. A. H. Bohra appearing as prosecution witness to prove the Post Mortem Examination Report of deceased and MLC report of injured Mohd. Iqbal. It is well settled that the plea of alibi raised by accused must be proved with certainty excluding his presence at the time when and place where the occurrence is stated to have taken place. The proof adduced must completely rule out physical presence of accused at the venue of crime when the crime was committed. In the instant case the alleged occurrence is dated 03.12.2000. The venue is Village Dhanore. If defence plea of alibi is accepted, the presence of accused Mohd. Maqbool from his village on 03.12.2000 has to be excluded. This plea of alibi appears to have been raised for the first time in the in the year 2007 and not when charges were framed against the said accused on 09.05.2001. The delay of around six years is a considerable delay in raising the plea justifying the inference that the plea is false and based on fabricated documents. In view of overwhelming evidence on record which includes testimonies of injured and the eye- witnesses, the plea raised cannot be countenanced. Apart from these factors, it is apt to refer to testimony of Pw- Kamal Dei who was declared hostile to prosecution on account of her deviation from prosecution version in regard to some particulars. Though she tried to dilute the prosecution version by exculpating accused Mohd. Maqbool, she spoke of his presence at the scene of occurrence. She admitted in her deposition that accused Mohd. Maqbool had a quarrel with the deceased. She claimed that the accused had sustained injures in the quarrel. She further claimed that accused Mohd. Maqbool did not participate in the commission of crime. Her testimony has been relied upon in regard to the complicity of other accused. Despite being hostile to prosecution and attempting to exclude accused Mohd. Maqbool as the author of crime, she admitted his presence at the scene of occurrence. In fact, she claimed that accused Mohd. Maqbool did not participate in the commission of crime. Her testimony has been relied upon in regard to the complicity of other accused. Despite being hostile to prosecution and attempting to exclude accused Mohd. Maqbool as the author of crime, she admitted his presence at the scene of occurrence. In fact, she claimed that accused Mohd. Maqbool was sitting on the roof top of her house and it was the deceased Mohd. Rafiq who went there and assaulted him. She even claimed that her husband had intervened and forced the deceased to leave the place. She claimed that accused Mohd. Maqbool had sustained serious injuries. Pw- Kamal Dei has not been cross-examined by accused on this aspect and her testimony has not been assailed in regard to the same. Testimony of Kamal Dei, though not helpful to prosecution in entirety, does corroborate prosecution evidence in regard to presence of accused Mohd. Maqbool at the venue of crime on 03.12.2000. Prosecution version having been found credible in regard to role ascribed to accused Mohd. Maqbool and testimony of Pw-Kamal Dei lending assurance to eyewitnesses account in regard to presence of accused at the venue of crime on the fateful day, the plea of alibi has to be rejected. Adopting of this plea at the belated stage, i.e., about six years after the occurrence and not at the time of framing of charges further re-inforces the conclusion that the plea is fabricated. It is shocking that accused Mohd. Maqbool was able to manage procurement of medical record which in the view of above said conclusion can be termed as nothing but manipulation, concoction and fabrication. Complicity of Dr. A. H. Bohra in fabrication of record relating to MRD-376 and tendering false evidence at the trial to screen the offender is prima-facie made out. This needs to be probed. Trial Court to take appropriate steps in this regard. The defense plea of alibi raised on behalf of accused Mohd. Maqbool is, accordingly, rejected. 31. On reappraisal of evidence adduced by the prosecution at the trial which has been found to be reliable and trustworthy and in view of rejection of defence plea we are of the considered opinion that complicity of accused in the alleged occurrence and the authorship attributed to them is established beyond any shadow of doubt. Maqbool is, accordingly, rejected. 31. On reappraisal of evidence adduced by the prosecution at the trial which has been found to be reliable and trustworthy and in view of rejection of defence plea we are of the considered opinion that complicity of accused in the alleged occurrence and the authorship attributed to them is established beyond any shadow of doubt. It is proved that accused sharing common intention formed an unlawful assembly and while being armed with deadly weapons assaulted Pw-Mohd Iqbal and committed murder of his brother Mohd. Rafiq. Conclusions drawn by learned Sessions Judge on appreciation of evidence brought on record during the trial are perfectly justified. The impugned judgment does not suffer from any factual fraility or legal infirmity. We accordingly uphold the conviction of all the accused for offences punishable under Sections 302/307/449/148 read with Section 149 of RPC. We further uphold conviction of accused Mohd. Maqbool, Sharief-ul-din and Gayasodin for offence punishable under Section 7/27 of Arms Act. Learned Sessions Judge has, for adequate and convincing reasons, slapped life imprisonment for commission of offence under Section 302 RPC upon the accused. This is apart from the sentence of fine imposed on the accused in addition to life sentence for offence under Section 302 of RPC and various terms of sentences of imprisonment and fine slapped on accused on different counts. We find that the sentences imposed are commensurate with the level of guilt of accused proved at the trial. No alteration is proposed in award of sentence. Accordingly, reference for confirmation of life imprisonment under Section 374 of CrPC. is upheld and the appeal is dismissed. 32. The result be certified to learned Trial Court in accordance with the provisions of Section 425 of rPC.